The ruling upholds a magistrate's decision in the summer that
said that The SCO Group "wilfully failed to comply" with court
demands. The magistrate said that even if SCO proves its case,
damages could be nominal rather than the $5 billion it claims.
SCO owns some intellectual property rights in the Unix operating
system following a series of acquisitions, and earns fees through
licences from the operating system.
SCO claims that IBM used some of its code in a version of the
open source Linux operating system. IBM denies the claims.
SCO compiled a list of 294 allegedly misused materials. It said
that approximately one third of these were cases of misused code
and the remainder were cases of misused methods and
concepts. But IBM argued that SCO had failed to identify the
materials "with the most basic detail".
IBM said it was "left to guess as to SCO's claim[s]" and, in
June of this year, Magistrate Brooke Wells agreed, throwing
out 187 of the items in SCO's list, saying that the company had
provided no evidence to back up its allegations. She said that the
company failed to point the court to the exact parts of Linux which
it claims were taken from its software.
When SCO said that IBM should identify the lines of code, Wells
said that it was like a security guard asking a thief to prove that
he had shoplifted.
In her judgment, Wells wrote that "the court finds that SCO has
had ample opportunity to articulate, identify and substantiate its
claims against SCO. The court further finds that such failure was
intentional and therefore willful based on SCO’s disregard of the
court’s orders and failure to seek clarification. In the view of
the court it is almost like SCO sought to hide its case until the
ninth inning in hopes of gaining an unfair advantage despite being
repeatedly told to put 'all evidence ... on the table.'"
In last week's ruling of the Utah District Court, Judge Dale
Kimball upheld Wells's conclusions in what is a very serious blow
to SCO. "The court finds that SCO failed to comply with the court’s
previous discovery-related Orders, that SCO acted willfully, that
SCO’s conduct has resulted in prejudice to IBM, and that this
result – the inability of SCO to use the evidence at issue to prove
its claims – should come as no surprise to SCO," said Dale's
judgment.
"In addition, the court finds that neither particularized
findings on an item-by-item basis nor an evidentiary hearing is
required to make these determinations. The court, therefore,
affirms and adopts the Magistrate Judge’s June 28, 2006 Order in
its entirety."
Kimball also ruled that SCO must go through another case with
Novell before the remainder of the IBM case is tried. Some of SCO's
copyright claims over Unix result from a 1995 deal with Novell, but
that company claims that it did not sell SCO copyrights to Unix.
Kimball has ruled that that case must be tried before the remaining
issues in the IBM case.
Editor's note, 05/12/2006: This story has been
amended since it first appeared to clarify that it was not the bulk
of claims in SCO's case that were thrown out last week. Instead it
was the bulk of the items on the list of allegedly misused
materials that were effectively thrown out. Apologies for the
inaccuracy, and thanks to Pamela Jones at Groklaw for setting us straight.
