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Novell Files Counterclaim Against SCO

Novell has struck back against SCO with a countersuit of "slander of title" over ownership of Unix operating system copyrights. Novell's suit widens the conflict by also potentially involving Sun Microsystems and Microsoft, as well.

The suit was filed on Friday in a U.S. district court in Utah as an answer and counterclaim to SCO's own slander of title complaint against Novell, which dates back to 2004. Novell has tried unsuccessfully since 1994 to have the claim dismissed.

Novell admits that it entered into an asset purchase agreement for some Unix assets with SCO's predecessor, the Santa Cruz Operation, on Sept. 19, 1995, but not for copyright and patents. Copyright over Unix is at the heart of the dispute with SCO claiming they were part of the sale, and Novell claiming that they were not. In Novell's counterclaim, Novell argues that as the result of its actions, SCO has broken the terms of the 1995 contract.

Novell's legal filing as posted on the Groklaw Web site also includes a description of how, in late 2002, SCO requested that Novell assist SCO in a "licensing scheme."

The "scheme" (which is what the SCOSource program currently is) involved SCO asserting its alleged rights to Unix and extracting a licensing free from Linux users in order to allow for the use of the purported Unix intellectual property that is in Linux. Novell states that it rejected SCO's request to participate in the "scheme."

SCO also allegedly requested copies from Novell of documents concerning the rights to UNIX.

"In aid of its scheme, SCO requested that Novell transfer its Unix copyrights to SCO and thereby acknowledged that it did not own the Unix copyrights," Novell's filing states. "SCO contacted Novell on multiple occasions by and during early 2003. For example, SCO's CEO, Darl McBride, repeatedly contacted Novell and asked Novell to amend the Novell-Santa Cruz agreement to give SCO the Unix copyrights. Novell rejected all of these requests."

Among the SCOSource licenses reportedly sold by SCO were one to Sun and one to Microsoft. Novell claims in its legal filing that it has been requesting information from SCO about the terms of those licenses since 2003, and that SCO has not complied with the requests. Novell also claims that under the terms of the 1995 agreement, it was entitled to that information.

"Despite Novell's repeated requests, SCO has never provided copies of the Sun and Microsoft licenses, or amendments, or copies of SCO's Intellectual Property Licenses for Linux or other agreements connected with attempts by SCO to enter into new or amended SVRX licenses," Novell's filing states.

"SCO also never provided any explanation why SCO was not obligated under the APA [asset purchase agreement] to seek Novell's consent to amend or otherwise enter into new SVRX agreements. As a result, Novell has been unable to verify SCO's compliance with the APA, as Novell is entitled under the APA."

Ownership of the Unix copyrights is key to SCO's other disputes against car parts retailer AutoZone and IBM, which are both still ongoing.