8.10.2007

Novell — not SCO — appears to own Unix

Novell — not SCO — owns Unix.

According to a report on Groklaw, a pro-Linux, anti-SCO Web site, there’s been a major breakthrough in the SCO v. Novell lawsuit. To summarize: Dale Kimball, the judge on the case, has concluded that Novell is the actual owner of the Unix and UnixWare copyrights.

The case is rather complicated, but here’s the deal, filtered through my perception. (The years cited might be slightly off. Consider them to be +/- one year.)

• In 1994, Novell bought the Unix copyright, trademarks and licenses from AT&T. It also bought AT&T's Unix System V, which it renamed and sold as UnixWare.
• In 1995, Novell sold UnixWare — but according to Novell, not Unix itself, or the UnixWare copyright — to The Santa Cruz Operation.
• In 2001, The Santa Cruz Operation decided to get out of the UnixWare business. It sold its UnixWare properties to Caldera International, a Linux distributor, and renamed itself Taratella.
• In 2002, Caldera renamed itself The SCO Group.
• In 2003, the new SCO dropped its support of Linux. It then sued IBM claiming that Big Blue had violated Unix intellectual property licenses, which it says belonged to SCO.
• In 2004, Novell said, hold on, we sold UnixWare, but we didn’t sell Unix, or any of the copyrights. Thus, Novell said, Unix is still Novell property, IBM didn't violate its Unix licenses, and SCO has no basis upon which to sue IBM.

SCO turned around and sued Novell for “slander of title,” insisting that it, not Novell, owned the copyright for Unix, as well as for UnixWare.

Fast forward to August 10, 2007. Apparently, Judge Kimball has decided that Novell was correct. Quoting from the Groklaw posting, which in turn quotes from the judge's ruling:

For the reasons stated above, the court concludes that Novell is the owner of the UNIX and UnixWare copyrights. Therefore, SCO's First Claim for Relief for slander of title and Third Claim for specific performance are dismissed, as are the copyright ownership portinos of SCO's Fifth Claim for Relief for unfair competition and Second Claim for Relief for breach of implied covenant of good faith and fair dealing. The court denies SCO's cross-motion for summary judgment on its own slander of title, breach of contract, and unfair competition claims, and on Novell's slander of title claim. Accordingly, Novell's slander of title claim is still at issue.

The court also concludes that, to the extent that SCO has a copyright to enforce, SCO can simultaneously pursue both a copyright infringement claim and a breach of contract claim based on the non-compete restrictions in the license back of the Licensed Technology under APA and the TLA. The court further concludes that there has not been a change of control that released the non-compete restrictions of the license, and the non-compete restrictions of the license are not void under California law. Accordingly, Novell's motion for summary judgment on SCO's non-compete claim in its Second Claim for breach of contract and Fifth Claim for unfair competition is granted to the extent that SCO's claims require ownership of the UNIX and UnixWare copyrights, and denied in all other regards.


Furthermore, the court concludes, as a matter of law, that the only reasonable interpretation of the term "SVRX License" in the APA is all licenses related to the SVRX products listed in Item VI of Schedule 1.1(a) to the APA. Therefore, Novell is entitled to a declaration of rights under its Fourth Claim for Relief that it was and is entitled, at its sole discretion, to direct SCO to waive its claims against IBM and Sequent, and SCO is obligated to recognize Novell's waiver of SCO's claims against IBM and Sequent. Accordingly, Novell's motion for partial summary judgment on its Fourth Claim for Relief for declaratory judgment is granted, and SCO's cross-motion for summary judgment on Novell's Fourth Claim for Relief is denied.


Now, if you’re confused about all the various claims for relief, and all the other stuff, you’re not alone. I won’t claim to be able to distinguish SCO’s second claim from Novell’s fifth claim. As far as cross-motions are concerned, it's impossible to know where to start. I’ll just refer you to the Groklaw site. There are tons of documents there, including Judge Kimball's new ruling.

But in any case, this ruling appears to be a significant — perhaps fatal — setback for SCO in its many Unix-related lawsuits.

If this ruling holds, then this is good news for the Linux industry. Since 2003, the SCO lawsuit has chilled big-corporate adoption of Linux. Why? If SCO had prevailed in its IBM lawsuit — which claimed that IBM had placed SCO's Unix intellectual property into Linux — then it's possible that big companies might be forced to cease and desist using Linux, or that they might have to pay big $ to SCO to compensate it for their use of SCO's intellectual property. If the lawsuit disappears, so does SCO's fear, uncertainty and doubt.

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Co-founder and editorial director of BZ Media, which publishes SD Times, the leading magazine for the software development industry. Founder of SPTechCon: The SharePoint Technology Conference, AnDevCon: The Android Developer Conference, and Big Data TechCon. Also president and principal analyst of Camden Associates, an IT consulting and analyst firm.