The complicated dispute dates 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 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.
In a series of lawsuits filed since March 2003, SCO has claimed
intellectual property rights to parts of UNIX and Linux.
At first, it focused on suing IBM, saying it let parts of UNIX
‘slip’ into the Linux operating system in breach of SCO’s rights.
Then SCO looked to end users, suing both AutoZone and
DaimlerChrysler for damages and an injunction against their use of
what SCO said was its source code.
It then became embroiled in a separate action against Novell,
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
believes that it still owns important copyrights in the UNIX
system, and has publicised the fact.
In January 2004, SCO filed a slander suit against Novell – a
suit that Novell has twice failed to have dismissed – seeking to
silence Novell’s copyright claims.
The copyright issue is crucial to SCO. If it loses against
Novell then it loses the bulk of its case against IBM, AutoZone and
DaimlerChrysler. But Novell has now filed a counterclaim, including
a request for a preliminary injunction.
The counterclaim
In the counterclaim, Novell reveals that “by and during early
2003, SCO repeatedly asked Novell to transfer the UNIX Copyrights
to SCO. In doing so, SCO conceded that title to the UNIX Copyrights
remains exclusively with Novell. Novell rejected all of SCO's
requests."
According to Novell, SCO is itself guilty of slander in claiming
that it, rather than Novell, owns the UNIX copyrights. Novell wants
damages and an injunction against SCO.
The software firm then accuses SCO of two breaches of
contract.
According to the filing, SCO could not afford to buy Novell's
assets and rights, so they agreed that Novell would receive shares
in the company and retain certain rights as protection, including
the right to receive royalty payments and control over certain UNIX
licences granted by SCO.
Novell says SCO has refused to provide information about its
licensing arrangements with companies that include Microsoft and
Sun Microsystems, and has failed to make payments.
Novell asks that SCO be required to comply with the terms of the
contract and, because SCO is “quickly dissipating its assets”, that
a trust fund be set up to hold the monies that might be due to
Novell if its claims are upheld.
