Waltham, Massachusetts-based Novell has told the court that copyright claims related to SUSE and Lindon, Utah-based SCO should be referred to the Court of Arbitration, based on the terms of the UnitedLinux agreement signed by SUSE and SCO in 2002.
UnitedLinux was formed in May 2002 by the then SuSE Linux AG along with Turbolinux Inc and Conectiva SA, as well as Caldera International Inc, which had closed its acquisition of the server and service business of Santa Cruz Operation Inc a year earlier but had yet to change its name to SCO.
While the UnitedLinux agreement was dissolved in early 2004 – after SCO launched its legal challenge against IBM Corp and claimed that Linux contained Unix System V copyright code, and Novell moved to acquire SUSE – Novell’s lawyers have argued that its terms mean the dispute between Novell and SCO over Unix copyright ownership should now be put on hold.
SCO’s new SUSE Linux claims raise issues that are subject to arbitration under the Master Transaction Agreement and United Joint Development Contract signed in May 2002, the company said in a memorandum to support its motion to stay the case. The UnitedLinux members agreed that each member would have a broad license to use the technology included in the UnitedLinux software, including any related intellectual property.
At the time of the UnitedLinux announcement, the partners created a new company, UnitedLinux LLC, which they said would own the brand and intellectual property, and that as SUSE was heading up the product development and integration, it would therefore own a larger share of the new company.
In its court filing, Novell stated that, according to the terms of the UnitedLinux agreement, it has submitted a Request for Arbitration to the International Chamber of Commerce in Paris, requesting a tribunal rule that: SCO is precluded from asserting copyright infringement claims against SUSE Linux and that the UnitedLinux contracts divested SCO of ownership of any copyrights related to technology in UnitedLinux.
While SCO’s slander of title case against Novell previously centered on the sale of its UnixWare business and Unix System V code base to Santa Cruz Operation in 1993, SUSE Linux was brought into the case in January when SCO filed to amend its claims against Novell.
The company added claims that Novell is in breach of contract based on violation of a non-compete agreement struck between Novell and Santa Cruz Operation, as well as copyright infringement based on the alleged inclusion in SUSE Linux of the 293 technology disclosures that SCO contends IBM contributed to Linux in breach of its contracts with SCO.
Earlier in April, IBM accused SCO of acting in bad faith and willfully failing to comply with court orders by failing to detail its evidence regarding 198 of those technology disclosures.
Novell told the court that four out of five SCO claims against the company: breach of copyright, slander of title, breach of contract, and unfair competition, raise issues that are dependent on the results of arbitration under the UnitedLinux contracts.
It added that that the fifth claim, requesting an order requiring Novell to transfer the Unix copyrights to SCO, is dependent on the first breach of copyright claim, and that the court should therefore delay all proceedings until after arbitration.
Conectiva was acquired by MandrakeSoft SA in February 2005, forming Mandriva SA.
