Novell Says SCO Does Not Own Unix IP -- SCO Says it Does

One time Unix owner Novell (NASDAQ:NOVL) now is in the SCO, Unix IP fray. In a statement published on Novell's Web site on 28 May 2003, Novell Chairman, President, and CEO Jack L. Messman stated, the 1995 agreement governing SCO's purchase of UNIX from Novell does not convey to SCO the associated copyrights.

Unix is a major computer operating system. The Linux kernel and GNU/Linux operating system are based upon Unix.

SCO (NASDAQ: SCOX), the company formerly known as Caldera (NASDAQ: CALD), claims it owns a good chunk of what at one time was the intellectual property (IP) of AT&T's UNIX Systems Laboratory. Novel acquired Unix from AT&T in 1993. In 1995, SCO bought Novell's Unix business

However, Novell's Jack Messman is disputing SCO's claims that SCO-Caldera owns the Unix intellectual property. The thrust of Jack Messman's claims as to the Unix IP is that SCO purchased Novell's Unix business in 1995 not Novell's Unix copyrights, patents, or trademarks.

Unfortunately, Novell's Jack Messman failed to provide any proof or evidence of his claims that SCO never acquired any copyright or other IP interests in Unix. That evidence of course would be copies of whatever paper there is memorializing the sale of Unix to SCO -- contracts, agreements, licenses, and so forth.

The other side of that coin is that SCO-Caldera's response to Jack Messman is somewhat evasive. SCO® owns the contract rights to the UNIX® operating system. SCO has the contractual right to prevent improper donations of UNIX code, methods or concepts into Linux® by any UNIX vendor.

Please notice that SCO-Caldera's response to Jack Messman makes no claims that SCO-Caldera owns any Unix IP. Nor does SCO-Caldera provide any documentary proof or evidence of its claims.

However, in a telephone press conference yesterday, SCO CEO Darl McBride said that the sale agreement says that SCO gets all rights and ownership in Unix and UnixWare.

Nevertheless, SCO-Caldera's response fails to show any documentary evidence or proof that it did acquire any Unix intellectual property rights from Novell as part of its purchase of Novell's Unix business. Is SCO-Caldera admitting that it has no Unix IP rights on its Web site while claiming it does have such rights in yesterday's telephone press conference?

The basis for SCO-Caldera's attacks on anything and everything Linux is SCO-Caldera claims that Linux was derived from Unix and that Linux contains SCO-owned Unix code. SCO-Caldera has taken this position to the extreme. It appears that SCO-Caldera is threatening to sue Linux kernel and GNU/Linux OS developers, GNU/Linux distribution providers (LDPs), and even end-users for copyright and/or patent infringements.

The Linux community overwhelmingly has rejected SCO-Caldera's claims that Linux was derived from Unix and that Linux contains Unix code. The Linux community proudly admits that Linux is based upon Unix but also proudly denies that Linux was derived from Unix and denies that Linux contains Unix code.

Up `til now, the SCO-Caldera v Linux dispute has centered on whether there indeed is SCO-owned Unix code in Linux. SCO-Caldera, its CEO Darl McBride, and Senior Vice-President Chris Sontag claim there is but so far have not provided any evidence or proof of their claims.

If Novel can prove that SCO never acquired any intellectual property rights, particularly copyright and patent rights, then SCO-Caldera's infringement claims regarding Linux get cut off summarily -- without any need to resolve SCO-Caldera's disputed claims there is Unix code in Linux. In other words, SCO-Caldera no longer has any copyright or patent infringement claims regarding Unix code in Linux.

Proving that SCO-Caldera has no IP interests in Unix removes infringement lawsuit threats from SCO-Caldera. However, it does not remove potential problems for the Linux community that might arise if there is indeed, as SCO-Caldera claims, Unix code in the Linux kernel, the GNU/Linux operating system, or any Linux distributions.

The only way to insure that no one could ever mount such a disruptive and potentially devastating attack upon the Linux community again would be to GPL the Unix copyrights and patents. To the extent that Novell did retain the Unix copyright and patent rights to Unix, would Novell be willing to GPL those rights? If not, would Novell be willing to make some sort of general grant of those rights as to any Unix code that might now be in, or might in the future seep in to, the kernel.org Linux kernel and the GNU/Linux operating system? How about as to Linux distributions?

We asked Novell's Hal Thayer, VP for Corporate Communications, those questions. He replied, your questions on Novell's willingness or ability to open source the UNIX technology that we have rights to is essentially asking us to reveal future business strategy; again, something we're not prepared to do. We take that to mean no, Novell will not GPL Unix.

As to Novell's future business strategy, it sure makes one wonder if since Novell will not GPL Unix, Novell has plans to get back into the Unix business.

While it now appears that SCO-Caldera might not have any Unix IP rights, that has little or no bearing on SCO's Caldera v IBM lawsuit. That lawsuit is not about copyright or patient infringement. In that lawsuit, SCO-Caldera alleges that IBM violated its contractual agreements with SCO-Caldera by impermissibly disclosing SCO-Caldera Unix code and related trade secrets to the Linux community.

The bottom line here appears to be that if you ever signed any contracts, agreements, NDAs (non-disclosure agreements), and so forth with SCO-Caldera, it still has you on a hook and can reel you in at any time. On the other hand if you never signed anything with SCO-Caldera, you are out of harm's way as to anything that SCO-Caldera might try to do to you Unix copyright and patent infringement lawsuit-wise -- if Novell is telling the truth and SCO-Caldera does not have any Unix IP rights.

It seems that by making the announcement that SCO does not own the Unix copyrights Novell is trying to do the right thing in letting everyone know that SCO does not have any legal standing to assert IP claims regarding Unix.

Moreover, Novell has, and rightly so, criticized the way SCO-Caldera and its CEO Darl McBride are making all sorts of claims without backing them up with any evidence or proof. SCO and McBride's claims are just FUD!

On the other hand, Novell seems to be doing the very same sort of thing about which it is critical of SCO. Novell is making claims without backing them up with evidence/proof. Objectively viewing Novell's SCO IP announcement it is just more FUD (fear, uncertainty, doubt) added to the SCO-IP issues -- at least until such time as Novell produces evidence and proof to back up its claims.

Ultimately and regardless of what anyone might say or claim, just exactly what Unix rights Novell did convey and or did license to SCO is determined by what is written within the four-corners of any agreements, contracts, licenses, and so forth that Novell and SCO might have entered in to. So far, neither Novell nor SCO has made any such documents public.

That's the simple version. As things stand now without either side presenting documentary evidence, whether SCO-Caldera has any Unix IP rights is a he-said/she-said dispute between Novell's Jack L. Messman and SCO-Caldera's Darl McBride. MozillaQuest Magazine will take a more in-depth look at Novell's claims that SCO-Caldera has no Unix IP rights in some upcoming articles.

Stay tuned.

Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.

SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip