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|The Copyright Claim, Such As It Is
Friday, February 06 2004 @ 05:44 PM EST
Here is the copyright claim, with more of the complaint to follow. Note that the $5 billion claim rests in part on "willfulness" because IBM knew that SCO owns the copyrights and yet it continued to distribute AIX after SCO "terminated" their license.
This willfulness might be a tad hard to prove when Novell claims *they* own the copyrights, not SCO. Novell also wrote to SCO and said they had the contractual right to block any termination of AIX distribution, so although SCO is telling reporters that they have upped their demand to $5 billion, they neglect to mention that while you can ask for whatever you like, you can only get what you can prove you are entitled to, and willfulness seems very, very hard, nigh impossible, to prove in such a fact pattern as this. But hey, what do I know? Ask your lawyer. Naturally, the media is breathlessly reporting the $5 billion as if it were a real figure. They certainly make themselves look silly to anyone who understands this story.
Here is the section from the new SCO complaint regarding copyright infringement, which you will notice dates only from SCO's "termination" of IBM's license to distribute AIX, so if that "termination" wasn't valid, poof goes the claim presumably:
FIFTH CAUSE OF ACTION
173. Plaintiff incorporates and re-alleges paragraphs No. 1-172, above.
174. As set forth above, SCO is the successor in interest to the IBM Related Agreements and the Sequent Agreements.
175. Despite termination of such Agreements, IBM has continued to reproduce, prepare derivative works of, and distribute UNIX software, source code, object code, programming tools, and documentation related to UNIX operating system technology, and has induced others to do the same.
176. SCO is the owner of copyright rights to UNIX software, source code, object code, programming tools, documentation related to UNIX operating system technology, and derivative works thereof. These materials are covered by numerous copyright registrations issued by the United States Copyright Office (the "Copyrighted Programs"). These registrations have been obtained by SCO and its predecessors in interest and are owned by SCO. For example, included among such registrations (attached as Exhibits H to U) are the following:
Title Registration Number Registration Date
H - UNIX Operating System Edition TXU-510-028 March 25, 1992
5 and Instruction Manual
I - UNIX Operating System Edition TXu-511-236 April 7, 1992
6 and Instruction Manual
J - UNIX Operating System Edition TXu-516-704 May 15, 1992
32V and Instruction Manual
K - UNIX Operating System Edition TXu-516-705 May 15, 1992
7 and Instruction Manual
L - Operating System Utility Program TXu-301-868 November 25, 1987
M - UNIXWARE 7.1.3 TX 5-787-679 June 11, 2003
N - UNIX System V Release 3.0 TX 5-750-270 July 7, 2003
O - UNIX System V Release 3.1 TX 5-750-269 July 7, 2003
P - UNIX System V Release 3.2 TX 5-750-271 July 7, 2003
Q - UNIX System V Release 4.0 TX 5-776-217 July 16, 2003
R - UNIX System V Release 4.1ES TX 5-705-356 June 30, 2003
S - UNIX System V Release 4.2 TX 5-762-235 July 3, 2003
T - UNIX System V Release 4.1 TX 5-762-234 July 3, 2003
U - UNIX System V Release 3.2 TX 5-750-268 July 9, 2003
177. SCO and its predecessors in interest created the Copyrighted Programs as original works of authorship, and, as such, the Copyrighted Programs constitute copyrightable subject matter under the copyright laws of the United States. The Copyrighted Programs were automatically subject to copyright protection under 17 U.S.C. Section 102(a) when such programs were fixed in a tangible medium of expression. Copyright protection under 17 U.S.C. Section 106 extends to derivative works which are defined in 17 U.S.C. Section 101 to include works based on the original work or any other form in which the original work may be recast, transformed, modified or adapted.
178. Pursuant to U.S.C. Section 410(c), the certificates of copyright registrations for each Copyrighted Program constitute prima facie evidence of the validity of the copyrights and of the facts stated in the certificates. SCO and its predecessors' registered copyrights in the Copyrighted Programs are entitled to such statutory presumptions.
179. IBM's breaches of the IBM Related Agreements and the Sequent Agreements and its post-termination actions have infringed, have induced infringement of, and have contributed to the infringement of, copyright registrations of SCO and its predecessors. Such actions have been willful and have been done with knowledge of the copyright rights of SCO.
180. SCO has been damaged by IBM's conduct and has no adequate remedy at law. IBM's conduct has caused, and, if not enjoined, will continue to cause, irreparable harm to SCO. As a result of IBM's wrongful conduct, SCO is entitled to injunctive relief pursuant to 17 U.S.C. Section 502 and SCO's actual damages and IBM's profits as a result of the infringing acts pursuant to 17 U.S.C. Section 504(a), statutory damages to the extent applicable pursuant to 17 U.S.C. Section 504(b) and enhanced damages, together with attorneys' fees and costs pursuant to 17 U.S.C. Section 505.