Novell files for copyright on SCO code

Novell Inc. is re-asserting the claim that it, and not The SCO Group Inc., owns the copyright to the Unix System V source code that has been at the heart of a protracted dispute between SCO and the Linux community. On Monday, the Provo, Utah, software vendor confirmed that it has been quietly registering copyright for some of the same Unix System V code that SCO registered copyright for earlier in the year.

"Novell believes it owns the copyrights in Unix, and has applied for and received copyright registrations pertaining to Unix," the company said in a statement released to the media on Monday.

Novell purchased rights to the Unix System V code for $150 million from AT&T Corp. in 1992, but later sold the Unix rights, which were eventually acquired by SCO. In May, Novell said that it had retained copyright over the Unix source code, but seemed to back off this claim after SCO produced a 1996 contract amendment that appeared to grant it the Unix copyright. The amendment "appears to support SCO's claim that ownership of certain copyrights for Unix did transfer to SCO in 1996," Novell said at the time.

But Novell clearly has not given up the fight over copyright ownership. In addition to the media statement issued Monday, Novell also provided copies of correspondence between Joseph A. LaSala Jr, Novell's vice president, general counsel and secretary, and The SCO Group, which argued that the amendment provided for a copyright transfer only under certain conditions, and that SCO had failed to meet those conditions.

The fact that both Novell and SCO have now registered as owners of the Unix copyright does not necessarily say anything about the validity of either company's claims, said David Byer, a partner with the patent and intellectual property group at Boston's Testa, Hurwitz & Thibeault, LLP, who is not involved in the dispute. Unlike the U.S. Patent and Trademark Office, the U.S. Copyright Office does not examine the validity of copyright claims. he said. "When you fill out a copyright registration, you're essentially declaring under penalty of perjury that you are the owner," he said. "If you tell them that you wrote it, they believe you.

SCO was quick to dismiss Novell's claims, and said it was considering legal action. "We see this as a fraudulent filing of copyright notices... and we'll take the appropriate measures as necessary; with our legal team," said Darl McBride, SCO's chief executive officer, during SCO's quarterly financial earnings conference call on Monday.

McBride accused Novell of registering the Unix copyright in order to help IBM Corp. with an ongoing legal dispute between SCO and IBM. "Very clearly they're getting money funded to them by IBM right now," he said, referring to a recent $50 million IBM investment in Novell. "We get a lot of communications that come from Novell where they CC (carbon copy) IBM."

Since March, SCO has been embroiled in a $3 billion lawsuit with IBM claiming that the computer giant has violated its Unix license by illegally contributing code to the Linux operating system.

Whatever Novell's motivation, its latest moves help IBM with its court case, said Byer. "IBM can now wave around SCO's registration and say 'they don't own this at all,' and that means that SCO will have to put up more proof," he said. "It's an effective trial prop for IBM."

News of Novell's copyright registration surfaced on the same day that SCO announced that it was requiring its 6,000 Unix licensees to certify that they are complying with their Unix source code agreements and are not contributing Unix code to Linux.