In-Depth

SCO Targets Novell in Latest Lawsuit

Novell arrives as a Linux leader in a big way

• By Stephen Swoyer
• 01/27/2004

And it was, for the most part: Novell chairman and CEO Jack Messman headlined the LinuxWorld show—he delivered the opening keynote address on Wednesday morning—and Novell made several significant announcements, touting an upcoming version of its GroupWise messaging software for Linux, along with the achievement of a landmark security certification for SuSE’s Enterprise Linux.

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Oh, yes, there was one other thing: Just before the show kicked off, SCO announced that it had filed a “slander of title” lawsuit against Novell in Utah State court in Salt Lake City. This means that SCO is now suing both IBM and Novell.

At issue are Novell’s conflicting claims to the ownership of the Unix System V copyrights, which SCO says have sown the seeds of confusion among potential customers and investors alike.

“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, in a statement.

Elsewhere in its statement, SCO charged that Novell had improperly filed copyright registrations for Unix System V technology that is covered by SCO’s own copyrights. The embattled vendor alleged that Novell has also acted to prevent SCO from enforcing its Unix System V copyrights, and said that Novell “has made false statements with the intent to cause customers and potential customers not to do business with SCO.”

SCO’s lawsuit requests preliminary and permanent injunctive relief as well as damages, which SCO says will be proven at trial. SCO is requesting an injunction that prevents Novell from asserting ownership of copyrights that it claims Novell has “wrongfully registered” and which would require Novell to assign them to SCO. The injunction would also force Novell to retract previous claims that it has made with respect to the ownership of the disputed copyrights.

At a press conference held at LinuxWorld last week, Novell’s Messman downplayed SCO’s lawsuit, dismissing it as evidence that the embattled vendor' war against Linux is breaking down. "This lawsuit illustrates that SCO's campaign against enterprise adoption of Linux is foundering,” he said. “It seems litigation is now becoming SCO's principle mode of business."

For an executive just slapped with an unexpected lawsuit from SCO, Messman was remarkably upbeat. During his keynote address last Wednesday, he proclaimed that "2004 is going to be the year that Linux goes mainstream on the enterprise server.” He also painted a bright future for Linux on the desktop. Elsewhere, Messman and other Novell officials promised to “vigorously” defend themselves from SCO’s lawsuit.

Mr. McBride Goes to Washington

Also last week, it was revealed that enterprise users of Linux weren’t the only folks on SCO’s mailing list: Earlier this month, members of Congress—535 members of both the House of Representatives and the Senate, to be exact—received a letter from SCO CEO Darl McBride that warned of the dangers of Linux and open source software (http://www.osaia.org/letters/sco_hill.pdf).

In the letter, McBride suggests that the GNU General Public License (GPL) “is in direct contradiction to U.S. Copyright law, to the Digital Millennium Copyright Act (DMCA),” and to a recent Supreme Court decision. Elsewhere, McBride argues that the GPL has a “viral effect” that “‘frees’ the software that is proprietary, licensable and a source of income from the companies that developed it.” McBride also repeated SCO’s claim that its Unix System V source code has been misappropriated into Linux.

McBride claims that open source software and the GPL are “a much more serious threat to our capitalist system than U.S. companies realize,” suggesting that open source software could hurt the United States’ nascent economic recovery, reduce tax revenues, and manifest a threat to “our international competitive position.” McBride even goes to bat for Microsoft, in a roundabout way: “Instead of UNIX from any number of U.S. companies or Windows from Microsoft, governments throughout Europe and Asia are using Linux,” he writes. “I find this particularly galling because that Linux software contains thousands of lines of my company’s proprietary UNIX code—for which we receive no revenue.”

McBride also suggests that Linux and open source software are a threat to United States national security, arguing that the easy availability of open source software “has the potential to provide our nation’s enemies or potential enemies with computing capabilities that are restricted by U.S. law.”

In an open letter posted to its Web site, the Open Source and Industry Alliance (OSAIA), an open source advocacy group based in Washington, D.C., contested this claim, noting that “all U.S. software developers are bound by the same export controls that restrict licensing of SCO’s products.”

In sum, the OSAIA argued, “The only way to bind all software by U.S. export controls is to prevent foreign developers from creating software.”