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| Novell's Reply Memorandum in Support of Motion to Dismiss |
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Friday, March 26 2004 @ 05:26 PM EST
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Here is Novell's Reply Memorandum in Support of Motion to Dismiss, and it's a beaut. The PDF is available and here is the text version as well. Novell's arguments are very careful, detailed, and thorough, and because they are so detailed, I'll separately do an article showing all the paragraphs they reference and trace the arguments. But for now, the bottom line is, if they don't win, it surely won't be for any lack on the part of the legal team. We've seen some very fine legal work in this SCO Saga, and this document does not disappoint. They answer in fine detail every argument SCO raised, and they point out that SCO failed to rebut some of their arguments and even some pivotal cases. That's something you never want to do. If you fail to rebut a case, the assumption is that you couldn't. It's a big hole on SCO's side that Novell drives a truck through. The fundamentals are in the introduction and the conclusion. Novell quietly but devastatingly answers SCO's endless mantra that they acquired "all rights and ownership" in "all versions of UNIX and UnixWare" and "all copyrights related thereto". I don't think it's too strong to state that Novell mocks SCO's legal arguments, calling them in one place "half-hearted". I hear Novell saying that SCO was just going through the motions, because they had nothing powerful they could argue. At a minimum, Novell has presented a clear defense to the charge of slander of title, which requires knowledge that your claim is false. It's obvious from this document alone that Novell has a position it believes is true. In fact, that is one of their opening arguments, that their claim to ownership of copyrights is true.
**********************************************
MORRISON & FOERSTER L.L.P.
Michael A. Jacobs (pro hac vice pending)
Matthew I. Kreeger (pro hac vice pending)
[address, phone, fax]
Paul Goldstein (pro hac vice pending)
[address, telephone]
ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address, phone, fax]
Attorneys for Defendant Novell, Inc.
_____________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
____________________________
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff,
vs.
NOVELL, INC., a Delaware corporation,
Defendant.
__________________________
REPLY MEMORANDUM IN
SUPPORT OF MOTION TO DISMISS
Case No. 2:04CV00139
Judge Dale A. Kimball
_________________________
INTRODUCTION
SCO's opposition to Novell's motion to dismiss concedes that its slander of title claim turns on whether the Asset Purchase Agreement (the "APA") assigned the copyrights from Novell. SCO also concedes that section 204(a) of the Copyright Act sets the applicable legal standard. The principal issue in this motion to dismiss, therefore, is whether the APA constitutes a written instrument of conveyance of the copyrights, as the statute requires.
SCO's opposition brief largely ignores the text of the APA. SCO does not rebut Novell's textual analysis that the APA, even as amended by Amendment No. 2, constitutes, at most, a contractual promise to assign, under certain conditions, certain rights falling under the rubric of "copyright". Notwithstanding its appeal to some divined "intent of the parties" based on facts outside the complaint, SCO is unable to show that the APA as amended actually conveyed copyright ownership to SCO's alleged predecessor, and hence its complaint must fail. [1]
SCO's reliance on its claim for attorneys' fees in this action for its required pleading of special damages is also unavailing, as Utah courts have rejected this very theory. SCO's complaint should be dismissed for this reason as well.
I. SCO'S COMPLAINT SHOULD BE DISMISSED BECAUSE NOVELL'S
STATEMENTS REGARDING COPYRIGHT OWNERSHIP ARE TRUE.
In its opposition, SCO does not dispute core propositions in Novell's opening brief:
- In order to survive a motion to dismiss, SCO must plead facts sufficient to show the falsity of Novell's statements that copyrights were not transferred. (Memorandum in Support of Motion to Dismiss ("Opening Br.") at 4.)
- Where allegations of fact are at variance with the terms of documents attached to the complaint, the documents control. (Id at 3-4.)
- Section 204(a) of the Copyright Act mandates a written instrument of conveyance in order to effect a transfer of copyright ownership and governs the determination whether a particular writing constitutes such an instrument. (Id. at 5.)
Thus, despite SCO's references to its ownership allegations in the complaint (Opp'n at 5), unless the APA and/or Amendment No. 2 constitute a written instrument of conveyance of all UNIX and UnixWare copyrights, the motion to dismiss should be granted.
SCO, by failing to rebut, also concedes key points as to how the APA and Amendment No. 2 must be understood. SCO does not dispute that a purported assignment must be construed in favor of the copyright holder and against a transfer of any copyrights. (Opening Br. at 10.) SCO does not contest that Section 1.1(a), with its language promising to transfer certain assets and excluding specifically the Excluded Assets, is the operative portion of the agreement specifying which assets are to be transferred. (Id. at 5-6.) SCO also does not contest that Schedule 1.1(b) excluded copyrights from the APA. (Id. at 6.) SCO does not rebut Novell's point that Attachment E of the Seller Disclosure Statement, which contains a list of copyrights, is not relevant to the issue of copyright ownership. (Id. at 9 n.3.) In sum, SCO does not dispute that the UNIX and UnixWare copyrights were excluded from the assets to be transferred under the APA when it was executed.
SCO also fails to contest that Amendment No. 2, standing alone, does not constitute a written instrument of conveyance sufficient to transfer copyright ownership. (Id. at 6.)
The only remaining question, therefore, is whether the APA as amended meets the requirements of section 204(a), as SCO contends. (Opp'n at 7.) Because it constitutes only a promise to assign, and not an instrument of conveyance, and because it is so vague as to be indeterminate on the issue of which copyright rights to which works were supposedly transferred, the amended APA does not meet the requirements of section 204(a) and SCO is unable to demonstrate ownership.
A. The Amended APA Constitutes At Most a Promise to Transfer Copyrights.
Having conceded that the APA before Amendment No. 2 excluded all copyrights from transfer, and that Amendment No. 2 is not a stand-alone instrument of conveyance, SCO's lead argument is that lurking in the 50-page APA as amended there must be an instrument of conveyance somewhere that satisfies section 204(a)'s requirements. SCO cannot point, however, to any language of assignment anywhere in the amended APA. Indeed, SCO ignores that in its own complaint it seeks a court order transferring the copyrights from Novell, a request that is at odds with its position that it already owns the copyrights. (See Opening Br. at 5.) [2]. Instead, it challenges Novell's reading of the case law and asserts that the issue here is the parties' intent. (Opp'n at 6-7.) SCO's argument does not withstand analysis.
The fundamental problem with SCO's opposition is its failure to reckon with section 204(a)'s requirement of a written instrument "of conveyance." What SCO must do is show that there is some instrument, in writing, in which an actual transfer of ownership occurs. See Arachnid, Inc. v. Merit Indus., Inc., 939 F.2d 1574, 1581 (Fed. Cir. 1991) (agreement containing only a promise to assign distinguished from case in which the contract read "seller 'hereby sells' the patent and buyer 'hereby purchases.'") (distinguishing Sims v. Mack Trucks, Inc., 407 F.Supp. 742 (E.D.Pa. 1976)). SCO has not identified that written instrument. Absent such a written instrument, ownership could not have transferred. Effects Assoc., Inc. v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990)("[S]ection 204 of the Copyright Act invalidates a purported transfer of ownership unless it is in writing.")
Seeking to avoid the basic distinction between a promise to assign and an instrument of conveyance, SCO states that authority cited by Novell is not "remotely comparable to this case" and attempts to distinguish Li'l Red Barn because it concerned only "an agreement that a trademark could be reassigned upon the occurrence of a breach." (Opp'n at 9 n.4.) That case, however, like the others cited by Novell and ignored by SCO, recognizes the general proposition that an agreement of future assignment does not constitute an actual assignment. Li'l Red Barn, Inc. v. The Red Barn Sys., Inc., 322 F.Supp. 98, 107 (N.D.Ind. 1970), aff'd 174 U.S.P.Q. (BNA) 193 (7th Cir. 1972) (applying general rule in connection with assignment of trademarks); see also Arachnid, Inc., 939 F.2d at 1580-81 (same in conection with patents); Monarch Licensing, Ltd. v. Ritam Int'l, Ltd., 24 U.S.P.Q.2d (BNA) 1456, 1459 (S.D.N.Y. 1992) (same in connection with trademarks and copyrights). SCO cites no case that holds that a promise to assign constitutes an actual assignment, and thus has no support for its attempt to blur the well-recognized distinction between the two.
SCO's argument that the copyrights were transferred because the time to assign has come and gone (Opp'n at 9) is contradicted by the documents. The APA was signed on September 19, 1995. In that document, Novell agreed that on the Closing Date (December 6, 1995) it would assign all assets on Schedule 1.1(a) but that it would transfer no assets listed on Schedule 1.1(b), the Excluded Assets schedule. (APA Section 1.1(a).) [3] There is no dispute that copyrights were expressly listed on the "Excluded Assets" schedule. Thus, even if, as SCO maintains, the assignment of something was self-executing on the Closing Date, no copyrights were transferred to SCO's alleged predecessor on that date. SCO's observation that Novell received 6.1 million shares of stock from SCO is irrelevant to the issues at hand and does nothing to alter the fact that no copyright transfer occurred. (Opp'n at 9.)
Over ten months later, the parties entered into Amendment No. 2. By its terms, the amendment was not retroactive to the date of the APA, but instead was effective only as of October 16, 1996, and thus could not have effected (or affected) a transfer that supposedly occurred on a self-executing basis ten months earlier. (Amendment No. 2 at 1 ("As of the 16th day of October 16, 1996 the [APA] is amended in the following respects.").)
SCO's argument that the assignment was self-executing is also contrary to the law. In the Monarch Licensing case, the contract stated that "upon termination [Licensee] agrees to assign all rights, title and interest in the trademarks and/or copyrights to [Licensor.]" Monarch Licensing, Ltd., 24 U.S.P.Q.2d at 1459. It was undisputed that the agreement had terminated but that the Licensee had not executed an assignment following termination. Although the time to assign had passed, the court did not convert the promise to assign into an actual assignment and instead found that "[n]othing in the Agreement suggests that the assignment of trademark and copyrights provision is self-executing." Id. As such, the "most Monarch has is a contractual right to receive assignment of those rights." Id.
Monarch Licensing is on all fours with the facts here. It confirms that transfer of copyright ownership (as in the case of any ownership transaction, such as a purchase of a home) requires an actual assignment as opposed to a promise to assign, and it undermines SCO's claim that one may stretch the proper interpretation of a contract to find a self-executing assignment where none exists.
B. The APA as Amended Is Too Indeterminate to Meet Statutory Requirements for an Instrument of Transfer.
Having conceded by its silence the law that copyright law construes a purported assignment in favor of the copyright holder and against a transfer of any copyrights, SCO fails to explain how an instrument framed in terms of copyrights that are "required" in order to exercise other rights can satisfy section 204(a) and effect a transfer of copyright ownership to it. SCO argues that because "no magic words" are required and a transfer agreement can be a "one-line" statement, the fifty-page APA is sufficient. (Opp'n at 6.) While a simple writing of conveyance may satisfy section 204(a) in some circumstances ("I hereby transfer the copyright in the attached manuscript to Publisher" would probably be sufficient), the instrument of conveyance must be clear in defining the copyrights that are transferred. Thus, in Radio Television Espanola S.A. v. New World Entm't, Ltd., there were numerous written documents that plaintiff argued transferred the copyrights, but the court found that none of the documents, read individually or together, had the clarity required to constitute valid instrument of conveyance under section 204(a). 183 F.3d 922, 927-28 (9th Cir. 1999). The court observed that "the writing should 'serve as a guidepost for the parties.'" Id. [4] Where the written documents fail to do so adequately, they do not satisfy section 204(a).
Likewise, in Playboy Enters., Inc. v. Dumas, Inc. , the plaintiff argued that the endorsement of a legend acknowledging "payment in full for the assignment to Playboy Enterprises, Inc. of all right, title and interest in and to" the listed item was sufficient to satisfy section 204(a). 53 F.3d 549, 563-64 (2d Cir. 1995), cert. denied, 5l6 U.S. 1010. The court examined the written document and circumstances and found, contrary to plaintiff's assertions, that the written document was ambiguous as to whether copyrights were included. Hence, section 204(a) was not satisfied. Id.
SCO relies heavily on Schiller & Schmidt v. Nordisco Corp., 969 F.2d 410, 413 (7th Cir. 1992). In that case, an agreement to transfer all of the assets of a business without specifically mentioning copyrights was held to comply with section 204(a). According to SCO, the APA "is significantly more detailed" than the agreement in Schiller, and therefore must satisfy section 204(a). (Opp'n at 8.) SCO's argument misses the crucial fact that in the present case, the APA as originally executed was not silent as to copyrights; it specifically excluded them. [5] SCO's repeated citation to the "all rights and ownership of UNIX and UnixWare" language from the APA is therefore beside the point. That language is found in an agreement which, when executed, expressly excluded copyrights from the assets to be transferred.
Nor does Amendment No. 2, signed ten months later, clearly specify the copyrights to be transferred. Rather, it contemplates a future assignment if SCO demonstrates that there are copyrights owned by Novell that are "required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." (Amendment No. 2 (emphasis added).)
SCO maintains that all copyrights are covered by this provision, because it "could not exercise its those [sic] rights without ownership of the UNIX and UnixWare copyrights as specifically set forth in Amendment No. 2." (Opp'n at 7.) SCO thus tries to rewrite Amendment No. 2 to read "all copyrights except those copyrights in UNIX and UnixWare," but that formulation is not what the parties chose, and it is not open to SCO to elide the "required for" from Amendment No. 2.
Indeed, "required" is a strong word, and the overall structure of the APA does not support the idea that SCO needed outright ownership of all of the UNIX and UnixWare copyrights. The APA drew a sharp distinction between the existing Novell UNIX "SVRX" products and new products that SCO was expected to develop in the future. Novell was entitled to a 100% interest in on-going royalties from existing UNIX licensees (with a 5% administrative fee paid back to SCO), and had the power to prohibit SCO from entering into new licenses for SVRX products. (See e.g., APA, Sections 1.2(b), 1.6, 4.16(b).) New products that SCO developed over time, by contrast, would carry much reduced royalty obligations. (See APA at Schedule 1.2(b).)
The copyright ownership rights provided by the APA follow this same division. Schedule 1.1(b) explicitly excludes all UNIX and UnixWare copyrights from the transfer, leaving Novell as the owner. [6] To the extent that SCO authored new copyrightable software after the acquisition, SCO would own the copyrights. Amendment No. 2, far from altering this balance by transferring "all" copyrights to SCO, at most transferred rights which SCO "required" to exercise its rights in the technology. As Novell has shown, SCO required far less than total ownership of the entire bundle of rights included within all of "the copyrights." (Opening Br. at 8-9.) SCO offers no argument in response. Thus, SCO's assertion that "[a]s 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" must fail. (Opp'n at 8 n.3 (emphasis added).)
Because the amended APA does not identify the copyrights that are "required," there is no "guidepost" for the parties or the Court meeting the requirements of section 204(a). Prevailing copyright doctrine, which SCO does not dispute, is that close calls go to the copyright owner against the purported transferee. (See Opening Br. at 10.) SCO has not demonstrated that the question is even close. Even if the APA as amended was a purported transfer of copyright ownership (as opposed to a promise of future assignment), SCO has not shown that these instruments are sufficiently clear to meet the requirements of the statute, and its claim of ownership transfer must therefore fail. Under section 204(a), SCO has failed to demonstrate that it is the owner of the copyrights in question and its slander of title complaint must therefore be dismissed.
II. NOTWITHSTANDING ITS PRAYER FOR ATTORNEYS FEES, SCO HAS NOT ADEQUATELY PLED SPECIAL DAMAGES.
SCO concedes that an appropriate allegation of special damages must "apprise the defendant of such damages as must of necessity flow from that which is alleged." (Opp'n at 10, citing Cohn v. J.C. Penney Co., Inc., 537 P.2d 306, 311 (Utah 1975).) SCO also acknowledges that absent its general prayer for attorneys' fees, its damages allegations consist only of the following two items:
Customers and potential customers of SCO are unable to ascertain the truth of ownership in UNIX and UnixWare, and make decisions based thereon; and
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.
(Opp'n at 10.) As these are not realized pecuniary losses, they are insufficient. Valley Colour, Inc. v. Beuchert Builders, Inc. , 944 P.2d 361. 364 (Itaj 1997) ("The special damages rule requires the plaintiff to establish pecuniary loss that has been realized or liquidated."). SCO half-heartedly argues that these allegations suffice. (Opp'n at 10.) But the very cases upon which SCO relies show that SCO's allegations are insufficient. See Cohn, 537 P.2d at 310-11 (specifically pled that plaintiff could not work which resulted in loss of earnings, as well as medical expenses incurred); Hodges v. Gibson Prods. Co. , 811 P.2d 151, 162 (Utah 1991) (same). In those circumstances, defendants were apprised of the damages. Here, SCO's allegations do not identify any specific or actual loss.
SCO goes on to argue that its general prayer for attorneys' fees incurred in this action satisfies the special damages pleading requirement. (Opp'n at 10-11.) That is insufficient. Attorneys' fees constitute special damages for purposes of a slander of title action only where they were incurred to clear plaintiff's title and undo the harm of slander of title. First Sec. Bank of Utah 780 P.2d at 1258. There, the plaintiff alleged slander of title based upon the defendant placing a notice of default on the plaintiff's property. The court found that the notice of default was false, but refused to give any weight to plaintiff's argument that the attorneys' fees it had incurred in the slander of title action constituted special damages. Id. To the contrary, it held "[plaintiff] did not incur attorney fees to clear its title or undo harm caused by the original notice of default and therefore did not establish special damages." Id.
Crediting SCO's argument would eviscerate the special damages pleading requirement. If an allegation that "uncertainty about title exists" combined with a general prayer for attorneys' fees were sufficient, plaintiffs could meet the special damages pleading requirements simply by asserting that slander of title has occurred. The law requires that plaintiffs do more in order to state a claim for relief. Finally, SCO includes in a footnote a request for leave to amend to include additional allegations of special damages. (Opp'n at 11 n.5.) The Court should deny this request where SCO has failed to exercise its right to amend and where it has failed to indicate what facts, if any, it believes it could add to show special damages. Glenn v. First Nat'l Bank, 868 F.2d 368, 370 (10th Cir. 1989) (a request in an opposition to motion to dismiss for leave to amend "does not rise to the status of a motion" and can properly be denied). CONCLUSION
No amount of hand waving can rescue SCO's complaint from its infirmities. Importantly, SCO has not proposed to amend its complaint to assert additional allegations of copyright ownership. Its slander of title claim therefore rises or falls with the contents of the APA and Amendment No. 2 attached to its complaint. These documents do not meet the copyright law's standards for an instrument of conveyance. Similarly, SCO's allegations of special damages fail when assessed against Utah's pleading requirements. For these reasons, SCO's complaint should be dismissed.
DATED: March 19, 2004
ANDERSON & KARRENBERG
_______signature___________
Thomas R. Karrenberg
John Mullen
Heather M. Sneddon
Attorneys for Defendant Novell, Inc.
[1] SCO's reference to "facts" outside of the complaint is not limited to the intent of the parties as to the APA, but also includes that Novell's management has changed and that "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." (Opp'n at 3). The latter statement is simply untrue. More to the point, statements outside of the complaint are not to be considered in deciding a motion to dismiss. MacArthur v. San Juan County, 309 F.3d 1216, 1221 (10th Cir. 2002), cert. denied, 123 S. Ct. 226 (2003).
[2] One court relied upon a plaintiff's request for a "confirmatory assignment" as further support for its determination that no assignment of trademarks and copyrights had taken place. Monarch Licensing, Ltd. v. Ritam Int'l, Ltd., 24 U.S.P.Q.2d (BNA) 1456, 1459 (S.D.N.Y. 1992). Here, SCO is not merely seeking a confirmatory assignment, but instead an injunction "requiring Novell to assign to SCO any and all copyrights Novell has registered in UNIX and UnixWare." (Compl. p. 10, Paragraph 3.)
[3] The APA, schedules, and amendments are attached as Exhibit A to the complaint.
[4] SCO omits a critical clause when it quotes Imperial Residential Design, Inc. v. The Palms Development Group, Inc., 70 F.3d 96, 99 (11th Cir. 1995). (Opp'n at 6.) The entire quotation is as follows: "[T]he chief purpose of section 204(a), (like the Statute of Frauds), is to resolve disputes between copyright owners and transferees and to protect copyright holders from persons mistakenly or fraudulently claiming oral licensees or copyright ownership." 70 F.3d at 99 (omitted portions emphasized).
[5] SCO's reliance on Kenbrooke Fabrics, Inc. v. Soho Fashions, Inc. , 690 F.Supp. 298, 300 (S.D.N.Y. 1988) is also misplaced. SCO argues that the combination of a short letter that did not mention copyrights and an invoice showing payment "was a sufficient writing under Section 204(a) to defeat a summary judgment motion." (Opp'n at 6). The court denied summary judgment because it found an issue of fact as to authority of the person who signed one of the documents and because the challenge as to the transfer was made by a third party. 690 F. Supp. at 301. The court found that "where the 'copyright holder appears to have no dispute with its licensee' on the issue of ownership, 'it would be anomalous to permit a third party infringer to invoke this provision against the licensee.'" Id. Following trial, however, the same court dismissed plaintiff's copyright infringement claim because the documents did not contain any reference to copyrights and were, therefore, insufficient to satisfy the requirements of section 204(a). 13 U.S.P.Q.2d (BNA) 1472 (S.D.N.Y. 1989).
[6] Such an arrangement is not unusual and is expressly contemplated in the Copyright Act. "Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. . . ." 17 U.S.C. Section 202; 3-10 Nimmer on Copyright Section 10.09.
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| Authored by: PJ on Friday, March 26 2004 @ 06:25 PM EST |
Please record my mistakes for posterity here, so I can find them quickly.
Thank you.[ Reply to This | # ]
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| Authored by: pb on Friday, March 26 2004 @ 06:28 PM EST |
CONCLUSION
No amount of hand waving can rescue SCO's
complaint from
its infirmities.
Amen, Novell. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 26 2004 @ 06:31 PM EST |
By vigorously defending their belief that copyrights were not transfered, does
this mean that, if this case is dismissed, the courts have upheld Novell's
ownership of those copyrights?[ Reply to This | # ]
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| Authored by: whoever57 on Friday, March 26 2004 @ 06:32 PM EST |
SCO's lead argument is that lurking in the 50-page APA as amended
there must be an instrument of conveyance
somewhere
Is it just me, or are Novell's lawyers mocking SCO
and it's lawyers?"lurking" Hillarious! ---
-----
For a few laughs, see "Simon's Comic Online Source" at
http://scosource.com/index.html [ Reply to This | # ]
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- What's more - Authored by: overshoot on Friday, March 26 2004 @ 06:40 PM EST
- ROTFLSHHWHR - Authored by: Weeble on Friday, March 26 2004 @ 07:43 PM EST
- ROTFLSHHWHR - Authored by: Anonymous on Friday, March 26 2004 @ 07:58 PM EST
- ROTFLSHHWHR - Authored by: Anonymous on Friday, March 26 2004 @ 08:00 PM EST
- ROTFLSHHWHR - Authored by: Anonymous on Friday, March 26 2004 @ 09:39 PM EST
- ROTFLSHHWHR - Authored by: Anonymous on Wednesday, March 31 2004 @ 11:14 AM EST
- there must be an instrument of conveyance somewhere - Authored by: Anonymous on Friday, March 26 2004 @ 07:14 PM EST
- Another wonderful phrase: - Authored by: Anonymous on Friday, March 26 2004 @ 07:16 PM EST
- Lurking - Authored by: valdis on Friday, March 26 2004 @ 08:11 PM EST
- Another wonderful phrase: - Authored by: Anonymous on Friday, March 26 2004 @ 08:17 PM EST
- Another wonderful phrase: - Authored by: Eric E Johnson on Friday, March 26 2004 @ 09:49 PM EST
- Another wonderful phrase: - Authored by: DaveAtFraud on Friday, March 26 2004 @ 11:35 PM EST
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| Authored by: Anonymous on Friday, March 26 2004 @ 06:36 PM EST |
It seems obvious to me that Novell is right on this point; no copyright
transfers took place (or SCO would not need to ask for that in its remedy).
However, what would happen (and how would it happen) if SCO were to try and
assert that provision now? That is, to claim to Novell that it needed this IP
to exercise its rights, and should thus have the necessary IP assigned to it? I
still have no idea what they thought they were promising to transfer at some
point, should SCO demonstrate a need for it, and the intent of the parties would
be more relevant if this case were actually about trying to assert that
provision...[ Reply to This | # ]
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- Novell's Reply Memorandum in Support of Motion to Dismiss - Authored by: TheMohel on Friday, March 26 2004 @ 06:48 PM EST
- Novell's Reply Memorandum in Support of Motion to Dismiss - Authored by: Anonymous on Friday, March 26 2004 @ 06:55 PM EST
- Novell's Reply Memorandum in Support of Motion to Dismiss - Authored by: whoever57 on Friday, March 26 2004 @ 06:57 PM EST
- Novell's Reply Memorandum in Support of Motion to Dismiss - Authored by: cricketjeff on Friday, March 26 2004 @ 07:09 PM EST
- Novell's Reply Memorandum in Support of Motion to Dismiss - Authored by: Anonymous on Friday, March 26 2004 @ 07:21 PM EST
- Novell's Reply Memorandum in Support of Motion to Dismiss - Authored by: drh on Friday, March 26 2004 @ 07:22 PM EST
- Novell's Reply Memorandum in Support of Motion to Dismiss - Authored by: BigDave on Friday, March 26 2004 @ 07:37 PM EST
- Doesn't matter I think - Authored by: Anonymous on Friday, March 26 2004 @ 07:50 PM EST
- Novell's Reply Memorandum in Support of Motion to Dismiss - Authored by: Anonymous on Friday, March 26 2004 @ 07:59 PM EST
- Purpose of the copyright transfer clause - Authored by: AllParadox on Friday, March 26 2004 @ 09:16 PM EST
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| Authored by: Anonymous on Friday, March 26 2004 @ 06:43 PM EST |
Am I correct in assuming that if they don't dispute it, it is accepted as fact?
And all the "failure to rebut" means that SCO has no argument against
Novell's points?
[ Reply to This | # ]
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| Authored by: Glenn on Friday, March 26 2004 @ 06:44 PM EST |
"SCO cannot point, however, to any language of assignment anywhere in the
amended APA. Indeed, SCO ignores that in its own complaint it seeks a court
order transferring the copyrights from Novell, a request that is at odds with
its position that it already owns the copyrights."
This is really beautiful. Novell is pointing out that the SCOG is tacitly
admitting that it does not actually own the copyrights. This by itself should be
enough to get a slander of title suit dismissed. (IMO, IANAL)
Glenn[ Reply to This | # ]
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| Authored by: zcat on Friday, March 26 2004 @ 06:48 PM EST |
SCO claim that AIX code is a 'derivitive work' even if it contained not a single
line of actual AT&T code, because IBM's code was originally written 'for
UNIX'
SCO claim that Linux is a derived work because of the ABI.
At one time, SCO accidentally let slip that their Linux Kernel Personality
contained "about 2 million of lines of code" from the Linux kernel.
Since then they've been claiming that it's merely binary-compatable, but does
not contain any actual Linux code. Either way it doesn't matter; by SCO's own
logic it's still a "Derived work" of Linux and should therefore be
released under the GPL.
I'm still hung up about this 'derived work' thing. I don't think SCO should be
allowed to claim that Linux is a derived work of UNIX, and get to keep the LKP
which is so much more obviously a derived work of Linux, at least by their own
definition!
[ Reply to This | # ]
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| Authored by: ujay on Friday, March 26 2004 @ 06:49 PM EST |
All I can say is "Wow". It looks like Novell has decided they've
played with the mouse long enough, and it's time to eat.
---
Programmer: A biological system designed to convert coffee and cheesies into
code[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 26 2004 @ 06:49 PM EST |
Isn't Novell's reply enough proof that SCO's suit is legally frivolous?
[ Reply to This | # ]
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- Defective! - Authored by: _Arthur on Friday, March 26 2004 @ 06:54 PM EST
- Frivolous! - Authored by: Anonymous on Friday, March 26 2004 @ 11:25 PM EST
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| Authored by: math geezer on Friday, March 26 2004 @ 06:51 PM EST |
Love the conclusion, "No amount of handwaving can rescue SCO's complaint
from its infirmities".
Better get Darl back on the lecture circuit![ Reply to This | # ]
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| Authored by: malkerie1 on Friday, March 26 2004 @ 07:15 PM EST |
Amazing how different motions from Novell's lawyers (and IBM's for that matter)
look to those which come out of the SCO lawyers.
Whatever SCO is paying they are getting ripped off..
It is nice to read something written by real laywers.
Thanks for such a great site PJ!!
---
--------
I See Penguins![ Reply to This | # ]
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| Authored by: drh on Friday, March 26 2004 @ 07:17 PM EST |
I can't see a single fault with this filing. Novell hit
the nail squarely on the head and drove it all the way
home.
Dismissal of this case, while not inevitable, is now
extremely likely. It also means that SCOX DOES NOT HAVE
CLEAR TITLE to SVSX. This fact alone derails their case
against IBM until such time as they can prove clear title.
It also may mean, however, that IBM's countersuit may not
enter into play, unless amended to include false filing?
I forsee SCOX suing Novell again to attempt to regain
clear title so as to proceed with the IBM case. I foresee
Novell simply Xeroxing the above and refiling it almost
verbatim in that future case. And I foresee SCOX putting
in a motion to delay in the IBM case until they win
against Novell. I foresee Autozone and Daimler-Chrysler
filing motions to dismiss based on the fact that SCOX does
not have clear title.
How is everyone elses crystal ball?
---
Just another day...[ Reply to This | # ]
|
| |
| Authored by: hhind on Friday, March 26 2004 @ 07:25 PM EST |
SCO is unable to show that the APA as amended actually conveyed
copyright ownership to SCO's alleged predecessor, and hence its complaint
must fail.
It appears that Novell is hinting at another strategy
that breaks SCOX's "chain of ownership" to all that is, was, or ever will be
UNIX.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, March 26 2004 @ 07:33 PM EST |
If SCO goes back and asks for the copyrights, they risk some major problems from
their investors, since they've asserted that they have clear ownership of the
copyrights.
Which is possibly why they've chosen the oddball Slander of Title rather than
breach of contract.
Brett[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, March 26 2004 @ 07:39 PM EST |
| Right ? [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, March 26 2004 @ 07:39 PM EST |
This is simply an amazing document. I never realized that legal documents could
be so entertaining. I read each and every word of it. I have never read a
legal document with so much attention, even the ones that are directly addressed
to me.[ Reply to This | # ]
|
| |
| Authored by: dmscvc123 on Friday, March 26 2004 @ 07:42 PM EST |
I remember at one time David Boies had a sterling legal reputation, but now he's
coming off as a second rate lawyer working for a third rate company - or is that
a third rate lawyer working for a second rate company.[ Reply to This | # ]
|
| |
| Authored by: minkwe on Friday, March 26 2004 @ 07:51 PM EST |
I like this one
"SCO is unable to show that the APA as amended actually conveyed copyright
ownership to SCO's alleged predecessor"
---
Just my 0.02€ contribution to the floccinaucinihilipilification of SCO.[ Reply to This | # ]
|
| |
| Authored by: mobrien_12 on Friday, March 26 2004 @ 07:53 PM EST |
| It had a sizable rally (up over $1) today. What happened? [ Reply to This | # ]
|
- OT: what is up with SCOX stock? - Authored by: the_flatlander on Friday, March 26 2004 @ 08:06 PM EST
- Nobody knows for sure but - Authored by: Anonymous on Friday, March 26 2004 @ 08:09 PM EST
- Somebody knows. - Authored by: Anonymous on Friday, March 26 2004 @ 08:48 PM EST
- Decision - Authored by: borneo on Friday, March 26 2004 @ 08:13 PM EST
- OT: what is up with SCOX stock? - Authored by: Khym Chanur on Friday, March 26 2004 @ 08:28 PM EST
- OT: what is up with SCOX stock? - Authored by: _Arthur on Friday, March 26 2004 @ 09:46 PM EST
- OT: what is up with SCOX stock? - Authored by: Anonymous on Friday, March 26 2004 @ 09:47 PM EST
- ..oh, a few things, I guess... - Authored by: Anonymous on Friday, March 26 2004 @ 10:38 PM EST
- OT: what is up with SCOX stock? - Authored by: Anonymous on Saturday, March 27 2004 @ 12:45 PM EST
| |
| Authored by: odysseus on Friday, March 26 2004 @ 08:17 PM EST |
In a story on news.com.com,
about IBM releasing versions of its Windows PC management
tools for non-IBM
PC's:
"It's a good tool set," said Rob Enderle, principal
analyst at the Enderle Group in San Jose, Calif. But "one
of the problems up
until now has been that it only worked
on IBM (PCs). Businesses don't like to
use a system like
that, because they feel it locks them in to one
supplier."
The man is an irony-free zone :-)
John. [ Reply to This | # ]
|
| |
| Authored by: grouch on Friday, March 26 2004 @ 08:23 PM EST |
Here's something to make you mad:
http://biz.yahoo.com/ap/040326/linux_vs_windows_4.html
[ Reply to This | # ]
|
| |
| Authored by: thparkth on Friday, March 26 2004 @ 08:24 PM EST |
I'm genuinely puzzled about this - don't jump on me as a suspected SCO supporter
:)
Imagine that you were going to buy a car from me. We write a document that says
"you will give me the money" and "in exchange I will give you the
car" but it doesn't actually say "XXX hereby purchases..." or
whatever.
Now I take the money from you, and you drive off in the car, with no further
paperwork being involved.
At this point, it seems to me that you own the car. The fact that the language
of the document we signed was legally inadequate to transfer title doesn't mean
title wasn't transferred - we agreed that you would purchase the car, I took the
money and you drove off in it.
The clear intention of the document, and the evidence of what happened
afterwards, would lead any judge in the world to the clear conclusion that I
sold the darn' thing to you. I can't come along ten years later and say "I
want my car back" just because our agreement said "I WILL sell you the
car" rather than "I HEREBY sell you the car".
How is this different for Novell/SCO? It would really clarify this for me and
I'm sure for a lot of other people who're trying to follow this if someone could
answer these questions:
Did Novell and SCO sign a written agreement that SCO would purchase the UNIX
copyrights from Novell? (albeit it wasn't a transfer of title in itself)
Were Novell paid as specified in the asset purchase agreement?
Did SCO exercise the priveleges of the copyright holder afterwards?
Did Novell object, sue, or otherwise appear to be unhappy about SCO doing so?
Cheers,
Andrew
[ Reply to This | # ]
|
- Help me understand - Authored by: Anonymous on Friday, March 26 2004 @ 08:35 PM EST
- Help me understand - Authored by: brenda banks on Friday, March 26 2004 @ 08:36 PM EST
- Help me understand - Authored by: Buddha Joe on Friday, March 26 2004 @ 08:37 PM EST
- Help me understand - Authored by: Liquor A. on Friday, March 26 2004 @ 08:40 PM EST
- Help me understand - Authored by: sphealey on Friday, March 26 2004 @ 08:49 PM EST
- It was not a sale of the copyrights - Authored by: AllParadox on Friday, March 26 2004 @ 08:50 PM EST
- The analogy is just completely wrong - Authored by: Anonymous on Friday, March 26 2004 @ 09:06 PM EST
- Help me understand - Authored by: Bill The Cat on Friday, March 26 2004 @ 09:13 PM EST
- Help me understand - Authored by: Anonymous on Friday, March 26 2004 @ 09:20 PM EST
- Help me understand - Authored by: tintak on Friday, March 26 2004 @ 09:26 PM EST
- Help me understand - Authored by: Anonymous on Friday, March 26 2004 @ 09:27 PM EST
- Novell sold UNIX distribution business only - Authored by: Anonymous on Friday, March 26 2004 @ 09:35 PM EST
- Help me understand - Authored by: jgold on Friday, March 26 2004 @ 09:59 PM EST
- Paid the money, got the car but not the title. - Authored by: Anonymous on Friday, March 26 2004 @ 10:22 PM EST
- SCO could unseat M$ (as well as everyone else if... - Authored by: cricketjeff on Friday, March 26 2004 @ 10:35 PM EST
- Help me understand - Authored by: Anonymous on Friday, March 26 2004 @ 10:40 PM EST
- Help me understand - Authored by: kbwojo on Saturday, March 27 2004 @ 12:09 AM EST
- Help me understand - Authored by: blacklight on Saturday, March 27 2004 @ 12:09 AM EST
- Help me understand - Authored by: Anonymous on Saturday, March 27 2004 @ 12:44 AM EST
- Help me understand - Authored by: adrift on Saturday, March 27 2004 @ 03:05 AM EST
- There are specific rules for transferring copyrights - Authored by: technoCon on Saturday, March 27 2004 @ 03:34 AM EST
- Help me understand - Authored by: dmomara on Saturday, March 27 2004 @ 08:34 AM EST
- Help me understand - ok - Authored by: js on Saturday, March 27 2004 @ 09:11 AM EST
- Religon & IP - Authored by: Anonymous on Saturday, March 27 2004 @ 09:55 AM EST
- a better analogy and specific answers - Authored by: xtifr on Saturday, March 27 2004 @ 10:02 AM EST
- Help me understand - Authored by: Anonymous on Saturday, March 27 2004 @ 10:30 AM EST
- Help me understand - Authored by: minkwe on Saturday, March 27 2004 @ 02:14 PM EST
- Help me understand - Authored by: Anonymous on Monday, March 29 2004 @ 05:33 PM EST
| |
| Authored by: Liquor A. on Friday, March 26 2004 @ 08:25 PM EST |
Obviously, he can dismiss the slander of title suit.
I presume he can give a ruling that SCO and their alleged predecessor do not
have a clear title to the copyrights - at least as far as using it to dismiss
with prejudice.
Is he able to make a finding of fact (or at least interpretation of contract
law) that Novell still owns the copyrights? And if he did, what effect would
that ruling have on other cases?
[I presume it would have no effect on Autozone, because they DO have copyright
on libraries that were written by themselves and possibly Tarantella/OldSCO, but
it would mean that they lose yet another (nebulous) claim of authority to sue
for non-compliance with the original AT&T->Novell licence of D-C's SVR3
installations.]
---
Liquor A.[ Reply to This | # ]
|
| |
| Authored by: orgngrndr on Friday, March 26 2004 @ 08:34 PM EST |
The provision of the APA made it possible for SCO to obtain the copyright in
order to protect its IP. This implies that SCO did not have the Copyright
assigned to it as part of the sale, rather SCO would have to ask Novell first to
obtain the copyright we're it to believe it needed the copyrights to protect its
IP investment in Unix Sys V.
Naturally Novell would have had to ask "what IP are you trying to protect
and who are you protecting it against". This would have tipped off
everybody about SCO's intention, and most probably Novell would have disagreed
as to the interpretation of SCO's IP properties, possiblydenied the transfer,
and we could have avoided this soap opera. This would have taken months or years
to resolve, too long for SCO.
Unfortunatly, (or fortunatley for us) SCO chose the shoot first and ask
questions later.
This confirms my theory that SCO never really intended to sue to win, or even
protect it's so-called IP's, but rather SCO intended to make a lot of noise,
scare the appropriate people and be bought out, and if that didn't work out at
least cow some companies into taking it's "IP insurance."
The stakes with Linux were too important for companies like IBM to buy off the
SCO's of the world. Rather it is more important for IBM's Linux plan to
adjudicate as many claims against Linux as soon as possible, set precedent, and
have a "clean bill of health" over the past, present and future IP's
present in Linux.
Novell will benefit as to the copyrights of Unix system V/32. And IBM will then
be able to adjudicate it's defense against SCO's claim to its favor. If there is
an out-of-court settlement on the SCO/IBM matter, expect IBM to get everything
it wants. including court costs and a Linux free and clear of any UNIX
infringements.
SCO has gambled and apparently will lose in this round. Should they fold their
tents on this ridicuolus IP fight and cut their losses.?
I doubt it. The management and key stockholders need to bleed off more revenue
throught the stock buyback program, BEFORE the stock tanks, which will be when
SCO throws in the towel or the SCO/IBM case is finally adjudicated or settled.
SCO's stock will take a big hit when this is decided in Novell's favor, which is
pretty apparent it will.
That is why I expect even more outrageous claims, even after this court loss, as
it will need to to keep the stocjk from immediatly tanking. Tt is apparent even
to most myopic of persons. that SCO mangement intends to use this litigation
effort as a pump-and-dump scheme. The more litigation the more outrageous the
claims, the more the stock escalates or retains a exaggerated value, the more
the architects of this scheme will try to enrich themselves.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 26 2004 @ 08:37 PM EST |
I wonder if Novell is going to file a countersuit over SCO's various violations
of the APA, like selling licences without prior approval and ignoring its
letters re: IBM?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, March 26 2004 @ 08:46 PM EST |
| Article on Univention and SCO
link
What is interesting is it says that there was a settlement between
Univention and SCO that SCO would stop making claims and threats. It would be
nice to get a copy of this, if possible. Maybe PJ could interview them or get
one of their people to write an article for us. It would be good if this
settlement got a lot of publicity.
[ Reply to This | # ]
|
| |
| Authored by: Stumbles on Friday, March 26 2004 @ 09:05 PM EST |
| After reading this, I have to confess a certain amount of awe at the
skill of
Novell's lawyers. Hee hee, maybe it's just an over reaction by
me after reading
the drivel from The SCO Groups lawyers.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 26 2004 @ 09:10 PM EST |
First, the APA and Amendment #2 were between old SCO and Novell in 1995
during the first year of their contract. At no time did old SCO need any
copyrights transferred in order to implement their contract.
Second, old SCO transferred assets to one of several Caldera corporations.
Again, this series of Caldera shells did not need any copyrights transferred.
They were in the business of selling GNU/Linux products and services.
Third, after eight long years and a series of at least four companies, no
American court would find that 1) the SVRX copyrights had been transferred
or 2) any transfer was now required for the enforcement of an obsolete
contract.
SCOG has no copyrights in AT&T UNIX![ Reply to This | # ]
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| |
| Authored by: gp2 on Friday, March 26 2004 @ 09:22 PM EST |
News from
ZDNet.com.au:
http://www.zdnet.com.au/news/software/0,2000061733,3911
8971,00.htm
SCO's legal assault on Linux is delaying a major open
source evaluation project being undertaken by Centrelink. The move is believed
to be the first concession by a user in Australia that the vendor's activities
are hampering its takeup of open source software.
Austin told delegates
attending Open Source Forum 2004 in Sydney yesterday that "[Centrelink] can't
afford the distraction of litigation".
"Even if we were happily convinced
that everything we did was the right thing its still an exhausting process to
prove that in a court of law and its that reluctance that makes us say: 'we
don't want to leave the pack here; we want to check what happens in other
people's situations so that we can defend ourselves in advance, prevention being
better than cure," Austin later told ZDNet Australia in an
interview.
Note that they aren't actually suspending their
evaluation or anything, just saying that it won't get past evaluation stage
until this fiaSCO is cleared up. They are an IBM shop. I
wonder which distribution they are evaluating. [ Reply to This | # ]
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| Authored by: dmomara on Friday, March 26 2004 @ 09:30 PM EST |
SCO's hack team blew it totally. Even mentioning the contracts and the
possibility that this case might hinge on their interpretation left Novell the
opportunity not only to put together a gorgeous brief, but also to make a clear
case that the judge should make a determination, all in a brief and cool motion
to dismiss. SCO's lawyers have been astoundingly dumb![ Reply to This | # ]
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| |
| Authored by: Anonymous on Friday, March 26 2004 @ 10:38 PM EST |
``SCO's lead argument is that lurking in the 50-page APA as
amended there must be an instrument of conveyance somewhere that
satisfies section 204(a)'s requirements''
SCO: ``It's in
there somewhere! Or else what the heck did we pay 150 million bucks
for?''
Poor 'ol SCO. Ever the optimist. Novell's characterization of
SCO's interpretation of the APA reminds me of the old joke that ends
``There's gotta be a pony in here somewhere!''
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, March 26 2004 @ 11:14 PM EST |
In light of this, has SCO published a fantastic
preliminary
first quarterly earnings report or is there some other
reason their stock just jumped 10+ % ?
If it is SCO on the buying end how long will it take to
find out about that ? (I know they ok'd a buyback, but
that's not the same as executing it) [ Reply to This | # ]
|
- stock - Authored by: Anonymous on Saturday, March 27 2004 @ 01:48 AM EST
- stock - Authored by: ijramirez on Saturday, March 27 2004 @ 07:50 AM EST
- stock - Authored by: Anonymous on Saturday, March 27 2004 @ 09:46 AM EST
| |
| Authored by: Rob_B on Friday, March 26 2004 @ 11:14 PM EST |
"Indeed, SCO ignores that in its own complaint it seeks a court order
transferring the copyrights from Novell, a request that is at odds with its
position that it already owns the copyrights."
Doesn't this seem to indicate that SCO doesn't currently have the copyrights,
and therefore has no right to register them, and is therefore itself guilty of
slander of title.[ Reply to This | # ]
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| Authored by: Hygrocybe on Friday, March 26 2004 @ 11:16 PM EST |
First: a legal document that can be read easily, logically, simply - and no
loopholes.
Second: game, set, match, Novell.
---
Blackbutt, Australia[ Reply to This | # ]
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| |
| Authored by: blacklight on Friday, March 26 2004 @ 11:24 PM EST |
"Novell quietly but devastatingly answers SCO's endless mantra that they
acquired "all rights and ownership" in "all versions of UNIX and
UnixWare" and "all copyrights related thereto"".
Whispering death beats the light and laser show.[ Reply to This | # ]
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| |
| Authored by: Anonymous on Friday, March 26 2004 @ 11:29 PM EST |
If SCODoh requests copyright assignment under the contract could Novell refuse
due to breach of contract since SCODoh has ignored Novell's waiver of SCODoh's
claims against IBM?[ Reply to This | # ]
|
| |
| Authored by: kawabago on Friday, March 26 2004 @ 11:32 PM EST |
SCO still has lots of money to keep coming back for more so it's more likely to
be 'Dawn of the Darl' with SCO lawyers stalking the countryside for victims, so
this won't end anything anytime soon. Also, Microsoft can give $50 Million to
spurious patent holders, snake oil salesment, etc., 1,000 more times just with
it's cash in the bank.
[ Reply to This | # ]
|
| |
| Authored by: blacklight on Friday, March 26 2004 @ 11:58 PM EST |
I'll reread Novell's filing a couple of times, but my current impression is that
this filing parallels the groklaw community's analysis. We need not be concerned
over the fact that most of us are not lawyers: the SCO Groupis demonstrating on
a daily basis that smart geeks beat dumb lawyers every time - and that the Open
Source community has the monopoly on capable lawyers.
One of the lessons I am learning from this experience is that you work with your
lawyer, you review your lawyer's work to make sure that what he or she does
makes sense to you, but you never ever abdicate control of the case to him or
her - especially to the point where you are in the dark on what he or she is
doing, and you are in a child-like dependent relationship with him or her. You
must believe in your IQ, your good sense and your sound judgement in dealing
with people whose expertise lies outside of your field.[ Reply to This | # ]
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| |
| Authored by: Boundless on Saturday, March 27 2004 @ 12:11 AM EST |
>> It then becomes a contract case.
> ... SCO ... hasn't remitted the royalties ...and ...
> ignored Novell's clear vetoes ...
> ... Novell probably has a much stronger case for
> breach-of-contract than SCO does.
I agree. If TSG still has a contract case now, it is
dramatically weaker than before before they began
suing their customers and making general threats.
Despite the fact that as a litigation factory, they
desperately need the copyrights, they've seriously
undermined any chance of getting them now.
> The only party I could even IMAGINE they have a chance
> of making a reasonable suit against is old-SCO (Taratula
> or whatever they're called) if they can demonstrate that
> they had been deceived into thinking they had copyright
> rights to UNIX that still rested with Novell.
For openers, only if they can find all the records of
those transfers - a question obliquely raised by Novell
in this brief.
Statements by TSG principals suggest that the original
purchase price implies that "something" of immense value
"must" have been conveyed.
Based on what I see suggested about the possibility that
USL vs. BSDI secretly voided the AT&T copyrights, Novell
may have owned nothing of value in Unix, and got a nice
price for a sale that didn't even include the nothing.
TSG is left holding the bag.
IANAL - Barraties Not Included.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, March 27 2004 @ 12:41 AM EST |
I think Novell just poked the first domino. We'll feel like we're watching it in
S L O W motion, but there's bound to be more gems like the Novell brief, and
more stupidity by SCO. Let's enjoy the show![ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, March 27 2004 @ 02:35 AM EST |
"Monarch Licensing is on all fours with the facts here."
Does anyone know the origin of that phrase?
[ Reply to This | # ]
|
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| Authored by: Anonymous on Saturday, March 27 2004 @ 04:32 AM EST |
I sure hope Novell's contract with AT & T (or previous Unixware owner) was
fully valid and did transfer all copyrights????![ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, March 27 2004 @ 04:41 AM EST |
Is there some law that would keep those heading SCO from
deciding to end the company by spending its last resources
on buying back its shares for a price higher than the market
value? (You can buy at any price as long as you are guaranteed
to sell at a higher one.)
[ Reply to This | # ]
|
- Maybe? - Authored by: Anonymous on Saturday, March 27 2004 @ 07:18 AM EST
- Conrad Black - Authored by: _Arthur on Saturday, March 27 2004 @ 07:26 AM EST
- Buyback - Authored by: jdg on Saturday, March 27 2004 @ 10:36 AM EST
- Criminal Penalties? - Authored by: Anonymous on Saturday, March 27 2004 @ 08:29 AM EST
| |
| Authored by: Anonymous on Saturday, March 27 2004 @ 04:41 AM EST |
| No amount of hand waving can rescue SCO's complaint from its infirmities. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, March 27 2004 @ 05:10 AM EST |
How long was ago was the RBC/Baystart deal?
I dont know if this is inportant, but Since then nobody did any investment in
SCO, beside some few license deal. Now if you look on how fast they spending
money and there declining unix bussiness I would think need to seek additional
funding. But there isn't.
Is that of any inportance?
JI
[ Reply to This | # ]
|
| |
| Authored by: ChrisP on Saturday, March 27 2004 @ 06:20 AM EST |
I see on Frank's excellent tuxrocks web site that there are four more entries on
the IBM/SCO docket.
I can't wait:) So what is a motion to bifurcate?
---
SCO^WM$^WIBM^W dammit, no-one paid me to say this.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, March 27 2004 @ 10:22 AM EST |
How can this be?
How can Novell, IBM, RedHat, etc., have attorneys that can put together such
well thought out, well presented briefs, yet NONE of the SCO attorneys, not
Heise, Tibbits, Boies, nor McBride, seem to be able find their own butt, in the
shower and with two wet hands and a flashlight?
How can ALL of these abysmal, inept, incompetent attorneys, from different law
firms, different states, ALL wind up on the same side of the same case?
Usually, one shops for the best attorney you can find in a matter. Instead,
doesn't it seem Canopy (yes, I firmly believe YARRO is behind all this - though
at the behest of Microsoft and others) seems to have gone out of his way to find
the most incompetent, incoherent bunglers he could find? And let the investors
get reamed out of millions in the process? Is there ANY other word that can fit
this?
Is there no judicial circuit that cares enough about it's reputation, that it
allows clowns into its courtrooms? No Bar Association that cares about fraud?
No SEC and no FBI investigations for the swindled folks? And in Utah, all of
the folks heading those groups come from a few square miles around SCOG HQ? HOW
CAN THIS BE?
I won't be happy until IBM's Mr. Marriott has Ralph Yarro's head on a stick, and
the rest of the Canopy / SCOG team right alongside. Is there any other way to
end the fraud?
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, March 27 2004 @ 10:56 AM EST |
We're being too insensitive. SCO folk simply can't help themselves (in the
classic "can't get my foot out of my mouth" sense). THESE GUYS NEED
JOBS!
Unfortunately, SCOG is probably the end of the road for most of them - we'll see
them in McDonalds after this (or on the Post Office wall ;-)
Look at it this way: they are either the world's biggest liars (who wants to
hire one of those?), or the world's biggest buffoons (who wants to hire one of
THOSE either?).
Darl, Blake, Chris, Kevin, Ryan, Ralph, et. al. (including board members at
Canopy?) desperately need this to work. In the final analysis, they can only be
doing this for two reasons: they've come to believe their own words (in which
case, the word "buffoon" seems to fit, doesn't it?), or they're
flat-out liars and no more need be said.
Jobs in Utah must be hard to find, if people willingly destroy their careers and
reputations on such a flimsy company and equally flimsy arguments, just for a
paycheque.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, March 27 2004 @ 11:31 AM EST |
If SCO is not successful in proving that the APA with Amendment2 actually
transfered copyrights at the time they were signed (as opposed to promising to
transfer at some future date) am I correct in assuming that any legal action
taken by SCO to to date based on UNIX copyrights is invalid?
In other words, if a judge finds that the APA is not a valid transfer of
copyrights but that the contract does promise to transfer copyrights at some
future date, on what date does SCO become the legal owner of the copyrights?
What is the impact on any legal claims with respect to copyright if SCO was not
the legal owner at the the time the lawsuits were filed? Or can the transfer of
copyright be made retroactive to the time admendment 2 was signed?[ Reply to This | # ]
|
| |
| Authored by: waltish on Saturday, March 27 2004 @ 12:10 PM EST |
As the title says It was a great pleasure to read Novell's Reply Memorandum in
Support of Motion to Dismiss.
Not just because it shoots SCO's argument right between the eyes, but its
clarity and precision were refreshing while the rythm and choice of words made
it easy to absorbe.
My favourite part was
"SCO's argument does not withstand analysis."
The same could be said for most things that come out of
Darling McSnide's mouth.
I have added it to my tagline.
--w
---
To speak the truth plainly and without fear,
Is a powerfull thing.
PS:Beware the Gestank of SCO.
PPS:SCO's argument does not withstand analysis.
[ Reply to This | # ]
|
| |
| Authored by: Waterman on Saturday, March 27 2004 @ 12:23 PM EST |
| Story.
Seems that no sooner do they admit defeat, than they try attacking
again. [ Reply to This | # ]
|
| |
| Authored by: RichMan on Saturday, March 27 2004 @ 12:35 PM EST |
Doesn't the lack of a paper transfer of the copyright title leave SCO open to a
whole bunch of lawsuits.
As copyright can only be transfered by title transfer documents SCO's claim of
"We thought we had the rights" does no hold any water at all. Either
they have the paper work or they don't. The first step in filing any enforcement
suit should have been do we have rights, anything else is bad lawyering. The
claim "we thought we had the rights" does not hold any legal grounds
when one has to have actual paper work in hand to prove ownership. This is
especially true in light of the letters from Novell saying "no you don't,
check the agreement" and SCO's response "yes we do, NYAHHHA".
As SCO obviously does not have the paper work, they do not have the copyrights.
Thus any lawsuit by SCO to enforce their "IP rights" is a baseless
interferece of buisness lawsuit which is open for dismisal and leaves SCO open
serious counter charges.
SCO showing title should have been the first step in any of the lawsuits, infact
it should have been done before any of the public claims were accepted. Way back
last summer the reporters being shown "SCO code" should not have
marvelled at how close the code examples were but should have asked "show
me the title". I hope everyone learns a lot from this episode.
Show me the title.
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| Authored by: Anonymous on Saturday, March 27 2004 @ 12:50 PM EST |
Couldn't SCO follow this on by a breach of contract suit - Novell was supposed
to transfer copyrights, but never did, resuling in SCO losing ability to collect
revenues from ownership of those copyrights - i.e. actual losses?
Seems a little farfetched, but with all the nonsense they've been pulling,
wouldn't surprise me any.[ Reply to This | # ]
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| Authored by: PeteS on Saturday, March 27 2004 @ 01:09 PM EST |
| The memorandum refers extensively to Section 204(a) of The Copyright Act
You can
get the definitive Title 17 of the
US Code from the Copyright
Office
Others have noted that if the Judge in the case decides on
transfer of copyrights that Novell never actually transferred copyrights to SCOG
(or any of it's predecessors in interest) then SCOG could be liable for False or
Fraudulent application for Copyright. That may be so, but it may not be
necessary when one sees the hurdles still facing SCOG, but here are some useful
links for anyone wishing to find out more.
This is addressed partly in the
Copyright act at Section 506
The
process of registering a copyright is Section 409 which
contains this delicious tidbit:
(5) if the copyright claimant is not the
author, a brief statement of how the claimant obtained ownership of the
copyright;
To get to the basic argument, see Section 201(a) for
Initial ownership of copyrights
Then see Section 202
Ownership of copyright as distinct from ownership of material object for the
definitive statement that an object and it's copyright are distinct entities in
law (as alluded to by Novell's attorneys in the footnotes).
Happy reading
:)
---
Today's subliminal thought is:
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, March 27 2004 @ 03:25 PM EST |
I've been assuming the the documents of the sales after Novell aren't publicly
available. Is this true, or are they deposited with some office and available?
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, March 27 2004 @ 04:37 PM EST |
Here is a thought. It would be nice if Novell asked the court to rule that it
owns the copyrights. The trouble is the history is so muddled that it can't do
that. So the best it can get is for the judge to rule that no copyrights were
transferred from Novell to SCO. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, March 27 2004 @ 05:19 PM EST |
Of course scox's case is a total joke, everybody knows that, even scox.
But, what everybody - except scox - is missing, is that it doesn't matter if
it's a total scam since the courts aren't willing to move. And from all
available evidence, the courts are completely happy to delay justice forever.
Over a year, and scox has not been forced to provide real evidence in the ibm
case. The judge even complemented and rewarded scox for scox's "good faith
effort."
Over six months and the judge in delaware still hasn't ruled on that total
no-brainer motion to dismiss.
Scox scam artists are laughing all the way to the bank. Laughing at US justice.
And the scox bashers *still* don't get it. It doesn't matter if everybody knows
it's a scam - scox get away with murder just the same.
Anyway, when the novl case gets decided, sometime around November 2008; scox
will lose. So what?
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| Authored by: Night Flyer on Sunday, March 28 2004 @ 04:09 AM EST |
From reading this article (and others), it is clear that SCO's incomplete
(poorly prepared?) response came about for at least three reasons:
1.) SCO is discovering the danger of battling on too many fronts simultaneously
(you don't do well on any of them).
2.) I'm not sure that SCO's lawyers and SCO's management are on the same wave
length. (Public statements versus court statements.) Did SCO go to court with
lawyers with insufficient experience in the critical areas of law or did the
Novell lawyers put more energy into their preparation? Novell certainly seems
to be better prepared than the SCO - and, in some ways, Novell has less to lose
than SCO.
3.) SCO has a weak case at best, and it doesn't seem to be arguing it too well.
It appears SCO is still not doing its homework effectively.
------------------------
Other comments:
If SCO's exit strategy was "I hope they buy us out", it needs to work
on an alternate. If its strategy is a stock scam, its getting way too much
publicity to succeed effectively. If SCO is just spending Microsoft money on a
FUD campaign against open source, GROKLAW is countering this quite effectively.
Lastly, suing customers is not a good marketing strategy, unless you have an
unshakable monopoly... and even then it is an incredible incentive for
innovation into alternatives.
Maybe the legacy of SCO is that "they hurried the demise of UNIX". I
find this very sad. I have great respect for UNIX.
------------------------
My Clan Motto: Veritas Vincit: Truth Conquers.
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| Authored by: Anonymous on Sunday, March 28 2004 @ 08:22 PM EST |
The car is a limousine. I own the limousine, and license to you exclusively the
right to use the limousine in your business, make money off reservations with
this limousine, etc...Because I don't want to do the legwork and be in that
particular business anymore, and so on. But I still in theory own the
limousine, I just license to you the right to use it to make money. That's what
SCO bought off Novell in the APA.[ Reply to This | # ]
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