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.

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