Open Source

SCO seeks to buttress case against Big Blue

Meanwhile, a judge temporarily stays the Unix company's legal campaign against AutoZone.

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By Stephen Shankland
Staff Writer, CNET News.com

The SCO Group has added a few snippets of detail to its claims that Linux contains software inappropriately copied from Unix, but a judge has put a limited hold on one of the company's legal attacks.

The details appear in a , filed last week, that's part of the Lindon, Utah-based company's breach-of-contract suit against IBM. The allegation that Linux infringes on Unix copyrights is also at the heart of a separate that a judge on Monday partially stayed.

In the , the auto parts retailer had sought to put the case on hold until after the resolution of SCO's lawsuits against and , and of Linux seller .

Federal Judge Robert C. Jones of U.S. District Court in Nevada granted AutoZone's request to stay the case—with the caveat that SCO will have 60 days for discovery and 30 days for depositions, after which it will have the option of filing a motion for a preliminary injunction, SCO said in a statement.

The AutoZone case could be used as a template for legal attacks against any Linux user, argues SCO, a financially struggling company has sent legal warning letters to hundreds of such organizations. Despite the letters and for intellectual property licenses to avoid litigation, however, the use of Linux continues to grow.

The partial stay of the AutoZone case keeps the primary focus on the suit against IBM, in which Big Blue is accused of moving proprietary Unix technology into Linux against the terms of its contract with SCO. IBM is seeking to dismiss that case through a motion for summary judgment, arguing that SCO hasn't released any evidence of copying.

A summary judgment is judgment without trial; such judgments are made in cases where the facts are not disputed. The judge simply makes a ruling. SCO is arguing against resoluton of the case through summary judgment.

"Part of the reason IBM filed its summary judgment motion was to flush out as much of SCO's theory and evidence as possible," said David Byer, an intellectual property attorney at Testa, Hurwitz & Thibeault. And a few details have apparently been flushed.

Some of the areas mentioned in the newer legal documents are ones that have been discussed before—for example, the Linux and Unix treatment of inter-process communication (IPC) for exchanging information between different operations and read-copy update (RCU) for situations when multiple processes must read or write the same data without stepping on one another's toes.

But other areas are newer, according to the company. One is user level synchronization (ULS), used for coordinating separate instruction sequences; another is the Executable and Linking Format (ELF), the standard that defines the structure of programs that a computer can run; a third is the System V init program that is used when a Linux or Unix computer starts up. System V is a version of Unix that SCO's predecessors licensed to several companies.

IBM declined to comment for this story. However, Linux founder and leader Linus Torvalds dismissed the information as old news about technology from IBM, not from System V Release 4 (SVR4) Unix.

"It's the same RCU etc. stuff, which is all-IBM code and has nothing to do with SVR4 or anything else that SCO purports to own," Torvalds said in an e-mail.

It's telling that SCO wants to extend the discovery process to obtain more information from IBM, Torvalds added: "They pretty much say that they cannot prove any copyright infringement at all without more discovery. This is the company that claimed to have 'millions of lines' of copying...and lots of proof that they'd show in court. Now they admit that they have no proof at all, and that they are trying to delay things and hope to find something in further discovery."

Not all documents in the case are public, however, so it's possible more details could be revealed.

Still, Torvalds said SCO's case remains unfounded. "They won't find anything. They lied from day one," he said.

Illuminata analyst Gordon Haff also remained skeptical. The copying examples SCO provides "aren't presented in the context of a specific copyright claim but, rather, as illustrative of a more generalized copying of Unix into Linux," he said.

"SCO continues to de-emphasize 'literal copying,' while Linux as an illegal derivative work continues to take center stage, with a bit of 'all Unix methods and concepts belong to us' thrown in," Haff said.

SCO indeed has plans to emphasize the copying of general structure more than specific lines of code, Chief Executive Darl McBride said in an interview in March: "The biggest area in the AutoZone case has to do with these nonliteral infringements—code sequence and organization."

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