SCO later maintained that it, and not Novell, is the rightful owner of the Unix copyrights, however, and claimed that Novell had failed to turn up to a meeting to discuss the company’s intellectual property concerns in detail.

Provo, Utah-based Novell, which sold its UnixWare business to SCO in September 1995, challenged the company in an open letter from Novell’s chairman, president and CEO, Jack Messman, to SCO’s president and CEO, Darl McBride.

Messman’s statement was in response to a letter Lindon, Utah-based SCO recently sent to 1,500 of the world’s top corporations warning them that they may be legally liable for using the Linux operating system. SCO holds the rights to the Unix operating system software, SCO’s letter began, before adding: We have evidence that portions of Unix System V software code have been copied into Linux.

SCO has yet to reveal what code it says has been copied into Linux, despite requests from vendors such as SuSE Linux AG and other open source advocates. Novell’s Messman also challenged the company to show its hand.

SCO claims it has specific evidence supporting its allegation against the Linux community. It is time to substantiate that claim, or recant the sweeping and unsupported allegation made in your letter, he said. Absent such action, it will be apparent to all that SCO’s true intent is to sow fear, uncertainty, and doubt about Linux in order to extort payments from Linux distributors and users.

Messman went on to state that while Novell may have sold SCO its UnixWare business, Novell retains patent and copyright ownership for the Unix System V code. SCO continues to say that it owns the Unix System V patents, yet it must know that it does not. A simple review of US Patent Office records reveals that Novell owns those patents, Messman said.

Importantly, and contrary to SCO’s assertions, SCO is not the owner of the Unix copyrights. Not only would a quick check of US Copyright Office records reveal this fact, but a review of the asset transfer agreement between Novell and SCO confirms it. To Novell’s knowledge, the 1995 agreement governing SCO’s purchase of Unix from Novell does not convey to SCO the associated copyrights, he continued.

Messman went on to state that SCO is well aware of this fact, and has been attempting to acquire the Unix System V copyrights. We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights, he said. Apparently, you share this view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has rejected. Finally, we find it telling that SCO failed to assert a claim for copyright or patent infringement against IBM.

As Messman noted, in SCO’s recently launched $1bn lawsuit against IBM the company has not accused IBM of patent or copyright infringement, but of misappropriation of trade secrets, unfair competition, interference with contract, and breach of contract.

SCO responded to Messman’s letter via a statement in which it maintained its intention to aggressively enforce its Unix rights. 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, the statement read.

SCO’s McBride also responded in a conference call to discuss the company’s second-quarter results, during which he maintained that SCO did in fact own the copyrights to Unix System V.

The contracts are by an order of magnitude more valuable than copyrights or patents, McBride said, before adding that as SCO began to look at its Unix IP he had approached Novell to clarify ownership. I approached them and said ‘this doesn’t make any sense, how do you transfer the product without transferring the copyright. They took a very strong position of ‘if SCO needs this we’re going to hold on to this’.

McBride added that SCO had consulted the four parties who signed the original transfer agreement between Novell and SCO and that they had confirmed SCO’s position. We have the absolute right to protect that and push our right in the market place, he said. If they want to fight that battle we are very confident of how a judge would view that contract.

SCO has been reticent to reveal exactly which Unix code it believes has been transferred into Linux for fear that the Linux community would simply rewrite the code and destroy the alleged evidence.

Messman dismissed this idea. Linux has existed for over a decade, and there are plenty of copies in the marketplace with which SCO could attempt to prove its allegation, he said. He concluded by challenging SCO to produce some evidence or withdraw its claims. For now, we demand that SCO either promptly state its Linux infringement allegations with specificity or recant the accusation made in your letter, he said. Further, we demand that SCO retract its false and unsupported assertions of ownership in Unix patents and copyrights or provide us with conclusive information regarding SCO’s ownership claims.

SCO’s McBride maintained that concerned customers are able to discover precisely what code SCO has identified. There are a lot of companies coming to us saying ‘what is going on here’, he said. We have invited people to come in and under non-disclosure agreement we will be glad to go through the things that we have found.

Indeed, McBride maintained that it had set up a meeting on Tuesday to discuss Novell’s concerns but that Novell had failed to turn up. I guess if they’d come to the meeting yesterday they’d have seen that, but they were a no-show, McBride said.

Source: Computerwire