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SCO Wants Suit It Filed Against Novell in Federal Court Moved to State Court

SCO Wants Suit It Filed Against Novell in Federal Court Moved to State Court

In what is sure to be characterized as a cynical delaying tactic by its many critics, the SCO Group wants the slander suit it filed against Novell in the Third District Court in Salt Lake City in mid-January moved to state court.

SCO lawyers told the court that by law it has to decide the issue of jurisdiction before Novell's motion to dismiss can be decided and if the federal court sends the case to the Utah state court then the state court gets to decide Novell's motion to throw the suit out.

If it fails to get the charges quashed, Novell at least wants to keep the case in the federal system, but in papers filed with the federal court last Friday, SCO said that although SCO itself "may prefer to have its claims heard in federal court," the slander-in-title suit is really a Utah common law tort action that just involves the interpretation of a contract.

Despite Novell's assertions to the contrary, the suit has nothing to do with the application of the Copyright Act, which would make it a federal matter, even if copyrights are at issue, SCO said. In other words the federal courts don't have subject matter jurisdiction.

SCO has charged Novell - in concert with IBM and because of Novell's new last-chance Linux strategy - with trying to run off SCO's business by falsely claiming to own the Unix copyrights and bad mouthing SCO's ownership rights.

SCO's filing includes a response to Novell's motion to dismiss, which SCO claims hangs on a frayed string alleging that the old 50-page 1995 asset purchase agreement between Novell and the Santa Cruz Operation, SCO's predecessor in title, doesn't repeat the requisite legal incantation needed to transfer copyrights under Section 204(a) of the Copyright Act.

SCO says the Ninth Circuit has ruled that "If the copyright holder agrees to transfer ownership to another party, that party must get the copyright holder to sign a piece of paper saying so. It doesn't have to be the Magna Carta; a one-line pro forma statement will do." SCO also quotes another case the Ninth Circuit decided saying, "No magic words must be included in a document to satisfy" and another by the Seventh Circuit, which said the word copyright doesn't even have to be used. Intention suffices.

SCO's lawyers quote the judge the 1996 Amendment 2 to the Novell-Santa Cruz asset purchase as saying that SCO owns all "copyrights and trademarks owned by Novell as of the date of the [1995 asset purchase agreement] required for SCO to exercise its rights with respect to the acquisition of Unix and UnixWare technologies." The agreement, they say, also itemizes 106 separate copyright registrations.

Novell's motion to dismiss, for its part, argues that Unix and UnixWare had many versions and Amendment 2 doesn't specify which copyrights to which versions passed to SCO. SCO basically retorts that "all rights and ownership" means "all rights and ownership."

"Novell's claim that SCO has all rights and ownership of Unix and UnixWare including all source code," SCO says, "but somehow not all of the copyrights required to exercise those rights contradicts both the plain language of the asset purchase agreement as amended and the intent of the parties as expressed in the agreement." SCO couldn't exercise its "exclusive ownership" without the copyrights, it claims.

SCO needs to shoot down Novell's motion to dismiss because if it doesn't, it means the court denies that SCO owns the disputed copyrights. SCO enemy Free Software Foundation attorney Eben Moglen has said that if SCO doesn't emerge from the Novell suit with its exclusive rights recognized, it's screwed.

More Stories By Maureen O'Gara

Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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