Who is winning the IBM-SCO trial?

One of the great ironies of our time, for me, is to see IBM fighting so hard on what I consider the side of the angels, namely open source. (Google found the image for me in Peru. Like it?)

They're not doing it from the goodness of their hearts, I know. But they are doing it. And when you're in a dogfight, as open source is with The SCO Group, it's nice to have a big dog at your side.

So anyway, back to the court case. Yesterday, Magistrate Judge Brooke Wells ordered IBM to show all versions of its two Unix products, AIX and DYNIX, as part of the case's discovery phase.

This is being spun as a "legal victory" for SCO. Wall Street bid the price of SCO stock up 19 percent. One analysis of the judge's ruling indicates SCO could win based on contract law, not copyright claims.

So who's winning?

While IBM has yet to win a summary judgment, I feel that may be closer than we think. Wells seems to have mentally dismissed SCO's claims under the copyright law, and wants to look at employment contracts. That seems to narrow the issues of the case.

I'm no lawyer, nor do I play one on TV. But when judges know they have something in their hands that could set important precedents, I've found they tend to be very careful, and give every opportunity to the side they expectwill lose. The broader the opportunity they give, the broader their resulting orders tend to be, and the more likely they are to stand up on appeal.

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