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Novell Releases Their Correspondence with SCO
Tuesday, January 13 2004 @ 02:02 AM EST

If you go to Novell's legal page, they have a zip of pdfs of their correspondence with SCO. I am downloading as I write this. They have all their copyright registrations up there too. Let's plunge in.

Novell seems to be catching on to this open thing, huh?


  


Novell Releases Their Correspondence with SCO | 329 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Person registering copyrights
Authored by: Anonymous on Tuesday, January 13 2004 @ 02:15 AM EST
They had to have searched the entire company's HR database for employee names
because it's quite funny to have been registered by "Sue Goodwill".
Aparently "Sco Sucks" no longer works for Novell.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: m0nkyman on Tuesday, January 13 2004 @ 02:18 AM EST
Text of the Jan 7 letter to follow

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Sunny Penguin on Tuesday, January 13 2004 @ 02:24 AM EST
1-2-04 to follow

---
SCO directly to jail, do not collect two hundred dollars.
BTW - I never have been mistaken for a Lawyer.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: m0nkyman on Tuesday, January 13 2004 @ 02:33 AM EST
12-23-03 text to follow:

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: eric76 on Tuesday, January 13 2004 @ 02:33 AM EST

This one opens a couple of questions:

January 2, 2004

Mr. Joseph A. LaSala, Jr.
Senior Vice President,
General Counsel and Secretary
Novell, Inc.
404 Wyman Street, Suite 500
Waltham, MA 02451

Re: Your Letter of December 23, 2003

Dear Mr. LaSala,

I returned to my office today from the holidays and received your letter of
December 23, 2003, which was faxed to our office after the close of business on
December 23, 2003. Our offices were closed, beginning December 24, 2003 until today.

We will respond to your December 23, 2003 letter next week. In the meantime, if
you have any questions or concerns, please do not hesitate to call me at 801-932-5408.

Sincerely

The SCO Group, Inc.

[signature of Ryan E. Tibbitts]

Ryan E. Tibbitts
General Counsel

The obvious question is whether their legal staff took holidays from December 24 through January 1.

If so, maybe they didn't have to spend much time working on the discovery issues. I kind of figured they'd be working overtime the whole 30 days trying to find something.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: RSC on Tuesday, January 13 2004 @ 02:34 AM EST
When will SCO release their Copyright Registrations?

We wait with bated brethe.


RSC

---
----
An Australian who IS interested.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Phong on Tuesday, January 13 2004 @ 02:48 AM EST
Text of 12-29-2003 to follow...

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Anonymous on Tuesday, January 13 2004 @ 02:49 AM EST
Read the 10-7-03-n-sco.pdf "IBM Code Contributed to AIX"

Novell waived SCO's claims that IBM's code is SOFTWARE PRODUCT when it
doesn't contain any AT&T code.


---
"Ideas once placed before the public without the protection of a valid
patent are subject to appropriation without significant restraint" -
Justice O'Connor

[ Reply to This | # ]

November 19, 2003
Authored by: eric76 on Tuesday, January 13 2004 @ 02:50 AM EST

VIA FACSIMILE AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED

November 19, 2003

Mr. Darl McBride
President and Chief Executive Officer
The SCO Group
355 South 520 West
Lindon, UT 84042

Re: Asset Purchase Agreement

Dear Mr. McBride:

You have recently stated publicly that Novell's pending acquisition of SuSE violates
non-competition provisions of the Asset Purchase Agreement and related agreements.
You made these statements without first raising the issue with us, and based on our
reading of the press, you have provided no specific citations or analysis to support this
position. In our review of the agreements, we find nothing supporting your statements.

In the absence of contractual support, these statements must be regarded as having
been made in bad faith and for the sole purpose of disrupting Novell's planned
acquisition and its prospective value to our company. Novell reserves all rights,
including the right to hold you liable for any damages these statements may cause the
company and for punitive damages based on your malicious and unfounded conduct.

Sincerely

[signature of Joseph A. LaSala, Jr.]

Joseph A. LaSala, Jr.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: m0nkyman on Tuesday, January 13 2004 @ 02:53 AM EST
I'm tired, so I won't transcribe 11-23-03, but there's an interesting bit in
there, once again using 14.6(b), wondering how SCO was able to significantly
amend Microsoft and Sun's licenses...
I'm thinking that might be interesting to follow.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Phong on Tuesday, January 13 2004 @ 03:16 AM EST
October 10, 2003 will be here soon.

[ Reply to This | # ]

Truly, telling letter for IBM case
Authored by: Anonymous on Tuesday, January 13 2004 @ 03:19 AM EST
http://www.novell.com/licensing/indemnity/pdf/6_11_03_sco-n.pdf

In this letter, Darl claims that Novell's direction of waiver / waiver of any
purported violation by IBM has no legal or factual basis...

...And then goes on to demand that Novell disclaim the waiver, and any right to
issue the waiver, by June 12th midday - or they will suffer unspecified
consequences.

(Darl also alleges a conspiracy between IBM and Novell and other fun stuff, and
complains at considerable length that Novell's actions have adversely affected
SCO's stock price -- I guess that must be his number 1 concern!)

For those with short memories, June 12-16 was the time that SCO was trying to
revoke the IBM license (and in fact claimed they had)

The biggest question is if Darl really believed that Novell's waiver had no
legal or factual basis, why is he demanding, so strongly, that Novell drop the
waiver by exactly June 12th midday (just in time for SCO to revoke IBM's
license according to their planned series of dates) ???

-- Remember this deadline on Novell can having nothing to do with publicity/PR
etc., as nobody knew about the Novell waiver until IBM responded to SCO's
amended complaint (I think in August) when the letters turned up as exhibits.

-- And for those stock/SEC watchers, did Novell's waiver *ever* appear in
SCO's risk disclosures???




[ Reply to This | # ]

Truly, telling letter for IBM case
Authored by: Anonymous on Tuesday, January 13 2004 @ 03:21 AM EST
http://www.novell.com/licensing/indemnity/pdf/6_11_03_sco-n.pdf

In this letter, Darl claims that Novell's direction of waiver / waiver of any
purported violation by IBM has no legal or factual basis...

...And then goes on to demand that Novell disclaim the waiver, and any right to
issue the waiver, by June 12th midday - or they will suffer unspecified
consequences.

(Darl also alleges a conspiracy between IBM and Novell and other fun stuff, and
complains at considerable length that Novell's actions have adversely affected
SCO's stock price -- I guess that must be his number 1 concern!)

For those with short memories, June 12-16 was the time that SCO was trying to
revoke the IBM license (and in fact claimed they had)

The biggest question is if Darl really believed that Novell's waiver had no
legal or factual basis, why is he demanding, so strongly, that Novell drop the
waiver by exactly June 12th midday (just in time for SCO to revoke IBM's
license according to their planned series of dates) ???

-- Remember this deadline on Novell can having nothing to do with publicity/PR
etc., as nobody knew about the Novell waiver until IBM responded to SCO's
amended complaint (I think in August) when the letters turned up as exhibits.

-- And for those stock/SEC watchers, did Novell's waiver *ever* appear in
SCO's risk disclosures???




[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: eamacnaghten on Tuesday, January 13 2004 @ 03:28 AM EST
They seem to be calling it "Novell's unique Legal Rights",
nonetheless, I am very happy regarding their support of "Linuques".

I will send them an email.....

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Anonymous on Tuesday, January 13 2004 @ 03:32 AM EST
Where, or where did SCO mention any of these letters in their RISK section?

SEC should move in before Darl flees the country.

[ Reply to This | # ]

OT: Computer Associates May Face S.E.C. Action (NY Times)
Authored by: Anonymous on Tuesday, January 13 2004 @ 03:32 AM EST
http://www.nytim es.com/2004/01/13/business/13place.html (registration required, but free and IMHO worthwhile).

The Securities and Exchange Commission may file civil charges against Computer Associates, the giant software company, for violating securities laws by booking sales before contracts were signed, the company said yesterday.

For two years, federal prosecutors and commission lawyers have investigated whether Computer Associates used accounting tactics to inflate its reported sales and profits in the late 1990's, a period when the company's three top executives received a $1.1 billion award tied to the performance of its stock.

(Relevance to the SCO case left as an exercise for the reader).

[ Reply to This | # ]

Novell Is Geting Ready for a Breach of Contract lawsuit
Authored by: Anonymous on Tuesday, January 13 2004 @ 03:36 AM EST

against the SCO group?
At least that is how I interpreted these letters.

H@ns

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Robert Hutton on Tuesday, January 13 2004 @ 03:37 AM EST
I'll start by transcribing May 12 2003

[ Reply to This | # ]

Now for October 13, 2003
Authored by: Phong on Tuesday, January 13 2004 @ 03:42 AM EST
I'll post Oc 13, 2003 next...

[ Reply to This | # ]

Copyright Registrations
Authored by: PM on Tuesday, January 13 2004 @ 03:46 AM EST
Novell has just fairly recently registered its various copyrights. Registration
is not mandatory to make a work copyright, but is a necessary to taking legal
action to enforce it.

It could be that Novell and SCO have registered copyright over the same chunks
of code which means (in theory) that one or the other has committed perjury when
signing the application (whether this would be proved 'beyond reasonable
doubt' is another matter).

So any poor sap hit by a SCO extortion attempt could well ask whether Novell
would be knocking on his door next. This is another wee problem that Darl and co
have to contend with.

[ Reply to This | # ]

Diritti legali unici di Novell
Authored by: Anonymous on Tuesday, January 13 2004 @ 03:47 AM EST
Looks like Novell is working on this site for quite a while. They just started
their indemnication program and already have translations for German, French,
Italian and Spanish (Hopefully the Chinese translation is coming soon).

[ Reply to This | # ]

Interesting thought
Authored by: Hyrion on Tuesday, January 13 2004 @ 03:51 AM EST
If SCOX has breached the purchase agreement, what's the
possibility that whatever rights they have to UNIX will
revert back to Novell???

Curious question, I wonder if Canopy is fully aware of the
purchase agreement and the fact they might not get the
UNIX rights SCOX is/was entitled to.

---
There are many kinds of dreams. All can be reached if a person chooses. - RS

[ Reply to This | # ]

OT: Darl - Unix comeback
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:01 AM EST
http://www.investors.com/editorial/tech01.asp?v=1/13

[ Reply to This | # ]

June 6, 2003 #2 (Novell to SCO)
Authored by: Phong on Tuesday, January 13 2004 @ 04:07 AM EST

I'm going to do the small June 6, 2003 letter from Novell to SCO next. It should bring a smile to my face while typing it.

[ Reply to This | # ]

Text of 28 May, 2003
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:14 AM EST
I'll do 28 May, 2003 next.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: radix2 on Tuesday, January 13 2004 @ 04:43 AM EST
I know you people are working methodically through the transcription of these
materials, but people might like to take a look at this:
http://www.novell.com/licensing/indemnity/pdf/7_11_03_n-sco.pdf - sorry.. for
some reason could not get [a href] working...

whereby Novell are questioning why they have not received ROYALTY payments for
the licencees of SysVRX. Surely, if one owns copyrights and all IP, one does not
have to pay royalties to a third party (ie Novell in this case)?

[ Reply to This | # ]

Very Aggresive Talk From Novell
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:59 AM EST
12-23-03 is my favorite so far !!!!


[ Reply to This | # ]

/. Effect
Authored by: radix2 on Tuesday, January 13 2004 @ 05:07 AM EST
even though not yet posted on SlashDot, we seem to be doing a GrokLaw on the
Novell web site ;o)

I will personally refrain from looking at these PDFS for a few hours to allow
others that can make better sense of them to do so....

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Anonymous on Tuesday, January 13 2004 @ 05:59 AM EST
So, anyone who has "grokked" the letters in their entirety, and dare
to post a sum analysis?

[ Reply to This | # ]

SCO following suit
Authored by: gordon on Tuesday, January 13 2004 @ 06:34 AM EST
With their stock tumbling over 5% yesterday SCO are obviously keen to stop the rot today. Over at yahoo, they are reiterating their ownership of Unix IP (see here) and they have their own correspondence site at www.sco.com/novell/.

[ Reply to This | # ]

SCO's latest press release
Authored by: eric76 on Tuesday, January 13 2004 @ 07:01 AM EST

In case anyone missed it, SCO issued a press release this morning.

From SCO Reiterates Ownership of Unix Intellectual Property and Prepares to Press Copyright Claims

LINDON, Utah, Jan. 13 /PRNewswire-FirstCall/ -- The SCO Group, Inc. (Nasdaq: SCOX - News) today reiterated its ownership of UNIX intellectual property, source code, claims and copyrights and has made all of the documents surrounding the companies ownership of UNIX and UnixWare available for public viewing at www.sco.com/novell. The Web site includes access to the asset purchase agreement, the amendments to the asset purchase agreement, and the joint press release that was issued at the time SCO purchased the UNIX assets from Novell in 1995. The press release confirms that SCO purchased the UNIX "IP" along with the UNIX business and source code, among other things.

...

The asset purchase agreement, signed by Novell and SCO executives in September 1995, as amended, states that all of the following transferred to SCO:

All UNIX rights and ownership -- All claims against any parties relating to any right, property or asset included in the UNIX business

All UNIX source code -- All UNIX contracts, copyrights, and licenses

The asset purchase agreement provided Novell with a UNIX license, but with the conditions that Novell use the licensed technology only for internal purposes, or for resale in bundled or integrated products sold by Novell which do not directly compete with the core UNIX products of SCO. SCO believes that a Novell Linux offering is clearly competitive with SCO's core UNIX products.

Amendment 2 to the asset purchase agreement, also available from SCO's Web site, reiterates that the copyrights and trademarks required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies transferred to SCO. It also states that Novell may not prevent SCO from exercising its rights with respect to UNIX System V source code.

In June 2003, Novell publicly confirmed with a press release, available on Novell's Web site at www.novell. com/news/press/archive/2003/06/pr03036.html, that amendment 2 to the asset purchase agreement "appears to support SCO's claim that ownership of certain copyrights for UNIX did transfer to SCO in 1996."

"Based on the asset purchase agreement, amendments, press releases and other publicly available documents, SCO has rights to all UNIX and UnixWare source code, legal claims, contractual rights, including copyrights, necessary to protect its intellectual property," said Darl McBride, president and CEO, The SCO Group, Inc. "Indemnification programs or legal defense funds won't change the fact that SCO's intellectual property is being found in Linux. SCO is willing to enforce our copyright claims down to the end user level and in the coming days and weeks, we will make this evident in our actions."

On the topic of Novell's recently announced indemnification program, McBride stated, "We believe Novell's indemnification announcement is significant for a couple of reasons. By announcing the program they are acknowledging the problems with Linux. Through the restrictions and the limitations on the program, they are showing their unwillingness to bet very much on their position."

Obviously, SCO thinks that remarks following an early reading of the Amendment 2 consitute agreement by Novell.

In fact, Novell didn't say that they proved SCO is correct regarding ownership of the copyrights, only that they appeared to do so.

[ Reply to This | # ]

Correspondence with SCO = Dueling Auditors?
Authored by: Anonymous on Tuesday, January 13 2004 @ 07:10 AM EST
Glancing through the PDFs and transcriptions, it looks like this is going to go
down to dueling contract auditors.

Just as SCO is auditing companies for compliance with the licencing contracts,
Novell is auditing SCO for compliance with the purchase agreement between oldSCO
and Novell (which Caldera bought, terms and all, when they bought the rights to
distribute the code).

[ Reply to This | # ]

Time question
Authored by: wllacer on Tuesday, January 13 2004 @ 07:39 AM EST
In the audit anouncment letter ( July 11) It's stated that the last Novell
audit was on February 98. I supose this was during real Santa Cruz times. Can
you confirm this ?

BTW. Does anybody know if there are published documents about the asset transfer
between Santa Cruz Operations (aka Tarantella) and Caldera (aka TSG, aka
"them ..."). Who knows if there is a new surprise waiting for us?

[ Reply to This | # ]

MS and Sun licenses invalid?
Authored by: delboy711 on Tuesday, January 13 2004 @ 08:19 AM EST
For me the Nov 21 letter is most interesting :-

Novell seems to be claiming that SCO did not have the right to enter into the
licenses with Sun and Microsoft without Novell's agreement.

The implication seems to be that those licenses may be invalid, or that SCO
might have to pay Novell a large part of the income from those licenses.

Whatever the merits of Novell's assertion it surely adds a big risk factor to
SCO

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: rakaz on Tuesday, January 13 2004 @ 08:52 AM EST
For those of us, who are too lazy to read the whole thing:

May 12, 2003, SCO: We own UNIX. Those Linux thieves stole it. Now we are going to make them pay!

May 28, 2003, Novell: Your letter annoyed us. You don't own UNIX, we do.

June 6, 2003, Novell: Stick to the facts and stop threathening us.

June 6, 2003, SCO: We do own UNIX, stop telling everybody you own it. You did that on purpose on the same day as our earning annoucement. We also want to know what IBM told you and what you told IBM.

June 9, 2003, Novell: You can't just terminate IBM's license, so stop claiming you will. We do have the right to tell you what to do, you know.

June 11, 2003, SCO: We do own UNIX and we can do what we want. Stop telling everybody we can't, or else…

June 12, 2003, Novell: Come on, you can't be serious. When we signed the contracts we promised IBM you could not terminate the license. We at Novell keep our promises.

June 12, 2003, Novell: Okay, now you've done it. You didn't listen, so now we are giving IBM permission to keep using AIX. You may not like it, but it the way it is. The license will not be terminated!

June 18, 2003, Novell: Our press release about the copyrights coinciding with your earnings annouchment was purely coincidental. We do not want to hurt you, we are just protecting our interests.

June 24, 2003, Novell : You signed contracts with Microsoft and somebody else. You can't just do that without telling us first. What's up with that? So, we demand to get copies and demand that you do not do this again. Once we have the copies we will determine if you have to give their money to us instead.

June 26, 2003, Novell: You keep telling you own the patents and copyrights of UNIX. We do acknowledge you had the right to acquire ‘some' of the copyrights and we are still looking into it how much exactly you are entitled to. In any case, you do NOT own the patents.

July 8, 2003, Novell: Please stop bothering our former executives.

July 11, 2003, Novell: You haven't paid us in 6 months, cough up the money! Also, we are definitely going to audit your ass.

July 17, 2003, Novell: We don't like you. You tell people lies. You thought you couldn't do that, so we didn't pay. Luckily for you we determined you could do that, so we will pay. Also, regarding the audit; we're busy, please come back later.

August 4, 2003, Novell: We noticed you registered the UNIX copyrights. We do not agree with that. You had to demonstrate you needed the copyrights and you didn't do that. Tough luck, the copyrights are still ours!

August 7, 2003, Novell: You withheld our money! No mather what your reasons are, you can't do that. We want assurances that this will never happen again. Compy!

August 20, 2003, Novell: You know what, we have a technology license agreement. We want copies of the source and binary code for all versions of UNIX and UnixWare. We tried to call, but you never called back. We want the code and we want to know when we can have it.

September 10, 2003, SCO: We don't agree with your interpretation of our contracts. You are conspiring with IBM to destroy us. SCO is not going to let this happen.

October 7, 2003, Novell: You seem to think that AIX modifications made by IBM are subject to restrictions. Sorry, but that is simply not true. IBM owns their own code and can do with it what they like. Stop bothering IBM.

October 7, 2003, Novell: You seem to think that IRIX modifications made by SGI are subject to restrictions. Sorry, but that is simply not true. SGI owns their own code and can do with it what they like. Even if SGI did contribute UNIX code to Linux, it was very small amount of code and it was removed very quickly. This simply does not warrant terminating SGI's license, so stop threathening that you will.

October 7, 2003, Novell: We heard you are going to send invoices to Linux users. We just want to let you know that the Technology License we talked about also allows our customers to use UNIX technology. By the way, because you are not the company we signed the contract with (a “Change of Control of SCO”), the restrictions of sublicensing and distribution are also not applicable anymore.

October 9, 2003, SCO: We paid Novell $150 million and we expected to get something in return. If we believe that what you said we would get far less than we thought we would get. That is not fair, and simply can't be true. We have been harmed by Novell's uninformed and unfounded claims. Any further attempts to harm SCO or its shareholders will be dealt with aggressively.

October 10, 2003, Novell: We said you didn't own IBM's own code and you didn't listed. Now we are telling IBM they own their code on your behalf. We can tell you what to do, you know.

October 10, 2003, Novell: We said you didn't can't terminate SGI's license without our permission. You are still threatening to do so, while you know we will not give you permission. So now we are telling SGI that their license is still valid on your behalf. Once again, we can tell you what to do.

October 13, 2003, SCO: You can not do that on our behalf.

November 19, 2003, Novell: You are publicly claiming that us buying SuSE violates a non-competition provision. We had to learn about this in the press, why didn't tell us yourself. Also, after looking at the agreements, we certainly do not agree with you. You are trying to disrupt our planned acquisisiton. We reserve the right to hold you liable for any damages.

November 21, 2003, Novell: Our audit teams requested information from you. We still have not received this information. We need to have it before we can close the audit. We also want some other information about amendments and modifications to SVRX licenses, new SVRX licenses and SVRX to UnixWare conversions.

December 23, 2003, Novell: We heard you are demanding SVRX licensees to issue certifications. The questions you are asking are not allowed according to the Asset Purchase Agreement. You are simply harrassing customers. You did not even consult us, while we get 95% of the revenues of those customers. Stop it!

December 29, 2003, Novell: We still haven't received the information we need to complete the audit. We want an answer before January 12th.

Januari 2, 2004, SCO: I've been on vacation, didn't have time respond to your letter from December 23. We are going to look into it… next week.

Januari 7, 2004, SCO: Okay, I've looked into it and we do have the right to ask for certification. We will continue to protect the assets purchased from Novell.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Anonymous on Tuesday, January 13 2004 @ 09:26 AM EST
Looks like Novell is setting up to drop the bomb. I would imagine if SCO did not
comply with the audit request a lawsuit will ensue if not already in process.

[ Reply to This | # ]

Novell sure is acting as if they have a contract
Authored by: Anonymous on Tuesday, January 13 2004 @ 09:41 AM EST
> The two parties never had a deal, so they never needed to agree on the contract.

Novell has certainly been acting as if they had a contract with "New SCO". They have been happily accepting payments from New SCO for Unix licensing, and the just-released correspondence shows that they are currently auditing New SCO's compliance with the asset purchase agreement.

[ Reply to This | # ]

A big point for the SEC to consider
Authored by: nedwidek on Tuesday, January 13 2004 @ 10:27 AM EST
This is what hit me from the "07 Aug 2003 - Novell to SCO - Royalty Payments and Audit Request pursuant to Asset Purchase Agreement dated September 19, 1995" letter when coupled with the MS and Sun license agreements.

It has been pointed out that SCO should not have made these agreements, but perhaps there is a bigger issue. As Novell pointed out, SCO is required to make monthly payments of the royalties to Novell and then Novell cuts them a check for their 5% fee. SCO applied the payments by MS and Sun to the bottom line on their quarterly statements. This is highly important to note since they would not have had a profitable year otherwise.

Am I missing something or did SCO really commit fraud on their SEC filings?

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: minkwe on Tuesday, January 13 2004 @ 10:53 AM EST
If 95% of the MSFT and SUNW money has to go to Novell, how come SCO made a
profit in 2003?

---
There are only two choices in life. You either conform the truth to your desire,
or you conform your desire to the truth. Which choice are you making?

[ Reply to This | # ]

Once again, life imitates Monty Python
Authored by: Scriptwriter on Tuesday, January 13 2004 @ 10:59 AM EST
Is it just me, or does this entire exchange remind anyone else of Monty
Python's Argument Clinic sketch?

"You don't have the copyrights to the source code."

"Yes we do."

"No you don't."

"Yes we do."

"And look here, it says you have to do what we tell you to, so stop
bothering our customers."

(looks) "No it doesn't."

"Yes it does. Right here!"

(looks again) "No it doesn't."

"And you still haven't given us what we need to complete our
audit."

"Yes we have."

"No you haven't."

"Have so."

---
He who sells what isn't his'n is headed for some time in prison.

irc.fdfnet.net #groklaw

[ Reply to This | # ]

New article from Forbes
Authored by: pjcm on Tuesday, January 13 2004 @ 11:01 AM EST
Forbes: Novell Joins Forces With Linux Brothers

looks like the press my be turning on SCO if ever so slightly.

IANAL Paddy

[ Reply to This | # ]

OT : Red Hat donates eCos copyrights
Authored by: PeteS on Tuesday, January 13 2004 @ 11:02 AM EST
Red Hat has announced they are donating the copyrights associated with eCos to the Free Software Foundation.

---
Artificial Intelligence is no match for natural stupidity

[ Reply to This | # ]

I am transcribing June 6, 2003, SCO to Novell
Authored by: Thomas Frayne on Tuesday, January 13 2004 @ 11:21 AM EST
I am transcribing June 6, 2003, SCO to Novell. I also have a status of
transcriptions list that I am almost ready to post.

[ Reply to This | # ]

Summary of transcription effort so far
Authored by: Thomas Frayne on Tuesday, January 13 2004 @ 11:34 AM EST
Summary of transcription effort so far

Here is a list of the letters that Groklaw readers have offered to transcribe,
in Groklaw time order, followed by the summary in original letter date order
that was posted by rakaz on Tuesday, January 13 2004 @ 08:52 AM EST, with
asterisks added for each item that has already been transcribed.

If I missed anything, or if you want to volunteer to transcribe a letter, please
respond to this note with the letter date in the title.



Groklaw offers to subscribe:

Authored by: m0nkyman on Tuesday, January 13 2004 @ 02:18 AM EST
Text of the Jan 7 letter to follow

Authored by: Sunny Penguin on Tuesday, January 13 2004 @ 02:24 AM EST
1-2-04 to follow

---
SCO directly to jail, do not collect two hundred dollars.
BTW - I never have been mistaken for a Lawyer.

[ Reply to This ]

* Novell Correspondence 1-2-04 - Authored by: Sunny Penguin on Tuesday,
January 13 2004 @ 02:35 AM EST
o Novell Correspondence 1-2-04 - Authored by: Anonymous on Tuesday,
January 13 2004 @ 08:36 AM EST

Novell Releases Their Correspondence with SCO
Authored by: m0nkyman on Tuesday, January 13 2004 @ 02:33 AM EST
12-23-03 text to follow:

Authored by: Phong on Tuesday, January 13 2004 @ 02:48 AM EST
Text of 12-29-2003 to follow...

Authored by: eric76 on Tuesday, January 13 2004 @ 02:50 AM EST

VIA FACSIMILE AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED

November 19, 2003

Authored by: m0nkyman on Tuesday, January 13 2004 @ 02:53 AM EST
I'm tired, so I won't transcribe 11-23-03, but there's an interesting bit in
there, once again using 14.6(b), wondering how SCO was able to significantly
amend Microsoft and Sun's licenses...
I'm thinking that might be interesting to follow.

[ Reply to This ]

* I assume you meant 11-21-03

Authored by: Phong on Tuesday, January 13 2004 @ 03:16 AM EST
October 10, 2003 will be here soon.

Authored by: Robert Hutton on Tuesday, January 13 2004 @ 03:37 AM EST
I'll start by transcribing May 12 2003

Authored by: Phong on Tuesday, January 13 2004 @ 03:42 AM EST
I'll post Oc 13, 2003 next...

Authored by: Phong on Tuesday, January 13 2004 @ 04:07 AM EST

I'm going to do the small June 6, 2003 letter from Novell to SCO next. It
should bring a smile to my face while typing it.

Authored by: Anonymous on Tuesday, January 13 2004 @ 04:14 AM EST
I'll do 28 May, 2003 next.

I am transcribing June 6, 2003, SCO to Novell
Authored by: Thomas Frayne on Tuesday, January 13 2004 @ 11:21 AM EST




Summary of letters, with items that are transcribed starred by me:

Authored by: rakaz on Tuesday, January 13 2004 @ 08:52 AM EST
For those of us, who are too lazy to read the whole thing:

* May 12, 2003, SCO: We own UNIX. Those Linux thieves stole it. Now we are going
to make them pay!

* May 28, 2003, Novell: Your letter annoyed us. You don't own UNIX, we do.

* June 6, 2003, Novell: Stick to the facts and stop threathening us.

* June 6, 2003, SCO: We do own UNIX, stop telling everybody you own it. You did
that on purpose on the same day as our earning annoucement. We also want to know
what IBM told you and what you told IBM.

June 9, 2003, Novell: You can't just terminate IBM's license, so stop claiming
you will. We do have the right to tell you what to do, you know.

June 11, 2003, SCO: We do own UNIX and we can do what we want. Stop telling
everybody we can't, or else…

June 12, 2003, Novell: Come on, you can't be serious. When we signed the
contracts we promised IBM you could not terminate the license. We at Novell keep
our promises.

June 12, 2003, Novell: Okay, now you've done it. You didn't listen, so now we
are giving IBM permission to keep using AIX. You may not like it, but it the way
it is. The license will not be terminated!

June 18, 2003, Novell: Our press release about the copyrights coinciding with
your earnings annouchment was purely coincidental. We do not want to hurt you,
we are just protecting our interests.

June 24, 2003, Novell : You signed contracts with Microsoft and somebody else.
You can't just do that without telling us first. What's up with that? So, we
demand to get copies and demand that you do not do this again. Once we have the
copies we will determine if you have to give their money to us instead.

June 26, 2003, Novell: You keep telling you own the patents and copyrights of
UNIX. We do acknowledge you had the right to acquire ‘some' of the copyrights
and we are still looking into it how much exactly you are entitled to. In any
case, you do NOT own the patents.

July 8, 2003, Novell: Please stop bothering our former executives.

July 11, 2003, Novell: You haven't paid us in 6 months, cough up the money!
Also, we are definitely going to audit your ass.

July 17, 2003, Novell: We don't like you. You tell people lies. You thought you
couldn't do that, so we didn't pay. Luckily for you we determined you could do
that, so we will pay. Also, regarding the audit; we're busy, please come back
later.

August 4, 2003, Novell: We noticed you registered the UNIX copyrights. We do not
agree with that. You had to demonstrate you needed the copyrights and you
didn't do that. Tough luck, the copyrights are still ours!

August 7, 2003, Novell: You withheld our money! No mather what your reasons are,
you can't do that. We want assurances that this will never happen again.
Compy!

August 20, 2003, Novell: You know what, we have a technology license agreement.
We want copies of the source and binary code for all versions of UNIX and
UnixWare. We tried to call, but you never called back. We want the code and we
want to know when we can have it.

September 10, 2003, SCO: We don't agree with your interpretation of our
contracts. You are conspiring with IBM to destroy us. SCO is not going to let
this happen.

October 7, 2003, Novell: You seem to think that AIX modifications made by IBM
are subject to restrictions. Sorry, but that is simply not true. IBM owns their
own code and can do with it what they like. Stop bothering IBM.

October 7, 2003, Novell: You seem to think that IRIX modifications made by SGI
are subject to restrictions. Sorry, but that is simply not true. SGI owns their
own code and can do with it what they like. Even if SGI did contribute UNIX code
to Linux, it was very small amount of code and it was removed very quickly. This
simply does not warrant terminating SGI's license, so stop threathening that
you will.

October 7, 2003, Novell: We heard you are going to send invoices to Linux users.
We just want to let you know that the Technology License we talked about also
allows our customers to use UNIX technology. By the way, because you are not the
company we signed the contract with (a “Change of Control of SCO”), the
restrictions of sublicensing and distribution are also not applicable anymore.

October 9, 2003, SCO: We paid Novell $150 million and we expected to get
something in return. If we believe that what you said we would get far less than
we thought we would get. That is not fair, and simply can't be true. We have
been harmed by Novell's uninformed and unfounded claims. Any further attempts
to harm SCO or its shareholders will be dealt with aggressively.

* October 10, 2003, Novell: We said you didn't own IBM's own code and you
didn't listed. Now we are telling IBM they own their code on your behalf. We
can tell you what to do, you know.

* October 10, 2003, Novell: We said you didn't can't terminate SGI's license
without our permission. You are still threatening to do so, while you know we
will not give you permission. So now we are telling SGI that their license is
still valid on your behalf. Once again, we can tell you what to do.

* October 13, 2003, SCO: You can not do that on our behalf.

* November 19, 2003, Novell: You are publicly claiming that us buying SuSE
violates a non-competition provision. We had to learn about this in the press,
why didn't tell us yourself. Also, after looking at the agreements, we
certainly do not agree with you. You are trying to disrupt our planned
acquisisiton. We reserve the right to hold you liable for any damages.

* November 21, 2003, Novell: Our audit teams requested information from you. We
still have not received this information. We need to have it before we can close
the audit. We also want some other information about amendments and
modifications to SVRX licenses, new SVRX licenses and SVRX to UnixWare
conversions.

* December 23, 2003, Novell: We heard you are demanding SVRX licensees to issue
certifications. The questions you are asking are not allowed according to the
Asset Purchase Agreement. You are simply harrassing customers. You did not even
consult us, while we get 95% of the revenues of those customers. Stop it!

* December 29, 2003, Novell: We still haven't received the information we need
to complete the audit. We want an answer before January 12th.

* Januari 2, 2004, SCO: I've been on vacation, didn't have time respond to
your letter from December 23. We are going to look into it… next week.

* Januari 7, 2004, SCO: Okay, I've looked into it and we do have the right to
ask for certification. We will continue to protect the assets purchased from
Novell.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: pooky on Tuesday, January 13 2004 @ 11:49 AM EST
My real question is who is going to sue who 1st. Obviously from the exchange of
correspondence between Novell and SCOG’s legal counsels there are conflicting
interpretations of the APA’s language, and each side has dug in with their
respective positions. Novell’s relationship with SCOG is obviously adversarial
at this point.

As I see it, Novell seems to have created a documentation trail of their
attempts to “work things out” with SCOG in advance of taking a court action.
They seem to have set up a situation where they could sue SCOG for violating the
terms of the APA (exercising rights SCOG doesn’t have, refusing to cooperate
with the Novell audit, refusing Novell’s contractual rights granted under the
APA…)

I’ll just venture a guess here that SCOG didn’t respond to Novell’s request for
documents for the audit by yesterday (1/12). I’ll bet we’ll see someone filing a
suit by the end of the month.
-pooky


---
Veni, vidi, velcro.
I came, I saw, I stuck around.
IANAL, etc...
Remember, just because SCO says it's so doesn't make it so.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: jmccorm on Tuesday, January 13 2004 @ 12:19 PM EST
The oart I like is where SCO suddenly regains its institutional memory and then
claims that Novell doesn't have one. That, after SCO's own loss of
institutional memory regarding the history of SYSV code.

[ Reply to This | # ]

Paralells? - was (Novell Releases Their Correspondence with SCO)
Authored by: Anonymous on Tuesday, January 13 2004 @ 12:59 PM EST
Interesting and telling comment from a piece of early correspondance...

'Similar to analogous efforts underway in the music industry, we are prepared
to take all actions necessary to stop the ongoing violation of our intellectual
property or other rights.'

They're stating at this early juncture their intent to follow the RIAA's lead
and attempt to litigate their customer base into submission. Like the RIAA, the
new SCO doesn't even hold the copyrights for the works it is 'defending'. If
they continue to parallel the RIAA things could get very interesting.

The RIAA recently took to hiring a private police and dressing them up as
faux-DEA officers to bust street vendors, does this mean we'll see burly men in
black uniforms with SCO stenciled in large yellow letters on their backs?
Perhaps SCO will storm IBM's HQ in an attempt to enforce their licence
termination?

Seriously though, this comment tells me that the new SCO is not interested in
the computer business except as a litigation opportunity. From what I remember
of the Novell/old SCO agreements, wouldn't that constitute new SCO ceasing
their activity in marketing UNIX?

[ Reply to This | # ]

Overview of the Champaign
Authored by: lightsail on Tuesday, January 13 2004 @ 01:12 PM EST
An overview of the Campaign:

Main Front: IBM is bringing relentless pressure on TSG after sneak attack.

Second Front: Red Hat forces TSG into a second Front

Off Shore: LinuxTag defeats TSG in brief confrontation.

Hidden Front: Novell undermines TSG. This well planned stealth operation may be
the fatal blow.

Homeland Security: HP, Novell, RedHat, OSDL, IBM, Intel protect the faithful.

Strategic Intelligence : Groklaw keeps debunking TSG dis-information!

Analysis: TSG cannot hope to defeat the massive effort that has come to the
defense of GNU/Linux and the GPL.

[ Reply to This | # ]

Questions about the copyrights
Authored by: RealProgrammer on Tuesday, January 13 2004 @ 01:32 PM EST
In looking at the APA, including Amendment 2, we see the following (There is a
typo in Groklaw's text, I.1.1(a), "Section 1.1" should be
"Schedule 1.1"). The sale wasn't "Everything
UNIX-related", as SCO would have it. It was just what was listed in the
list of Assets minus what was listed Excluded Assets. All patents are excluded.
All copyrights and trademarks are excluded, except some are included. The ones
that are included are those owned by Novell and which are also "required
by SCO to excercise its rights with respect to the acquisition of UNIX and
UnixWare technologies".

"Acquisition of technologies" is not "access to licensing
revenues" nor is it "protection of technologies".

What UNIX technology is SCO trying to acquire that makes owning UNIX copyrights
necessary?

Does "required" mean that if SCO can exercise its rights to acquire
a UNIX technology without the copyright, it doesn't get the copyright?

Does "required" also imply "sufficient"? That is, just
because SCO would need a certain copyright in order to "exercise its
rights" to acquire a UNIX technology, does that mean they get the
copyright even if they also would need ten other things they don't have?

In order for SCO to use the copyright in court, it would have to be registered.
Even if Novell owned a copyright, neither SCO nor Novell could exercise that
right unless it were registered. Does "owned by Novell as of the date of
the Agreement required by SCO to exercise its rights" mean the copyrights
that had been registered at that time?

Is the set of UNIX copyrights transferred to SCO subject to extension whenever
SCO thinks it needs them, or was the set fixed at Closing, or was it all of
them?

Was the set of copyrights transferred to SCO empty?

-------------------

1.1 Purchase of Assets

(a) Purchase and Sale of Assets. On the terms and subject to the conditions set
forth in this Agreement, Seller will sell, convey, transfer, assign and deliver
to Buyer and Buyer will purchase and acquire from Seller on the Closing Date (as
defined in Section 1.7), all of Seller's right, title and interest in and to
the assets and properties of Seller relating to the Business (collectively the
"Assets") identified on Schedule 1.1 (a) hereto. Notwithstanding the
foregoing, the Assets to be so purchased shall not include those assets (the
"Excluded Assets") set forth on Schedule 1.1 (b):

[...]

Schedule 1.1(a)
Assets
(Page 1 of 4)

1. All rights and ownership of UNIX and UnixWare and Auxiliary Products,
including but not limited to all versions of UNIX and UnixWare and Auxiliary
Products and all copies of UNIX and UnixWare and Auxiliary Products (including
revisions and updates in process), and all appropriate technical, design,
development, installation, operation and maintenance information concerning UNIX
and UnixWare and Auxiliary Products, including source code, source
documentation, source listings and annotation, [...] engineering, notebooks,
test data and test results, as well as all reference manuals and support
materials normally distributed by Seller to end-users and potential end-users in
connection with the distribution of UNIX and UnixWare and Auxiliary Products,
such assets to include without limitation the following:
[ including ]
V. Intellectual property - Trademarks UNIX and UnixWare as and to the extent
held by Seller (excluding any compensation Seller receives with respect of the
license granted to X/Open regarding the UNIX trademark).
[...]

Schedule 1.1(b)
Excluded Assets
(Page 1 of 2)

I. Any asset not listed on Schedule 1.1(a) including without limitation any
asset which pertains to NetWare and which is not listed on Schedule 1.1(a)

II. Netware Operating System and Services

III. TUXEDO Transaction Processing

IV. Licensed technology, including
A. Netware and other Novell code contained in UnixWare 2.01 and Eiger:
[15 items redacted for brevity]
B. Netware code contained in Eiger only:
[2 items redacted]
C. Netware 4.1 for UnixWare

Schedule 1.1(b)
Excluded Assets
(Page 2 of 2)

V. Intellectual Property

A. All copyrights and trademarks, except for the copyrights and trademarks
owned by Novell as of the date of the Agreement required for SCO to exercise its
rights with respect to the acquisition of UNIX and UnixWare technologies.
However, in no event shall Novell be liable to SCO for any claim brought by any
third party pertaining to said copyrights and trademarks.

B. All patents


---
(I'm not a lawyer, but I know right from wrong)

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Anonymous on Tuesday, January 13 2004 @ 01:39 PM EST

It seems to me, after seeing all or the "SCO and Novell", that this is a simple matter:

1. SCO has no rights related to Unixware or System V Unix. newSCO is/was Caldera and not the original oldSCO, as a recult the agreement with Novell does not carry over from oldSCO to Caldera/newSCO.

2. SCO should only be suing their former executives and/or other personnel that pushed for purchase of oldSCO's IP or whatever it is they purchased. This would include suing the lawyers that were supposed to be protecting Caldera's/newSCO's interests in their purchases of (whatever) stuff from oldSCO. Or....

3. (most unlikely of all) SCO, Darl, Blake, Chris, etc., will come to the realization they were wrong all along, oops, sorry, and try to walk away with their tails between their legs. Only to get far enough for IBM to plant a firm counter-suit boot in their rear ends.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Anonymous on Tuesday, January 13 2004 @ 01:45 PM EST
I have now all the documents online at this address: http://fredan.org/slas hdoted/novell.com/legal.html

Happy reading!
//fredan

[ Reply to This | # ]

7_11_03_n-sco.pdf transcription
Authored by: eggplant37 on Tuesday, January 13 2004 @ 02:46 PM EST
7_11_03_n-sco.pdf transcription

<Novell letterhead>

07/11/2003

Via Telefacsimile (801) 765-1313 and Overnight Mail

Robert Bench
Chief Financial Officer
The SCO Group
355 South 520 West
Lindon, UT 84042

Re: Demand for Outstanding Royalty Reports and Payments, and Notice of Audit,
under the Asset Purchase Agreement Between The Santa Cruz Operation, Inc. and
Novell, Inc., September 19, 1995

Dear Mr. Bench:

I write to address two issues relating to payments owed by SCO to Novell under
the Asset Purchase Agreement, including both SVRX royalties and the royalties
payable through June 30, 2003 on Royalty-Bearing Products.

First, it has been more than six months since Novell received any royalty
reports or payments from SCO (we last received a royalty payment for October
2002, a royalty report for November 2002, and it appears that we have not
received a royalty report or payment since). We have tried to address this
issue in the ordinary course through SCO's accounts receivable staff, but we
have not received either the reports or payments or an explanation for SCO's
failure to provide them.

Accordingly, we demand that SCO provide immediately (and, for the future,
provide on a timely basis) the royalty reports and payments required by the
Asset Purchase Agreement. Please provide the reports in the format specified in
Section 1,2(f) of the Asset Purchase Agreement (as amended by Amendment No. 1),
including breakdowns by revenue type, product, customer, quarterly period of
distribution, and (if available) country of distribution. Please also provide
us with the single point of contact (to give us supplemental information we deem
appropriate) and the monthly reconciliation (of revenues and accounts receivable
to cash remittances) that are required by Section 1.2(f).

Secondly, we hereby notify you that we will conduct an audit of SCO concerning
royalties and other payments due under the SVRX licenses and the Asset Purchase
Agreement. We will begin the audit at 10:00 a.m. on August 18, 2003, although
we would be pleased to begin on another day that same week if another day is
more convenient for your accounting personnel. As you may be aware, Novell last
conducted an audit in February 1998, covering the period ending December 31,
1997.

Accordingly, the audit will focus on royalties for the period beginning January
1, 1998 and ending June 30, 2003. Please acknowledge receipt of this letter and
let us know the SCO contact person with whom we should coordinate the audit.

Please let us know if you have any questions.

Sincerely,

<signed>

Mike Bready
Director, Contract Management

[ Reply to This | # ]

7_17_03_sco-n.pdf transcription
Authored by: eggplant37 on Tuesday, January 13 2004 @ 02:55 PM EST
7_17_03_sco-n.pdf transcription

<SCO letterhead>

July 17, 2003

Mr. Mike Bready, Director
Contract Management
Novell, Inc.
1800 South Novell Place
Provo, UT 84606-6194

Re: Royalty Payments and Audit Request pursuant to Asset Purchase Agreement
dated September 19, 1995

Dear Mr. Bready:

This letter is in response to yours of July 11, 2003.

Attached with this letter please find SVRx royalty payments from November 2002
through and including May 31, 2003. As you know, these payments are typically
made to Novell on a quarterly basis. Recent payments were withheld pending our
review of Novell's recent announcements regarding Linux. We are currently
evaluating the scope of Novell's Linux-related activities for compliance with
the terms of the September 19, 1995 Asset Purchase Agreement and its various
amendments (collectively, the "Asset Purchase Agreement").

We have provisionally determined that Novell announcements, standing alone, may
not have violated ther terms of the Asset Purchase Agreement for the royalty
period in question. For this reason SCO management has authorized payment of
the above-referenced royalty amounts. However, SCO expressly reserves and does
not waive its right to withhold royalty payments for future periods if it is
determined that Novell violates its obligations under the Asset Purchase
Agreement with respect to any Linux-related activity.

With regards to your request to begin an audit on August 18, 2003 at 10:00 am in
our offices, we would request Novell begin their royalty audit procedures the
following week if possible. SCO's quarter ends July 31 and our auditors are
scheduled to be at our offices for their quarterly review procedures during the
week of August 18th. Our revenue and royalty finance teams will be fully
engaged with our auditors. If you could start your audit the week of August
25th we could then give our full and undivided attention for your audit needs
and requirements. Please let me know if this is satisfactory.

Please direct all issues regarding the audit request to me.

Sincerely,

<signed>

Robert Bench
Chief Financial Officer

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Anonymous on Tuesday, January 13 2004 @ 03:00 PM EST
You all know that the only reason Novell posted these PDFs
is so that the Groklaw community would transcribe them for
free.

Now Groklaw isn't just the best site for responsible
reporting about the fiaSCO, it is also a pro bono site for
legal transcription.

:)

[ Reply to This | # ]

8_4_03_n-sco.pdf transcription
Authored by: eggplant37 on Tuesday, January 13 2004 @ 03:14 PM EST
8_4_03_n-sco.pdf transcription

<Novell letterhead>

VIA FACSIMILE AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED

August 4, 2003

Mr. Darl McBride
President and Chief Executive Officer
The SCO Group
355 South 520 West
Lindon, UT 84042

Dear Mr. McBride,

This is further to my letter of June 26, 2003 concerning ownership of the
copyright in UNIX, and follows your recent announcement that SCO has registered
its claim to copyrights in UNIX System V with the U.S. Copyright Office.

We dispute SCO's claim to ownership of these copyrights. The Asset Purchase
Agreement, in Schedule 1.1(b), contains a general exclusion of copyrights from
the assets transferred to Santa Cruz Operation. Amendment No. 2 provides an
exception to that exclusion but only for "copyrights ... required for
[Santa Cruz Operation] to exercise its rights with respect to the acquisition of
UNIX and UnixWare technologies."

In other words, under the Asset Purchase Agreement and Amendment No. 2,
copyrights were not transferred to Santa Cruz Operation unless SCO could
demonstrate that such a right was "required for [Santa Cruz
Operation]" to exercise the rights granted to it in the APA. Santa Cruz
Operation has never made such a demonstration, and we certainly see no reason
why Santa Cruz Operation would have needed ownership of copyrights in UNIX
System V in order to exercise the limited rights granted SCO under the APA. Nor
is there any reason to think that a transfer of the copyrights required for SCO
to exercise its APA rights necessarily entails transfer of the entire set of
exclusive rights associated with a particular copyrighted computer program.

Unless and until SCO is able to establish that some particular copyright right
is "required" for SCO to exercise its rights under the APA, SCO's
claim to ownership of any copyrights in UNIX technologies must be rejected, and
ownership of such rights instead reamins with Novell.

Sincerely,

<signed>

Joseph A. LaSala, Jr.

[ Reply to This | # ]

8_20_03_n-sco.pdf transcription
Authored by: eggplant37 on Tuesday, January 13 2004 @ 03:26 PM EST
8_20_03_n-sco.pdf transcription

<Novell letterhead>

VIA FACSIMILE AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED

August 20, 2003

Mr. Darl McBride
President and Chief Executive Officer
The SCO Group
355 South 520 West
Lindon, UT 84042

Re: Source and binary code due Novell under the Asset Purchase Agreement (the
"APA"), dated September 19, 1995, and the Technology License
Agreement (the "TLA"), executed December 6, 1995, both between
Novell and The Santa Cruz Operation, Inc.

Dear Mr. McBride

Under Section II of the TLA, Novell retains "a non-exclusive,
non-terminable, world-wide, fee-free license to" the "Licensed
Technology," as that term is defined in the APA. Section 1.6 of the APA
defines the term "Licensed Technology" as "all of the
technology included in the Assets and . . . all derivatives of the technology
included in the Assets, including the 'Eiger' product release." In
turn, Section 1.1(a) of the APA defines the "Assets" as those assets
and properties identified on Schedule 1.1(a), exclusing the assets identified on
Schedule 1.1(b). Schedule 1.1(a) includes "all versions of UNIX and
UnixWare," including Unix source code products and UnixWare binary product
releases. Thus, Novell retained a license to all derivatives of all versions of
UNIX and UnixWare.

It follows from the foregoing that Novell is entitled to, among other things,
copies of the source and binary code for all versions of UNIX and UnixWare under
SCO's control.

Novell has made several informal attempts in phone conversations between Chris
Sontag and Novell's Dave Wright to obtain copies of the source and binary code
for Unix and UnixWare, but to no avail. Recent phone messages Dave Wright has
left with Chris Sontag have not been returned.

Since our informal requests have met with no success, Novell now formally
demands that SCO promptly supply to Novell copies of the source and binary code
for all versions of UNIX and UnixWare under SCO's control. Novell would prefer
to receive the code via a secure ftp site given the considerable volume
involved, but we are open to other delivery methods if SCO has its own
preference.

Please responde promptly with a date by which Novell can expect to receive the
above shown code.

Sincerely,

<signed>

Joseph A. LaSala, Jr.

[ Reply to This | # ]

  • WOW! - Authored by: kberrien on Tuesday, January 13 2004 @ 04:30 PM EST
    • WOW! - Authored by: Stephen on Tuesday, January 13 2004 @ 07:02 PM EST
      • WOW! - Authored by: Anonymous on Wednesday, January 14 2004 @ 06:58 AM EST
9_10_03_sco-n.pdf transcription
Authored by: eggplant37 on Tuesday, January 13 2004 @ 03:34 PM EST
9_10_03_sco-n.pdf transcription

<SCO letterhead>

Via Telecopy and Certified Mail

September 10, 2003

Mr. Joseph A. LaSala, Jr.
Novell, Inc.
404 Wyman Street, Suite 500
Waltham, MA 02451

Dear Mr. LaSala,

I write in response to your letters to Darl McBride of August 4, 2003, and
August 20, 2003. Please direct all future correspondence to The SCO Group, Inc.
to my attention.

We have reviewed and considered your letters in detail and disagree with your
analysis and conclusions. Your current interpretation of the agreements, which
appears to be of recent vintage, ignores certain provisions of the relevant
documents and does not consider the agreements between Novell and SCO as a
whole. We respectfully suggest that you carefully review all of the agreements
in their entirety, particularly Amendment No. 2.

In addition, it appears that Novell is acting in concert with IBM to destroy
the value of SCO UNIX and UnixWare intellectual property acquired from Novell in
the Asset Purchase Agreement. SCO is not going to let this happen. Further, we
request that Novell abide by the terms of the agreement, including all
amendments.

Thank you for your attention to this matter. Please feel free to call if you
have any questions.

Sincerely,

<signed>

Ryan Tibbitts
General Counsel
The SCO Group, Inc.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Anonymous on Tuesday, January 13 2004 @ 03:55 PM EST
This from the document dated 12 June 2003, from Messman at Novell to Darl
"...I have looked over the contractual provisions you cite, and have
concluded that once again you are engaging in an implausible reading of the
relevant documents."

Cant get much simpler than that.

[ Reply to This | # ]

10_7_03_n-sco.pdf transcription
Authored by: eggplant37 on Tuesday, January 13 2004 @ 03:56 PM EST
10_7_03_n-sco.pdf transcription

<Novell letterhead>

VIA FACSIMILE AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED

Mr. Ryan Tibbitts
General Counsel
The SCO Group
355 South 520 West
Lindon, UT 84042

Re: IBM Code Contributed to AIX

Dear Mr. Tibbitts:

I write further to the exchange of correspondence between Novell and SCO
concerning SCO's campaign directed against the Linux community.

SCO appears to be taking the position that code developed by IBM, or licensed
by IBM from a third party, which IBM incorporated in AIX but which itself does
not contain proprietary UNIX code supplied by AT&T under the license
agreements between AT&T and IBM ("IBM Code"), must nevertheless
be maintained as confidential and may not be contributed to Linux.

For instance, at Forum 2003, SCO gave a presentation in which it asserted that
particular code modules constitute "examples of significant infringing
derivative works contributions to Linux 2.4/2.5 kernels." SCO conclulded
that over 1,500 files and more than a million lines of code were unlawfully
copied from UNIX into Linux. It appears that SCO included IBM Code in its
calculation.

The position that IBM Code must be maintained as confidential and subject to
use restrictions is contrary to the agreements between AT&T and IBM,
including Amendment X, to which Novell is a party. Section 2.01 of the Software
Agreement, dated February 1, 1985, between AT&T Technologies, Inc. and IBM,
states that:

AT&T grants to LICENSEE a personal, nontransferable and nonexclusive right
to use in the United States each SOFTWARE PRODUCT identified in the one or more
Supplements hereto, solely for LICENSEE'S own internal business purposes and
solely on or in conjunction with DESGINATED CPUs for such SOFTWARE PRODUCT.
Such right to use includes the right to modify such SOFTWARE PRODUCT, provided
the resulting materials are treated hereunder as part of the original SOFTWARE
PRODUCT.

A side letter clarifying the parties' understanding of the Software Agreement,
also dated February 1, 1985, states in (paragraph A.2) that:

Regarding Section 2.01, we [AT&T] agree that modifications and derivative
works prepared by or for you [IBM] are owned by you. However, ownership of any
portion or portions of SOFTWARE PRODUCTS included in any such modification or
derivative work remains with us.

The agreements between AT&T and IBM, as amended, including the side letter
(the "Agreements"), thus provide for a straightforward allocation of
rights: (1) AT&T retained ownership of its code from the Software Products
("AT&T Code"), and the Agreements' restrictions on
confidentiality and use apply to the AT&T Code, whether in its original form
or as incorporated in a modification or derivative work, but (2) IBM retained
ownership of its own code, and the Agreements' restrictions on confidentiality
and use do not apply to that code so long as it does not embody any AT&T
Code.

To be sure, to the extent that a modification or derivative work embodies
AT&T Code, the combined work consisting of AT&T Code and IBM Code
constitutes "resulting material" that is subject to the Agreements.
the IBM Code itself is, however, not "resulting material."
Therefore, the IBM Code is not subject to the confidentiality obligations or use
restrictions of the Agreements.

This outcome is consistent with other provisions of the Agreements. For
example, the side letter (as amended by Amendment X) further provides (in
paragraph 9) that:

Nothing in this agreement shall prevent LICENSEE from developing or marketing
products or services employing ideas, concepts, know-how or techniques relating
to data processing embodied in SOFTWARE PRODUCTS subject to this Agreement,
provided that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into
any such product or in connection with any such service.

As reflected in this language, the focus of the Agreements was on protecting
AT&T Code, not on restricting IBM Code just because it happened to be
combined with AT&T Code in a modification or derivative work. Any other
result would defy logic as well as the intent of the parties.

As you know, under Section 4.16(b) of the Asset Purchase Agreement Novell
retains the right, at Novell's "sole discretion and direction," to
require SCO to "amend, supplement, modify or waive any rights under, or .
. . assign any rights to, any SVRX License to the extent so directed in any
manner or respect by [Novell]." That section further provides that to the
extent SCO "shall fail to take any action concerning the SVRX
Licenses" as directed by Novell, Novell "shall be authorized, and
hereby is granted, the rights to take any action on [SCO's] own behalf."

Accordingly, pursuant to Section 4.1(b) of the Asset Purchase Agreement, Novell
hereby directs SCO to waive any purported right SCO may claim to require IBM to
treat IBM Code itself as subject to the confidentiality obligations or use
restrictions of the Agreements. Novell directs SCO to take this action by noon,
MST, on October 10, 2003, and to notify Novell that it has done so by that
time.

Sincerely,

<signed>

Joseph A. LaSala, Jr.

cc: Mr. Darl McBride
Mr. Ron Lauderdale
Vice President, Assistant General Counsel
IBM

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:03 PM EST
IANAL, but in general what you tell someone is presumed non-confidential. Thus,
SCOG has no "reasonable expectation" that the letter be kept
private.
*Unless* Novell and SCOG have a NDA (Non-disclosure Agreement) in place that
covers the topics in the letter from SCOG.

Because the primary purpose of this site is to behave like the press and serve
as a forum for analysis and commentary, I think the Supreme Court has your back
(Pentagon Papers case -- and that was "national security"
classified, not by some business). If there was an NDA, SCOG could sue Novell
for releasing it, but not you/us/Groklaw.

[ Reply to This | # ]

10_7_03_n-sco_sgi.pdf transcription
Authored by: eggplant37 on Tuesday, January 13 2004 @ 04:12 PM EST
10_7_03_n-sco_sgi.pdf transcription

<Novell letterhead>

VIA FACSIMILE AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED

October 7, 2003

Mr. Ryan Tibbitts
General Counsel
The SCO Group
355 South 520 West
Lindon, UT 84042

Re: Silicon Graphics, Inc.

Dear Mr. Tibbitts:

On August 13, 2003, SCO sent a letter to Silicon Graphics, Inc.
("SGI"), providing notice that it would terminate SGI's SVRX
license by October 14, 2003 if SGI did not remedy certain alleged breaches. SGI
responded to that letter of September 30, 2003.

As it has with IBM, SCO appears to be taking the position that code developed by
SGI, or licensed by SGI from a third party, which SGI incorporated in its UNIX
variant but which itself does not contain proprietary UNIX code supplyed by
AT&T under the license agreement between AT&T and SGI ("SGI
Code"), must nevertheless be maintained as confidential and may not be
contributed to Linux.

We have reviewed the terms of the AT&T/SGI License and we believe that
SCO's position is not supportable. In particular, we note that Section 2.01 of
the license specifically states that "ATT-IS claims no ownership interest
in any portion of such a modification or derivative work that is not part of a
SOFTWARE PRODUCT."

SCO has also alleged that SGI contributed to Linux certain proprietary UNIX code
supplied by AT&T under the AT&T/SGI license agreement. SGI has
responded to that allegation in its letter by, among other things, noting the
small amount of code at issue and its efforts to expunge potentially problematic
code from Linux.

In 1995, Novell and SGI entered into an amendment which granted SGI a fully
paid-up license in return for a payment to Novell of $19 million. SCO has not
demonstrated to Novell that there has been a breach of the SGI license sufficent
to conclude that termination is warranted.

Under Section 4.16(b) of the Asset Purchase Agreement, Novell retains the right,
at Novell's "sole discretion and direction," to require SCO to
"amend, supplement, modify or waive any rights under, or . . . assign any
rights to, any SVRX License to the extent so directed in any mannerr or respect
by [Novell]." That section further provides that to the extent SCO
"shall fail to take any action concerning SVRX Licenses" as directed
by Novell, Novell "shall be authorized, and hereby is granted, the rights
to take any action on [SCO's] own behalf."

Accordingly, pursuant to Section 4.16(b) of the Asset Purchase Agreement, Novell
hereby directs SCO to waive any purported right SCO may claim to terminate
SGI's SVRX license or to revoke any rights thereunder, including any purported
right to terminate asserted in SCO's letter of August 13, 2003.

In addition, Novell hereby directs SCO to waive any purported right SCO may
claim to require SGI to treat SGI Code itself as subject to the confidentiality
obligations or use restrictions of SGI's SVRX license.

For the avoidance of doubt, Novell is not at this time directing SCO to take any
action (ther than to waive termination) with respect to claims that SGI
incorporated in Linux certain proprietary UNIX code supplied by AT&T under
the SGI license agreement.

Novell directs SCO to take these actions by noon, MST, October 10, 2003, and to
notify Novell that it has done so by that time.

Sincerely,

<signed>

Joseph A. LaSala, Jr.

cc: Mr. Darl McBride
Ms. Sandra M. Escher
Senior Vice President and General Counsel
SGI

[ Reply to This | # ]

Letters left to transcribe
Authored by: bruzie on Tuesday, January 13 2004 @ 04:37 PM EST
Having done a process of elimination, these are the letters still to be
transcribed:

6/12/03 - Novell to SCO
6/12/03 - Novell to SCO and IBM
6/18/03 - Novell to SCO
6/24/03 - Novell to SCO
6/26/03 - Novell to SCO
8/7/03 - Novell to SCO
10/7/03 - Novell to SCO (Technology License Agreement)
10/10/03 - Novell to SCO and SGI

If anyone is currently doing any of these or is interested, could you post a
reply to this comment with the date in the subject.

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Turing_Machine on Tuesday, January 13 2004 @ 04:40 PM EST
This may not be the correct forum, but I would like to offer a collaborative way
to convert those pdf files and such. I would be willing to dedicate a
processing server to do basic rastorization and OCR of the available PDF files.
Please let me know if anyone else would be willing to help in this
collaboration.
I would be using a linux server to use PostScript to convert the Acrobat files
to an image file, then run gocr on the results, and allow people to manage and
convert pages as they have time. Any interest?

[ Reply to This | # ]

SCO Stock
Authored by: Observer on Tuesday, January 13 2004 @ 04:57 PM EST
Funny... at times like this I have this perverse desire to go out and buy just
one share of SCO stock, just so I can watch it drop like a lead balloon. Sort
of like owning a piece of the Berlin Wall after it came down...

[ Reply to This | # ]

Dramatization rights
Authored by: Anonymous on Tuesday, January 13 2004 @ 05:57 PM EST
The ownership of a copyright is the ownership of an exclusive right protected by
the copyright act. I just asked myself whether any exclusive rights to SVRx are
held by anyone? Or have they all been licensed away in a non-exclusive
fashion?

So, who owns the right of public performance?

[ Reply to This | # ]

Time for a Novell Section in the "Legal Docs" page
Authored by: Anonymous on Tuesday, January 13 2004 @ 06:51 PM EST
There are sections for SCO vs. IBM and RH vs. SCO. Time for a Novell section
too. Hopefully there hasn't been too much duplication with everyone doing
transcriptions.

[ Reply to This | # ]

All Letters Transcribed - Well done everyone!
Authored by: bruzie on Tuesday, January 13 2004 @ 08:07 PM EST
All the letters have been transcribed. I've sent PJ an email letting her know
so the job of putting them all together can start.

Thanks to everyone who got stuck in and did a share (or two). PJ tells us time
and time again that this site would not be possible without us and I'm sure
she'll tell us again. :)

[ Reply to This | # ]

Great work!
Authored by: the_flatlander on Tuesday, January 13 2004 @ 08:54 PM EST
How cool!

Great work getting all these transcribed.

Am I the only one who believes that PJ is now part of the audience that the
players are playing to? Novell put up these docs knowing full well that PJ and
her team would be drawn to them like bees to honey, and then would make them
easily accessable to everyone.

So Novell hasn't made any public statement, exactly, but it has taken what must
surely be its pretext for legal action and put it in front of the public. Does
that count as a public relations coup? Or just being mean to Darl? Or just
scuttling any hope SCO had of suing a Linux end user? (Because any suit brought
by SCO over copyright or other "IP", (blech), infringment ought to
be adjuorned while Novell and the SCO Group sort this mess out.)

I do wonder about Novell's motivations....

Anyway, thank you, PJ, phong, bruzie, and everyone else.

TFL

Groklaw rulz! Bow before the penguins, infidel.

[ Reply to This | # ]

Results of Simple US Copyright Search
Authored by: Anonymous on Wednesday, January 14 2004 @ 11:07 AM EST
The results of a simple search through the US Copyright Office produces some
enlightening information. ALL UNIX Copyrights are still held by guess who:
NOVELL.
Now the real question:
How can ANY judge even hear what SCO has to say about IP when they dont even
have a copyright for said IP?
I mean shouldnt that alone end this BS case?

[ Reply to This | # ]

Novell Releases Their Correspondence with SCO
Authored by: Anonymous on Wednesday, January 14 2004 @ 02:33 PM EST
I received this advice from a lawyer about a contract for which I was part of
the negotiating team: So long as you and the other party agree about what the
contract means, there are no problems. The problems arise when you and the other
party disagree about what you thought you agreed to. I'm here to try to
minimize the damage that could occur if the latter case prevails.

Note, this contract was between friends, for a project that both sides
essentially understood before they undertook to write the contract. Along the
way we had disagreements about what we thought we needed, and adjusted things
accordingly, and adjusted the proposed contract several times to reach agreement
and understanding. After the contract was fulfilled, we are still all friends.

The case between new Sco and Novell is missing several important elements that
my case wasn't:

1) In our case, both of our interests were served by coming to an agreement. For
Sco vs. IBM/Novell, neither side views coming to agreement with the other as in
their interest. Both view total capitulation of the other as the only acceptable
outcome.

2) In our case, the people who executed the contract are the same ones who
negotiated it. In the cases of Novell or IBM, it is a new management team. In
the case of Sco, it is not merely a new management team, despite the name being
similar, it is a completely different company.

3) In our case, disagreements started with direct discussions with the other
party. In the case of Sco, they started discussions by deploying the lawyers in
a highly aggressive position. (Eg. The group for which I was helping negotiate
the contract must sometimes send out letters telling people they must cease and
desist using our name without our permission. [Legally defensive.] If they come
back and request permission, we may grant it. The other option would be cease
and desist in using our name, and you owe us money for improperly using it in
the first place. This would be legally agressive, and very likely force the
opponent into a court appearance they might otherwise try to avoid.

[ Reply to This | # ]

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