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By Peter Galli  |  Posted 2003-11-21 Print this article Print

SCOs McBride also said this week that part of any copyright lawsuit against an end user would be based on the Digital Millennium Copyright Act (DMCA), a 1998 law that protects software copyrights. To intellectual property attorneys, though, applying the DMCA to what essentially appears as if it will be a copyright infringement case is a stretch.
"If somebody copied SCOs proprietary code into Linux you dont need the DMCA to create a cause of action, you simply need copyright infringement," Albert said. "By adding the DMCA label, that generates more fear and uncertainty."
The DMCA typically covers infringement that occurs because someone has broken technological barriers, like encryption scheme, to access copyrighted content or software code, Chander said. Is everything covered under the Digital Millennium Copyright Act? eWEEK Labs Anne Chen wonders if its time to dump the DMCA. On another legal front, SCO is also taking aim at Novell Inc., which recently announced that it would buy SuSE Linux AG McBride said that SCO is considering possible legal action against Novell once it completes the SuSE acquisition. He claims that SCO has a non-compete agreement with Novell from the time it purchased the Unix System V code from Novell. To read more about Novells SuSE Linux buyout, click here. SCO spokesman Blake Stowell told eWEEK that the non-compete claim comes from wording in both the Asset Purchase Agreement and in the License-back agreement between SCO and Novell. The Asset Purchase Agreement holds that the "Seller [Novell] agrees that it shall use the Licensed Technology only (i) for internal purposes without restriction or (ii) for resale in bundled or integrated products sold by Seller which are not directly competitive with the core products of Buyer [SCO] and in which the Licensed Technology does not constitute a primary portion of the value of the total bundled or integrated product." But legal experts said the interpretation of that clause appears to be dependent on Linux actually containing SCOs code, something that has yet to be proved. "SCOs claim strikes me as rather odd, even novel, " Chander wrote in a follow-up e-mail interview. "Has Novell really used the technology it received from SCO by purchasing SuSE and distributing SuSEs products? It would seem to me that Novell would only be misusing the technology if it actually infused that technology into Linux." Novell spokesman Bruce Lowry, in San Francisco, denied that any non-compete provision existed and said that its acquisition of SuSE doesnt violate any agreement between Novell and SCO. "As often seems to be the case, with SCO, we havent heard anything directly from them on this and they havent filed a claim against us, we heard it first through the press," he said. Discuss This in the eWEEK Forum

Peter Galli has been a financial/technology reporter for 12 years at leading publications in South Africa, the UK and the US. He has been Investment Editor of South Africa's Business Day Newspaper, the sister publication of the Financial Times of London.

He was also Group Financial Communications Manager for First National Bank, the second largest banking group in South Africa before moving on to become Executive News Editor of Business Report, the largest daily financial newspaper in South Africa, owned by the global Independent Newspapers group.

He was responsible for a national reporting team of 20 based in four bureaus. He also edited and contributed to its weekly technology page, and launched a financial and technology radio service supplying daily news bulletins to the national broadcaster, the South African Broadcasting Corporation, which were then distributed to some 50 radio stations across the country.

He was then transferred to San Francisco as Business Report's U.S. Correspondent to cover Silicon Valley, trade and finance between the US, Europe and emerging markets like South Africa. After serving that role for more than two years, he joined eWeek as a Senior Editor, covering software platforms in August 2000.

He has comprehensively covered Microsoft and its Windows and .Net platforms, as well as the many legal challenges it has faced. He has also focused on Sun Microsystems and its Solaris operating environment, Java and Unix offerings. He covers developments in the open source community, particularly around the Linux kernel and the effects it will have on the enterprise.

He has written extensively about new products for the Linux and Unix platforms, the development of open standards and critically looked at the potential Linux has to offer an alternative operating system and platform to Windows, .Net and Unix-based solutions like Solaris.

His interviews with senior industry executives include Microsoft CEO Steve Ballmer, Linus Torvalds, the original developer of the Linux operating system, Sun CEO Scot McNealy, and Bill Zeitler, a senior vice president at IBM.

For numerous examples of his writing you can search under his name at the eWEEK Website at


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