Background
The roots of both disputes date back to February 1985 when IBM
entered into a licence agreement with the then owner of the UNIX
system, AT&T, in order to produce its own AIX operating system.
The agreements required that IBM hold the UNIX software code in
confidence, and prohibited unauthorised distribution or
transfer.
In 1992, AT&T sold UNIX to Novell. Then, in 1995, the Santa
Cruz Operation purchased rights in UNIX from Novell, including
source code, source documentation, software development contracts,
licenses and other intellectual property.
The initial contract specifically excluded copyright from the
sale, while an amendment, dated in October 1996, again specifically
excluded copyrights, with the exception of "the copyrights and
trade marks owned by Novell as of the date of the [contract]
required for Santa Cruz Operations to exercise its rights with
respect to the acquisition of UNIX and Unixware technologies."
The Santa Cruz Operation sold on these rights to Caldera
International, which subsequently changed its name to The SCO
Group.
IBM
In March last year SCO sued IBM, accusing Big Blue of letting
parts of UNIX 'slip' into the Linux operating system in breach of
SCO's rights. SCO originally sued IBM for $1 billion, increased the
claim to $3 billion, and then gained approval for another increase
to $5 billion.
IBM counterclaimed, arguing firstly that SCO is in breach of the
General Public Licence, or GPL, which underpins the distribution of
most open source software, and then accusing SCO of infringing
IBM's own intellectual property rights. Until Thursday, SCO was
seeking to have these infringement claims split off into a separate
action.
In April this year, IBM asked the District Court in Salt Lake
City to declare that it has not infringed any SCO copyright through
its Linux activities – an attempt by Big Blue to short circuit the
most controversial development in the history of open source
software.
Last month IBM followed this up with a motion for summary
judgment – i.e. judgment without trial – arguing that SCO has
produced no evidence of copyright infringement and should therefore
not be allowed to proceed with the claim. The court has not yet
ruled on this issue.
Novell
Meanwhile SCO and Novell have become embroiled in a separate
action, concerning the exact scope of the rights acquired by SCO in
1995.
Initially, SCO claimed to own patents in UNIX; now it talks only
of copyrights and "other" intellectual property rights. But Novell,
a Linux distributor in its own right, still believes that it still
owns important copyrights in the UNIX system, and has publicised
the fact.
In January, SCO filed suit against Novell, alleging that:
- Novell has improperly filed copyright registrations in the
United States Copyright Office for UNIX technology covered by SCO's
copyrights;
- Novell has made false and misleading public claims that it, and
not SCO, owns the UNIX and UnixWare copyrights;
- Novell has made false statements with the intent to cause
customers and potential customers to not do business with SCO;
- Novell has attempted, in bad faith, to block SCO's ability to
enforce its copyrights; and
- Novell's false and misleading representations that it owns the
UNIX and UnixWare copyrights has caused SCO irreparable harm to its
copyrights, its business, and its reputation.
Rulings in both cases were issued last week, with mixed results
for SCO.
Last week's rulings
Judge Dale Kimball of the US District Court in Utah, presiding
in both actions, ruled that the trial for the IBM case could be
pushed back to November 2005, as requested by SCO, but he denied
SCO's request that IBM's counterclaim of patent infringements by
SCO be split off into a separate action.
Judge Kimball then ruled against SCO in the Novell action,
denying the company's request that the case be moved to a state
court – where the legal requirements are less stringent. But
Kimball also denied Novell's request to dismiss the case out of
hand.
More information on the SCO saga, including copies of the latest
SCO and IBM rulings, is available at Groklaw.net
