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Weirder & Weirder

By Frank Hayes
January 26, 2004 12:00 PM ET

Computerworld - You probably thought things couldn't get any weirder with The SCO Group and Linux, didn't you? Of course they could. Last week, the company that claims all Linux users owe it royalties sued Novell for "slander of title." Now that's weird. Impressive, certainly -- "slander" gives it a sort of Hollywood-starlet-vs.-supermarket-tabloid sexiness. But chances are, unless you're a lawyer, you don't have the slightest idea what it means.
Now, why would SCO want to confuse you that way?
Here's the background: Last summer, SCO claimed that it owns all the copyrights associated with Unix and that Novell sold it those rights in a 1995 contract. That's important to SCO's legal claims, because SCO needs to own the Unix copyrights in order to sue Linux users for infringing them. No Unix copyrights, no Linux copyright-infringement suits.
But Novell said SCO was wrong -- first privately in letters to SCO, and later publicly. Novell said that it didn't sign away its Unix copyrights in that 1995 contract and that it still owns all the copyrights to Unix.
Sounds like a contract dispute, right? SCO claims the 1995 contract says one thing; Novell claims it says something different.
But instead of filing a contract lawsuit, SCO has sued Novell for "slander of title."
What is that? Slander of title is usually invoked when someone owns real estate and someone else questions that ownership, making it difficult or impossible for the owner to sell the property.
Applying that idea to Unix copyrights, SCO says Novell has publicly claimed that SCO doesn't own those copyrights -- thus discouraging Linux users from paying royalties to SCO.
Yes, that's a weird way to approach what's really a contract dispute over software copyrights. And that's telling, because there's only one reason why lawyers choose an oddball way of pursuing a suit. They do that when it looks like the straightforward approach won't work.
Judges like straightforward approaches. Juries do, too. And it's a judge and jury that will eventually have to decide what that 1995 contract said and who should own the Unix copyrights.
If SCO's lawyers could make a good case with a contract lawsuit, they would. Apparently, they can't.
It turns out that SCO's lawyers aren't likely to have much luck with a slander-of-title suit either. It won't pry loose the Unix copyrights from Novell, since that's a contract issue that's not affected by any of Novell's public statements. And a slander-of-title lawsuit is likely to be tossed out by a judge, whose first question will be, "Why didn't you file a contract suit?"
Ah, but until then,



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