OSDL releases paper on SCO/Novell lawsuit

Another company is raising doubts about the SCO Group Inc.’s exclusive copyright ownership of Unix.

A paper released by the Open Source Development Lab (OSDL) this week contends the company raising questions about the ownership of Unix is none other than SCO itself.

Written by Professor Eben Moglen from the Columbia University Law School in New York, the paper, Now they own it, now they don’t: SCO sues Novell to stay afloat, states that SCO’s lawsuit against Novell Inc. calls into question SCO’s assertions that it has exclusive rights to Unix. Moglen has acted as legal counsel for the OSDL since 1993.

First, Moglen contends that SCO, based in Lindon, Utah, cannot sue over intellectual property (IP) it does not own. Novell asserts that it retained an independent right to license Unix — to IBM Corp. and Silicon Graphics Inc. (SGI) among others — as part of the agreement signed when it sold Unix to SCO in the mid 1990s.

“This history is that Unix went from AT&T [Corp.] to Caldera to Novell and then to SCO. And what Moglen is pointing out is that the court case is arguing about what exactly was in the sale from Novell to SCO,” said Warren Shiau, software analyst at IDC Canada Ltd. in Toronto. “So SCO is claiming that it was all-encompassing — that Novell gave up all rights whatsoever to Unix, but Novell is claiming that it retained certain rights.”

Novell has since renewed Unix contracts with both Big Blue and SGI, suggesting that each could still distribute and produce their own version of the Unix operating system as per the terms of those contracts. However, SCO is claiming that it, not Novell, has the sole right to dole out Unix contracts. In June 2003, SCO revoked IBM’s Unix license saying the company no longer has the right to distribute Unix. IBM has not complied with this order.

Novell sent letters to SCO on Feb. 6 and Feb. 11 instructing SCO to stop claiming rights over Sequent Inc.’s Unix code, which now belongs to IBM since Big Blue acquired Sequent in 1999.

If Novell wins this case, Moglen wrote, this will “completely overturn SCO’s licensing program,” especially since Novell has purchased SuSE AG, one of the world’s top Linux distributors.

“If Novell indeed holds residual rights for itself in what SCO claims are exclusive rights, Novell can distribute Linux through SuSE without any theoretical liability to claims from SCO,” Moglen wrote. “And because the Linux program is distributed under GPL (General Public License), anyone who got code from Novell/SuSE has the right to distribute it to anyone else, under GPL, without limitation.”

SCO is embroiled in a US$5 billion lawsuit with IBM claiming that IBM illegally contributed the Unix System V code to the Linux project.

If Novell does have rights to Unix, and the right to license the operating system to IBM, SCO would have no case against Big Blue because the alleged copyright infringements would be between IBM and Novell, not IBM and SCO.

Even now, SCO is trying to sell SCO IP licenses, which the company said would protect Linux users from being slapped with a copyright infringement lawsuit if SCO were to win its case against IBM. But by suing Novell, SCO has cast doubt over who owns the relevant copyrights, the paper explained, making it doubtful that a judge would blame a user.

However, even if SCO is found to have complete ownership of Unix, Moglen contends that: “No judge would hold that it is intentional infringement to refrain from taking a license while the plaintiff itself is scrambling to show it owns what it is trying to sell.”

In addition both Moglen and Shiau pointed out that SCO is also in a tricky spot because it was once a distributor of Unix itself. SCO was a member of the United Linux Consortium and distributed Linux from its own Web site until less than a year ago, Shiau said.

Consequently, Moglen wrote that users of Linux “therefore have an auditable license from SCO to use, copy, modify and redistribute the code about which SCO continues to threaten legal action.”

Both Moglen and Shiau contend this is a very strong defence for users to employ in case SCO does win its lawsuits. Shiau said SCO would be hard pressed to prove to a judge that it wasn’t aware of any copyrighted Unix IP in the Linux kernel, when SCO was a distributor of Linux.

However, Linux users aren’t too worried about the SCO lawsuit. The OSDL said Moglen’s paper would give the Linux community added peace of mind in the choices they make around the open source operating system. But Shiau said by and large, users IDC Canada has spoken with have few concerns about deploying Linux, especially since the major vendors like Red Hat Inc., Novell, and Hewlett-Packard Co. have offered indemnification for their Linux users.

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