Novell has launched another foray at the heart of The SCO Group's case against IBM, the 1995 contract in which SCO says Novell gave it the rights to UNIX™ and derivative works.

Without the contract, SCO is simply another UNIX™ licensee and has no grounds to pursue its case against IBM, and by extension, Linux users everywhere. SCO is already retreating from its claims to ownership of AT&T's System V, some rights to which subsequently fell into Novell's hands, but which SCO insists fall under the 1995 agreement. This, SCO says, gives it the rights to control derivative works. But as a sub-sub-licensee, says Novell, SCO is hardly in a position to bully anyone. Who's right?

In a letter last week, published today, Novell reminds SCO that AT&T retains crucial ownership rights. SCO says that section 2.01 of the 1995 contract with SCO, gives it the "right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT."

"In fact, SCO's interpretation of section 2.01 is plainly contrary to the position taken by AT&T, as author of and party to the SVRX licenses," says Novell. It points to an addition to the section by AT&T made in 1985, to mollify potential licensees of its "official" Death Star UNIX™ which was threatened by the freely-distributable Berkeley flavor, then growing in popularity beyond its academic niche.

AT&T added a sentence explaining that the company "claims no ownership interest in any portion of such a modification or derivative work that is not part of a SOFTWARE PRODUCT." In other words, it couldn't stake a claim on licensees' code. At around this time, an Oregon start-up called Sequent had the bright idea of licensing UNIX™ on the then hopelessly unfashionable Intel microprocessor architecture to create large multi-processor systems. Which it did with great success, and was eventually acquired by IBM in 1999. Novell cited two copies of AT&T's newsletter $echo from 1985 which reassured licensees that it wouldn't try and claw back their enhancements.

"For these reasons, and the reasons stated in our October 7, 2003 letter to you about IBM-developed code, SCO's position on Sequent Code is unsupportable," says Novell. It's given SCO until noon today to give up any claims that Sequent's code is really confidential SCO code.

That leaves a large part of SCO's case against IBM holed below the waterline. The parallel, and far murkier case of "Project Monterey" - the deliberate co-mingling of SCO's UnixWare, IBM's AIX and Sequent's Dynix which the parties all agreed to co-mingle back in 1998 - is another matter.

But with its claims to System V disappearing rapidly, that might yet be the best SCO can hope for. It's not over yet. ®

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