The roots of the dispute 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 Santa Cruz Operation sold on these rights to Caldera International which subsequently changed its name to The SCO Group (SCO).
The exact scope of the rights acquired by SCO has now been called into question. Initially, SCO claimed to own patents in UNIX; now it talks only of copyrights and "other" intellectual property rights.
The issue has arisen as a result of another lawsuit filed by SCO in March last year. The $3 billion suit, against IBM, alleged that IBM had given SCO's rights away to Linux.
In May, SCO then warned that Linux is an unauthorized derivative of UNIX and that legal liability for the use of Linux may extend to commercial users. It suspended all of its future sales of the Linux operating system until further notice.
Since then, SCO has registered copyrights in critical UNIX source code (in the US, unlike the UK, there is a system of copyright registration), and in July 2003 it announced that it would begin contacting companies about their use of Linux and offer them the chance to purchase a UnixWare license – or risk facing an infringement suit.
No infringement suits have yet been raised, but in December SCO sent written notices to its existing UNIX licensees – 6,000 in all – requesting confirmation that they are not in breach of their licence agreements, and have not used the UNIX code in Linux.
Earlier this month SCO announced that it was ready to launch a licensing program in Australia and New Zealand, and indicated that a similar scheme for Europe would soon follow.
The Linux community, in the face of huge uncertainty about the veracity of SCO's claims, and with the challenge to the validity of the open source software, has been fighting back.
In August, Linux distributor Hewlett-Packard offered to indemnify its end users against any fall-out from the ongoing dispute between the SCO Group and the Linux community – a move that was followed last week by Novell, and yesterday by leading distributor Red Hat.
A legal defence fund has also been set up by non-profit group Open Source Development Labs, in order to help those Linux users who are sued by SCO in the course of the dispute.
Novell, the prior owner of the UNIX operating system, and a Linux distributor in its own right, recently completed its purchase of rival SUSE, making it the second largest Linux company in the world. Novell believes that it still owns important copyrights in the UNIX system.
SCO has now raised the stakes, and yesterday 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.
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.
The lawsuit seeks an injunction, assignation of all wrongfully registered copyrights, a retraction of all statements made by Novell as to ownership of the copyrights and damages.
Mark Heise, lawyer for SCO said:
"SCO takes this action today given Novell's recent and repeated announcements regarding their claimed ownership of the UNIX and UnixWare copyrights. SCO has received many questions about Novell's actions from potential customers, investors and the press. Although SCO owns the UNIX and UnixWare copyrights, Novell's efforts to claim ownership of these copyrights has forced this action."
Novell has not yet commented on the action.