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SCO Sues Novell This Time
Tuesday, January 20 2004 @ 07:32 PM EST

I knew if I took a day off some big news would break.

As you probably found out before I did, SCO just sued Novell. [Update: The url no longer resolves, because SCO has removed the sco.com/novell page entirely; however you can obtain the complaint as PDF or text from Groklaw] Novell. They don't like it that Novell registered for copyrights on Unix. Certainly, the competing copyright claims should be resolved before SCO can successfully sue anybody else for copyright infringement, because if they sued someone, Novell could stand up and tell the judge in essence: "I am the correct party to settle the issue of who has the copyright. The hapless end user that SCO is suing is in no position to know who has the rightful copyright, so SCO is suing the wrong party. It should settle this issue with me."

I am both appalled and thrilled. Appalled because I can't believe that SCO is interested in opening a new legal front. It's a little like Napoleon invading Russia. At some point, you are overextended. Then it's winter. Then it's over.

I am thrilled because a Novell win would block SCO from suing anyone for copyright infringement, using the DMCA as a club. No one can infringe your copyright if you don't own one. Red Hat is asking the judge to declare that Red Hat is not infringing on SCO's copyright. Novell, in contrast, will presumably be asserting that they own the copyrights so SCO has no copyright to infringe. So the Novell lawsuit is the complete copyright package in a frame, and it will answer the question: does SCO even have a copyright?

Obviously, if Novell prevails, it will impact almost every other case. First, the Red Hat issue would be won, without breaking a sweat. Contract issues that are not copyright-related could continue, so IBM still would have to carry the world on its shoulders in its case, but it has broad shoulders. Of course, a SCO win would have a damaging ripple effect in the opposite direction. I find it hard to believe Novell would have registered for the copyrights if it didn't feel confident of its position.

Here's the press release announcing the grounds SCO alleges for their lawsuit:

"Among the allegations in the suit:
* 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, filed in Utah State court, in Salt Lake City, requests preliminary and permanent injunctive relief as well as damages. The injunction would require Novell to assign to SCO all copyrights that Novell has wrongfully registered, prevent Novell from representing any ownership interest in those copyrights, and require Novell to retract or withdraw all representations it has made regarding its purported ownership of those copyrights.

"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," said Mark Heise, partner, Boies, Schiller and Flexner, LLP. "We encourage the public and commercial Linux users to read the Asset Purchase Agreement from 1995 (including Attachment E found at www.sco.com/novell) and Amendment 2 so they can see for themselves that SCO owns the copyrights to UNIX and UnixWare."

The lawsuit seeks damages in an amount to be proven at trial for Novell's alleged slander of SCO's title to the UNIX and UnixWare copyrights. In addition, the lawsuit seeks punitive damages in an amount to be proven at trial for Novell's malicious and willful conduct.

SCO is asking the judge for both a preliminary and a permanent injunction. And once again they want to have it heard in Utah state court, very much as they tried to arrange with IBM. It turns out Novell is a Delaware corporation with its principal offices in Massachusetts, not Utah, according to SCO's complaint. Whether Novell would like to stay in Utah state court or not is unknown. More here in the Register. You can read the Asset Purchase Agreement as text here. Amendment 2 is here This wasn't the only amendment though. Here is Amendment 1 and here is the Technology License Agreement. Here is the color coded Asset Purchase Agreement with Amendments 1 and 2 merged, so you can see it all together. All the attachments are here.

In other news, Red Hat, which already had a defense fund for programmers, now has one for users as well, the Open Source Now Fund, part of its Open Source Assurance Program:

A key feature of the Open Source Assurance Program is an Intellectual Property Warranty. The warranty ensures, that in the event that an infringement issue is identified in Red Hat Enterprise Linux software code, Red Hat will replace the infringing code. Red Hat's warranty assures customers that they can use Red Hat Enterprise Linux and related solutions without interruption. The warranty is available for all customers having a valid registered subscription to Red Hat Enterprise Linux or related solutions.

"Enterprise platform deployments are key investments that should be protected. Red Hat customers have the security of a trusted partner to guarantee a resolution should there be an issue for continued use," said Bryan Sims, vice president of Business Development at Red Hat. "We have provided this guarantee to many of our large enterprise customers and we are now extending this guarantee to all customers who use Red Hat Enterprise Linux."

And finally, because we all probably need a funny diversion, these folks are asking for entries in the Top 11 Lines of "SCO-owned source code found in Linux". Here are a couple of entries they list, but I am positive we have some among us who can come up with something far more clever:
* -- /** uh, like put code here, dude. */
* -- /** Darl was here! */

Finally, finally, since some are having trouble finding Attachment E, here it is on its own, thanks to Chris Brewer. I have to get some sleep, so here's your homework. Find any source code or binaries helpful to SCO on this list? And what is this a list of? Drivers and manuals? Is it in fact a list of copyrights transferred?:

**************************************

ATTACHMENT E

Selling Copyrights in Product(s) of Business

TITLE OF THIS WORKREGISTRATION NUMBER
SYSTEM V BINARY COMPATIBILITY SPECIFICATIONTX 2 824 732
UNIX(R) SYSTEM V BINARY INTERFACE WE(R) 32000 Processor SupplementTX 2 824 713
SYSTEM V APPLICATION BINARY INTERFACE Intel386(tm) Processor Supplement TXu 498 197
UNIX(R) SYSTEM V/386 RELEASE 4: Mouse Driver Administrator's Guide TXu 455 747
UNIX SYSTEM V/386 RELEASE 4 Network User's and Administrator's GuideTX 2-943-744
UNIX SYSTEM V/386 RELEASE 4 PC-Interface Administrator's GuideTX 2-900-957
UNIX SYSTEM V/386 RELEASE 4 Programmer's Guide: SCSI Driver InterfaceTX 2 902 863
UNIX SYSTEM V APPLICATION BINARY INTERFACE Motorola 88000 Processor SupplementTX 2 902 556
UNIX SYSTEM V/386 RELEASE 4 MULTIBUS(R) Reference ManualTX 2 902 542
UNIX(R) SYSTEM V RELEASE 4: Product Overview and Master IndexTX 2 902 862
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: XWIN(tm) Graphical Windowing System The X ToolkitTX 2 902 861
UNIX(R) SYSTEM V RELEASE 4 Programmer's Guide: XWIN(tm) Graphical Windowing System Xlib-C Language InterfaceTX 2-900-958
UNIX(R) SYSTEM V RELEASE 4 Programmer's Guide: XWIN(tm) Graphical Windowing System Addenda: Technical PapersTX 2-0901-148
UNIX SYSTEM V/386 RELEASE 4 Integrated Software Development GuideTX 2 931 646
UNIX(R) SYSTEM V/386 RELEASE 4: Product Overview and Master IndexTX 2 925 901
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: X11/NeWS(R) Graphical Windowing System NeWSTX 2-946-827
UNIX(R) SYSTEM V RELEASE 4 Programmer's Guide: X11/NeWS(R) Graphical Windowing System tNt Technical Reference ManualTX 2-900-956
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: X11/NeWS(R) Graphical Windowing System Server GuideTX 2 902 864
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: X11/NeWS(R) Graphical Windowing System XVIEW(tm)TX 2 907 137
UNIX(R) SYSTEM SOFTWARE READINGS TXu 300 346
UNIX(R) SYSTEM V RELEASE 4 Programmer's Reference Manual Operating System API for Intel ProcessorsTX 3 218 268
UNIX(R) SYSTEM V RELEASE 4 User's Reference Manual/System Administrator's Reference Manual for Intel Processors Commands m-zTX 3 221 656
UNIX(R) SYSTEM V RELEASE 4 Integrated Software Development Guide for Intel ProcessorsTX 3 221 657
UNIX SYSTEM V RELEASE 4 User's Reference Manual/System Administrator's Reference Manual for Intel Processors Commands a-lTX 3 227 639
UNIX(R) SYSTEM V RELEASE 4 Programmer's Guide: Streams for Intel ProcessorsTX 3 218 286
UNIX(R) SYSTEM V RELEASE 4 Device Driver Interface/Driver Kernel Interface Reference Manual for Intel ProcessorsTX 3 232 578
UNIX(R) SYSTEM V RELEASE 4 Master Index for Motorola ProcessorsTX 221 653
UNIX(R) SYSTEM V RELEASE 4 Device Driver Interface/Driver Kernel Interface Reference Manual for Motorola ProcessorsTX 3 220 500
UNIX(R) SYSTEM V RELEASE 4 User's Reference Manual/System Administrator's Reference Manual for Motorola Processors Commands a-lTX 3 220 331
UNIX(R) SYSTEM V UTILITIES RELEASE NOTESTX 2 123 158
UNIX(R) SYSTEM V STREAMS PROGRAMMERS GUIDETX 2 123 157
UNIX(R) SYSTEM V STREAMS PRIMERTX 2-120-499
UNIX(R) SYSTEM V PROGRAMMER'S GUIDETX 2-120-502
UNIX(R) SYSTEM V/386 RELEASE 4 MULTIBUS(R) Installation and Configuration GuideTX 2 902 541
UNIX(R) SYSTEM V/386 RELEASE 4 Transport Application Interface GuideTX 2 881 542
UNIX(R) SYSTEM V/386 RELEASE 4 Device Interface/Driver Kernel Interfaces (DDI/DKI) Reference ManualTX 2-883-235
UNIX SYSTEM V/386 RELEASE 4 Migration GuideTX 2-890-470
UNIX SYSTEM V/386 RELEASE 4 System Administrator's Reference ManualTX 2 881 543
UNIX SYSTEM V/386 RELEASE 4 PROGRAMMER'S REFERENCE MANUALTX 2-853-760
UNIX SYSTEM V/386 RELEASE 4 User's Reference ManualTX 2-890-471
UNIX SYSTEM V APPLICATIONS BINARY INTERFACE: SPARC(tm) Processor SupplementTX 2 862 662
UNIX SYSTEM V APPLICATION BINARY INTERFACE: Motorola 68000 Processor Family Supplement TX 2 870 036
UNIX(R) SYSTEM V RELEASE 4 User's Reference Manual TX 2 820 791
UNIX(R) SYSTEM V RELEASE 4 USER'S GUIDE TX 2 832 010
UNIX(R) SYSTEM V RELEASE 4 ANSI C TRANSITION GUIDE TX 2 820 798
UNIX SYSTEM V RELEASE 3.2 SYSTEM ADMINISTRATOR'S GUIDE TX 2 832 226
UNIX(R) SYSTEM V RELEASE 4 DEVICE DRIVER INTERFACE/DRIVER KERNEL INTERFACE (DDI/DKI) REFERENCE MANUAL TX 2 820 792
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE POSIC conformance TX 2 820 885
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: Streams TX 2 833 114
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S REFERENCE MANUAL TX 2 832 009
UNIX(R) SYSTEM V RELEASE 4 NETWORK USER'S AND ADMINISTRATOR'S GUIDE TX 2 832 008
UNIX(R) SYSTEM V RELEASE 4 SYSTEM ADMINISTRATOR'S REFERENCE MANUAL TX 2 830 989
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: Ansi C and Programming Support Tools TX 2 820 849
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMERS GUIDE: System and Application Packaging Tools TX 2 825 383
UNIX(R) SYSTEM V RELEASE 4 MIGRATION GUIDE TX 2 820 886
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: Character User Interface (FMLI and EII) TX 2 825 299
UNIX(R) SYSTEM V RELEASE 4 BSD/XENIX(R) COMPATIBILITY GUIDE TX 2-878-051
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: Networking Interfaces TX 2 838 323
SYSTEM V APPLICATION BINARY INTERFACE TX 2 847 232
AT&T UNIX System V/386, Release 3.2 Utilities Release Notes TX 2 454 845
AT&T UNIX SYSTEM V/386 Release 3.2 Streams Primer TX 2 454 847
UNIX SYSTEM V/386 Release 3.2 User's Guide TX 2-488-749
AT&T UNIX SYSTEM V/386: Programmer's Guide, Vol. II TX 2 454 884
UNIX SYSTEM v/386 Release 3.2 Programmer's Reference Manual TX 2 494 658
UNIX SYSTEM V/386 Release 3.2 Streams Programmer's Guide TX 2 497 054
UNIX SYSTEM V/386: Network Programmer's Guide TX 2 366 626
UNIX(R) SYSTEM V/386: Programmer's Reference Manual TX 2 373 759
UNIX(R) SYSTEM V/386: User's Guide, 2nd edition TX 2-363-829
UNIX(R) SYSTEM V/386: User's Reference Manual TX 2 365 627
UNIX(R) SYSTEM V/386: System Administrator's Reference Manual TX 2-371-952
UNIX(R) SYSTEM V/386: Streams Programmer's Guide TX 2-367-657
UNIX(R) SYSTEM V/386: Programmer's Guide TX 2-400-593
UNIX(R) SYSTEM V/386: Streams Primer TX 2 366 645
UNIX(R) SYSTEM V/386: System Administrator's Guide TX 2 378 091
UNIX(R) SYSTEM V/386: Utilities Release Notes TX 2 366 532
UNIX(R) SYSTEM V NETWORK PROGRAMMERS GUIDE TX 2 117 799
UNIX(R) SYSTEM V: User's Guide, 2/E TX 2 052 293
UNIX(R) SYSTEM V RELEASE 3.2: Framed Access Command Environment (FACE) User's Guide TX 2 611 527
UNIX(R) SYSTEM V RELEASE 3.2: Forms and Menu Language Interpreter (FMLI) Programmer's Guide TX 2 605 294
UNIX(R) SYSTEM V RELEASE 3.2: Utilities Release Notes TX 2-611-984
UNIX(R) SYSTEM V RELEASE 3.2: Programmer's Guide, Volume II TX 2 595 940
UNIX(R) SYSTEM V RELEASE 3.2: System Administrator's Reference Manual TX 2-611-860
UNIX(R) SYSTEM RELEASE 3.2: User's Guide TX 2-611-861
UNIX(R) SYSTEM V RELEASE 3.2: Programmer's Guide, Volume I TX 2-611-862
UNIX(R) SYSTEM V BINARY COMPATIBILITY SPECIFICATION: WE(R) 32000 Processor Supplement TX 2 824 711
UNIX(R) SYSTEM V RELEASE 4: Programmer's Guide: OPEN LOOK(tm) Graphical User Interface TM 2-900-966
UNIX(R) SYSTEM V RELEASE 4 OPEN LOOK(tm) GRAPHICAL USER INTERFACE USER'S GUIDE TX 2-901-147
UNIX(R) SYSTEM V RELEASE 3.2: System Administrator's Guide TX 2 611 530
UNIX(R) SYSTEM V RELEASE 3.2: Streams Programmer's Guide TX 2 604 382
UNIX(R) SYSTEM V RELEASE 3.2: Programmer's Reference Manual TX 2 605 292
UNIX SYSTEM V: Documentor's Workbench, Reference Manual TX 2 986 119
UNIX SYSTEM V: Documentor's Workbench, User's Guide TX 2 986 118
UNIX System V/386 Release 3.2 System Administrator's Guide TX 2 454 792
AT&T UNIX System V/386 Release 3.2 Network Programmer's Guide TX 2 454 846
THE UNIX(tm) SYSTEMS USER's GUIDE TX 1 788 418
UNIX(R) SYSTEM RELEASE 3.2: Programmer's Guide, Volume I TX 2-611-862
UNIX SYSTEM V/386: Programmers Guide, Vol. II TX 2 454 884
UNIX(R) SYSTEM V RELEASE 4 User's Reference Manual/System Administrator's Reference Manual for Motorola Processors Commands m-z TX 3 218 267
UNIX(R) SYSTEM V RELEASE 4 System Files and Devices Reference Manual for Motorola Processors TX 3 221 654
UNIX(R) SYSTEM V RELEASE 4 Programmer's Reference Manual: Operating System API for Motorola Processors TX 3 221 655
Operating System Utility Programs TXu 301 868
UNIX(R) Operating System Edition 5 and Instruction Manual TXu 510 028
UNIX(R) Operating System Edition 6 and Instruction Manual TXu 511 236
UNIX(R) Operating System Edition 32V and Instruction Manual TXu 516 704
UNIX(R) Operating System Edition 7 and Instruction Manual TXu 516 705

And here is the press release in full:

*********************************

SCO Files Slander of Title Lawsuit Against Novell

Complaint Requests Injunctive Relief and Damages Against Novell for Copyright Misrepresentations and Alleges Bad Faith Effort by Novell to Interfere With SCO's Intellectual Property Rights to UNIX and UnixWare

LINDON, Utah, Jan. 20 /PRNewswire-FirstCall/ -- The SCO Group, Inc. (Nasdaq: SCOX), the owner of the UNIX(R) operating system and a leading provider of UNIX-based solutions, today filed suit against Novell (Nasdaq: NOVL) for its alleged bad faith effort to interfere with SCO's rights with respect to UNIX and UnixWare(R). Among the allegations in the suit:

* 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, filed in Utah State court, in Salt Lake City, requests preliminary and permanent injunctive relief as well as damages. The injunction would require Novell to assign to SCO all copyrights that Novell has wrongfully registered, prevent Novell from representing any ownership interest in those copyrights, and require Novell to retract or withdraw all representations it has made regarding its purported ownership of those copyrights.

"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," said Mark Heise, partner, Boies, Schiller and Flexner, LLP. "We encourage the public and commercial Linux users to read the Asset Purchase Agreement from 1995 (including Attachment E found at http://www.sco.com/novell) and Amendment 2 so they can see for themselves that SCO owns the copyrights to UNIX and UnixWare."

The lawsuit seeks damages in an amount to be proven at trial for Novell's alleged slander of SCO's title to the UNIX and UnixWare copyrights. In addition, the lawsuit seeks punitive damages in an amount to be proven at trial for Novell's malicious and willful conduct.

Forward-Looking Statements

This press release contains forward-looking statements regarding SCO's lawsuit against Novell. These forward-looking statements relate to SCO's allegations against Novell and the relief sought by SCO. These forward- looking statements are subject to risks and uncertainties including, without limitation, the risk that SCO may not be successful in its claims against Novell and that the pursuit of protections for SCO's copyrights will require the expenditure of resources and may result in further litigation. These forward-looking statements are also subject to the risks and uncertainties set forth in SCO's filings with the Securities and Exchange Commission. About SCO

The SCO Group (Nasdaq: SCOX) helps millions of customers in more than 82 countries to grow their businesses everyday. Headquartered in Lindon, Utah, SCO has a worldwide network of more than 11,000 resellers and 4,000 developers. SCO Global Services provides reliable localized support and services to partners and customers. For more information on SCO products and services, visit http://www.sco.com .

SCO, and the associated SCO logo are trademarks or registered trademarks of The SCO Group, Inc. in the U.S. and other countries. UNIX and UnixWare are registered trademarks of The Open Group.


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