Tue, 27 Apr 2004 16:00:26 GMT

IP Memes: SCO Many Lawsuits, SCO Little Time.

(My April contribution to IP Memes follows. Many thanks to the indefatigable Pamela Jones of Groklaw for the inspiration, and for maintaining such a useful and vibrant site. You can read more about Pamela at Wired News, Linux Online, Linux Planet, and eWeek.)

Happy World Intellectual Property Day: “[A]n ideal opportunity to promote, inform and teach the importance of intellectual property as a tool for economic, social and cultural development. The theme of World Intellectual Property Day 2004 will be 'Encouraging Creativity.'” WIPO is the U.N. agency that administers the international treaties governing intellectual property protection.

IP Memes this week takes a look at the lawsuits and positions pursued by The SCO Group, in connection with its claim that Linux violates its intellectual property rights. Linux is a popular open source operating system, originally the brainchild of Linus Torvalds. SCO, which purchased rights to the UNIX operating system from Novell, began claiming last year that Linux improperly uses portions of UNIX code. SCO has sued IBM, claiming Big Blue's contributions to the Linux environment incorporated key portions of the UNIX code. SCO likewise has sued Novell for corporate slander due to the company's statements challenging SCO's claims to UNIX. And recently SCO has begun suing major corporate users of Linux (DaimlerChrysler, AutoZone), claiming their unlicensed use of Linux violates SCO's intellectual property rights. Red Hat, a Linux developer and distributor, has sought to protect its ongoing ability to do business by suing SCO for declaratory relief and damages. For a lengthy discussion of the pending actions, see Darl McBride, CEO of The SCO Group, speaking at Harvard Law School on 2/2/04.


SCO's $5 billion suit against IBM is pending in the U.S. District Court for the District of Utah. It is in the discovery phase, with trial scheduled for April 2005. SCO recently moved for a continuance to September, claiming its ability to complete discovery has been hindered by untimely responses from IBM. On March 26, IBM filed an amended counterclaim in the case, seeking declaratory judgment that it did not infringe SCO's copyrights, that it breached no contractual obligation to SCO, and that the code in which SCO claims a proprietary interest is subject to the same open source license that controls Linux (the GPL).

Unsurprisingly, SCO denies any of the UNIX code is subject to the GPL. In a recent interview, SCO's CEO also characterized IBM's infringement as involving both literal and nonliteral copying, with the latter having more to do with “sequence and organization” than line-by-line duplication. Among the items SCO says were copied verbatim were certain application binary interfaces (ABIs), but it is unclear whether SCO's IP interests extend to the ABIs, and whether the ABI headers are copyrightable as SCO contends.


SCO v. Novell

SCO's rights to UNIX derive from Novell, who acquired them in turn from AT&T. SCO's action against Novell, filed in January, contends the company improperly has sought to file copyright registrations for UNIX that conflict with SCO's copyrights. It also takes issue with statements Novell has made challenging SCO's ownership of UNIX copyrights and patents. The court currently is considering whether to grant Novell's motion to dismiss, filed in March.


Red Hat v. SCO

After several months of consideration, on April 6 District Judge Sue L. Robinson (for the District of Delaware) denied SCO's motion to dismiss Red Hat's declaratory relief action. The Court concluded there is an actual controversy sufficient to support Red Hat's claims, despite the fact it has not yet been the target of action by SCO: “SCO's conduct has created a reasonable apprehension of suit. Moreover, there is no question that Red Hat is a LINUX software developer who is engaging in the allegedly infringing activities.” The suit however is stayed pending the outcome of SCO v. IBM: “From the allegations found in the complaint, the core issue of whether the LINUX system contains any misappropriated UNIX system source code must be decided. It is a waste of judicial resources to have two district courts resolving the same issue, especially when the first filed suit in Utah involves the primary parties to the dispute.”


SCO v. End Users

In addition to its pending actions against DaimlerChrysler and AutoZone, SCO has threatened additional actions against the Lawrence Livermore National Laboratory and the National Energy Research Scientific Computing Center.


SCO Invokes Free Enterprise, National Security

In January, SCO's CEO Darl McBride sent correspondence to the members of the U.S. House and Senate, characterizing open source software as a “much more serious threat to our capitalist system than U.S. corporations realize,” as well as a threat to world peace: “A computer expert in North Korea who has a number of personal computers can download the latest version of Linux, complete with multi-processing capabilities misappropriated from UNIX, and, in short order, and in short order build a virtual supercomputer.”


SCO Investor Wants Its $20 Million Back

Citing alleged breaches of the disclosure provisions of its Exchange Agreement, on April 15 SCO investor BayStar Capital notified SCO it wants to cash out of its $20 million investment in the company. The Royal Bank of Canada, SCO's other major investor to the tune of $30 million, is reported to be reviewing its investment as well.



For blow-by-blow coverage of the Linux-related SCO lawsuits, please see Groklaw, and the SCO v. IBM Wiki.

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