Analysts puzzled over SCO, IBM subpoenas

Industry analysts were left scratching their heads this week as they tried to understand the reasoning behind ten subpoenas sent out by IBM Corp. and The SCO Group Inc. recently as part of their ongoing legal dispute. The subpoenas were sent to a variety of individuals and companies including Linux creator Linus Torvalds, SCO investor BayStar Capital, and Novell Inc.

IBM’s subpoenas were sent out Oct. 30 to investment companies BayStar Capital, Renaissance Ventures LLC, and Deutsche Bank AG. IBM also subpoenaed industry analyst company Yankee Group, whose Senior Analyst Laura DiDio had earlier examined the Unix System V source code that SCO claims was illegally copied into Linux.

Also in recent weeks, SCO has sent out subpoenas to Linus Torvalds, Open Source Development Labs Inc. Chief Executive Officer Stuart Cohen, Transmeta Corp. vice-president, general counsel and secretary John Horsley and GNU founder Richard Stallman, as well as Novell and Digeo Inc.

But analysts and observers said it’s unclear how those subpoenaed could advance the two claims that form the crux of the SCO-IBM lawsuit, in which SCO alleges that IBM sought to destroy the market for Unix on Intel by inappropriately contributing code to Linux.

“Linus (Torvalds) is the only one who seems worth subpoenaing,” said Bill Claybrook, a research director with Aberdeen Group Inc. who has also examined SCO’s source code. “The rest of them don’t have any information that would lead a judge to determine whether code had been copied.”

“The list that I read seemed nonsensical to me,” said IDC analyst Dan Kusnetzky, speaking of SCO’s list of subpoena targets. “The SCO Group has been playing this as a media event,” he said.

If SCO or IBM wanted to determine whether or not code had been copied, they would do better to subpoena Linux kernel developers who would be in a position to comment on contributions to the Linux source, Claybrook said. “If I were a judge and IBM and SCO came to me with that list of people, I’d probably throw the whole thing out, because this whole list is nonsense,” he said.

IBM had no comment on the motivation behind its subpoenas, offering only a prepared statement, which read, “It is time for SCO to produce something meaningful. They have been dragging their feet and it is not clear there is any incentive for SCO to try this in court.”

SCO spokesperson Blake Stowell suggested that IBM’s subpoenas were served to intimidate analysts from speaking in favour of SCO. BayStar Capital was targeted because the company recently invested US$50 million in SCO, and DiDio was targeted for public comments that “leaned more toward SCO,” Stowell suggested.

Stowell denied that SCO’s subpoenas were issued in response to IBM’s, saying all the subpoenas were served at the same time. They were issued to people who had dealings with Torvalds and who would be in a position to comment on the creation of Linux, he said.

Open Source Initiative President Eric Raymond disagreed. SCO’s subpoenas were issued to distract the court and reduce the possibility that SCO’s case will be thrown out of court during a scheduled Dec. 5 hearing on an IBM motion asking the court to compel SCO to present evidence, he said.

“They’re just stirring up mud,” Raymond said. “They’ve got a hearing coming up…on December 5 on IBM’s discovery request and there’s a substantial possibility that the judge might quash this case because SCO has failed to respond to IBM’s discovery request,” he said.

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