Making Sense of the SCO Suits

Legal experts explain the differences in the two SCO lawsuits and what they mean to Linux users.

The SCO Group Inc.s latest lawsuits against two Linux users, AutoZone, Inc., and DaimlerChrysler Corp., are very different and bring their own set of legal challenges for the Lindon, Utah, company.

Mark Radcliffe, a Linux expert and licensing attorney at the national technology law firm Gray Cary Ware & Freidenrich in Palo Alto, Calif., says the lawsuit against AutoZone alleges copyright infringement due to the use of Linux.

"The problem is that Novell has disputed that the copyrights were transferred to SCO. Without that copyright, SCO may only bring suit under the licenses that SCO purchased from Novell under the Asset Purchase Agreement [APA]. The ownership issue may prove a powerful defense for AutoZone and will probably prevent the issuance of a preliminary injunction," he said.

The Daimler lawsuit contended that Daimler violated its Unix license by failing to certify its compliance with its terms as required by the license. "SCO demanded that many of its Unix licensees provide a certification under their license in a letter sent late last year.

"However the letter demanded a certification that went significantly beyond what was provided for in the Unix licenses. In addition, Novell has its silver bullet provision under the APA to block SCOs actions under these licenses. This provision permits Novell to amend, supplement, modify or waive provisions of the Unix licenses sold to SCO," Radcliffe said.

Novell also retained the unusual right to require SCO to follow its directions to "amend, supplement, modify or waive" these licenses and, if SCO did not comply, Novell could do so on SCOs behalf, he said, adding that Novell has already exercised this right for IBM and SGI.

Officials at AutoZone and DaimlerChrysler declined to immediately comment on the lawsuits, as did officials at Novell and IBM, citing their ongoing litigation with SCO.

Eben Moglen, a law professor at Columbia University in New York and general counsel for the Free Software Foundation, said there is no clarity about how the various SCO lawsuits will aggregate or in what sequence they will be taken.

"But there are some logical priorities," Moglen said. "There is a claim between IBM and SCO concerning contract essentially independent of the dispute over the code in Linux. Then theres the claim that SCO has brought against AutoZone on the basis of copyrights that it says it has.

"It is at the same time in litigation against Novell, claiming that it owns those copyrights, despite Novells denial that it does. Novell was allegedly the seller of those Unix copyright interests to SCO.

"If SCO loses in the case with Novell on the copyright front, it cannot maintain SCO against AutoZone. So, in theory, the court in SCO against AutoZone should await the conclusion of SCO against Novell," he said.

But the case brought by SCO against DaimlerChrysler revolves around the fact that Daimler is not obeying its contracts with SCO, which also appears to be independent of the SCO versus Novell and SCO versus AutoZone lawsuits, Moglen said.

Next page: An additional complexity.