Two clocks were available to the panel, and only one of them was ever going to help Xinuos. Under the Copyright Act an infringement claim can be brought within three years of any infringing act, so a defendant that keeps shipping keeps supplying fresh starting points; an ownership claim accrues once, when a diligent plaintiff should have known about it [5]. The Second Circuit put this case in the second bucket by looking at what was actually contested. IBM has never argued about how much it copied, only about whether it was allowed to, so the dispute "does not involve the nature, extent or scope, of copying", and "IBM's taking of the code in 2001 was a one-time event" [6]. The products IBM continues to iterate and release for sale [3] therefore generate no new accrual date.
The arithmetic that follows is not close. From the 2001 taking to the March 2021 complaint is twenty years [1]. On the court's most generous alternative, knowledge in 2011, the window shut in 2014, seven years before Xinuos filed [2].
The odd part is that Xinuos won the characterisation argument. The district court had treated the case as an ownership dispute; the appeals court said both sides had framed it as a fight over IBM's right to use the code, which reflects a licence dispute, and cited a 2007 ruling that a non-exclusive licence conveys no ownership interest [8]. Then it affirmed anyway, because accrual lands in the same place [8]. A correction with no consequence for the loser.
The contract carried a shorter clock than either statute. Section 22.3 of the Joint Development Agreement gave the parties two years from a breach [10], and IBM terminated Project Monterey in 2001 [11], which put that window's close around 2003 [3] - the year Caldera sued in Utah [12].
Almost everything after that concerned who held the claims rather than what was in the code. SCO Group went bankrupt in 2007 [12] and sold its software business to Xinuos in January 2011, carving out rights and causes of action related to IBM [13]. SCO settled with IBM in August 2021 for $14.25m, a figure The Register reads as reflecting years of failing to produce strong evidence [14]. Xinuos told the bankruptcy court the release could be read to cover its own claims and was overruled [15]. Its own suit, filed on 31 March 2021 [16], lost on summary judgment in January 2024 and reached final judgment on 2 April 2025 [17], with Crowell & Moring for Xinuos and Latham & Watkins for IBM [18].
Across twenty-two years from the first Utah filing to that judgment [4], no court ruled on the thing IBM has spent the whole time asserting: that it had the right to reuse the code [4]. Linux runs in billions of devices [21], and the provenance question under one contribution route is now not answered but unanswerable, on a summary order that formally decides nothing beyond this case [2].
