Court ruling questions SCO copyright claims

The question of whether The SCO Group actually owns the copyright to the Unix System V operating system is still up for debate, according to a U.S. District Court ruling issued Wednesday.

The ruling came in a slander case, launched by SCO against Novell last January, and which is being heard by the U.S. District Court for the District of Utah.

At dispute in the case is the precise meaning of a 1996 contract amendment that, SCO says, transferred the Unix copyright. Novell argues that amendment provided for a copyright transfer only under certain conditions, and that SCO had failed to meet those conditions.

In his ruling, Judge Dale Kimball appeared to agree that there is at least a question about whether Novell actually transferred the copyright. “There is enough ambiguity in the language of (the Amendment) that, at this point in the litigation, it is questionable whether (the Amendment) was meant to convey the required copyrights,” wrote Kimball in his ruling.

SCO asked to have the slander case moved to a state court, arguing that the question of whether or not copyrights were transferred was not at issue in this case.

In his ruling, Kimball denied SCO’s motion, which means that the case will continue to be heard in federal court.

The judge also denied a Novell motion to dismiss the case outright, writing, “This court cannot conclude that SCO can present no set of facts that would prove its claim.”

“In our minds there’s no question of whether copyright was transferred or not,” said Marc Modersitzki, a SCO spokesman, who argued that the ruling as a whole was good news for SCO. “We’re pleased with the ruling that came down,” he said. “We see this as a positive and a step in the right direction for us.”

Kimball’s denial of the SCO motion took some who are following the trial by surprise. “Almost everyone thought SCO would win this one,” said Pamela Jones, the editor of the Groklaw Web site, which has become the unofficial forum for open source advocates who are following SCO’s many legal disputes. “Even I said I couldn’t call it. They didn’t win, and it was their strongest hope,” she said in an e-mail message.

“The fact that the judge took this case and decided to keep it is an indication that there is a real dispute about whether the copyrights were transferred,” said Jeff Norman, an intellectual property partner with the Chicago law firm Kirkland Ellis.

If there are legitimate questions about who owns Unix, it will make it much harder for SCO to prove its slander case against Novell, he said. “I don’t see how SCO is going to prove that there is a slander of title here,” he said.

The Novell case could have major implications for SCO’s lawsuit with IBM, said Norman, if Kimball eventually rules that Novell and not SCO owns the Unix copyright. “If SCO doesn’t own the copyright, then that’s it for SCO. The only claim they have then is the contract claim against IBM and related claims.”

The start of the SCO versus IBM case has now been pushed back to Nov. 1, 2005, in response to a request from SCO to give the company more time to prepare its case.

SCO’s threats to sue Linux users would also have much less weight, if SCO was determined not to own the Unix copyright, Norman said.

Norman expects Novell to file for a summary judgement on the matter within the next few months, meaning the issue of which company actually owns the Unix copyright could be resolved by September.