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Novell aims SCO tussle at the Supremes

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Novell wants the US Supreme Court to review its seemingly-never-ending legal tete-a-tete with SCO over the famous UNIX and UNIXware copyrights.

As noticed by Groklaw, Novell has filed a motion with a federal appeals court asking for a 90-day stay in the SCO case so it can file a writ of certiorari petition with the Supremes. This would ask the Supremes to review the lower court's decision that SCO can take its copyright crusade to trial.

In August, the 10th Circuit Court of Appeals reversed an earlier decision that the copyrights belonged to Novell, breathing new life into SCO's efforts to enforce the UNIX copyrights against the likes of IBM.

Last week, the SCO Group - a bankrupt company that does little more than fight court cases - booted its longtime boss, Darl McBride. But the shell-of-a-company vowed to continue its court battles with both Novell and Big Blue.

In 1995, Novell sold its Unix trademarks and other assets to an earlier incarnation of SCO, and SCO was quite sure that the deal included the Unix copyrights as well - so sure that it started waving them at the Linux industry, entering licensing agreements with the likes of Sun and suing everyone from IBM to DaimlerChrysler.

Novell then claimed that it had not sold the copyrights and that its ownership of the copyrights invalidates SCO's $1 billion lawsuit against IBM. So, in January 2004, SCO filed a suit accusing Novell of talking nonsense.

According to court rulings, the contract between Novell and SCO is ambiguous on the copyright issue. But SCO rolled out various witnesses who said Novell's clear intent was to include the copyrights in the pact. Of course, Novell argues that federal law requires that the copyright transfer be included in the written contract.

"This case presents a fundamental question of copyright law on which the [lower courts] are in disagreement: whether the written-transfer requirement of [federal law] requires a writing that identifies with reasonable certainty the specific subject matter and the essential terms of the copyright transfer," Novell says in its latest filing.

"Because resolution of that threshold legal question could entirely foreclose the copyright and related tort claims, thus significantly reducing the issues for trial in this case (as well as in two other cases), a stay of the mandate pending a petition for certiorari is warranted."

Following its bankruptcy filing, SCO says that within the next month, it will find a way to stabilize its cash flow. So we'll have to keep writing. And you'll have to keep reading. ®

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