Novell Motion to Dismiss Holds Key to SCO Anti-Linux Claims

MozillaQuest the on-line computer magazine

17 February, 2004

Office and Productivity Software

SCO IP, SCO v Linux, & Caldera v IBM

MozillaQuest Op-Ed/Analysis

The SCO v Novell Lawsuit

Mike Angelo -- 17 February 2004 (C) -- Page 3

Article Index

Introduction

Ripple effects if Novell wins

Novell's Motion to Dismiss

Novell's argument in support of its dismissal motion

Things for the Court to decide

Novell says SCO does not own Unix copyrights

What if Novell wins?

SCO says it owns Unix copyrights

It's time to open-source Unix

Resources

It's time to open-source Unix

Here is an interesting thought. In his 21 January 2004 LinuxWorld Keynote address, Novell CEO Jack Messman said: We will contribute more to open source than we take away. (Emphasis added.) What a terrific contribution to the GNU-Linux and Free and Open Source (FOSS) community it would be if Novell were to open-source Unix -- while it still owns the copyrights to Unix!

There might be contractual provisions between Novell and some Unix Licensees such as HP, IBM, Sun, and so forth that could preclude Novell's open-sourcing Unix. Even if the Unix license agreements do not directly address open-sourcing Unix, non-disclosure clauses in the Unix license agreements could bar open-sourcing Unix unless the parties involved agree to waive the non-disclosure clauses in the Unix license agreements.

However, these other companies also now embrace the GNU-Linux operating system. These other companies are participating in the benefits of the GNU-Linux OS. Thus they too should be willing to do their part -- and if Novell is willing to open-source Unix, they should waive any contractual provisions between Novell and them that would preclude open-sourcing Unix!

We asked SCO's Blake Stowell about open-sourcing Unix via e-mail yesterday.

MozillaQuest Magazine: Are there any contractual provisions between Novell and some Unix Licensees such as HP, IBM, Sun, and so forth that could preclude Novell's open-sourcing Unix if the Court decides that Novell currently owns the Unix copyright rights?

Blake Stowell: All of the UNIX source code sub-licensing agreements in addition to the UNIX source code is owned by SCO. I believe this would sufficiently preclude Novell or anyone else for that matter from Open Sourcing parts of UNIX without SCO's legal consent. Given that SCO paid more than $100 million for UNIX in 1995, I'm certain it would not be in SCO's best interest to do such a thing.

We also asked Novell's Vice-President for Corporate Communications, Hal Thayer, the same question that SCO's Blake Stowell answered. Hal was still working on getting an answer to our questions about open-sourcing Unix at press time. Look for an upadate when we receive Hal's answers.

About three and one-half weeks ago we started the legwork for a story about some interesting immunities that Novell has against lawsuits from SCO. Novell did not raise these issues in its F.R.C.P 12(b)(6) Motion to Dismiss the SCO v Novell lawsuit. However, should the Utah Federal District Court not grant Novell's Motion to Dismiss, Novell might be able to raise these immunities as an affirmative defense later on in this lawsuit. More about that in the upcoming article about Novell's immunities from SCO FUD.

Stay tuned; there are more articles about Novell and Linux on the way.

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Resources

Download SCO's Complaint, Novell's Motion to Dismiss and Novell's Memorandum in Support of Motion to Dismiss

We have prepared compact RTF (text) files of SCO's Complaint, Novell's Motion to Dismiss and Novell's Memorandum in Support of Motion to Dismiss for you to download should you care to read them for yourselves.

They are OCR (optical character recognition) conversions from the originally filed copies of SCO's Complaint, Novell's Motion to Dismiss and Novell's Memorandum in Support of Motion to Dismiss that were supplied to us in PDF format.

These OCR conversions were made for our own use. Thus they have not been fully polished. However, as long as we have done the legwork to make the basic OCR conversions, we thought we might just as well provide them, as is, to you MozillaQuest Magazine readers that might like to read the entire documents.

Some surplussage has been removed. There are some typos. If you want an exact copy of the pleading then you should seek a TIF or PDF copy of the original document. Otherwise, this should be close.

The TIF and PDF versions waste more than 1-MB altogether of bandwidth and hard drive space. All three files converted to RTF (text) format and zipped using the GNU Zip (gzip) utility come to less than 25-KB altogether.

It took time to make and to proof the OCR copies and then to go through the text documents and correct remaining graphic to text spelling and formatting errors. So, this constitutes derivative work and as such this derivative work is copyrighted.

You are free to use, copy in part or in whole, and redistribute these files -- provided that you attribute the source as MozillaQuest.com and provide a link to this article

The OCR files were made using Omnipage Pro (formally from Caere and now a ScanSoft product) on a MS Windows machine powered by a 700-MHz AMD Duron CPU. OminPage Pro is one of the best, if not the best, OCR program that I have tried.

M.A. 16 February 2004

SCO's Complaint (8-KB)

Novell's Motion to Dismiss (6-KB)

Novell's Memorandum in Support of Motion to Dismiss (12-KB)

Federal Rules of Civil Procedure (F.R.C.P.), Rule 12. Defenses and objections

The Novell to SCO Assest Purchase Agreement and related documents

Novell and SCO correspondence regading the Asset Purchase Agreement and Novell's Unix copyrights

Article Index

Introduction

Ripple effects if Novell wins

Novell's Motion to Dismiss

Novell's argument in support of its dismissal motion