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SCO files appeal in dispute over computer code

Published March 6, 2009 5:31 pm

Software » Utah firm seeks to restart claims over Linux system
This is an archived article that was published on sltrib.com in 2009, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The SCO Group of Lindon has filed an appeal reasserting its ownership of the copyright of Unix computer operating system software, a move officers believe will get it back on track to pursue claims against IBM in a case that has riled the open source software community.

In a brief posted Friday by the 10th Circuit Court of Appeals, the software company seeks to overturn rulings by U.S. District Judge Dale Kimball in Utah. Last year, Kimball held that Novell retained certain copyrights to the Unix system after it was sold in 1995 to a California company and that was subsequently purchased by The SCO Group. Left standing, that decision could prove fatal to SCO's claim against IBM over code in the popular Linux system.

SCO has been repeatedly vilified by advocates of software that is open for use and alteration by the public since it launched its legal attack on IBM six years ago this month. SCO claims IBM used Unix code owned by SCO as the basis for a feature in Linux that made it a commercially viable product.

Since then, SCO has seen its revenue fall, and blames the losses on competition from Linux. It sued Novell after Novell claimed it and SCO owned the Unix copyrights.

But in August of 2008, Kimball granted Novell's request for summary judgment. After a trial, he also awarded Novell about $2.5 million, plus interest in licensing revenue.

SCO's broad argument in its appeal is that there is plenty of evidence showing that it owns the Unix copyright and that Kimball erred by prematurely ruling for Novell instead of setting the case for trial.

Kimball disregarded "evidence of numerous witnesses and documents drawn from both sides" and then "improperly drew inferences in favor of Novell in resolving what both it and Novell previously recognized to be ambiguities," SCO argues.

SCO officials declined to comment on the case Friday.

Michael Jacobs, a San Francisco attorney who represents Novell, declined to say what Novell will argue before the appellate court.

"We have high confidence in Judge Kimball's ruling," Jacobs said in an e-mail.

In its brief, SCO cites numerous pieces of evidence that Novell sold the copyrights to the Unix system. That includes testimony from the top officials from Novell who negotiated the sale in 1995 and who say copyrights were part of the deal.

On Friday, under an expedited schedule, the court set oral arguments in the case for May 6 in Denver.

The SCO Group also is moving to sell its computer software business as part of its reorganization in bankruptcy court in Delaware. The company filed for bankruptcy after Kimball's 2008 ruling. After selling the software business to an outside party, SCO plans to continue to pursue its legal claims against IBM and others.

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