UPDATED: SCO sues Novell for 'alleged bad faith'

Posted on 21 Jan 2004 at 11:00

SCO has sued Novell, not for breach of any non-compete agreement as it has threatened in the past, but 'for its alleged bad faith effort to interfere with SCO's rights with respect to Unix and UnixWare'.

Just as Novell unveils its Linux plumage at LinuxWorld in New York, along comes the tricksy SCO with sole purpose of ruffling those feathers with a suit seeking 'preliminary and permanent injunctive relief as well as damages'.

'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.

However, Jason Schultz, staff attorney at the Electronic Frontier Foundation, thinks such a move will only work in Novell's favour. 'I think Novell knew the suit was coming; it was just a matter of time. They pretty much dared SCO to file it. From a PR viewpoint, it works far more to Novell's advantage, highlighting their Linuxworld debut and solidifying them in the minds of Linux customers as an ally in the war against SCO. One couldn't really dream up a better way to enter the market from a customer satisfaction point of view,' he said.

The sum of the damages being sought is to be proven in court, but SCO is asking that, as soon as possible, Novell '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.'

Gregory Blepp, Vice President SCOsource, told us: 'Novell has acted in bad faith by approaching the copyright office to try to suggest ownership of UNIX. In the US copyright office, you can go in and apply for a copyright for anything - they do not have the authority to recognise immediately if the copyright is valid. If I was to try to file for copyright of the name 'coca-cola' and the office clerk hadn't heard of the brand, I would not be denied application immediately.

'We firmly believe this has been done intentionally by Novell to damage SCO's strategy of outlining our rights for SCO IP.'

Novell has indeed registered copyrights on Unix SVRX releases and on the basis of which offered its SUSE Linux customers an indemnity progam. The company claims that, through these residual Unix rights it can 'license Unix technology pursuant to a Technology License Agreement between SCO and Novell, including Novell's right to authorize its customers to use that Unix technology in their internal business operations' as well as preserve the right to 'correct' any instances of infringement.

SCO asserts that those copyrights were 'improperly filed' and that Novell 'made false and misleading public claims that it, and not SCO, owns' these copyrights. It says that Novell's public statements have been 'false' and 'misleading' and intended 'to cause customers and potential customers to not do business with SCO' as well as having 'caused SCO irreparable harm'.

Blepp said: 'We are taking this line of approach to ensure the movements of our SCO IP rights justification do not become confused. He added that the current action with IBM is of a separate nature and that the two cases could run concurrently. He also added that SCO may still see Novell in court over the 'non-compete' agreement.