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IBM subpoenas signal shift to darker side of SCO case

IP attorney Tom Carey drills down into IBM's new subpoenas -- issued to HP, Microsoft, BayStar and Sun --and finds that conspiracy theorists may be right about SCO's anti-Linux suits.

The plot keeps twisting in the SCO Group's anti-Linux legal attacks. Now, IBM's new subpoenas are taking the case in a new, darker, and more clandestine direction.

Think of dimly lit parking garages and swirling cigarette smoke as you read this interview with Tom Carey, a partner with the Boston-based intellectual property firm Bromberg & Sunstein.

Carey sees the subpoenas issued this week to HP, Microsoft, BayStar and Sun Microsystems as a sign that Big Blue has finally gotten around to asking the key question: Was SCO acting alone?

What's the real significance behind this week's subpoenas?

Tom Carey: IBM is finally getting around to asking the questions that we curious folks have always wanted to know about. Like where is SCO getting its money? Who are the other players? Is Microsoft a key ally in some way? What exactly do BayStar and SCO have in common?

These are all great questions, but I don't know if ultimately they get to validity of the lawsuit that SCO has brought, but this sure is interesting. It's interesting in that things that people have been speculating about for couple of years are lively to be proven or disproved on the basis of what happens from here on out.

All of the answers to these questions should shed enormous light on the extent to which there are or are not darker strategic considerations. We'll know the extent to which SCO is just pawn in the game, or if SCO is just some virus that has just mutated out of control all on its own.

Read more on SCO and IP here:

IP attorney: Why SCO has no case

IP attorney: SCO's investors are safe, but IT patent offenders aren't

Is it fair to ask why this SCO case is still around?

Carey: In sense that's still a good question because I think by now the marketplace does not care anymore. In a sense SCO has already lost, but they have invested millions of dollars and have basically bet the company on this lawsuit. So, they just can't stop.

Does SCO even have a business model anymore? What do they do these days?

Carey: They purport to have a business model, and they keep issuing press releases, but let's see what have. Revenue? Well, they had $36 million in revenue in the 3rd quarter 2005, but that was down from $79 million in 3rd quarter 2003. They are trending down, but still have revenue. They even have R&D expenses.

Is there a discernable timeline for the next events in this trial?

Carey: It will take a long time to sort this all out. My recollection is that these [subpoenas] relate to depositions that are scheduled for a short time frame, in the next month I believe, but the court will ask the parties to bring with them all documents relating to this. With all of these docs it could easily take months to figure it out. I suspect there will be pushback from Sun, Microsoft and HP, as they all will be trying to limit the scope of what it is IBM gets to look at.

What can IBM hope to achieve with these subpoenas?

Carey: IBM has fought back nicely already and I think what this news today is, is that IBM in particular is potentially looking around to see if there is any kind of illegal conspiracy going on that might cause it to name some other party as defendant.

What can we still learn from this case?

Carey: We will know this: has SCO derived financial support from other independent players for the purpose of trying to drive Linux from marketplace? That's something that really isn't germane to question of whether IBM has infringed the Unix copyrights, but its I think fairly clear to me that IBM will not be found to be infringer. The lager issue here is that it will be interesting to see whether this was a strategic initiative coming from outside of SCO or not. IBM has no other interest in making this more complicated than it is. They could simply be looking for a means to embarrass SCO and make its case weaker.

Do you have an opinion on the SCO trial? Send it to me at Jack Loftus, News Writer

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