SCO Ruling Expected

A federal judge at the U.S. District Court in Central Utah is expected to make a ruling Friday afternoon or early next week whether the SCO Group can amend its lawsuit against IBM to include copyright infringement.

The case has come down to a question of discovery, the legal dance where each side tries to get as much information as it can from the other side without revealing too much of its own information.

Currently, all discovery motions are suspended by order of Judge Brooke Wells while IBM waits for the Lindon, Utah, software company to provide evidence over the claim in the suit that Big Blue misappropriated code from Unix System V and used it to bolster Linux kernel development.

Last week, SCO changed gears and asked the court for permission to allow it to amend its lawsuit to include copyright infringement claims. SCO officials also bumped up the dollar figure on its lawsuit, saying damages could be as much as $5 billion.

Prior to the copyright wrangle, activity in the case centered on an exchange of letters between the two parties: in a Feb. 5 court filing from the case, IBM’s lawyers said they received a letter from SCO on Jan. 30 in which “SCO abandons any claim that IBM misappropriated its trade secrets, concedes that SCO has no evidence that IBM improperly disclosed Unix System V code, and acknowledges that SCO’s contract case is grounded solely on the proposition that IBM improperly disclosed portions of IBM’s own AIX or Dynix products, which SCO claims to be derivatives of Unix System V.”

SCO has outlined its copyright contention — in a general way — in a revised complaint it hopes will be accepted by the court:

“SCO is the owner of copyright rights to Unix software, source code, programming tools, documentation … and derivative works thereof. These materials are covered by numerous copyright registrations.”

The complaint goes on to include a table listing 14 different Unix code releases and operating manuals. The list includes items such as “Unix operating system edition 5 and instruction manual,” “Unixware 7.1.3,” and “Unix system V release 4.2.”

SCO has taken a public stand on its beef with IBM via a posting at its Web site. SCO writes: “SCO believes that IBM contributed UNIX derivative code that was to be held in confidence. Technologies from IBM and its Sequent division that have been contributed to Linux in violation of their contracts with SCO include: Non-Uniform Memory Access (NUMA); Read Copy Update; and Journal File System.”

Further mudding the copyright waters, SCO is also embroiled in a legal battle with Novell over who actually owns the copyright to the Unix code in question. Novell has been in court since January, when SCO filed suit claiming “slander of title” and alleging a “bad faith effort to interfere with SCO’s rights with respect to Unix and UnixWare.”

The lawsuit harkens back to May 2003, when Novell President and CEO Jack Messman sent a letter to SCO executives saying that while SCO bought Unix System V, the company did not subsequently buy the code’s copyrights and patents.

Wednesday, Novell backed up that claim with a motion to dismiss SCO’s slander of title, claiming the company has no proof it owns the actual copyrights, making slander inadmissible. The documents presented in the SCO slander lawsuit were memorandums showing the intent of Novell to transfer System V copyrights to SCO, not the actual transfer agreements.

“… the very documents SCO relies upon fail to meet the requirements of the Copyright Act for a valid transfer of copyright ownership,” the motion to dismiss obtained by read. “In the absence of such a transfer, SCO cannot show that it is the owner of the copyright at issue and cannot show Novell’s statements as false.”

Via a letter sent to SCO lawyers Thursday, Novell served notice that it believes SCO has waived any rights it had to impose confidentiality requirements on Novell in regards to Unix code originally developed by Sequent.

Sequent was acquired by IBM; Novell is being sued by SCO. Accordingly, the letter is essentially a legal maneuver by Novell to cut out from the SCO lawsuit anything to do with Unix code originally developed by Sequent. That would narrow the scope of the technology at issue.

Blake Stowell, SCO spokesperson, believes the Asset Purchase Agreement and subsequent document show Novell transferred copyrights and patents to SCO.

“It is SCO’s strongly held legal position that Novell has no rights to step in and change or alter the source code license agreements that SCO owns and holds with its UNIX licensees,” he told “SCO has no intention of waiving any of its rights against Sequent or IBM. We will deal with Novell on all of these issues in court.”

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