Lindon, Utah-based SCO has filed a potential second amended complaint against the Waltham, Massachusetts-based Linux and identity management software vendor adding two new claims of breach of contract, as well as copyright infringement and unfair competition to its existing slander of title claim.
Judge Dale Kimball has not yet approved the amended complaint, but with the trial not scheduled to begin until June 2007, SCO maintained that it is within its rights to amend its complaint in response to Novell’s July 2005 counterclaims.
The legal battle, which officially began with the filing of SCO’s first slander of title claim against Novell in January 2004, revolves around which company owns the copyrights to the UnixWare operating system and Unix System V code base and is closely related to SCO’s other legal battles with IBM Corp, and Red Hat Inc.
SCO launched its slander of title claim against Novell after the latter publicly disputed SCO’s claim to own the patents and copyright to Unix and sought to intervene in SCO’s breach-of-contract case against IBM, as well as its public claims that Linux contained Unix code.
Novell originally sold the UnixWare business to Santa Cruz Operation along with the Unix System V code it had acquired from AT&T Corp in 1993. Santa Cruz’s operating system and services business was then sold to Caldera Inc in May 2000 before the latter changed its name to SCO Group and launched its lawsuit against IBM.
The agreement between Novell and Santa Cruz was complex one and saw Novell retain the right to receive royalty payments related to Unix System V licenses, approval rights over new and amended System V licenses, the right to instruct Santa Cruz to take certain actions related to System V licenses, and the right to audit license arrangements.
As the successor to Santa Cruz, SCO claims that the 1995 Asset Purchase Agreement and subsequent amendments give it copyright claims over the Unix operating system, which it is now seeking to protect via its SCOsource business and associated lawsuits.
Novell maintains that it retained the rights to Unix and UnixWare, and in its July 2005 counterclaims noted that that it believes it is entitled to 95% of SCO’s intellectual property licensing revenue.
The case against IBM is not expected to reach trial until February 2007 and is closely linked to the Novell case. In February 2004 Novell stepped in to absolve IBM of any restrictions of its use of licensed System V code in Linux, claiming to be acting on behalf of SCO as the rightful Unix copyright holder.
SCO, meanwhile, last month filed the details of its alleged evidence against IBM under court seal, listing 293 technology disclosures that it contends are improper based on AT&T’s original licensing agreements with IBM.
Based on that list of 293 disclosures being found in Novell’s SUSE Linux distribution, SCO is now claiming 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.
Also new in the second amended complain is an alternative breach-of-contract claim related to Novell’s obligations to transfer copyrights under the APA, as well as claims of unfair competition. Both companies are asking for a preliminary and permanent injunction requiring the other to withdraw registered and public claims to Unix copyrights, among other things.
