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17 February, 2004

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MozillaQuest Op-Ed/Analysis

The SCO v Novell Lawsuit

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

Mike Angelo -- 17 February 2004 (C) -- Page 1

The Players

In 1995 there were three separate companies, Caldera, Novell, and SCO (Santa Cruz Organization) -- that's when Novell sold its Unix business to SCO and its DR DOS business to Caldera. Just two years earlier in 1993, Novell bought Unix from ATT's Unix System Lab (USL).

In 2001 Caldera, a Linux company, bought SCO, including what had been Novell's Unix business. Then in 2002, Caldera changed its name to SCO.

Next in January 2003, SCO announced its intentions to aggressively enforce Unix-software copyright claims. The first related legal action was SCO's lawsuit against IBM filed in March 2003.

For more background information, please see our article, SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter and also the right sidebar, SCO-Caldera, Anti-Linux, IP, & IBM Lawsuit Overview, in our SCO IP Articles Index.

SCO-Caldera & the GNU/Linux Community:

For a complete listing of MozillaQuest Magazine SCO v Linux coverage, plese see our SCO IP Articles Index.

Novell Linux Dominates LinuxWorld 2004:

SCO (SCOX) could end up suffering a fatal blow to its anti-Linux war if the United States District Court for Utah grants Novell's Motion to Dismiss the SCO v Novell lawsuit. In its anti-Linux war, SCO claims that it owns the copyrights to some Unix code that SCO alleges has been placed in the GNU-Linux operating system. The primary thrust to Novell's Motion to Dismiss the SCO v Novell lawsuit is that SCO does not own any Unix copyrights.

On the other hand, refusal of the Utah Court to dismiss the SCO v Novell lawsuit could mean that SCO does indeed have a claim to the Unix copyrights. A decision in this lawsuit could come anytime after SCO files its reply to Novell's Motion to Dismiss. Or, the trial court judge could ask the parties to file additional documents and/or schedule the matter for oral argument -- thus delaying disposal of Novell's Motion to Dismiss.

We asked SCO Director of Public Relations, Blake Stowell, via e-mail whether Judge Kimball plans to dispose of the Novell Motion to Dismiss on the briefs or if he will hear oral argument?

Blake Stowell: From what the lawyers have told me, now that Novell has filed a motion to dismiss, the SCO lawyers will have the opportunity to provide a "response filing" 20 days from the time that Novell has filed their Motion to Dismiss. After SCO provides the response filing, the court will schedule a court date for a hearing.

Ripple effects if Novell (NOVL) wins

A decision to dismiss the SCO v Novell lawsuit also could have ripple effects against SCO in its lawsuits with IBM and Red Hat. Inter alia, that's because an order dismissing the SCO v Novell lawsuit could determine that Novell and not SCO is the manager of IBM's Unix license, thus SCO has no justiciable interest in whether IBM gave Unix source code to the Linux kernel developers -- which is the thrust of SCO's lawsuit against IBM.

In part, that is because the SCO v Novell lawsuit will focus on interpretation and enforcement of the Novell to SCO Unix sale contracts -- the 1995 Asset Purchase Agreement (APA) plus all the various side-letters and amendments that collectively have become part of that APA. The respective authorities of Novell and SCO to manage the IBM Unix license are set forth in the 1995 APA.

Underlying SCO's lawsuits with both IBM and Red Hat are SCO's claims to ownership of the Unix copyrights. Should it dismiss the SCO v Novell lawsuit, the Utah Federal District Court could find that SCO does not own the Unix copyrights in dispute. That too could be just the right agitation to drive a rippling, destructive, force through the heart of SCO's claims that it has copyright rights to the GNU-Linux operating system.

However, SCO's legal claims against the GNU-Linux operating system could fall for another important reason. It could be there just isn't SCO-owned Unix code in the Linux kernel.

In April 2003, SCO-Caldera Senior Vice President Chris Sontag told MozillaQuest Magazine that the allegedly SCO-owned code in Linux is not in the Linux kernel that Linus [Torvalds] and others have helped develop. We're talking about what's on the periphery of the Linux kernel. (SCO Clears Linux Kernel but Implicates Red Hat and SuSE, MozillaQuest Magazine, 28 April 2003. Please see also, Is SCO Trying to Renege on Clearing Linux Kernel ?)

There is some really choice, SCO-FUD debunking in the SCO Clears Linux Kernel but Implicates Red Hat and SuSE article. Read it.

In our 17 June 2003 article, SCO-Caldera Shows No Proof Linux Was Derived from Unix, which includes an interview with Linux industry analyst Bill Claybrook, he told MozillaQuest Magazine that he did not find SCO-owned Unix code in the Linux kernel:

MozillaQuest Magazine: On the basis of your code-viewing, are you able to form an opinion that there is SCO-owned Unix code in the GNU/Linux operating system?

Bill Claybrook: No

In our 25 July 2003 article, SCO Agrees IBM Owns AIX, JFS, NUMA, RCU Copyrights, SCO's Blake Stowell admitted to MozillaQuest Magazine that SCO does not own the JFS (Journaling File System), RCU (Read, Copy, and Update), NUMA (Non-uniform Memory Access) and many other software copyrights. You really should read this article, too. It also contains some really choice SCO-FUD debunking.

A word of caution here, however. Since those articles were written, SCO has filed documents with the SCO v IBM Court involving Linux source code that SCO alleges was copied from SCO-owned Unix code and derived Unix code. (The Declaration of Ryan Tibbits) We have not yet looked into that filing to see if it does indeed point to GNU-Linux code that might infringe upon any SCO-owned Unix code.

Novell's Motion to Dismiss

The Motion to Dismiss the Novell v SCO lawsuit was filed 9 February 2004. It's based on Federal Rule of Civil Procedure 12(b)(6), which allows a United States District Court to dismiss a lawsuit when the Plaintiff (instantly SCO) does not stand a snowball's chance in Hawaii of winning the lawsuit.

MOTION TO DISMISS

Case No. 2:04CV00139 Judge Dale A. Kimball

Defendant Novell, Inc., by and through its attorneys of record, hereby moves this Court to dismiss The SCO Group, Inc.'s Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The grounds for this Motion are more fully set forth in the Memorandum in Support, filed concurrently herewith.

DATED: February 9, 2004.

As stated in the Motion to Dismiss, the meat of the dismissal motion is in the legal brief (Memorandum in Support of Motion to Dismiss), which was filed along with the dismissal motion on 9 February 2004. 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 in their entireties. Links are in the Resources section at the end of this article.

Novell's argument in support of its dismissal motion

The Preliminary Statement in Novell's Memorandum in Support of Motion to Dismiss sums up what SCO's Complaint is about and Novell's grounds for dismissing that Complaint.

PRELIMINARY STATEMENT

The crux of SCO's slander of title claim is its assertion that pursuant to an agreement attached to its Complaint, it owns the copyrights to UNIX and UnixWare; that Novell's statements that SCO does not hold such title are false; and that these statements have left SCO's customers and potential customers unable to ascertain the truth about its copyright ownership.

The Complaint fails, however, to allege facts sufficient to support two necessary elements of slander of title: falsity and special damages. As to falsity, the documents SCO relies upon to establish ownership of the copyrights fail on their face to meet the federal copyright law requirements for such an instrument. Without conclusively establishing that it owns the UNIX and UnixWare copyrights, SCO cannot show that Novell's statements to the contrary are false, and cannot prevail. As to special damages, SCO has not set forth its alleged special damages sufficiently to state a claim.

Because SCO's Complaint fails as a matter of law, the motion to dismiss should be granted.

-- Memorandum in Support of Motion to Dismiss

  • See Things for the Court to decide on Page 2 ----->

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