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| SCO's Memorandum of Law in Opposition to Novell's Motion to Dismiss |
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Tuesday, March 09 2004 @ 02:16 AM EST
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Here's SCO's Memorandum in Opposition to Novell's Motion to Dismiss. SCO has it on its website now and we'll have a local copy as soon as we can. Meanwhile, here is a transcribed text version. Thanks to Thomas Frayne for the OCR to text.
Here is the PDF. Here is the Motion to Remand which they also filed and which we are working on transcribing. They would like the case to be heard in Utah state court, not federal, not in front of the Hon. Dale Kimball, who is hearing the IBM case.
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Brent O. Hatch (5715)
Mark R.Clements (7172)
HATCH, JAMES & DODGE, P.C.
[address, phone, fax]
Stephen N. Zack (pro hac vice)
Mark
J. Heise (pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for Plaintiff The SCO Group, Inc.
______________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
______________________________________
THE SCO GROUP, INC.,
a Delaware corporation, Plaintiff,
vs.
NOVELL, INC.,
a Delaware corporation,
Defendant.
____________________________________
PLAINTIFF'S MEMORANDUM IN OPPOSITION
TO DEFENDANT'S MOTION TO DISMISS
Civil No.:2:04CV00139
Judge Dale A. Kimball
Magistrate Judge Brooke C. Wells
___________________________________
Plaintiff The SCO Group, Inc. ("SCO") respectfully submits this Memorandum in
Opposition to Defendant's Motion to Dismiss. [1]
INTRODUCTION
Through an Asset
Purchase Agreement dated September 19, 1995, as amended, SCO, through
its predecessor in interest, paid Novell, Inc. ("Novell") 6.1 million
shares of SCO common stock to acquire from Novell:
I. All rights and
ownership of UNIX and UnixWare, including but not limited to all
versions of UNIX and UnixWare and copies of UNIX and UnixWare (including
revisions and updates in process), and all technical, design,
development, installation, operations and maintenance information
concerning UNIX and UnixWare, including source code, source
documentation, source listings and annotations, appropriate
engineering notebooks, test data and test results, as well as all
reference manuals and support materials normally distributed by [Novell]
to end-users and potential end-users in connection with the distribution
of UNIX and UnixWare...
II. All of [Novell's] claims arising after the
Closing Date against any parties relating to any right, property or
asset included in the Business.
III. All of [Novell's] rights pertaining to
UNIX and UnixWare under any software development contracts, licenses and
any other contracts to which [Novell] is a party or by which it is bound
and which pertains to the Business...
[Asset Purchase Agreement at
Schedule 1.1 (a) (emphasis added).]
Subsequent to the Asset Purchase
Agreement, on October 16, 1996, the parties executed Amendment No. 2 to
the Asset Purchase Agreement which clarified that SCO owned all
"copyrights and trademarks owned by Novell as of the date of the [Asset
Purchase Agreement] required for SCO to exercise its rights with respect
to the acquisition of UNIX and UnixWare technologies." In Attachment E
of Novell's Disclosure Schedule to the Asset Purchase Agreement, Novell
listed 106 separate copyright registrations filed with the United States
Copyright Office at the time of the Asset Purchase Agreement covering
products and materials relating to the UNIX and UnixWare business
transferred to SCO. As set forth in the Asset Purchase Agreement and as
alleged in SCO's Complaint, SCO is the exclusive owner of all of the
subsequently or previously registered copyrights and all non-registered
copyrights fixed by operation of law in the UNIX and UnixWare source
code, object code and documentation.
SCO has exercised exclusive and
unchallenged control over the UNIX and UnixWare technologies for the
entire period since execution of the Asset Purchase Agreement - a period
in excess of eight years. Notwithstanding the clear language of the
Asset Purchase Agreement, Amendment No. 2 and the eight-plus years SCO
has exercised exclusive control over the copyrights in UNIX and
UnixWare, Novell's new management [2] has recently begun a malicious
campaign to slander SCO's ownership rights in UNIX and UnixWare. Not
coincidentally, Novell's slander campaign was directly timed to its
change of senior executive management and its decision to embrace
Linux-related business activities in partnership with IBM. As alleged in
SCO's Complaint, Novell has repeatedly represented both publicly and
directly to customers and potential customers of SCO that Novell and not
SCO owns the UNIX and UnixWare copyrights. Novell has also recently
filed several false copyright registration applications with respect to
the very UNIX and UnixWare technologies it indisputably transferred to
SCO through the Asset Purchase Agreement.
Now Novell, through its Motion
to Dismiss, asks this Court to find that SCO has no ownership interest
in the UNIX and UnixWare copyrights because Novell claims the writing it
negotiated and executed transferring those valuable rights to SCO was
not technically sufficient under the Copyright Act. Novell's Motion must
be denied. Novell misrepresents the applicable law and entirely ignores
the allegations in SCO's Complaint and the plain language and the intent
of the parties as set forth in the Asset Purchase Agreement. As set
forth below and as alleged in SCO's Complaint, SCO owns UNIX and
UnixWare and all copyrights related thereto.
STANDARD OF REVIEW
In considering
a motion to dismiss, a court must take the allegations of the complaint
at face value and must construe them favorably to the plaintiff. The
allegations in the plaintiff's complaint are presumed true. Miller v.
Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). A court should not grant a
motion to dismiss unless it appears beyond doubt that the plaintiff
could prove no set of facts supporting the claim which would entitle
plaintiff to relief. Huxall v. First State Bank, 842 F.2d 249, 250- 51
(10th Cir. 1988). The court's function on a Rule 12(b)(6) motion is
merely "to assess whether the plaintiffs complaint alone is legally
sufficient to state a claim for which relief may be granted." Miller,
948 F.2d at 1565.
ARGUMENT
Novell claims in its Motion to Dismiss that
the nearly 50-page Asset Purchase Agreement between Novell and SCO,
together with its numerous schedules and amendments, was not a
sufficient "writing", "note", or "memorandum" under Section 204(a) of
the Copyright Act to transfer the UNIX and UnixWare copyrights from
Novell to SCO. Novell then claims that because it purportedly owns the
UNIX and UnixWare copyrights, Novell's public representations of
ownership are not false and therefore SCO has not alleged a claim for
slander of title.
As support for its position, Novell claims that
Section 204(a) imposes "very strict requirements on purported transfers
of copyright ownership" and that SCO has not alleged a writing
sufficient to meet those strict requirements. [Novell's Mem. at 5.]
Novell grossly overstates the law and mischaracterizes both the terms of
the Asset Purchase Agreement, as amended, and the allegations in SCO's
Complaint. As the Ninth Circuit has held in a leading case on the
subject, "[t]he [§204(a)] rule is really quite simple: If the copyright
holder agrees to transfer ownership to another party, that party must
get the copyright holder to sign a piece of paper saying so. It doesn't
have to be the Magna Charta; a one-line pro forma statement will do."
Effects Associates, Inc. v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990).
The Asset Purchase Agreement as amended and as alleged in SCO's
Complaint clearly meets the requirements of a Section 204(a) writing.
Novell also claims that SCO has not alleged special damages with
sufficient particularity under Rule 9(g) of the Federal Rules of Civil
Procedure to support its slander of title claim. Again, Novell has
attempted to elevate a simple standard to something it is not. Rule 9(g)
only requires a plaintiff to plead damages in a manner that apprises the
defendant of the claims at issue and the damages alleged to flow from
those claims. Moreover, attorneys' fees are recoverable as special
damages under Utah law for a claim of slander of title and SCO has
obviously incurred attorneys' fees in protecting its valuable ownership
rights in UNIX and UnixWare and has specifically sought attorneys' fees
in its Complaint.
I. SCO IS THE OWNER OF THE UNIX AND UNIXWARE
COPYRIGHTS PURSUANT TO THE ASSET PURCHASE AGREEMENT AND NOVELL'S PUBLIC
STATEMENTS TO THE CONTRARY ARE FALSE.
In its Complaint, SCO alleges in
several places that it is the sole and exclusive owner of all right,
title, and interest in and to the UNIX and UnixWare business, operating
system, source code, all copyrights related thereto, and all claims
relating to any right, property, or asset included in the business.
[Compl. at Paragraphs 1, 16-17, and 23.] SCO's allegations, together with the
plain language of the Asset Purchase Agreement, as amended, are
sufficient to establish SCO's ownership of the UNIX and UnixWare
copyrights and the falsity of Novell's public representations to the
contrary. Novell asks this Court to ignore the allegations in SCO's
Complaint and declare that Novell owns the UNIX and UnixWare copyrights
because Novell claims the Asset Purchase Agreement as amended is not a
sufficient writing to transfer the UNIX and UnixWare copyrights to SCO
under Section 204(a) of the Copyright Act. Novell is wrong and has
misstated the law regarding Section 204(a).
The purpose of Section
204(a) is to "protect copyright holders from persons mistakenly or
fraudulently claiming oral licenses or copyright ownership." Imperial
Residential Design, Inc. v. The Palms Development Group, Inc., 70 F.3d
96, 99 (11th Cir. 1995). "No magic words must be included in a document
to satisfy § 204(a)." Radio Television Espanola S.A. v. New World
Entertainment, LTD., 183 F.3d 922, 927 (9th Cir. 1999). Courts have held
that the document need not even include the word "copyright" to
constitute a valid transfer. See, e.g., Schiller & Schmidt v. Nordisco
Corporation, 969 F.2d 410, 413 (7th Cir. 1992). As set forth above, the
rule is simple and requires as little as a "one-line" signed note
reflecting the parties' intent to transfer copyrights. Effects Assoc.,
908 F.2d at 557. See also Radio Television Espanola, 183 F.3d at 927
(holding that the Section 204(a) requirement is "simple"); Kenbrooke
Fabrics, Inc.v. Soho Fashions, Inc., 690 F.Supp. 298, 300 (S.D.N.Y.
1988) (finding that a short letter transferring ownership of certain
products but never mentioning copyrights and an invoice showing payment
was a sufficient writing under Section 204(a) to defeat a motion for
summary judgment).
Contrary to the above law, Novell claims in its
Memorandum that Section 204(a) provides draconian requirements of
specificity and clarity, and that written agreements that do not meet
Novell's proposed heightened standard are invalid. Novell has not,
however, cited a single case where a writing even remotely as detailed
as the Asset Purchase Agreement as amended has been found insufficient
under Section 204(a). In fact, of the three cases Novell cites in
support of its supposed heightened standard, two did not involve written
agreements. See Effects Assoc., Inc. v. Cohen, 908 F.2d 555, 557 (9th
Cir. 1990) (holding that oral agreement did not meet Section 204(a)
requirement of a "writing") and Konigsberg Intl., Inc. v. Rice, 16 F.3d
355, 356 (9th Cir. 1994) (same). In the third case Novell cites,
Schiller & Schmidt, Incorporated v. Nordisco Corporation, 969 F.2d 410,
412 (7th Cir. 1992), the Seventh Circuit held that a basic sales
agreement that did not mention the word "copyright" was sufficient to
meet the requirements of Section 204(a). The court's opinion in Schiller
& Schmidt actually supportsSCO's position.
The Asset Purchase
Agreement, as amended, is clearly sufficient to meet Section 204(a)'s
requirement of a "writing," "note" or "memorandum." The issue, if any,
is an interpretation of the Asset Purchase Agreement as amended - not
whether a writing exists transferring assets and copyrights. Schedule
1.1 (a) to the Asset Purchase Agreement provides that SCO acquired from
Novell "all rights and ownership" of all versions of UNIX and UnixWare,
its source code, and all related materials. See p. 2 infra. Amendment 2
to the Asset Purchase Agreement specifically set forth that SCO owned
all "copyrights and trademarks owned by Novell as of the date of the
[Asset Purchase Agreement] required for SCO to exercise its rights with
respect to the acquisition of UNIX and UnixWare technologies." Novell,
of course, ignores the contract language in its Motion.
Because SCO
obtained "all rights and ownership of UNIX and UnixWare," SCO obviously
has the exclusive right to market and distribute products using its UNIX
and UnixWare technologies or license others to do the same, and to
create and distribute new products and derivative works using its UNIX
and UnixWare technologies. SCO could not exercise its those rights
without ownership of the UNIX and UnixWare copyrights as specifically
set forth in Amendment 2. Novell's claim that SCO has all rights and
ownership of UNIX and UnixWare including all source code but somehow not
all of the copyrights required to exercise those rights contradicts both
the plain language of the Asset Purchase Agreement as amended and the
intent of the parties as expressed in the agreement. Novell's Motion
also asks the Court to ignore SCO's allegations in its Complaint that
must be taken as true for purposes of Novell's Motion to Dismiss. [3]
In Schiller & Schmidt,
Incorporated v. Nordisco Corporation, 969 F.2d 410 (7th Cir. 1992), the
court addressed the issue of a transfer of copyrights under Section
204(a). In Schiller, the plaintiff sued the defendant for copyright
infringement based on the use of 18 photographs. The defendant claimed
that the plaintiff did not own the copyrights to the photographs because
the original owner of the photographs had transferred them to a third
party before he had purportedly transferred them to the plaintiff. The
Seventh Circuit reviewed the "sale agreement" between the original owner
of the photographs and the third party to determine whether the sale
agreement was a writing sufficient to transfer the copyrights under
Section 204(a): "Although the agreement does not mention the word
"copyright," its wording leaves little doubt that [the original owner]
sold all the assets of [his business], tangible and intangible alike."
Id. at 413. The court noted that if the third party had not obtained the
copyrights, he would not have obtained the right to use the negatives to
make prints. The original owner also would have been unable to make
prints because he no longer owned the negatives. Recognizing this absurd
result, the court determined that the intent of the original owner and
the third party was to transfer all ownership - including ownership of
copyrights - to the third party and that the sale agreement was
sufficient to transfer the copyrights under Section 204(a) even though
it did not specifically mention or refer to "copyrights." Id.
The Asset
Purchase Agreement as amended is significantly more detailed regarding
the transfer of copyrights than the agreement the court found sufficient
in Schiller. SCO acquired, pursuant to the Asset Purchase Agreement as
amended, "[a]ll rights and ownership in UNIX and UnixWare" and ownership
of all copyrights required for SCO to exercise "all rights and
ownership" in UNIX and UnixWare. SCO could not exercise its rights as
the exclusive owner of UNIX and UnixWare without the copyrights it
purchased as specifically set forth in Amendment 2. Likewise, position
is meritless. As set forth in the Asset Purchase Agreement, SCO
acquired from Novell "all rights and ownership" in "all versions of UNIX
and UnixWare" and all copyrights related thereto. 8 the copyrights to
UNIX and UnixWare would have no use to Novell because Novell has no
ownership rights whatsoever in any of the UNIX and UnixWare products to
which the copyrights apply. The Asset Purchase Agreement as amended
clearly complies with Section 204(a).
Novell also claims that because
the Asset Purchase Agreement states that Novell "will sell, convey,
transfer, assign, and deliver" UNIX and UnixWare to SCO "on the Closing
Date," the Asset Purchase Agreement was merely a promise to assign
assets in the future (at the Closing Date) and therefore does not meet
the requirements of Section 204(a). Again, Novell's argument is
meritless. The Closing occurred in December 1995. Novell received 6.1
million shares of stock from SCO and SCO received all rights and
ownership in UNIX and UnixWare and the copyrights related thereto from
Novell and has exercised those rights unfettered for more than eight
years. The allegations in the Complaint make this clear and must be
accepted as true for purposes of Novell's Motion. The cases Novell cites
do not involve Section 204(a) and are not remotely comparable to this
case.4 As stated, the purpose of Section 204(a) is to prevent the
inadvertent transfer of copyrights by requiring a writing signed by both
parties. Reading Section 204(a) in the hyper-technical manner Novell
suggests would not serve this purpose and is contrary to law. Novell's
Motion should be denied.
II. SCO HAS SUFFICIENTLY ALLEGED DAMAGES.
Novell also claims SCO's Complaint should be dismissed because SCO has
not sufficiently alleged damages. In order to state a claim under Utah
law for slander of title, a plaintiff must plead that the false
statement caused actual or special damages. See First Security Bank of
Utah, N.A. v. Banberry Crossing, 780 P.2d 1253, 1257 (Utah 1989). Unlike
general damages which "naturally and necessarily result from the harm
done," special damages "are a particular type of damages which are a
natural consequence of the injury caused but are not the type of damages
that necessarily flow from the harmful act." Hodges v. Gibson Products
Co., 811 P.2d 151, 162 (Utah 1991).
In Utah slander of title cases,
special damages are proved by "evidence of a lost sale or the loss of
some other pecuniary advantage." Bass v. Planned Management Servs.,
Inc., 761 P.2d 566, 568 (Utah 1988). In its complaint, SCO has pled
precisely such a loss of pecuniary advantage. Paragraph 21 of SCO's
complaint reads:
Novell's wrongful claims of copyrights and ownership in
UNIX and UnixWare have caused, and continue to cause, irreparable harm
to SCO, in the following particulars:
a. Customers and potential
customers of SCO are unable to ascertain the truth of ownership in UNIX
and UnixWare, and make decisions based thereon; and
b. SCO's efforts
to protect its ownership of UNIX and UnixWare, and copyrights therein,
are subject to a false cloud of ownership created by Novell. * *
* * As a consequence of Novell's conduct as alleged herein, SCO has
incurred actual and special damages in an amount to be proven with at
trial.
Complaint at Paragraphs 21,26.
Moreover, it is well-settled that
attorneys' fees are recoverable as "special damages" if incurred "to
clear title or to undo any harm created by whatever slander of title
occurred." Bass, 761 P.2d at 569. SCO has obviously incurred attorneys'
fees in protecting its rights and clearing its title to UNIX and
UnixWare and SCO seeks the recovery of such fees in its Complaint at Paragraph 4
of the Prayer for Relief.
In its Memorandum, Novell has substantially
overstated the Rule 9(g) pleading requirement. The Utah Supreme Court
held in Cohn v. J.C. Penny Co., Inc., 537 P.2d 306 (Utah 1975) that in
Utah there is no "inflexible rule" regarding the pleading of special
damages. 537 P.2d at 311. Rather, it is simply "a question of whether or
not the pleadings contain such information as will apprise the defendant
of such damages as must of necessity flow from that which is alleged."
Id. see also Simmons v. Wilkin , 15 P.2d 321, 322 (Utah
1932) ("The purpose of the rule is to 10 avoid surprise to the
defendant.")- Thus, while special damages must be specifically plead,
"the law does not require that the exact dollar amount of special
damages be specifically pleaded." Hodges , 811 P.2d at 162 (holding that
general allegations of "lost wages, medical expenses, and severe
emotional distress" contained in a complaint are sufficient "to satisfy
the requirement of Rule 9(g)").
SCO has pled with sufficient
particularity the damage it incurred and is continuing to incur as a
result of Novell's slander of SCO's title to the UNIX and UnixWare
copyrights. It has set forth the specific loss of pecuniary advantage
that SCO's customers are unable to ascertain the truth of ownership in
UNIX and UnixWare because of Novell's wrongful acts. SCO has also
incurred legal fees protecting its valuable ownership rights in UNIX and
UnixWare. SCO's allegations are sufficiently particular to "apprise"
Novell of SCO's claims. Indeed, Novell knows exactly what is at issue in
this case and, as alleged in SCO's Complaint, Novell has acted with the
specific intent of causing SCO the precise type of damages SCO has
alleged. SCO has met the pleading requirements for its claim of slander
of title in this action. Novell's Motion to Dismiss should be denied. [5]
CONCLUSION
For all of the foregoing reasons, Novell's Motion to Dismiss
should be denied. SCO has properly alleged a claim for slander of title
under Utah law.
DATED this 5th day of March, 2004.
By: _____signature______
HATCH JAMES & DODGE
Brent O. Hatch
Mark R. Clements
BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Mark J. Heise
Attorneys for Plaintiff
[1] SCO has filed a Motion
to Remand this case to state court on the basis that this Court lacks
subject matter jurisdiction. This Court should not address Novell's
Motion to Dismiss until it has addressed and ruled on SCO's Motion to
Remand. See In re Bear River Drainage District, 267 F.2d 849 (10th Cir.
1959) (when a district court is faced with a motion to remand and a
motion to dismiss, the court should "rule first on the motion to remand"
and if granted send "the motion to dismiss back to state court"). While
SCO may in fact prefer having its claim heard in federal court, it is
obligated to raise the issues that SCO believes preclude this Court from
exercising jurisdiction over this case
[2] Novell's management at
the time of the Asset Purchase Agreement that transferred the copyrights
to SCO is largely no longer at Novell.
[3]
Novell also claims that the Asset Purchase Agreement as amended fails to
meet the requirements of Section 204(a) because UNIX and UnixWare "had
many versions and releases" and Amendment 2 does not specifically state
which copyrights to which versions of UNIX and UnixWare were transferred
to SCO. [Novell's Mem. at 8-9.] Novell's position is meritless. As set
forth in the Asset Purchase Agreement, SCO acquired from Novell "all
rights and ownership" in "all versions of UNIX and UnixWare" and all
copyrights related thereto.
[4] For
example, Novell cites Li'I Red Barn, Inc. v. The Red Barn System, Inc.,
322 F.Supp. 98 (N.D. Ind. 1970). In that case, the parties entered into
an agreement providing that a trademark would be reassigned if the
purchasing party defaulted in the performance of the terms of a purchase
agreement. The court merely held that an agreement that a trademark
could be reassigned upon the occurrence of a breach was not an actual
assignment. Id. at 107. That case does not support Novell's motion.
[5] Even if the Court determined
that SCO did not allege damages with sufficient particularity to apprise
Novell of SCO's claim, SCO should be granted leave to amend its
Complaint. This case is in its initial stage and Novell would not suffer
any prejudice if SCO were granted leave to amend.
CERTIFICATE OF
SERVICE I HEREBY CERTIFY that on this 5th day of March 2004, I caused to
be mailed a true and correct copy of the foregoing to the following by
the method described below:
By Hand Delivery:
Thomas R. Karrenberg
John
P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]
BY U.S. Mail, postage prepaid:
Paul Goldstein
[address]
Michael A. Jacobs
Matthew I. Kreeger
MORRISON & FOERSTER
[address]
______signature_________
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| Authored by: PJ on Tuesday, March 09 2004 @ 02:38 AM EST |
| Record my mistakes for posterity here, please, so I can find them quickly. [ Reply to This | # ]
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| Authored by: coolmos on Tuesday, March 09 2004 @ 02:43 AM EST |
Please put news and urls here, so they are easy to find. Thanks.
---
A 699 license ? Is that the US variant of the Nigerian 419 scam ?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 02:53 AM EST |
I see another reason why SCO would choose to use slander of title. They can
recover attorney's fees as "special damages". And, as SCO points out,
they have certainly racked up some legal expenses :)[ Reply to This | # ]
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| Authored by: Night Flyer on Tuesday, March 09 2004 @ 03:14 AM EST |
Novell received 6.1 million shares.
Two questions:
1.) Does Novell still own these shares?
2.) What was the market value per share at the time of the asset purchase
(1995)?
(My books don't go back to 1995.) -- I read that SCOX, when it delisted and
relisted in the SmallCap Market, had a reverse split of 1:4 in its shares, which
would need to be taken into account. SCO has claimed that they paid $100
Million, how true is this?
My broker told me that if you have 20% of outstanding shares in a company, you
can appoint someone to the board of directors. All things considered, it would
be funny if Novell was eligible to have a representative on the SCO board of
directors.
----------------
My Clan Motto: Veritas Vincit: Truth Conquers[ Reply to This | # ]
|
- Those were NOT shares of The SCO Group - Authored by: Tomas on Tuesday, March 09 2004 @ 03:53 AM EST
- oldSCO != The SCO Group - Authored by: Anonymous on Tuesday, March 09 2004 @ 05:49 AM EST
- What payment did Novell actually receive? - Authored by: peragrin on Tuesday, March 09 2004 @ 08:03 AM EST
- Novell - Authored by: DaveWalley on Tuesday, March 09 2004 @ 08:42 AM EST
- Why? - Authored by: Yobgod on Tuesday, March 09 2004 @ 12:54 PM EST
- Novell - Authored by: DaveWalley on Wednesday, March 10 2004 @ 07:34 AM EST
- What was paid? - Authored by: DaveWalley on Tuesday, March 09 2004 @ 08:13 AM EST
- What was paid? - Authored by: Anonymous on Tuesday, March 09 2004 @ 08:37 AM EST
- What was paid? - Authored by: Anonymous on Tuesday, March 09 2004 @ 03:16 PM EST
- I need a flowchart of companies - Authored by: Night Flyer on Tuesday, March 09 2004 @ 10:44 PM EST
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 03:14 AM EST |
Seems like SCO is arguing that Novell is claiming Novell owns all of "UNIX
and UnixWare", whereas Novell is simply claiming it owns Unix Sys V.
Does anyone else think it's kind of fascinating that SCO doesn't mention Sys V
once in the entire motion? Nor, of course, does it mention the Sys V exclusions,
but I suppose that was to be expected.
[ Reply to This | # ]
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| Authored by: dentonj on Tuesday, March 09 2004 @ 03:17 AM EST |
SCO has exercised exclusive and unchallenged control over the
UNIX and UnixWare technologies for the entire period since execution of the
Asset Purchase Agreement - a period in excess of eight years. Notwithstanding
the clear language of the Asset Purchase Agreement, Amendment No. 2 and the
eight-plus years SCO has exercised exclusive control over the copyrights in UNIX
and UnixWare, Novell's new management [2] has recently begun a malicious
campaign to slander SCO's ownership rights in UNIX and
UnixWare.
I was going to ask what could happen to SCO for
obviously lying. SCO has not had control over UNIX and UnixWare for over 8
years. The bought it from Santa Cruz Operations and are doing their best to use
the name change to confuse the issue. I decided to look up what could happen
myself.
http://www.nolo.co
m/lawcenter/ency/article.cfm/ObjectID/DCF5835D-22EF-48D0-9112508F763F7135/catID/
8F965511-320B-429E-AFF92326E148C549
Lying in court is
common and rarely punished...
Lying under oath is an accepted element of
many trials. If that weren't true, there would be little need for a jury. That's
because a necessary part of deciding whose version of disputed facts is
true...
Another fact little known to those who don't live in the court
system every day is that there is rarely any earthly punishment for lying in
court.
But anyone who has been around the court system for awhile knows that
perjury is almost never prosecuted.
That's not very
encouraging.
[ Reply to This | # ]
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- Re: Perjury - Authored by: martimus on Tuesday, March 09 2004 @ 03:26 AM EST
- Perjury - Authored by: Anonymous on Tuesday, March 09 2004 @ 03:29 AM EST
- Perjury: DON'T DO IT - Authored by: Ed L. on Tuesday, March 09 2004 @ 04:06 AM EST
- Perjury - Authored by: Anonymous on Tuesday, March 09 2004 @ 10:18 AM EST
- Perjury - Authored by: Anonymous on Tuesday, March 09 2004 @ 11:11 AM EST
- Perjury - Authored by: sef on Tuesday, March 09 2004 @ 12:28 PM EST
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| Authored by: Greebo on Tuesday, March 09 2004 @ 03:25 AM EST |
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In Utah slander of title cases, special damages are proved by "evidence of a
lost sale or the loss of some other pecuniary advantage." Bass v. Planned
Management Servs., Inc., 761 P.2d 566, 568 (Utah 1988). In its complaint, SCO
has pled precisely such a loss of pecuniary advantage. Paragraph 21 of SCO's
complaint reads:
Novell's wrongful claims of copyrights and ownership in
UNIX and UnixWare have caused, and continue to cause, irreparable harm to SCO,
in the following particulars:
a. Customers and potential customers of SCO
are unable to ascertain the truth of ownership in UNIX and UnixWare, and make
decisions based thereon; and
b. SCO's efforts to protect its ownership of
UNIX and UnixWare, and copyrights therein, are subject to a false cloud of
ownership created by Novell.
Correct me if i'm wrong, but isn't this
Exactly what SCO are doing to Linux ?!
Does that mean we can
sue SCO for Slander of
Title?
Greebo
---
-----------------------------------------
Recent Linux Convert and Scared Cat Owner [ Reply to This | # ]
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| Authored by: Anonymous Coward on Tuesday, March 09 2004 @ 03:36 AM EST |
Something struck me as really funny.
Even if SCO could make the fourth and
fifth paragraph of the first argument stick then they just proved they did
not get the the copyrights they claim they own. The reason the specific
parts of the documents they point to spell out that the only copyrights, etc.
that SCO (or predecessor) aquired from Novell are the ones that Novell owned at
the time of transfer (APA article 2 sub 10 and sub 11).
Seeing that the
copyrights on the SysV stuff has only been registered in the last few months
(and not in 1995) it seems that SCO cannot own those copyrights because of a
purchase from Novell.
Can someone else with a bit more experience in legalese
say if I'm just seeing things or that this is
correct?
----------------------------------------------------------
c
owardly hiding in anonimity since [classified]
[ Reply to This | # ]
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| Authored by: drh on Tuesday, March 09 2004 @ 03:39 AM EST |
Finally we get to see SCOs position on their ownership of
Unix. They detail the sections of the purchase agreement
that they claim transferred the rights. From the way this
is worded, it looks like they took section of the purchase
agreement out of context and are trying to make them
stick. However, I believe they have enough here to deny
the motion to dismiss the case, and so on to trial we go.
I don't think a judge would be willing to dismiss this
because we now have a "he said she said" contest.
IIRC there are several limitations in that same contract
over what was transferred. Time to go back and compare.
---
Just another day...[ Reply to This | # ]
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| Authored by: coolmos on Tuesday, March 09 2004 @ 03:42 AM EST |
Hi PJ,
Since there seem to be more reporters who are willing to print a fair and
balanced story, would it be an idea to have 2 HOWTO's ?
1. HOWTO deal with the press. As you always say, be polite and businesslike. But
also lead them to the right questions to ask.
2. HOWTO deal with SCO when you are the press. What are the questions you could
ask ? What answer can you expect ? What traps to avoid ?
[ Reply to This | # ]
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| |
| Authored by: Tomas on Tuesday, March 09 2004 @ 03:45 AM EST |
One thing that continues to annoy me about SCO's presentation is that they
insist on clouding the issue of who sold what to whom, and when they sold it.
Novell sold a bunch of UNIX stuff to Santa Cruz Operation and in the agreement
as ammended offered the copyrights necessary to run the business of selling UNIX
*IF* Santa Cruz Operation requested them.
There has been no showing that Santa Cruz Operation ever requested those
copyrights, and further no indication that they were transferred by Novell.
When Santa Cruz Operation later sold two of it's divisions to Caldera, there was
yet another agreement between those two companies. That agreement has not been
presented by the purchaser and they claim not to be able to find it.
Caldera later changed it's name to The SCO Group in what appears to be an
attempt to muddy the waters enough that the fact they did NOT purchase what UNIX
pieces they have from Novell is obscured.
So far there has been no tracking of any of the UNIX SVRx copyrights, other than
manuals, from AT&T to Novell, from Novell to Santa Cruz Operation and from
Santa Cruz Operation to Caldera.
Something I wonder about is if Santa Cruz Operation said anywhere in their
agreement with Caldera that they sold or gave them source code copyrights. That
agreement needs to be seen.
Also, of course, there is at the very start of The SCO Group's memorandun the
false claim that they "own UNIX." I'm sure the actual owner of that
name should have something to say about that claim ...
---
Tom
en.gin.eer en-ji-nir n 1: a mechanism for converting caffeine into designs.[ Reply to This | # ]
|
| |
| Authored by: red_guy on Tuesday, March 09 2004 @ 03:46 AM EST |
In Schiller v Nordisco, they say, copyrights were transferred because otherwise
the new 'owner' wouldn't have the right to copy the photos. Plus, the old
owner's possibility of copying was lost, because he didn't have the means of
copying (i.e., the negatives) any longer.
Any thoughts on how this relates to transfer of UnixWare business?
I'd assume that Novell still has the means to copy Unix (source code, or should
that be binary? Either way, that should be on one or two CD-Roms in Novell's
vault.)
But I believe the rest tries to argument against Novell's statement, that if
copyrights aren't transferred clearly, they aren't transferred period: in this
case the copyrights weren't explicitly given, but the right and means to
(exclusively) copy were.
How does that relate to software? Computer manufacturers are granted the rights
and means to copy and distribute (pre-load) Windows XP, minus the shiny sticker
containing the product key. It isn't exclusive, and it isn't a transfer but a
license. But that alone shows that Schiller v Nordisco isn't an exact fit.
Oh, and PJ, you should file that "SCO has been the sole distributor of
UnixWare for eight years" (I'm paraphrasing) in the "lying under
oath" department. Might come in handy for your next interview.[ Reply to This | # ]
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| Authored by: jmc on Tuesday, March 09 2004 @ 04:01 AM EST |
Please correct me if I'm mistaken, but isn't this the first time that Magistrate
Judge Wells has appeared in the Novell case?
Hitherto only Judge Kimball had been mentioned.
I'm surprised SCO are trying to move it away from their friend Judge Wells who
has been so understanding to them in the IBM case. <g>
Maybe it was force of habit from churning out rubbish for the IBM case?[ Reply to This | # ]
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| Authored by: mobrien_12 on Tuesday, March 09 2004 @ 04:08 AM EST |
Amendment 2 is too vague. There have been no formal transfers of copyright,
so SCO says it has copyright over everything.
I really don't think
this is what Novell had in mind when it entered the agreement. Nevertheless, I
have a feeling that SCO has a very good chance at winning at this particular
battle.
What's very disturbing, if not exactly news, is that SCO's
letter reeks of "we must be able to sue if we own UNIX." Why is this bad? Well
it's the preamble to being able to ignore Novell's contract-specified
rights regarding UNIX. See, (following SCOlogic) SCOG has all rights to ignore
the Novell directive "no you didn't terminate IBM's licence" because that
interferes with their "ownership" of UNIX.
What a mess.
[ Reply to This | # ]
|
- What a mess - Authored by: jmc on Tuesday, March 09 2004 @ 04:50 AM EST
- What a mess - Authored by: one_penguin on Tuesday, March 09 2004 @ 04:57 AM EST
- What a mess - Authored by: Anonymous on Tuesday, March 09 2004 @ 04:58 AM EST
- What a mess - Authored by: Anonymous on Tuesday, March 09 2004 @ 05:14 AM EST
- What a mess - Authored by: hal9000 on Tuesday, March 09 2004 @ 06:13 AM EST
- What a mess - Authored by: Anonymous on Tuesday, March 09 2004 @ 02:54 PM EST
- What a mess - Authored by: Anonymous on Tuesday, March 09 2004 @ 03:49 PM EST
- What a mess - Authored by: blacklight on Tuesday, March 09 2004 @ 09:32 AM EST
- What a mess - Authored by: darthaggie on Tuesday, March 09 2004 @ 09:46 AM EST
- Good chance at winning this battle? - Authored by: DaveWalley on Tuesday, March 09 2004 @ 11:23 AM EST
- What a mess - Authored by: Anonymous on Tuesday, March 09 2004 @ 01:31 PM EST
- What a mess - Authored by: Anonymous on Tuesday, March 09 2004 @ 01:53 PM EST
| |
| Authored by: rakaz on Tuesday, March 09 2004 @ 04:59 AM EST |
Some observations I made about SCO's Memo in
Opposition
SCO: Now Novell, through its Motion to
Dismiss, asks this Court to find that SCO has no ownership interest in the UNIX
and UnixWare copyrights because Novell claims the writing it negotiated and
executed transferring those valuable rights to SCO was not technically
sufficient under the Copyright Act.
This looks to me like SCO is
trying to say that Novell is asking the court to confirm that Novell owns the
copyrights because the copyrights were not properly
transferred.
Novell: Because the Complaint fails to
establish the falsity of Novell's purportedly slanderous statements, it should
be dismissed.
Novell: Absent an actual transfer
of copyright ownership, Novell continues to be the owner of copyrights at
issue, and SCO has accordingly failed to properly allege the falsity of Novell's
ownership assertions.
If I compare that to what Novell I get an
entirely different impression. To me, it looks like Novell is simply saying that
the SCO's complaint is flawed because it is based on the SCO's theory that it
transfers all copyrights to SCO. Novell is just saying the APA does not
establish a clear ownership of the copyrights and is not a proper letter
conveyance. Novell isn't trying to discuss whether or not their interpretation
of the APA is right. The are trying to argue whether or not SCO's complaint is
flawed and because the complaint is flawed the case should be dismissed.
SCO: SCO has exercised exclusive and unchallenged
control over the UNIX and UnixWare technologies for the entire period since
execution of the Asset Purchase Agreement - a period in excess of eight
years.
The original APA was executed on September 19, 1995. So SCO
is claiming that its ownership was undisputed until at least September 20,
2003...
I guess SCO forgot they send letters in the begin of 2003 asking
Novell to transfer the copyrights. They probably also forgot that Novell told
them they didn't own the copyrights. A handfull of letters telling SCO they were
'mistaken'. And SCO probably also forgot that Novell registered the copyrights
on October 14th. Okay it's after the 8 years that SCO claims, but not by
much.
Unchallenged for 8 years... Of course it is unchallenged for 8 years,
SCO never made such broad claims before. Now that they have, Novell immediately
protested.
SCO: SCO has filed a Motion to Remand this
case to state court on the basis that this Court lacks subject matter
jurisdiction. This Court should not address Novell's Motion to Dismiss until it
has addressed and ruled on SCO's Motion to Remand.
This I really
don't get. They ask the judge to postpone addressing Novell motion until it
ruled on SCO's Motion to Remand. If the judge accepts this and grants SCO's
motion the case is send back to state court. But what about the points Novell
raised in its motion. Will that just dissapear? What about the instrument of
conveyance? That's federal law.[ Reply to This | # ]
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| Authored by: Rann on Tuesday, March 09 2004 @ 05:01 AM EST |
| [5] Even if the Court determined that SCO did not allege damages with
sufficient particularity to apprise Novell of SCO's claim, SCO should be granted
leave to amend its Complaint. This case is in its initial stage and Novell would
not suffer any prejudice if SCO were granted leave to amend.
Here we go
again.... Darl & Co.'s infamous "If you rule against us, can we try again
and change our complaint so you won't?? We KNOW they are very very bad men and
have to be punished!" legal defence for incompetency.
Getting them to set
out a single, solitary legal complaint is like trying to shoot a squirming
target!!!!
Rann
Richard M. Nixon's Law: If two wrongs don't make a
right,
how about THREE??? [ Reply to This | # ]
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| Authored by: golding on Tuesday, March 09 2004 @ 05:17 AM EST |
Footnote on page one :-
******
1 Novell has filed a Motion to
Dismiss SCO's Complaint. This court should not address Novell's motion until it
has addressed and ruled on SCO's Motion to Remand. See In re Bear River
Drainage District, 267 F.2d 849 (10th Cir.1959) (when a district court is
faced with a motion to remand and a motion to dismiss, the court should "rule
first on the motion to remand" and if granted send "the motion to dismiss back
to the state court")
******
Wouldn't this mean at the same
time, not with it filed as an obvious measure to stay the motion to
dismiss. ---
I opened my mouth and proved them right. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 05:18 AM EST |
SCO has the nerve to suggest (via a footnote) that Novell have changed their
interpretation with change of management:
<i>[2] Novell's management at the time of the Asset Purchase Agreement
that transferred the copyrights to SCO is largely no longer at
Novell.</i>
Like anyone at what is now called SCO had anything to do with the APA.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 05:22 AM EST |
<snip>
In Attachment E of Novell's Disclosure Schedule to the Asset Purchase Agreement,
Novell listed 106 separate copyright registrations filed with the United States
Copyright Office at the time of the Asset Purchase Agreement covering products
and materials relating to the UNIX and UnixWare business transferred to SCO.
</snip>
I cannot remember seeing this list. Is there any place I can find this? And what
would these Copyrights be about when the "UNIX" Copyrights were
registered by both Novell and SCO just a short time ago?
And is "Novell's Disclosure Schedule" legally related to the actual
Agreement?[ Reply to This | # ]
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| Authored by: jldill22 on Tuesday, March 09 2004 @ 05:43 AM EST |
To repeat a post I made over on the Yahoo board:
The first thing I noted in reading SCO's memerandum is that it does not make any
reference to Section 1.1(a) of the Asset Purchase Agreement. What is quoted is
taken from Schedule 1.1(a), but without Section 1.1(a) of the APA, that schedule
would just be an irrelevant scrap of paper.
The full text of Section 1.1(a) is as follows:
<<[1.1](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 Section 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):[sic to the
":"]>>
It is, I believe, generally conceded that the reference in the above to
"Section 1.1 (a)" is a typo and it should have been to "Schedule
1.1(a)". (If that is not correct, SCO loses because there is no agreement
anywhere else to sell the Schedule 1.1(a) assets.)
The wording of the Section makes clear that the Schedule 1.1(a) assets being
sold do not include the Schedule 1.1(b) assets. In Schedule 1.1(b), there is an
express exclusion for "All copyrights and trademarks, except for the
trademarks UNIX and UnixWare."
By Section 1.7(b)(iii) Novell agreed to deliver at closing documentation
required to transfer the "Assets" to Old SCO, but from Section 1.1(a),
as quoted above you can see "Assets" do not include the items listed
in Schedule 1.1(b).
When the APA in fact closed is unclear in the SCO claim against Novell, but on
on October 16, 1996, Novell and Old SCO signed Amendment No. 2 to the APA. That
amendment, among other things revised the relevant part of Schedule 1.1(b) to
read as follows:
<<All copyrights and trademarks, except for the copyrights and trademarks
owned by Novell as of the date of the [APA] required for [Old SCO] to exercise
its rights with respect to the acquisition of UNIX and UnixWare
Technologies..."
On its face, the amending language does not confer unconditional rights to the
UnixWare copyrights on Old SCO. The unamended APA, of course, conferred no such
copyright whatsoever on SCO. All of this is pointed out by Novell in its
memorandum and based on it, Novell argues there is a basis for a bona fides
argument as to whether SCO is entitled to or received any copyrights. None of
any of Novell's contentions are specifically addressed by SCO in its response.
Assuming Novell is correct that documents attached to the complaint can be
referred to in a motion to dismiss and that all that Novell has to demonstrated
to avoid a slander of title claim is that there is a bona fides dispute between
the parties, Novell must win on its motion to dismiss, I would think.
In an action for slander of title, SCO must plead that there is no bona fides
dispute as to title to the property. The problem is that the agreements it cites
in its claim show that there is such a dispute. SCO appears to be trying to
avoid this difficulty by arguing that its claim of ownership must be taken as
undisbutable for the purpose of the motion. The argument is not good enough in
the face of the terms of the documents its cites, particularly when it refuses
to address the relevant terms that appear to give rise to the issue.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 06:05 AM EST |
"No magic words must be included in a document to satisfy § 204(a)."
I guess this is applicable to the non-existing "IF" that Novell wants
to see appear in " copyrights required to exercise ... "[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 06:21 AM EST |
I don't have easy or free access to the Pacific series
of
reporters or the Utah state reports, so I'd like to ask
some
questions of those who do.
Is it really the
case that you can bootstrap
attorneys' fees as special damages in
slander of title
cases in Utah? If so, that would seem to render the
requirement
of special damages a mere formality (except perhaps
in
pro se cases), because every case would meet
the requirement of special damages. Does
the Bass case cited by
SCO actually support the
proposition that attorneys' fees alone are
sufficient
special damages to support a slander of title action?
Also, does SCO understate the requirement for pleading
special damages in Utah? SCO states, "In order to state a
claim
under Utah law for slander of title, a plaintiff
must plead that the
false statement caused actual or
special damages." Rule 9(g) of the
Federal Rules of Civil
Procedure
(FRCP) states, "When items of
special damage are claimed,
they shall be specifically stated." FRCP
9(g) seems to
require more than merely stating that the false statement
caused actual or special damages. FRCP 9(g) says that the
items of
special damages shall be specifically
stated..
(Disclaimer: I do not know what standard applies to
pleadings under
the Utah rules. I do not even know
whether the Utah rules or the FRCP
apply, because the case
was removed from state court into federal court.)
The items alleged with
specificity in SCO's complaint,
as cited in their
Memorandum, are said to have resulted in
irreparable harm to SCO (see paragraph 21 of SCO's
complaint).
"Irreparable harm" refers to equitable
damages for which equitable relief
(e.g., injunctions,
etc.) is appropriate because no pecuniary standard
exists
for measurement of the damages. Given that no pecuniary
standard
exists for measurement of irreparable harm, how
can particulars cited by SCO
as resulting in "irreparable
harm" support their claim of "special damages?"
[ Reply to This | # ]
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| Authored by: legal insanity on Tuesday, March 09 2004 @ 06:39 AM EST |
those legal beagles for SCOG should really learn to read, i notice right off,
that what they are asserting about is kind of hard to swallow, when you look.
from the Amendment No2 to the asset purchase agreement section a. " With
respect to Schedule 1.1(b) of the Agreement, titled "Excluded Assets".
Section V,Subsection A shall be revised to read:
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 it's rights
with respect to acquisition of UNIX and UnixWare technologies. However, in no
event shall Novell be liable to SCO for any claim brought by a third party
pertaining to said copyrights and trademarks."
Now this does not look anything like they have asserted or said in the beginning
of their motions.
---
Insanity Pleadings is the only Sensible Defense
To bad for SCOG, No INSANITY PLEAD in these Civil Matters[ Reply to This | # ]
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| Authored by: PSaltyDS on Tuesday, March 09 2004 @ 07:39 AM EST |
I'm sorry, but being a lowly tech type, I don't follow things well without a
block diagram. Not only IANAL and IANAPL, but I would be a sorry one of either
if I tried. I do, however want to follow this as best I can.
For the
sake of us without the properly organized neurons, has anyone mapped in a single
post or diagram the geneology or "family tree" of SCOG? I would like to see
where Santa Cruz Operation, Tarantella, SCO Group, Canopy, USL, and Caldera all
fit.
I would print that out and tape it to the side of my monitor,
making this whole aspect of the case more sensible to me.
"Any
technology distinguishable from magic is insufficiently advanced." - Geek's
Corolary to Clarke's Law
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 07:47 AM EST |
Everytime I read this it makes my blood boil. It is a bold faced lie. What was
sold to the Open Group.
SCO should sue the Open Group since they claim, "UNIX certification and the
UNIX brand is part of The Open Group's internationally recognized
portfolio." I would like to see them do it, and take pictures of Darl and
company in Yellow Jump suits going on a long vacation.
I would suspect that the Open Group is in talks with SCO, and with the Open
Group telling SCO "you can not say that".
There should be a directory of all the various legal documents, including suits
and contracts.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 07:56 AM EST |
SCO's argumentation fails because the timeline doesn't
work out. How can SCO argue that the "Asset Purchase
Agreement as amended" transfered the copyrights to SCO at
closing when the ammendment happened a year after closing,
and the APA that was effective at closing time explicitly
excluded any copyrights.
[ Reply to This | # ]
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| Authored by: mbaehr on Tuesday, March 09 2004 @ 08:12 AM EST |
Does anybody know ho this will be handled technically?
1. Regarding
the motion from SCO not to dismiss the case, will Novell have the possibility to
respond or will the judge decide based on SCO's motion in reply to Novell's? I
guess there is a limit of how often arguments can be exchanged?
2. Regarding the motion to remand, how many rounds of
back-and-forth argument will be allowed here? Or will that be immediately
decided like Novells motion to move to the federal court?
If there
can be further motions in these two cases I guess there is also a limit as to
within which number of days these need to be submitted, anybody knows how much
time there is for additional answers?[ Reply to This | # ]
|
| |
| Authored by: gvc on Tuesday, March 09 2004 @ 08:17 AM EST |
| All of SCO's legal representations appear to use "kindergarten rhetoric"
involving mud-slinging, extreme hyperbole and selective presentation of facts.
Is this common in the U.S. legal system? I don't think I've seen it
elsewhere.
Any rational observer would agree that the APA is a mess, yet SCO
alleges that it is "clear" and "indisputable." Any rational observer would
regard the copyright exclusion in the APA to be material, whether or not it is
overridden by amendment 2. Yet SCO fail to mention it, and they edit amendment
2 so as to remove reference to it.
SCO's representations reek of
disingenuity and I would expect a judge's B.S. detector to be triggered. Mine
was by SCO's first complaint against IBM and by every subsequent document
they've filed.
Once upon a time I was taught that a strong argument should
be forceful but understated and address apparent contrary evidence. I suppose
SCO's lawyers attended a different school. [ Reply to This | # ]
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| |
| Authored by: Anonymous on Tuesday, March 09 2004 @ 08:40 AM EST |
The Santa Cruz Operation, a California corporation, saw to it that the asset
purchase agreement between itself and Novell, a Delaware corporation, was to be
governed by the laws of the state of California. The SCAM Group, a bogus
corporation, now wants a bogus lawsuit, which it states to be essentially
determined by interpretation of chain of contractual ownership (or lack thereof)
based at least partly on this agreement to be decided in Utah state court? Good
luck on getting that one by.[ Reply to This | # ]
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| Authored by: xtifr on Tuesday, March 09 2004 @ 09:13 AM EST |
(setq IANAL t)
Just as I predicted, SCO sees, "you get no copyrights except those needed
to exercise your rights," in amendment 2 and responds, "since we have
the copyrights, we need the copyrights to protect our (copy)rights." A
beautiful piece of circular reasoning.
To win (or even bring) a Slander of Title suit, they have to show that it was
clear that they owned the copyrights all along. Not just that they do, but that
it was clear! And the fact is, the APA is unclear and seemingly contradictory.
They've set themselves an impossible task.
In other words, to bring this case forward, they have to assert not only that
they own the copyright (which the judge may have to take as given for purposes
of weighing a motion to dismiss, since the evidence is a bit unclear), but that
Novell must have known they owned the copyright all along, which, it should be
pretty obvious by now, is simply not true (since the evidence is a bit unclear).[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 09:59 AM EST |
I think I may see where the SCO lawyers are going with Novell. The SCO logic
is to take the part of :
. A. All copyrights and trademarks, except for the [...] copyrights and
trademarks owned by Novell as of the date of the Agreement <b> required
for SCO to exercise { its rights with respect to the acquisition of UNIX and
UnixWare technologies}.
I've put in {} and substitute the actual rights from section one, so it would
read:
All copyrights and trademarks, except for the [...] copyrights and trademarks
owned by Novell as of the date of the Agreement <b> required for SCO to
exercise all rights and ownership of UNIX and UnixWare and Auxiliary
Products..., with respect to the acquisition of UNIX and UnixWare
technologies...
If you can exercise all rights and ownership, then you need the copyrights as a
matter of logic. Thus there is no issue of waiting until a need is demonstrated.
If the need is immediate, then the transfer is immediate. He cites precedent
that complete generic transfers are valid. That is, if I sell you my entire
business with all rights, then that is a valid transfer of copyright for all the
documents of the business. A separate transfer document is unnecessary since the
word all is specific under the circumstances.. Also he argues that even though
this is an agreement that doesn't take effect until the closing, since that was
8 years ago, it doesn't matter. He appears to have reasonably relevant
precedent. There is no requirement that the process be instantaneous, merely
completed.
The problem with this is that an instrument of conveyance must be unambiguous in
intent and specificity. If it is not obvious that both parties intended the
transfer of some particular exclusive rights, then it's not a valid instrument
of conveyance of copyright. It's not enough for his interpretation to be the
most reasonable, if another is reasonable enough to create confusion about
either the intent or the specific copyrights transferred. Reasonable people
could go through a set of Novell copyrights and differ as to which ones were
necessary. Even everyone agreed as to some subset, I don't think that's enough,
because the document as a whole is still unclear as to at least some copyrights.
Do you transfer those but only those that are unambiguiusly intended or is the
lack of specificity a fatal defect. He argues that SCO exercised it's (really
their - oldSCO and newSCO) rights unmolested for 8 years. I'm not sure this
matters. It's more like thay just sat on them, anyway.
In researching this, I found a decision that says that estoppel doesn't apply in
copyright law.
www.law.suffolk.edu/arodau/articles/ citing-cases/arch.pdf
There's been some discussion of this on Groklaw. And I also found a great
article on the requirements for an instrument of conveyance.
http://www.lacba.org/showpage.cfm?pageid=743
It's a cute idea to bootstrap the specific damages with the lawyers fees you
paid to respond to being damaged. It feels like a Boies touch.
IANAL
[ Reply to This | # ]
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| Authored by: drh on Tuesday, March 09 2004 @ 10:49 AM EST |
OK, now I see.
SCO believes that they own the copyrights, and have the
documents to back that up.
Novell believes they own the copyrights, and have the
documents to back that up.
Since they both have an apparantly valid claim, Slander of
Title is not satisfied, nor is proof of false ownership
claims, nor is maliciousness. Since most of the
requirements are not satisfied, the judge can indeed throw
out the case.
It is probably irrelevant they both use the same
documents. But this goes back to PJ saying that filing a
Slander of Title was the wrong way to go, for the above
reasons.
newSCO has provided us with the points in the contracts
that they believe give them ownership, and this is
valuable information to have in writing. Now we can go
back and refute those claims based on what the contracts
actually say.
---
Just another day...[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 11:50 AM EST |
1. According to APA Section 1.1, oldSCO only received "all of Seller's
right, title and interest in and to the assets and properties of Seller relating
to the Business ..."
A. "identified on Schedule 1.1(a) ..." as (included)
"Assets"
B. but, which "shall not include those assets (the "Excluded
Assets") set forth on Schedule 1.1(b)" regardless of whether they are
implicitly or explicitly included on Schedule 1.1(a)
C. and only to the extent that the purchase and sale of assets remains
"on the terms and subject to the conditions set forth in this
Agreement".
Question 1: Are copyrights "identified on Schedule 1.1(a)"?
Answer 1: No, not by name and not by direct or indirect implication, either.
Although newSCO hold up Sub-section I of Schedule 1.1(a) as being determinative
for the inclusion of copyrights, reading the items that immediately follow the
first paragraph reveal that this particular subsection is clearly related to the
products/technology included in the Assets (e.g., "UNIX Source Code
Products", "Binary Product Releases", "Products Under
Development", and "Other Technology").
This is supported further by the fact that Intellectual Property is specifically
addressed in subsection V, where Trademarks are mentioned. Although the fact
that the UNIX Trademark went to the Open Group (as it was X/Open then) is not
germane to this particular argument, the absence of the mention of copyrights in
the Intellectual Property section of the included Assets is glaringly obvious.
The point is that both parties clearly had an opportunity via the existing
framework to explicitly include copyrights if that was their intent. This point
is strengthened by the fact that through two Amendments copyrights were never
added to the Schedule 1.1(a) of included Assets. Therefore, it was clearly not
their intent at the time of the Agreement or the Amendments to include
copyrights in the Assets as identified on Schedule 1.1(a).
By the way, in order to advance the argument that copyrights are included
because the APA says "All rights and ownership of UNIX and UnixWare",
you have to explain why it even bothers to spell out everything else in such
detail (i.e., this argument would let you claim that almost anything was
"obviously" meant to be included, so therefore all the rest is
redundant).
Conclusion: newSCO's argument that copyrights are included in Schedule 1.1(a)
fails, so there must be some other way they are "included", which
brings us to ...
Question 2: Are copyrights included in the Excluded Assets "set forth on
Schedule 1.1(B)"?
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- I think not - Authored by: Anonymous on Tuesday, March 09 2004 @ 12:26 PM EST
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 12:07 PM EST |
An even better deception.
Note how the attorneys for the plaintiff state the plaintiff's name? I.E., The
SCO Group Inc. Then, immediately, within the body of the pleading perform a
sleight of hand and morph The SCO Group Inc. into -- SCO. This is how they claim
that 'SCO' has owned Unix, unhindered [except for the 90% royalty fees paid to
Novell], for 8 years.
Who actually is SCO? An impartial judge, going strictly by the pleadings, could
easily be lead down the path that The SCO Group is now and has always been SCO.
Nothing, as in no thing, could be further from the truth.
It is way past time to bring this deception to an end.
The SCO Group is not now, nor have they ever been, the Santa Cruz Operation.
Period.
The SCO Group is not now, nor have they ever been, SCO. Period.
The SCO Group was born [from under a rock] in the year 2003.
The Santa Cruz Operation or SCO was born over 20 years ago and died [as in
tagged on the toe d-e-a-d] when Caldera purchased [kicking and screaming] the
Santa Cruz Operation's (SCO) assets.
IBM, Novell, AutoZone and Daimler-Chrysler *need* to clarify, in no uncertain
terms, in each and every pleading they submit and in each and every oral
argument [court appearance] that the SCO Group is not now and has never been
SCO.
To do otherwise is negligence on their part.
krp[ Reply to This | # ]
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| Authored by: the_flatlander on Tuesday, March 09 2004 @ 12:07 PM EST |
Sorry, all, IANAL, but this seems to me too funny for
words...
Novell also claims that SCO has not alleged special
damages with sufficient particularity under Rule 9(g) of the Federal Rules of
Civil Procedure to support its slander of title claim. Again, Novell has
attempted to elevate a simple standard to something it is not. Rule 9(g) only
requires a plaintiff to plead damages in a manner that apprises the defendant of
the claims at issue and the damages alleged to flow from those claims. Moreover,
attorneys' fees are recoverable as special damages under Utah law for a claim of
slander of title and SCO has obviously incurred attorneys' fees in protecting
its valuable ownership rights in UNIX and UnixWare and has specifically sought
attorneys' fees in its Complaint.
To translate: We had no
cause, but since we brought the suit, that
gives us cause, because: we are entitled to recover the fees we paid our lawyers
when we brought this meritless suit. Simple. A perfect
example of SCO-think.
lol
The Flatlander
Obviously, not all lawyers are
required to pass a course in logic.
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 12:36 PM EST |
SCOG was asking Novell for transfer since early 2003.
Can Novell enter those requests as evidence that SCOG knew its claims were
tenuous?
[ Reply to This | # ]
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| Authored by: danelray on Tuesday, March 09 2004 @ 12:55 PM EST |
Novell kept the copyrights in order to keep the code out of Windows. That was
and still is Novell's intent. That was a major fear at the time. SCO sold out
cheap to Microsoft. The value of unlimited "free" Unix code to
Microsoft is probably many billions of dollars. If it helps them kill off any
other competition, then it is worth tens of billions in revenue. Novell
intended never to let the Unix code into Windows. The "private"
license to Microsoft probably "gives" Microsoft that code to use in
Windows.
One might call the "license" a personal "bribe" to the SCO
executives.
That "license" alone is enough to cause trade sanctions and fines on
Microsoft all over the world.
The "value" to Microsoft depends on everybody in the world rolling
over.
---
danelray[ Reply to This | # ]
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| Authored by: eric76 on Tuesday, March 09 2004 @ 12:57 PM EST |
It appears that if SCO can show they need those copyrights in order to
excercise it's rights, then Novell is required by the Amended Asset Purchase
Agreement to convey them to SCO.
However, the wording
includes:
for SCO to exercise its rights with respect to the
acquisition of UNIX and UnixWare technologies.
This leaves me a
little curious about whether the rights are those needed for the acquisition
itself or whether they include those that may be needed for any purposes
later.
What copyrights would SCO require for the acquisiton of the UNIX...?
It looks to me like you could argue your choice of "few or none" or
"all".
For all, the argument could be something like for us to own the code,
we have to own the copyrights.
For few or none, the argument could be that
the amendment is a license granting them all the permissions they need to do
what they wish.
So does the amendment include those copyrights that SCO
might need or desire for other purposes later?
Even then, I'm not sure that
SCO needs those copyrights because they have yet to show that any copyrights are
actually involved in their lawsuits.
The IBM lawsuit is really about other
issues from the contracts, not copyrights. SCO claims to control work IBM did
apart from their own copyrights. SCO doesn't need the copyrights to argue that,
but it would help them if the licensing agreements with IBM didn't give IBM
everything IBM needs to do what they are doing.
The Red Hat lawsuit is about
copyrights, but it wouldn't make sense for SCO to argue that they require those
copyrights merely because Red Hat is asking for a summary judgement that they
are not in violation of copyrights held by SCO. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 03:10 PM EST |
SCOX is down 1.01 from close of yesterday. Maybe the investors have finally
decided it is time to get out.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 03:21 PM EST |
Question 2: Are copyrights included in the Excluded Assets "set forth on
Schedule 1.1(B)"?
Answer 2: Yes, as per the original APA, but Maybe as per Amendment 2 to the APA.
The fundamental issue is this: If an asset that was on the Excluded Assets list
is removed from that list, does it automatically become an included Asset?
Well, if the asset was already or concurrently or subsequently added to the
included Assets, then the answer is obviously, Yes. However, the “if” part of
the prior conditional statement is false, so per the APA the answer is NO.
However, despite this argument failing the letter of the law (or APA in this
case), the "spirit of the law" still needs to be addressed. newSCO
argues – despite the logically faulty theory of "removing an Excluded Asset
makes it an included Asset – that Amendment 2 of the APA is meant to make ALL
copyrights become included Assets. Wrong! This is only true of possibly SOME
copyrights, but only on the following terms and subject to the following
conditions: The excluded assets do not include "copyrights and trademarks
owned by Novell as of the date of the [Asset Purchase Agreement] required for
SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare
technologies."
This also begs three questions:
Q2.1. What copyrights and trademarks were owned by Novell as of the date of the
APA?
A2.1. newSCO presents the proper evidence for this with Attachment E of Novell's
Disclosure Schedule to the APA. However, they mischaracterize the Schedule,
first by claiming that it is a list of all the copyrights they were/are supposed
to receive, and second, by claiming that the Schedule itself represents a
conveyance of said copyrights. Attachment E is neither; it simply lists what
Novell had at the time. The only listing of what was actually conveyed is
Schedule 1.1(a) for included Assets, subject to not including anything from
Schedule 1.1(b) for Excluded Assets.
For those who are not familiar with the concept of disclosure schedules, imagine
that you are buying a house and you want to buy some, if not all of the
furniture, fixtures and appliances. A seller's disclosure schedule would make
him list all the furniture, fixtures and appliances in the house, so you and the
seller could be clear about what you wanted the stay and what he wanted to keep.
However, the items you choose to buy (that he agrees to let you buy) would be
listed in another section that says, "This is what I am buying."
Later, when you move in and notice the mini-fridge missing from under the
basement bar, you have one of two claims you can make. Either the mini-fridge
was on the list of "This is what I am buying" so you owe me/bring it
back. Or, it was not on the disclosure schedule and, by leaving it off the
list, the seller misrepresented that the appliances in the house, so you owe
me/bring it back.
Either way the seller breached the contract. The main difference is that the
penalty for breaching the representation that the disclosure schedule listed all
the appliances, but you not noticing it until after the fact may be that the
damage awarded may not be getting the mini-fridge back or getting enough cash to
buy one. This latter point is because (let’s pretend it was inadvertent), the
seller may convince whoever's deciding the case that he would have had a right
to ask for more and you could have been reasonably expected to pay more for the
undisclosed item if it had been disclosed.
Conclusion 2.1: Attachment E correctly identifies the pool of copyrights
available to oldSCO at the time of the transaction with Novell. This is all it
does. No more, No less.
Q2.2. What exactly are SCO’s rights with respect to the acquisition of Unix and
UnixWare technologies?
A2.2. This answer is easy as it follows from Question 1, posted earlier:
newSCO's rights with respect to the acquisition of Unix and UnixWare
technologies are all the rights that flow from their ownership of "all of
Seller's right, title and interest in and to the assets and properties of Seller
relating to the Business" just prior to the execution of the APA as
amended, but again only to the extent that the purchase and sale of assets
remains "on the terms and subject to the conditions set forth in this
Agreement". The most notable of these terms and conditions are contained
in APA Section 4.16 SVRX Licenses.
Based on just this one Section, newSCO has the right under the APA to do
everything legal ownership allows, but (among other things):
They must not (and they do not have the right to) amend, modify or waive any
right under or assign any SVRX License without the prior written consent of
Novell or enter into future licenses or amendments of the SVRX Licenses (with
some exceptions that are not germane here).
Conclusion 2.2: newSCO's rights under the APA do not include the right to sell
new SVRX licences nor to amend or modify existing SVRX licences, so copyrights
can not be required for these activities by newSCO. The newSCO UNIX in Linux
licenses – to the extent they mean SVRX – do not fall under newSCO’s rights
under the APA. Also, to the extent Novell disagrees, newSCO can not take any
actions related to alleged breaches of SVRX contracts without Novell’s consent,
save for making sure Novell get the royalties from SVRX licensees. This leaves
room for newSCO to get some copyrights, but not for the purpose of suing SVRX
licencess for anything and not for the purpose of suing anyone else for SVRX in
linux or even selling licenses covering SVRX.
Q2.3. Which copyrights and trademarks were/are required for old/newSCO to
exercise it rights?
A2.3. NONE, based on the foregoing. oldSCO never requested any copyrights
because they were not required to for them to exercise their rights under the
APA. newSCO has demanded the copyrights to exercise rights they don’t have or
would have to get Novell’s permission to exercise under the APA. Given that
newSCO is precluded from licensing SVRX in their UNIX in Linux licenses, and
given that newSCO has no contractual standing, per APA 4.16(b), to make any
breach of contract claim against any SVRX licensee, then it becomes clear(er)
that they do not need the copyrights to the SVRX code.
Conclusion 2.3: Even if Schedule 1.1(a) said, “all your code are belong to us”,
newSCO would not require any copyrights to exercise the rights it is requesting
them for under the APA. However, they can copy, modify and distribute manuals
to their heart’s content (that’s right, there maybe one heart amongst them
all).
This brings us to:
Question 3: Are there any terms or conditions in the APA, beyond Section 1.1,
Schedule 1.1(a) and Schedule 1.1(b) that govern or clarify the issue of whether
copyrights are included or excluded Assets?
(see 2.3 for a hint)
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 03:59 PM EST |
I am amazed. This far exceeds the quality of SCOs usual legal pleadings. Looks
like David Boise may have actually put this together, and not just Kevin. If so
I can see why some of you have a high opinion of him. I think he's actually
managed to adequately answer some of the grounds for dismissal raised by Novell
quite well. The weak point however would have to be the special pleadings
argunment which for all that it is wonderfully written, is really pretty thin.
Interesting to see the latest delaying tactic - applying to have the case
remanded to another court so we can start all over again.[ Reply to This | # ]
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| Authored by: sjgibbs on Tuesday, March 09 2004 @ 04:09 PM EST |
SCO embolden the following text and present it for the benefit of the judge
(and watching shareholders I guess) as a "smoking gun" pointing squarly at
Novel. It is to them the One Reason they are right in their argument that they
own Unix copyrights:
"All rights and ownership of UNIX
and UnixWare,"
In other words "copyrights" are a subset of
"All rights" therefore we own the copyrights...
This seems perfectly
reasonably on the face of it. So for the benefit of the World, and my suddenly
doubtful self in particular, I ask:
What is wrong with
that argument?
SJG
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 05:02 PM EST |
(sorry I originally posted this in the wrong thread)
Bruce Perens
article talking of the open group and got me to rummage thru my bookcase of old
and forgotten, yet overpriced, books.
I found a 1995 book: "Go
Solo, How to implement and Go Solo with the Single UNIX(R) Specification",
X/Open Company, Prentice Hall ISBN: 0-13-439381-3. X/Open (as they were called
in that era)was given the UNIX TM by Novell and they were attempting to unify
the hydraheaded beast that UNIX had become. This book also contains a CD. It
specifies unix system calls, functions, and header files (including
errno.h).
Page 5 provides some UNIX background for the period
comptemporary with USL/Novell ownership/APA. Two interesting points: 1) no
mention of copyrights, only licensing rights 2) UNIX SVID is open to the
world.
"...While UNIX system derivitives have long been identified with
portability, "the" UNIX operating system was a licensed product developed at
AT&T Bell Laboratories in the late sixties. AT&T licensed the source
code to other vendors that wished to develop UNIX operating systems, and
AT&T owned the registered trade mark. AT&T created UNIX System
Laboratories (USL), a separate wholly-owned subsidiary which was purchased by
Novell in 1993, and the source licensing arrangements and trademark fell
to Novell.
"Novell gained control of the UNIX source code, licensing
rights, and trademark during the beginning of the Spec 1170 work, and Novell
was one of the vendors supporting the initiative. As the Spec 1170 work moved to
X/Open for fast-tracking as an X/Open specificaiton, the sole licensing rights
to the UNIX trade mark were transfered to X/Open by Novell.
"The UNIX
operating system product documented by the System V Interface Definition (SVID),
is no longer controlled and licensed from a single point. ..." etc.
emphasis added
Harry
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 06:07 PM EST |
If you were to accept the logic that SCO applies to the
copyrights, then by that same logic they would also be the
owner of the trademarks. But SCO admits that the UNIX
trademark is owned by the Open Group. As such, SCO's logic
is inconsistent with its own position and thus
unsustainable. [ Reply to This | # ]
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| Authored by: jackbird on Tuesday, March 09 2004 @ 06:20 PM EST |
| Kenbrooke Fabrics, Inc.v. Soho Fashions, Inc., 690 F.Supp. 298, 300 (S.D.N.Y.
1988) (finding that a short letter transferring ownership of certain products
but never mentioning copyrights and an invoice showing payment was a sufficient
writing under Section 204(a) to defeat a motion for summary
judgment). Doesn't this confirm Novell's motion to dismiss? If a
summary judgement was defeated on the basis of a transfer of ownership,
doesn't that mean there was an actual controversy about the copyrights the court
has to decide? Yet another hole in Slander of Title, no? [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 07:08 PM EST |
This case is cited in both Novell's motion and SCO's response.
Much of it is
not particularly relevant to the case, as it is about whether an oral contract
can transfer copyright under section 204(a) (answer it can't) as well as whether
an implied license was granted in this particular case (answer it
was)
It is worth reading, and is short.
Here is the Magna
Carta bit:
Cohen suggests that section 204's writing
requirement does not apply to this situation,
advancing an argument that might
be summarized, tongue in cheek, as: Moviemakers do
lunch, not contracts. Cohen
concedes that "[i]n the best of all possible legal worlds"
parties would obey
the writing requirement, but contends that moviemakers *557 are too
absorbed in
developing "joint creative endeavors" to "focus upon the legal niceties of
copyright licenses." Appellees' Brief at 16, 18. Thus, Cohen suggests that we
hold
section 204's writing requirement inapplicable here because "it [i]s
customary in the
motion picture industry ... not to have written licenses." Id.
at 18. To the extent
that Cohen's argument amounts to a plea to exempt
moviemakers from the normal operation
of section 204 by making implied
transfers of copyrights "the rule, not the exception,"
id., we reject his
argument.
Common sense tells us that agreements should routinely be put in
writing. This simple
practice prevents misunderstandings by spelling out the
terms of a deal in black and
white, forces parties to clarify their thinking
and consider problems that could
potentially arise, and encourages them to take
their promises seriously because it's
harder to backtrack on a written contract
than on an oral one. Copyright law dovetails
nicely with common sense by
requiring that a transfer of copyright ownership be in
writing. Section 204
ensures that the creator of a work will not give away his
copyright
inadvertently and forces a party who wants to use the copyrighted work to
negotiate with the creator to determine precisely what rights are being
transferred and
at what price. Cf. Community for Creative Non-Violence v. Reid,
490 U.S. 730, 109
S.Ct. 2166, 2177-78, 104 L.Ed.2d 811 (1989) (describing
purpose of writing requirement
for works made for hire). Most importantly,
section 204 enhances predictability and
certainty of copyright
ownership--"Congress' paramount goal" when it revised the Act in
1976.
Community for Creative Non-Violence, 109 S.Ct. at 2177; see also Dumas v.
Gommerman, 865 F.2d 1093, 1103-04 (9th Cir.1989). Rather than look to the
courts every
time they disagree as to whether a particular use of the work
violates their mutual
understanding, parties need only look to the writing that
sets out their respective
rights.
Section 204's writing requirement is not
unduly burdensome; it necessitates neither
protracted negotiations nor
substantial expense. The rule is really quite simple: If
the copyright holder
agrees to transfer ownership to another party, that party must get
the
copyright holder to sign a piece of paper saying so. It doesn't have to be the
Magna Charta; a one-line pro forma statement will do.
It
is especially worth reading due to the lucidity and humor of Judge KOZINSKI, a
highlight from the conclusion.
We affirm the district
court's grant of summary judgment in favor of Cohen and the
other defendants.
We note, however, that plaintiff doesn't leave this court
empty-handed.
Copyright ownership is comprised of a bundle of rights; in granting a
nonexclusive license to Cohen, Effects has given up only one stick from that
bundle--the
right to sue Cohen for copyright infringement. It retains the right
to sue him in state
court on a variety of other grounds, including breach of
contract. Additionally,
Effects may license, sell or give away for nothing its
remaining rights in the special
effects footage. Those rights may not be
particularly valuable, of course: "The Stuff"
was something less than a
blockbuster, and it remains to be seen whether there's a
market for shots
featuring great gobs of alien yogurt oozing out of a defunct factory.
On the
other hand, the shots may have much potential for use in music videos. See
generally Kozinski & Banner, Who's Afraid of Commercial Speech?, 76
Va.L.Rev. 627, 641
(1990). In any event, whatever Effects chooses to do with
the footage, Cohen will have
no basis for complaining. And that's an important
lesson that licensees of more
versatile film properties may want to take to
heart.
Link to
text:
http://www.kentlaw.edu/e-Ukraine/copyright/cases/effects_v_cohen.html
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| Authored by: Anonymous on Tuesday, March 09 2004 @ 07:18 PM EST |
This is how SCO cites this case.
Courts have held that the
document need not even include the word
"copyright" to constitute a valid
transfer. See, e.g., Schiller &
Schmidt v. Nordisco Corporation, 969 F.2d
410, 413 (7th Cir. 1992).
I have NOT been able to find
the case, but I have been able to find many
references to it (so I'm guessing
what the case actually says)
It appears to be about Work For Hire
(Based on these references). In Work For
Hire, your employer gets the copyright
on work your create when employed by
them. And it seems possible, in these
cases, that an employment agreement that
forgets to mention copyright
explicitly, might be able to still transfer
copyrights from Employee to Employer
under the Work For Hire doctrine.
For example of one such reference,
see
http://www.husch.com/public/article_full.asp?id=15989
Frankly, I do
not see how this is relevant to Novell v SCO.[ Reply to This | # ]
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| Authored by: nealywilly on Tuesday, March 09 2004 @ 08:18 PM EST |
Question 3: Are there any terms or conditions in the APA, beyond Section 1.1,
Schedule 1.1(a) and Schedule 1.1(b) that govern or clarify the issue of whether
copyrights are included or excluded Assets?
Answer 3: The short answer is, Yes. Section 4.16 was already alluded to in
Answer 2.3 in an earlier post. This Section does not speak of copyrights, but
it does govern newSCO’s action with respect to the SVRX Licenses. Even better,
it is where Novell explicitly tells old/newSCO what rights they had/have and
did/do not have, which is relevant for Amendment 2 to the APA.
1. For example, newSCO *must* collect and remit 100% of all SVRX License
royalties in a timely fashion and be diligent about it, in consideration for a
5% administrative fee.
2. Also, newSCO *must* amend, supplement, modify or waive any rights under, or
shall assign any rights to, any SVRX License to the extent so directed in any
manner or respect by Seller - at Seller's sole discretion and direction.
In the interest of taking up less virtual estate space, I quote below only the
relevant rights newSCO does not have (because Novell retained them) from APA
4.16(b), while noting that the enumeration is mine:
1. Buyer shall not, and *shall not have the authority* to, amend, modify or
waive any right under or assign any SVRX License without the prior written
consent of Seller.
2. In addition, Buyer shall not, and *shall have no right* to, enter into new
SVRX Licenses except in the situation specified in (i) of the preceding sentence
[which allows amendments which “may be incidentally involved”] or as otherwise
approved in writing in advance by Seller on a case-by-case basis.
Note that subject to the above conditions of APA 4.16(b), newSCO would have to
find another reason for requiring the SVRX copyrights than suing SVRX licensees
over breach of contract or anyone else over SVRX in Linux or selling/modifying
licenses related to the latter, if Novell does not consent (and we know they do
not consent).
That said, I am trying, but find myself at a loss as to what else newSCO would
validly need SVRX copyrights for, but I am open to suggestions (note that I said
“validly”). I believe they can do everything they require to exercise their
rights with respect to SVRX based on simply fair use or the “incidental”
modification provisions of the APA.
Note that all the foregoing is based on SVRX, not UnixWare. To my knowledge,
not even newSCO is claiming that UnixWare code is in Linux (unless they didn’t
put it there themselves). I assume that any UnixWare copyrights could be
transferred from Novell to newSCO without a problem because Novell did not
retain similar rights to govern UnixWare as it did for SVRX.
Repeating my Answer 2.1, in an earlier post, Attachment E to the Seller
Disclosure Schedule is a red herring in terms of being something that conveys
copyright. To newSCO’s credit, they don’t misrepresent its meaning as much as
they have done so in the press and when Darl has otherwise spoken about it.
Also, I have an addendum to my Answer 1: Also, note that the first exclusion in
the sentence of the first Subsection of APA Schedule 1.1(b) is “Any asset not
listed in Schedule 1.1(a)”. Again, this goes to my “letter of the law” argument
for why copyrights are not included, despite their conditional exclusion from
the Excluded Assets. This may be deemed a technicality, but I am trying to
cover all the bases here.
Finally, some less thought out (but hopefully still coherent) arguments about
newSCO getting all the copyrights.
1. If Amendment 2 was meant to convey them all, why bother at all with the
conditional ambiguities, when they could have just agreed (in writing) that all
copyrights were included. They could have easily added “and all copyrights” to
Schedule 1.1(a), instead, if this was their intent.
2. Same as one, but starting with “If Amendment 2 was meant to convey whatever
assets old/new SCO asked for without Novell having the power to decide if they
were required, then why bother…”
3. If oldSCO felt they needed any copyrights from the time of the trasaction
until the second (last?) amendment, then they already had Attachment E of the
Seller Disclosure Schedule to have Novell retroactively add to the included
Assets on Schedule 1.1(a). After that, if they felt they needed them, they
would have requested them, presumably received them, and newSCO would now have
them. If this was the case, I think we would know about by now.
4. Change of Control from APA Sections: 1.6, 6.3(c), 6.6(c) and Schedule 6.3(a)
plus the Technology License Agreement (TLA). Without beating this dead horse,
Groksearch for “Change of Control” and look for Harlan and nealywilly.
Arguments are made on both sides of this issue (with final agreement that a
judge would decide that there was a Change of Control per Section 6.6).
5. AT&T $Echo newsletter (Groksearch “echo”). Takes wind out of newSCO’s
sails for IBM lawsuit as well as Linux lawsuits to the extent that SCO-called
UNIX “derivatives and modifications” that do not include UNIX code, is found in
Linux.
6. Section 7.06 of AT&T-IBM license, as amended, that says:
“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.”
That’s all, it’s after 3AM here, gotta sleep for a few hours.
nealywilly
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| Authored by: mossc on Tuesday, March 09 2004 @ 11:45 PM EST |
"SCO has exercised exclusive and unchallenged control over the UNIX and
UnixWare technologies for the entire period since execution of the Asset
Purchase Agreement - a period in excess of eight years. Notwithstanding the
clear language of the Asset Purchase Agreement, Amendment No. 2 and the
eight-plus years SCO has exercised exclusive control over the copyrights in UNIX
and UnixWare"
Another example of Caldera/SCO ignoring the fact that they are not oldSCO. If I
were a judge I would not be pleased to have them assume I didn't have a clue.
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| Authored by: Anonymous on Wednesday, March 10 2004 @ 12:54 AM EST |
http://laws.lp.findlaw.com/9th/9756418.html.
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| Authored by: blacklight on Wednesday, March 10 2004 @ 01:01 AM EST |
"As set forth in the Asset Purchase Agreement and as alleged in SCO's Complaint,
SCO is the exclusive owner of all of the subsequently or previously registered
copyrights and all non-registered copyrights fixed by operation of law in the
UNIX and UnixWare source code, object code [my italics] and
documentation."
I suspect that the SCO Group is pulling a fast one by
combining UNIX and Unixware within the same phrase.[ Reply to This | # ]
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| Authored by: blacklight on Wednesday, March 10 2004 @ 02:59 AM EST |
I don't agree with a serious number of the illustrative examples in the piece
below, but the rules outlined seem to be sound. Let's extract what's valuable
and dump the rest:
http://home.datawest.net/esn-recovery/artcls/disinfo.htm[ Reply to This | # ]
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| Authored by: tschodt on Wednesday, March 10 2004 @ 07:13 AM EST |
I was just reading up on SCO vs. IBM and there was a link to SCO.
On SCO's main page there is an link "5 Reasons to Choose Unix instead of
Linux?" - not minding a laugh I followed it and found
http://www.sco.com/5reasons/#5
"SCO UNIX® is Legally Unencumbered"
Not sure what to make of that...[ Reply to This | # ]
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| Authored by: Steve Martin on Wednesday, March 10 2004 @ 08:15 AM EST |
SCO acquired, pursuant to the Asset Purchase Agreement as
amended, "[a]ll rights and ownership in UNIX and UnixWare" and ownership of all
copyrights required for SCO to exercise "all rights and ownership" in UNIX and
UnixWare.
This is not what Amendment 2 says.
The relevant paragraph in Amendment 2 says:
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.
(emphasis
added)
It does not say it transfers copyrights necessary
for "all rights and ownership" in UNIX and Unixware, as SCO alleges above. This
is an out-and-out inaccuracy.
While reading this, it struck me that
there is an alternate interpretation of the Amendment 2 language (that perhaps
has been suggested before, but I missed it if it has been). Teh phrase "...the
acquisition of UNIX and UnixWare technologies..." doesn't specify "acquisition"
by whom. It could easily be interpreted to mean that Santa Cruz Operation
(the original party to the Amendment) was to receive copyrights necessary to
enforce its rights with respect to its customers' acquisition of UNIX and
Unixware technologies, not SCO's acquisition of these technologies.
Santa Cruz Operation was, after all, buying a business of UNIX licensing.
Perhaps this paragraph is intended to address Santa Cruz Operation's
requirements with regard to selling UNIX / Unixware licenses to its customers,
and has nothing to do with Santa Cruz Operation's "acquisition of UNIX
and Unixware technologies".
Hmmm...
---
"When I say
something, I put my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 11 2004 @ 01:20 AM EST |
| Novell could only sell what copyrights it owned. The only truly valid copyrights
were on the manuals. All source code was a blend of public domain works, plus a
small amount of original code, put together in a "compilation" or
"collection".
If anyone finds a sucker who will pay $100,000,000 for
manuals and a small amount of original derivative version of predominantly
Public Domain material, take the money and run! That is what Novell
did.
Novell wisely refused to include "clear title" to the source code
because it was largely public domain. As long as nobody knew the "secret", that
is, the "trade secret" that Unix System V is mostly public domain, it held its
value. Novell protected the "secret". USL protected it before them, and AT&T
protected it before that. SCO got what they paid for: a "business selling
high-priced licences" for a mostly public domain operating system. SCO did not
buy the "secret", and Novell did not sell or transfer the "secret".
Because
Novell knows the "secret" they can register copyrights to their version of the
"compilation". They did just that. By only selling the "Unix Business" and such
clear copyrights as they actually, non-fraudulently owned, Novell did not engage
in fraud in selling the "business" sans "secret".
SCO was not happy with the
"business", but also also wanted the "Linux business" so they sued. SCO's
largely public domain assets will not survive the scruitiny they will now get,
but never otherwise would have gotten, because of the deep scruitiny of the UNIX
history. SCO is about to learn the "secret" that more people are discovering
every day.
http://www.ecosyn
.us/SCO_v_IBM_copyright_issues.html
SCO v IBM: SELECTED
WEBPAGES CITATIONS OF COPYRIGHT LAW HISTORY RELEVENT TO UNIX SYSTEM V COPYRIGHT
CLAIMS STATUS
* NO copyrights for computer programs, source
code or machine readable binary were copyrightable in the US before 1980.
* Before 1976, mandatory notices were required on all copyrighted materials in
standardized mandatory forms -- failure to adhere to the law regarding mandatory
notices on published works forfeited what copyright protection was
available.
* Before 1976 copyright was not automatically conferred upon
creating a fixed tangible form -- copyright was limited to those works which
complied with the provisions of the prior law "The Copyright Act of 1909". Unix
was developed and distributed for seven years under this law.
*
Distributing works, making one or more copies for sale, lease or loan,
constituted publication during the first seven years of Unix development.
* Since 1976, mandatory requirements for copyrighted works have required
deposit of copies with the Library of Congress within 3 months of first
publication. Unless Unix source code is in the Library of Congress it is not
copyrighted. Unless Unix System V is in the Library of Congress, it is in
violation of the 1976 revisions. Before 1976 "promptly" depositing copies was
mandatory, defined in caselaw as within one year of first publication.
*
Unix System V is a collection of modules, mostly public domain through copyright
forfeiture between 1969 and 1976.
* It is defined as fraud under the
1909 Copyright Act [§ 105] "shall insert or impress any notice of copyright
required by this title, or words of the same purport, in or upon any
uncopyrighted article" to post-fix copyright notices upon works not qualifying
for copyright.
* None of the 1976, 1980, or 1989 adjustments to
Copyright laws and the Berne Treaty permitted retroactive copyrights to
previously forfeiting or public domain works.
* Unix System V is
basically public domain in the catagory of a compilation or anthology. Only new
material added after 1976, or after 1980 (when computer programs first became
copyrightable) could possibly qualify for copyright status, and only those
collections which complied with mandatory deposit with the Library of Congress.
Everything else is not in compliance with copyright laws and
treaties.
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