Novell Pushes for End to SCOs Suit

Novell reveals that company officials said in a 1995 board meeting that they were retaining Unix's copyright. But will the disclosure prove a powerful blow against SCO in the companies' IP war?

Did Novell just drop a bombshell in its ongoing IP (intellectual property) war with SCO over who owns Unix, or is just one more fight in their legal battle?

In its latest court motion, Reply in Support of Novells Motion to Dismiss Amended Complaint, Novell Inc. said it has filed an exhibit—a set of minutes from a 1995 Novell board of directors meeting—which clearly states that Novell was to retain its Unix copyrights when it sold the operating system to the Santa Cruz Operation.

This is at the heart of the two companies battle over whether Novell sold its Unix copyrights to the company that would become The SCO Group Inc.

In turn, SCOs $5 billion lawsuit against IBM largely depends on showing that IBM misused its licensed Unix code by contributing it to Linux. If the court rules that SCO doesnt have a copyright to Unixs code, its case will be greatly weakened.

But according to Douglas E. Phillips, IP attorney in the Washington, D.C., office of the international law firm Covington & Burling, this latest development isnt a smoking gun that will end either the Novell or the IBM cases.

"First, even a favorable ruling for Novell on its current motion would not determine who owns the Unix copyrights. SCOs litigation against IBM and users would not be affected," Phillips said.

Thats because "SCOs case against Novell is for slander of title. Its based on Novell having told people that Novell, not SCO, owns the Unix copyrights. To win, SCO needs to show not only that Novells claims of ownership were false, but also that Novell made those claims with malice—in other words, knowing that they were false or with reckless disregard for whether they were true."

"Because SCO needs to establish both elements; Novell can win by negating either one," Phillips said. "Its often easier to show an absence of malice than it is to show that what was said was correct. So, not surprisingly, Novell has asked the court to end SCOs case on the ground that, whether or not Novell actually owns the copyrights, its claims of ownership were not malicious."

Next Page: Digging into internal documents.