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SCO Goes Global but Novell May Block The Way
Wednesday, January 14 2004 @ 02:20 PM EST

SCO's Chris Sontag announced today that folks around the world can soon purchase a SCO intellectual property license for Linux. The license is going to be offered outside the US. That's a little like hearing that Mad Cow Disease has arrived in your country.

According to ZDNet's report, anyone anywhere can now get a run-time license from SCO that "permits the use of SCO’s intellectual property, in binary form only, as contained in Linux distributions":

Companies outside the United States that use Linux now face the threat of legal action from the SCO Group, following the announcement Wednesday that SCO's licenses are available worldwide.

The first lawsuits are now only weeks away, according to Sontag. "I would expect within the next few weeks we will have a number of Linux end users who we will have identified and taken legal action (against)," Sontag told ZDNet UK. "We will probably see that ramping up over time."

"The lawsuits will be brought in various locations around the world," Sontag said. "We are going to start vigorously enforcing IP rights."
Isn't SCO ever going to figure out how the GPL works?

The article says it's possible that "the first round of lawsuits could include U.K. companies, but it was likely to focus on companies maintaining large Linux deployments with whom SCOsource has already had 'unsuccessful' discussions. These are likely to be high-profile companies, according to sources."

Presumably you know who you are. I'm guessing Germany is SCO-threat-free.

UPDATE: I don't have to guess. IDG's Robert McMillan has a great article on this new global push, and SCOfolk told him they won't offer it in Germany. They aren't allowed to even talk about it there. No, SCO is thinking of Japan, South Korea, Taiwan and China by February 1.

China? $699 for an IP license in China. A country hardly world-renowned for respecting copyrights US-style? Have they gone mad? McMillan also reports that SCO will now be going after small to medium size companies, not just large companies. You can't help but get the feeling that they are desperately seeking someone, anyone, to please buy a license.

McMillan also spoke with Stowell and reports that he told him they "finally provided Big Blue with a list of files and individual code samples that, it claims, violate its intellectual property rights" and that the documents they didn't provide on time on the 12th will be provided by the January 23rd hearing date. Promises, promises. One other piece:

Monday's response included no examples of copyright violations, Stowell said. "We've not introduced copyright infringement as part of our case with IBM. We've tried to make it clear that it's a contract issue." . . .

In a declaration that accompanied SCO's response, the company's general counsel, Ryan Tibbitts, claimed that Linux's read copy update, journaling file system, enterprise volume management system, AIO (Asynchronous I/O), and "scatter gather" I/O code had been derived from either AIX or Dynix/ptx and therefore were improperly contributed to Linux.

"Tuesday's response makes it clear that, despite SCO's talk about line-for-line Unix copying in Linux, copyright will not play a role in the IBM lawsuit," said Bill Claybrook, an analyst with Harvard, Massachusetts, industry research company Harvard Research Group Inc. "It tells me, for one thing, that they're not trying to say that IBM copied code directly from System V to Linux," he said.
Not any more, he must mean. But I'm not so sure Stowell got it right. As I recall, IBM specifically asked for all code in Linux over which SCO claims any rights, whether or not the code was from IBM, in Interrogatory 12. That must include any code in Linux that SCO claims is infringing their copyrights, by definition, no? Where are the ABI files (errno.h etc.)? If they are not listed, SCO would seem to have admitted Linux doesn't infringe on their copyrights with those files. Alternatively, SCO has failed to answer the question. Maybe SCO would like to pretend it never said it. Or maybe Stowell got it a little bit wrong. I guess we'll find out in time.

The failure to file a copyright claim against IBM couldn't have something to do with the Novell letters and all those copyright registrations, could it? After all, on December 5th, SCO's attorney told the judge they would be adding a copyright infringement claim against IBM within a week:

"And by the way, Your Honor, I will proffer to the Court that we are filing a second amended complaint that has copyright infringement claims, and will be filed within the coming few days or no less than a week. And we'll put then fully in front of the Court the three buckets we have outlined here, contract, trade secrets and copyright."
McBride, Kevin that is, talked for days (well, it felt like days) about copyright in that hearing and even said the case was at the exciting point in new law where copyright and contract law meet. So what happened? Now, more than a month after the hearing, there is no copyright claim against IBM?

I'm guessing it's Novell. Groklaw broke the story about Novell registering copyrights for Unix on December 22, but at the 4th quarter earnings teleconference, McBride said they found out "over the last couple of weeks that Novell snuck into the Copyright Office and tried to file some copyrights. . ." So the timing seems right. Then, later that day, Linus recognized header files among those SCO claimed copyright ownership of as his own work product. But behind the scenes, Novell has been steadily corresponding with SCO. Who knew what a large role Novell was playing? Now Novell has released that correspondence, and it makes clear that they not only claim the relevant copyrights, they claim and have exercised contractual authority to waive all IBM's alleged violations. Could that be why SCO is scouring the globe, apparently looking for somebody new to sue?

I don't actually understand how SCO can sue anyone anywhere, including IBM, without getting past Novell first. Novell, according to one letter now made public dated October 10, waived "any purported right SCO may claim to require IBM to treat IBM Code, that is code developed by IBM, or licensed by IBM from a third party, which IBM incorporated in AIX but which itself does not contain proprietary UNIX code supplied by AT&T under the license agreements between AT&T and IBM, itself as subject to the confidentiality obligations or use restrictions of the Agreements."

Novell stands on its interpretation of the 1995 Asset Purchase Agreement, the Technology License Agreement, and Amendment 2, to the APA. On that basis, Novell in its June 9, 2003 letter said SCO had no right to unilaterally terminate IBM's SVRX Licenses and it waived SCO's "termination" of IBM's license. On October 10, Novell waived all SCO's purported rights to terminate SGI's license as well.

For another example of what a huge role Novell turns out now to be playing, Novell on October 7 reminded SCO in a letter about the "Technology License Agreement", which it says gives Novell the right not only to use the "licensed technology" itself, but also to "authorize its customers to use, reproduce and modify" it and to sublicense and distribute it "in source and binary form". This is part of the foundation on which Novell feels it can offer indemnification. They claim rights both contractually and under copyright law.

This, it now turns out, is a study in contrasts. We have SCO issuing constant statements and press releases (without telling the whole story, though, we now find out from Novell) and we have buttoned-lipped Novell, quietly taking care of business. Linux owes a great deal to Novell's willingness to go to bat for it. As Novell told SCO in its first letter to them, Novell is "an ardent supporter of Linux" and it shows. I, for one, will not forget it.


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