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Summary of SCO v IBM

Where are we now? What has happened to date? And what happens next? Here is a simple summary of major events in the SCO v. IBM case as of October 7, 2005. The easiest way to follow along in general is to look at the IBM Timeline page. All pending issues on the IBM Timeline page are in red text, so you can quickly see what is still to be decided.

First, SCO sued IBM.

  • Original complaint.
  • Amended complaint.
  • And Second Amended Complaint, the current one.
  • SCO filed a Motion for Leave to File a Third Amended Complaint Pursuant to Federal Rules of Civil Procedure 15(a) and 16(b). SCO required the court's permission to file this 3rd Amended Complaint. The motion was denied July 1, 2005.

Second, IBM answered and filed its Counterclaims. Counterclaims are the same as bringing your own complaint, but it's the way you do it when you have already been sued by the party you wish to sue yourself. SCO's Complaint kept changing, so IBM's answers and counterclaims did also. The most recent version is the one that matters.

Third, SCO answered IBM's allegations in its Counterclaims.

Fourth, the motions. Here are SCO's major motions.

IBM brought motions too.

Discovery Issues

For all discovery orders from 2003 to March 15, 2005, go here to find a chronological list. There are also discovery issues that have been argued before the court, which Judge Wells has partially ruled on and partially taken under advisement. Judge Wells' Order of January 18, 2005 granted in part and denied in part SCO's discovery requests. Both sides have filed their privilege logs, which is a list of documents each side believes should be kept immune from discovery. Here's SCO's Renewed Motion to Compel Discovery. SCO filed a "Renewed" Motion to Compel Discovery, which was denied in an order from the bench October 7, 2005. SCO's Motion asking for 25 more depositions was ruled on at the same time, and both parties will be allowed 10 more depositions.

Media Requests to Intervene and Unseal

And some media entities have asked to intervene and unseal the sealed court filings, which SCO partially opposed and IBM opposed. The media answer is here.

The court denied the motions.

What's It All About?

1. SCO's Allegations and What It Wants

SCO's allegations have shifted as the case has progressed. Its trade secrets claim, for example, the dominant claim in its original complaint, has been dropped. It is currently asking the court to let it amend its complaint again, apparently to include allegations regarding the use of UNIX code for IBM's POWER platform. That may mean some of the current complaint's allegations might end up dropped as well, but we can't know because their Motion is sealed.

However, to date this is what they are alleging in their current complaint against IBM. SCO lists 9 causes of action:

  • Breach of IBM Software Agreement
  • Breach of IBM Sublicensing Agreement
  • Breach of Sequent Software Agreement
  • Breach of Sequent Sublicensing Agreement
  • Copyright Infringement
  • Unfair Competition
  • Interference with Contract, regarding its customers around the world
  • Interference with Contract, regarding the Novell/copyright issue, alleging IBM induced Novell to breach the Asset Purchase Agreement between SCO and Novell
  • Interference with Business Relationships.

Relief it is asking for include:

  • money damages
  • a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contributions of the protected Software Products into open source
  • restitution in an amount measured by the benefits conferred upon IBM by its ongoing improper use of the Software Products, including the full amount IBM receives as a result of its ongoing sales of AIX, including software, services and hardware
  • a permanent injunction to prohibit IBM from further contributions of the protected Software Products into open source
  • punitive damages
  • attorneys' fees and costs.

2. IBM's Allegations and What It Wants

IBM's most recent Second Amended Counterclaim has 14 Counterclaims:

  • Breach of Contract
  • Lanham Act Violation
  • Unfair Competition
  • Intentional Interference with Prospective Economic Relations
  • Unfair and Deceptive Trade Practices
  • Breach of the GNU General Public License
  • Promissory Estoppel
  • Copyright Infringement
  • Declaratory Judgment of Noninfringement of Copyrights ("that IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through the reproduction, improvement, and distribution of AIX and Dynix, and that some or all of SCO' s purported copyrights in UNIX are invalid and unenforceable")
  • Declaratory Judgment of Noninfringement of Copyrights ("that IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO' s purported copyrights in UNIX are invalid and unenforceable")
  • Patent Infringement (11th, 12th, 13th CCs) - IBM agreed to drop the three patent infringement counterclaims, in October, 2005, in its Memorandum in Opposition to SCO's Motion for Leave to Take Additional Depositions, to make sure the discovery schedule was not again delayed.
  • Declaratory Judgment ("with respect to SCO's and IBM's rights, including among other things a declaration that SCO has violated IBM's rights as outlined above by breaching its contractual obligations to IBM, violating the Lanham Act, engaging in unfair competition, interfering with IBM's prospective economic relations, engaging in unfair and deceptive trade practices, breaching the GPL, infringing IBM copyrights and infringing IBM patents, and is estopped as outlined above.... that (1) SCO has no right to assert, and is estopped from asserting, proprietary rights over programs that SCO distributed under the GPL except as permitted by the GPL; (2) SCO is not entitled to impose restrictions on the copying, modifying or distributing of programs distributed by it under the GPL except as set out in the GPL; and (3) any product into which SCO has incorporated code licensed pursuant to the GPL is subject to the GPL and SCO may not assert rights with respect to that code except as provided by the GPL.")

And here is the relief IBM is asking the court to award it:

  • Damages (including treble damages), compensatory and punitive damages
  • a declaration "that IBM does not, through its reproduction, improvement, and distribution of AIX and Dynix, infringe, induce the infringement of, or contribute to the infringement of any valid and enforceable copyright owned by SCO
  • a declaration that IBM does not, through its Linux activities, including its use, reproduction and improvement of Linux, infringe, induce the infringement of, or contribute to the infringement of any valid and enforceable copyright owned by SCO
  • a declaration that SCO has violated IBM's rights by breaching its contractual obligations to IBM, violating the Lanham Act, engaging in unfair competition, interfering with IBM's prospective economic relations, engaging in unfair and deceptive trade practices, breaching the GPL, infringing IBM copyrights and infringing IBM patents
  • a declaration SCO has no right to assert, and is estopped from asserting, proprietary rights over programs that SCO distributed under the GPL except as permitted by the GPL; and is not entitled to impose restrictions on the copying, modifying or distributing of programs distributed by it under the GPL except as set out in the GPL
  • a declaration that any product into which SCO has incorporated code licensed pursuant to the GPL is subject to the GPL and SCO may not assert rights with respect to that code except as provided by the GPL
  • injunctive relief, basically asking the court to make SCO stop making disparaging public statements about IBM, and from "engaging in further acts of unfair competition", from claiming certain ownership rights over programs made available under the GPL, from engaging in "unfair and deceptive trade practices", from further infringement of IBM's copyrights and patents
  • costs, expenses and reasonable attorneys' fees
  • pre- and post-judgment interest "on the damages caused to IBM as a result of all wrongful acts alleged herein."

3. SCO's Bankruptcy Stays the Case

On September 14, 2007, SCO (SCO Group and SCO Operations, the two cases then joined together) filed for Chapter 11 bankruptcy protection in Delaware. Groklaw's SCO Bankruptcy Timeline page is where you can find all the documents, including IBM's. The SCO v. IBM case was administratively closed on September 20, 2007. It can be revived once the bankruptcy stay is lifted. The only other activity since has been in bankruptcy court, where SCO on June 5, 2009 objected to IBM's claim and asked the court to disallow it, and in connection with that effort is asked the Utah court shortly thereafter to modify the protective order so SCO can include documents from discovery in the IBM matter in Delaware.

© Copyright 2005-2010 Pamela Jones


Last Updated Friday, January 01 2010 @ 06:24 AM EST


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