SCO-Novell dispute to halt Linux lawsuit, expert claims

A legal expert affiliated with the Open Source Development Labs has claimed the SCO Group cannot file a lawsuit against a Linux customer until its copyright dispute with Novell was ironed out.

In a paper issued by the OSDL, Prof Eben Moglen of Columbia University and the Free Software Foundation said customers using Linux could rest easy and wait for a final decision as to whether SCO or Novell owned the copyrights to Unix.

Moglen, however, maintained in his letter distributed on Tuesday that SCO couldn't move ahead with the plan to serve a customer until its copyright dispute with Novell was legally decided.

And regardless of which company prevailed in court, he said, customers won't have to pay any company for a licence fee since both claimants -- SCO and Novell -- had distributed the Linux code under the GPL.

SCO would not comment on this report. SCO insisted it would file a major copyright infringement claim against a Linux customer by the end of February, and a spokesman said late last week those plans had not changed.

The creator and lead developer of the Linux kernel, Linus Torvalds, said he didn't know if SCO would go after a customer legally but he maintained the company's contentions about infringing code to date had been exposed as hollow claims. 'I don't think a sane company that expects or even hopes to win would start suing anybody over copyrights when they can't even control their own copyright claims, much less the claims over code that they definitely have no ownership on, like Linux,' Torvalds wrote in an email to CRN.
'They know that their copyright claims on Linux are bogus. They know that the code IBM has written for Linux was copyrighted by IBM, not SCO.' He also claimed SCO was fighting a no-win battle against Linux in the courts, and in the commercial marketplace.

'They don't have any customers left. They claim to have something like 11,000 resellers, but that must be a list of anybody who has ever sold a single copy of anything they did, because last I heard, those UnixWare licences weren't exactly flying off the shelves,' Torvalds said.

As part of ongoing legal manoeuvring between the Unix company and backers of Linux, Novell has questioned the authenticity of SCO's claim to full copyright ownership to the Unix System V code and in recent months has attempted to register its own copyright claims with the US Copyright Office.

However, a court and not the US Copyright Office will resolve that copyright dispute. One attorney who specialises in intellectual property law and is observing the SCO case said Moglen made some 'good points' in his paper but he maintained SCO was not precluded from filing the lawsuit against a customer.

'Not at all,' said Tom Carey, an IP attorney and partner in Bromberg & Sunstein, Boston, when asked if SCO was legally handcuffed until the dispute with Novell was ironed out. 'A copyright claim can't be filed without a registration from the Copyright Office. SCO has that. To make matters confusing, it appears that Novell has it as well. The copyright office does not pass on the merits of the registration. It is just a clerk. SCO can sue, and the issue of SCO's ownership can be fought out in that court proceeding.'

The OSDL, Hewlett-Packard, Novell, IBM and Red Hat have for months tried to minimise customer fears about potential litigation and counter potential purchase delays by offering indemnification policies, funds to help defray legal costs and in Red Hat's case, a simple IP warranty that promises to rewrite code for any affected customer.