Years into case, SCO asserts copyright infringement
After three years of accusations, SCO Group has finally begun aiming a legal charge of copyright infringement toward a Linux supplier.
The claim is in an amendment SCO proposes to make to its lawsuit against Novell, whose sales of Linux, SCO argues, violate SCO's purported Unix copyrights. SCO filed its request to add the claim on Dec. 30, nearly two years after it first filed its suit against Novell.
In the proposed claim, the Lindon, Utah-based SCO argues, "SCO is the sole and exclusive owner of the copyrights in Unix...Novell has infringed and continues to infringe SCO's copyrights by copying, reproducing, modifying, sublicensing and/or distributing Linux products containing unauthorized contribution of SCO's copyrighted material. Novell's unauthorized copying in its use and distribution of Suse Linux includes...the appropriation of numerous data structures and algorithms contained in or derived from SCO's copyrighted material."
The case is before U.S. District Judge Dale Kimball in federal district court in Utah, the same venue as SCO's case against IBM that was the company's first legal volley.
In 2004, SCO accused Autozone of violating Unix copyrights, a case that's on hold pending results from IBM's case. But this time the charge would be leveled at a Linux supplier rather than a user, at a company that has direct involvement in the creation of the open-source operating system.
AT&T developed Unix then sold its interest to Novell. In 1995 and 1996, Novell sold at least some of the technology to the Santa Cruz Operation, a company
The proposed claim is no surprise given SCO's high-profile accusations
of copying. In April 2003, Chief Executive Darl McBride told News.com,
"We're finding...cases where there is
But it's a mystery to some why it took so long for the company to raise the copyright infringement charge in court against its primary legal targets.
"It doesn't make sense, unless the strategy was to bring added pressure on Novell to settle," said Brian Ferguson, an intellectual property attorney with McDermott, Will & Emery who has been monitoring the SCO case. "Usually you have your claims well put together before you bring the lawsuit."
Trying to add the new claims won't be easy, he added. "They're going to have a very long row to hoe to prove to the court that they should be able to amend the complaint to add these claims when they could have and should have been brought when they filed the original lawsuit," Ferguson said. "Most courts do not look favorably on this type of action."
In a Dec. 30 filing arguing that it should be permitted to amend its
complaint, SCO said it seeks to make the move partly in response to
The proposed amended complaint also adds two claims that Novell breached its contract, the
Nibbling around the edges
SCO long has claimed that Linux is tainted with Unix intellectual
property SCO claims to own, but in the courts, it has only nibbled
around the edges of the idea.
Its first lawsuit against IBM in March 2003, SCO accused Big Blue of misappropriating trade secrets, but it dropped that claim in an amended suit in February 2004.
That amended suit added a charge of copyright infringement, but it was
limited to IBM's continuing shipment of its AIX version of Unix even
though SCO said it had
SCO's reticence has hurt its case. Kimball slammed SCO for failing to
release evidence to underscore its claims against IBM. In October, SCO
provided a sealed list of
Another issue could more directly affect the Novell case. Magistrate Judge Brooke Wells, who is overseeing the discovery phase of the IBM trial, ruled in December that not all Unix assets were transferred from Novell to the Santa Cruz Operation and, later, to the SCO Group, according to the Groklaw site that monitors the SCO case closely.
The IBM case is scheduled for trial Feb. 27, 2007. The Novell case is scheduled for June 25, 2007.