Additional Complexity

There is also an additional complexity: In its suit against AutoZone SCO is claiming "code structure sequence is what is infringed by Linux if it is copied/modified or distributed by AutoZone," Moglen said. "I should point out that ordinary end users dont distribute software and rarely copy or modify operating system kernel code because they like to have their systems serviced by someone. SCO will have to prove the copying/modification and/or distribution as to AutoZone. "In addition, AutoZone was a SCO customer, and so it is not clear if they got any versions of Linux from SCO. So SCO will have to prove that it did not license AutoZone itself if AutoZone claimed it got a license from SCO," he said. In short, all the questions that were raised by SCO against IBM are being raised again in in its suit against AutoZone, except now the claim is purely based on copyright. That means SCO must show that the program infringed and that AutoZones copies were distributed, copied or modified so the infringement was AutoZones work and not someone elses. "Thats an additional layer of difficulty for SCO," Moglen said. "SCO cannot succeed simply by saying that AutoZone uses an infringing program. SCO has already been asked in the IBM case to show where the unlawful literal copying is, but has so far failed to show this," he said. If the legal issues were similar, it would be within the discretion of the federal district courts to ship the common issues to multidistrict litigation for resolution, Moglen said. "However, SCO against Novell is not a federal court litigation and is proceeding in Utah State Court and is not subject to multidistrict consolidation, so there will inevitably be a certain degree of either duplication or delay," he said. "But the court hearing the case against AutoZone could well decide to await the result of the case against Novell. "At a minimum, the argument for a preliminary injunction against AutoZone stating that SCO was being irreparably harmed and was likely to succeed on the merits in this litigation would be affected by the fact that SCO would not be likely to succeed on the merits if it did not own the copyrights to the Unix code. A judge would likely wait until the case against Novell was resolved before issuing any such preliminary injunction," Moglen said. Next page: Will litigation drag on?