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Transcript of SCO-Novell May 11th Hearing on SCO's Motion to Remand -- as text |
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Sunday, June 27 2004 @ 04:32 AM EDT
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Here is the transcript of the May 11th SCO-Novell hearing on SCO's Motion to Remand. The hearing handled two motions, SCO's motion to remand and Novell's motion to dismiss, but we've only got the first motion transcribed as text so far. The other part of the transcript will follow later, when it's done. In any case, the motion to remand was by far the more interesting to me, because it dealt with an area of law that isn't very clear and because I really was not able to predict which way the ruling would go. I worried about SCO prevailing on this motion. They did not.
Both parties refer repeatedly to a case, Jasper v. Bovina Music, Inc., so you might like to have it handy so you can watch how each side, and the judge, uses the case. The second case that comes up repeatedly is T.B. Harms v. Eliscu. And Novell uses Radio Television
Espanola SA v. New World Entertainment, Ltd.. The 1976 Copyright Act is also brought up in the discussion. To understand their discussion about diversity and subject matter jurisdiction, you'll find this page useful, particularly because the lawyers and the judge know all this, and so they talked to each other at the hearing in a kind of shorthand, like text messaging: "Federal Question Jurisdiction
"Congress has conferred upon federal courts jurisdiction to decide federal questions i.e., cases or controversies arising under the Constitution and laws of the United States (28 U.S.C. § 1331) and cases or controversies between citizens of different states (diversity jurisdiction). (28 U.S.C. § 1332.) There is a presumption against federal jurisdiction. The existence of subject matter jurisdiction generally must be demonstrated at the outset by the party seeking to invoke it. (See FRCP 8) It cannot be conferred by consent of the parties, nor can its absence be waived. (Friedenthal § 2.2) The rule that a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action so demonstrates is called the 'well pleaded complaint rule.'
SCO at the hearing purports to prefer to stay in federal court in Judge Kimball's court but says they are compelled to argue for remand to state court because they worry that down the road, if there is a ruling adverse to Novell, Novell will argue that the court lacks jurisdiction. Jurisdiction can't be waived, Hatch points out, so Novell can make the argument at any time. Venue in contrast can be waived, meaning if one side says they want the case heard in a state that isn't where the other side is located but has some conceivable argument to be made that it is more convenient to the plaintiff, the other side can go along with it and waive their right to contest it, if they want to. A kind of venue argument is going on in the AutoZone case. But you can't waive federal question jurisdiction. It either belongs in federal court or it doesn't, and there is a presumption that it doesn't, as Hatch points out when saying that the burden is on Novell to prove it does belong there.
The parties can't make it belong there if it doesn't, so the question can be raised at any point, even by the judge. So SCO and Novell
can't just agree that they want to be in federal court and it happens, not that they actually do, but even if they did, they can't. It has to be the kind of case that a federal court is empowered to decide. Here is an Oklahoma case, but the ruling happens to explain it the most clearly of the cases I read: Subject matter jurisdiction is the power of courts and judicial officers to take cognizance of and to hear and determine the subject matter in controversy and to exercise judicial power over them. Lowry v. Semke, 571 P.2d 858 (Okla. 1977). Lack of jurisdiction of subject matter cannot be waived or overlooked by the court. Taylor v. Oklahoma Employment Security Commission, 1993 OK CIV APP 195, 867 P.2d 490.
SCO pretends that this is a big problem and that because they worry they'll spend a lot of time and money in federal court, only to have Novell raise the jurisdictional question later, they're raising it now. It's an icky argument, because it is so obviously not the real reason they so wanted outa there. "Really, Your Honor, given our druthers, SCO would rather stay with your learned self", SCO hypocritically says, in effect, to which the Judge humorously replies, "I can tell," which is a judge's way of saying, Yeah, right. On diversity, it just means whether the parties are in the same state. If they are not, you can bring a case in federal court if damages are above a threshold: "The two types of cases that can be heard by a federal court are:
"1. Cases involving claims that a federal law has been violated, which are called
'federal question' cases, and
"2. Cases involving claims between citizens of different states and in which damages in
excess of $75,000 are claimed, which are called 'diversity of citizenship' cases.
"The fact that you can bring these types of lawsuits in federal court does not mean that
you must bring them in federal court. You may be able to file certain types of cases in either
federal or state court." In this case, both parties are Delaware corporations, so diversity does not apply to this case. If it had, staying in federal court would have been a slamdunk for Novell, so that is why the judge asked Mr. Hatch if there was diversity. The question here was deeper, namely when does a copyright case belong in federal court and when can it be sent to state court for a mere interpretation of contract law? It is one of the least clear areas of law. If you want to read Judge Kimball's decision after hearing all the arguments from both sides, it's here. Here are some highlights on his ruling on the remand motion, in colored text so you can skip it if you wish to but mostly to set it off clearly, since it's quite long: "The burden of establishing federal jurisdiction lies with the removing defendant, who must establish jurisdiction based on a preponderance of the evidence. . . . There is no assertion in this case that there is diversity jurisdiction. Therefore, the only basis for jurisdiction is federal question jurisdiction under 28 U.S.C. Section 1331 and Section 1338(a). A case may be validly removed from state to federal court if a claim 'arising under' federal law appears on the face of the well pleaded complaint. . . ."Federal courts have exclusive jurisdiction over actions 'arising under' the federal copyright laws. . . . However, 'the fact that a case concerns a copyright does not necessarily mean that it is within the jurisdiction of a federal district court.' Jasper v. Bovina Music, Inc., 314 F.3d 42, 46 (2d Cir. 2002). . . .
"The Tenth Circuit has no specific test for determining whether a case arises under the federal Copyright Act. However, the Second Circuit established a test in T.B. Harms that has been adopted by several courts across the country. . . The T.B. Harms court determined that '[a]n action "arises under" the Copyright Act if and only if the complaint is for a remedy expressly granted by the Act, e.g. a suit for infringement or for the statutory royalties for record reproduction, or asserts a claim requiring construction of the Act …or … presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the claim.' . . . SCO's slander of title claim does not seek a remedy expressly granted by the Copyright Act. Therefore, for federal question jurisdiction to exist, SCO's claim must require construction of the Copyright Act or present a question with respect to a distinctive policy of the Act that requires federal principles to control the disposition of the claim. . . .
"Novell argues that this case presents more substantial Section 204(a) issues than Jasper. Novell argues that on its face, there is no instrument that purports to convey copyrights, and the only instrument that SCO contends is an instrument of conveyance, the APA Amendment No. 2, is so indeterminate as to fail the requirements of Section 204(a). SCO, however, asserts that Amendment No. 2 is clearly a section 204(a) writing and the only issue for the court is contract interpretation as to which copyrights were conveyed.
"It is undisputed that the APA did not transfer any copyrights. . . . Also, Amendment No. 2 merely amends the schedule of excluded assets and does not constitute a transfer of copyrights on its own. Therefore, the issue raised by Novell is whether the APA as amended by Amendment No. 2 is a sufficient writing under Section 204(a) to transfer ownership of copyrights. . . .
"The APA Amendment No. 2 excludes from transfer '[a]ll copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the [APA] required for [SCO's predecessor] to exercise its rights with respect to the acquisition of UNIX and Unixware technologies.' The Amendment does not identify which copyrights are required for SCO to exercise its rights with respect to the acquisition of UNIX and Unixware and provides no date for the transfer. The Amendment mentions copyrights owned by Novell as of the date of the APA but it is not retroactive to the date of the APA. Furthermore, although Amendment No. 2 states that its effective date is the date of the amendment, the language of Amendment No. 2 does not state that a transfer of the copyrights is to occur as of the date of the amendment.
"The Amendment also contains no transfer language in the form of 'seller hereby conveys to buyer.' Given the similarly ambiguous language in the APA with respect to the transfer of assets-seller 'will' sell, convey, assign, and buyer 'will' purchase and acquire-it is questionable on the face of the documents whether there was any intention to transfer the copyrights as of the date the amendment was executed. Moreover, the use of the term 'required' in Amendment No. 2 without any accompanying list or definition of which copyrights would be required for SCO to exercise its rights in the technology is troublesome given the number of copyrighted works involved in the transaction. There is enough ambiguity in the language of Amendment No. 2 that, at this point in the litigation, it is questionable whether Amendment No. 2 was meant to convey the required copyrights or whether the parties contemplated a separate writing to actually transfer the copyrights after the 'required' copyrights were identified. Therefore, this is not a case where the court can immediately conclude that there is a writing under Section 204(a).
"Although the case will obviously require contract interpretation, at this stage of the litigation, the agreements raise substantial doubt as to whether the APA as amended by Amendment No. 2 qualifies as a Section 204(a) writing. This court will be required to analyze the requirements of Section 204(a) and the cases interpreting that law in order to determine whether the Amendment No. 2 qualifies as a writing under Section 204(a). In this regard, the case presents an issue that does not turn solely on regular contract principles. Because there is a substantial issue as to whether Amendment No. 2 is a Section 204(a) writing, this case is similar to Jasper. Here, like Jasper, there are two documents but neither alone appear to satisfy the requirements of Section 204(a). The facts of the instant case raise an equally, or even more, substantial question of whether Section 204(a) has been satisfied. Therefore, this court finds Jasper's finding of federal jurisdiction persuasive. . . .
"To determine whether the APA as amended by Amendment No. 2 qualifies as a Section 204(a) writing will require this court to apply the standards of Section 204(a) and federal case law interpreting Section 204(a). Therefore, this case does not turn merely on ordinary principles of contract law, but presents 'a need for determining the ... application of [federal] law' sufficient for this court to retain jurisdiction. See T.B. Harms, 339 F.2d at 827.
"Moreover, the T.B. Harms court also acknowledged that federal jurisdiction exists when 'a distinctive policy of the [Copyright] Act requires that federal principles control the disposition of the claim.' . . . Although SCO's slander of title claim is a state law claim, the determination of copyright ownership controls necessary elements of the claim. The federal law standards created to further the federal interest established in section 204(a) control the disposition of whether Section 204(a)'s requirements have been met. SCO has failed to cite any relevant state common law that would control the disposition of this issue. Accordingly, this court concludes that it has subject matter jurisdiction over SCO's slander of title action. SCO's motion to remand the case to state court is, therefore, denied." With that under your belt, you are in a position to read the transcript of the hearing and know what arguments persuaded this judge and which fell flat with him. It also will give you insight into why the trade press so often gets things wrong. Imagine that prior to the ruling, a journalist spoke to Mr. Hatch and asked for his assessment on how things would go. Mr. Hatch gives him an impassioned and lengthy and persuasive account of why they will prevail. It sounds good to the journalist. So he writes a story essentially saying what Hatch has planted in his ear. Maybe the journalist also calls the other side, and they give a short statement saying something like "We believe we have a sound basis to remain in federal court and we hope to prevail." He puts that sentence in the story and maybe some more quotations from other attorneys he knows, but he's been persuaded by his conversation with the very personable Mr. Hatch. Would he get his story right? Isn't that pretty much what we've seen over and over? Unless you understand the legal process itself, you are not likely to get it right. Even if you do understand, you still might not. A lawyer, even an independent one with no ax to grind, still can't predict 100% what is going to happen in a close case. That's just how the law is. You may know how it ought to go, in your opinion, based on the law and the facts, but it's up to the judge, and sometimes it isn't so simple, particularly as in the case here in what Judge Kimball called the "murky" area of law regarding copyright law and federal jurisdiction. It's why I said I couldn't predict the outcome on this particular motion, because it involved an area of the law that isn't clear yet. Decisions in the law aren't predictable like mathematics. In math, 2 + 2 always =4. But laws and cases are situationally applied. If there is no situation exactly like yours, and here that was the case, it's up to the judge to decide what to do next. He applies the law and the principles of prior cases as closely as he can. The question becomes, Is this case *more* like such-and-such a case or more like that other case? It's a built-in human element that makes the law different from math or even chess. It's why mistakes can happen sometimes, which is what the appeals process is for. It's also the heart of the whole system and why the law can keep growing and changing with the times. And it's why it truly matters who gets appointed to the bench. A lot of good lawyering involves analyzing judges, how they think, what they tend to do, and working well with what you have. At a conference once, the panel was discussing what was more important in a judge, humility or intelligence. If you had to choose between a humble judge or an intelligent, scholarly one, which should you choose? One panelist opined that humility was the most vital. A smart judge might be tempted to show off his intelligence instead of relying on the law. Judge Kimball agreed that was a danger, but he asked a clarifying question... was the humble judge also stupid? That's dangerous too: "Forum shopping is all right if it's legal. Humility is a marvelous attribute. A cause-oriented judge is a dangerous judge and one cause may be a judge's own brilliance. Is the humble judge also intelligent? Or is he humble and stupid? A stupid judge is dangerous also. If the matter is complex you may want to take your chances with the brilliant unhumble judge." Forum shopping means deciding where to file your case depending on your analysis of where you are most likely to prevail, and analyzing judges is part of that process, or can be. Forum shopping is on display in the AutoZone matter. But my point is that analyzing a case and predicting a possible outcome without that element of analyzing the particular judge is bound to be an incomplete analysis. Judge Kimball is a brainiac. That's how it is. He doesn't appear to lack humility -- note his reaction when Novell's very able attorney Michael Jacobs corrects him on a matter -- but he is extremely intelligent. And so he isn't going to shy away from a detailed, granular and fundamental examination of the issues, and he's willing to think as deeply as he needs to. And happily, he can. That's what he just did in this very complex case, and it was a beautiful sight to behold. *****************************************
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
_______________________________
THE SCO GROUP,
Plaintiff,
vs.
NOVELL, INC.,
Defendant.
_______________________________
Case 2:04-CV-139
________________________________
BEFORE THE HONORABLE DALE A. KIMBALL
MAY 11, 2004
REPORTER'S TRANSCRIPT OF PROCEEDINGS
MOTION HEARING
Reported by: KELLY BROWN, HICKEN CSR, RPR, RMR
APPEARANCES
FOR THE PLAINTIFFS:
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HATCH, JAMES &DODGE
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BY: BRENT O. HATCH
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MARK R. CLEMENTS
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Attorney at Law
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[ address ]
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RYAN E. TIBBITS
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SCO GROUP
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Attorney at Law
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[ address ]
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FOR THE DEFENDANT:
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MORRISON & FOERSTER
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BY: MICHAEL A. JACOBS
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Attorney at Law
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[ address ]
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ANDERSON & KARRENBURG
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BY: JOHN P. MULLEN
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Attorney at Law
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[ address ]
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SALT LAKE CITY, UTAH, TUESDAY, MAY 11, 2004
* * * * *
THE COURT: We're here this afternoon in the matter of the SCO
Group, Inc., vs. Novell, Inc., 2:04-CV-139. For plaintiff, Mr. Brent
Hatch, Mr. Mark Clements, Mr. Ryan Tibbits. For the defendant,
Mr. Michael Jacobs.
MR. JACOBS: Good afternoon, Your Honor.
THE COURT: Good afternoon. And Mr. John Mullen.
MR. MULLEN: Good afternoon, Your Honor.
THE COURT: Good afternoon.
We have two motions, plaintiff's motion to remand and defendant's
motion to dismiss. Let's hear the motion to remand first. Who's
going to argue it?
MR. HATCH: I am, Your Honor.
THE COURT: Mr. Hatch.
Who's going to argue for the defendant on remand?
MR. JACOBS: I am.
THE COURT: That would be Mr. Jacobs;[sic] right?
MR. JACOBS: Right.
THE COURT: Go ahead, Mr. Hatch, on the motion to remand.
MR. HATCH: Thank you, Your Honor.
Your Honor, as you know, Novell, being a party who removed this action
from the state court, carries the burden, and any ambiguities should
be resolved against removal in this case. What this really comes down
to is, Your Honor, we brought a state court action seeking state court
remedies in state court.
THE COURT: Slander of title.
MR. HATCH: Slander of title. And the complaint, unlike many of the
cases cited by Novell, does not allege federal question, does not
allege or seek a federal remedy. SCO as -
THE COURT: Can you get to your title claim without somehow deciding
something about 204(a)?
MR. HATCH: I think so, Your Honor. I think what's happened here is
Novell to a large part has put form over substance here. Section
204(a), as Your Honor is well aware now having read the briefs, that
requires a writing. And that's it. There isn't a lot more there.
There isn't a set of standards for a court to apply, like Novell seems
to imply that there's something more there. They call it, there needs
to be a contract of conveyance or what have not.
We clearly allege that there is an agreement by which these copyrights
were transferred. It is a writing, and prima facie meets the
requirements of 204(a). The kind of argument that they're making here
is that there needs to be something more has been really routinely
objected to by the courts. And I think if we just get to the nub of
the matter, essentially what they are relying on here is some - a
ruling in Jasper. The reality here is the type of argument they're
making that somehow if you have to get to the underlying argument
about what the contract means and what it is, which are frankly all
state law questions, it will turn every single contract case that even
tangentially mentions a copyright or trademark into a federal question.
And that's been pretty routinely rejected by all the courts. As a
matter of fact, Judge Friendly, a fine judge out of the Second Circuit
that we read over and over and over again in law school made that very
clear in the TB Harms decision. He said we can't put form over
substance. If we do the kind of things that Novell is asking to do
here, we're going to always have a federal question.
And the reality is that 204(a) doesn't apply standards. It makes it
very clear that you have to have it in writing. Particularly what
they're worried about, and this comes out in the cases, is that
somebody loses a copyright because of someone coming later and saying,
we have had some type of oral agreement. It really creates a distinction
between oral and written agreements, so there is something concrete to
go on. It doesn't go to the underlying, what does the written
agreement say.
And that's frankly, where Novell makes its mistake, in my view, on the
law because the cases it cites, virtually every one of them, are -
where they're saying there's a 204, a real 204 issue, they were oral
agreements.
Now, really what it gets us down to, as I say again, is the Jasper case.
THE COURT: The Second Circuit case Jasper?
MR. HATCH: Correct, Your Honor. 2002.
THE COURT: 2002.
MR . HATCH: And I think the decision, because they rely on it so
heavily, if you look at TB Harms, you look at virtually every other
decision, and it's really clear that all we're looking for is a
written agreement, and we have that here. And at this stage of the
game it shouldn't be going any further than that.
What it really comes down to is if the Court is going to rely on
Jasper. Does Jasper give the Court anything to chew on? And Jasper
really does an interesting thing, Your Honor. It goes through the
law. And I think it states it pretty well. They say - and they go
right to Judge Friendly, as I did. And they say:
Judge Friendly pointed out the fact that a case concerns copyright
does not necessarily mean that it is within the jurisdiction of the
Federal District Court.
Well, that's good law. I think that's still in place, and I think
almost every court follows that. And just right below that in the
decision, he says:
Specifically, if the case concerns a dispute as to ownership of
copyright -
Which is exactly what we have here. And the issue - which I point out
is raised by the defense. It's not raised in the initial pleadings.
Specifically, if the case concerns a dispute as to ownership of
copyright, then the issue of ownership turns on the interpretation of
a contract, the case presents only a state law issue. And unless the
complaint asserts a remedy expressedly granted by the Copyright Act,
federal jurisdiction is lacking in the absence of diversity
jurisdiction.
And then he makes the point that I just made a few -
THE COURT: There's no claim that there's any diversity here, is
there?
MR. HATCH: No. Both companies are Delaware corporations, so it could
not be removed on a diversity basis.
So they're relying -
THE COURT: So it's federal jurisdiction or no jurisdiction.
MR. HATCH: That's exactly right Your Honor.
And Judge Friendly found and so did Judge Newman here in the Jasper
case and says:
The difficulty that is almost every case involving contract
interpretation, appropriate for state court determination, could be
recharacterized as a case appropriate for a federal court simply by
framing the issue to be whether the disputed contract qualified as a
writing within the meaning of Section 204(a). In most cases, there
will be no doubt that the contract is a Section 204(a) writing, and
the only substantial issue can be contract interpretation.
THE COURT: Except Jasper was not one of those cases.
MR. HATCH: It was not.
THE COURT: How is your case different than Jasper?
MR. HATCH: Well, I would urge the Court to look very close to Jasper
because the Court there made it very clear that it is the rare
exception to the rule. And I would report to the court that Jasper -
and in their briefs Novell says it is a leading case in its area. I
would agree it's a leading case in the area, but on a very different
point than they do. I think it's a leading case in the area of the
following.
In Jasper, the plaintiff himself brought his case in federal court,
unlike us. He claimed that his case was one that fell under federal
copyright laws, the plaintiff himself. Again, unlike our case. The
defense in that case never raised an issue as to whether or not subject
matter jurisdiction properly was laid in the federal court.
THE COURT: The ultimate question, though, is still the same, isn't
it? Is there appropriate federal jurisdiction?
MR. HATCH: Exactly. Eventually what happened here, the case went to
a bench trial, and the plaintiff lost. In other words, it was found
that he didn't have a case. And this matter for the first time on
jurisdiction was raised on appeal. And it really doesn't take a lot
to read why the court found this a rare exception.
Now, in our brief we point out one of the reasons here is because
there were third parties involved and there had to be some
clarification as to the copyright. But the reality is they cite the
law, which would apply directly here, and say this is the rare case
because it's pretty clear the Court said, you had your day in court.
You wasted all of our time. This is a rare case.
And what goes to show that even more -
THE COURT: You're saying that more normally the jurisdiction question
would have been raised and decided much earlier.
MR. HATCH: Oh, sure.
THE COURT: Theoretically, it shouldn't make any difference, I guess.
MR. HATCH: Correct. And if you notice, Judge Friendly does the same
kind of thing. If you look at the TB Harms decision, it's kind of
interesting. He pointed out there were other cases that were like
that where people miss it. And frankly, I guess in some people's
minds, they don't look at those issues. And Your Honor is absolutely
right. Subject matter jurisdiction can be raised at any time.
And Judge Friendly was called to deal with the Rossiter case and also
the Venus Music cases, that somehow they went forward even though
there wasn't - in his mind it was pretty clear you can read between the
lines there wasn't subject matter jurisdiction. And he said kind of
the same thing I said here. It was kind of bad facts making bad law.
He said:
But the jurisdictional problem, that was obscured by the insistence of
both parties that this action as a copyright infringement.
In other words, the district court missed it because nobody raised it,
and the district court didn't catch it himself.
Here, we don't have that instance. It's not one of those rare
instances. This is one of those cases where it's pretty clear there
was a writing, and this is an argument that is being made purely for
the purposes of shopping for federal court jurisdiction.
I think one of the things it points out most clearly is the Jasper
court laid out kind of parameters, and the parameters were if it's
contract interpretation, that's all it is. If there is an actual
writing and all you're doing is interpreting it, that's a state law
question. And that's exactly our case here.
What Jasper doesn't do, and if it's really a leading case on
exceptions, where's the standard, Your Honor? You know, if you're
trying to put this in a case book for law students to study or better
yet, be in the case law so you and I can understand, what's the rare
exception? How do we apply it? There's no standards really
enunciated here. And I think it's really a rare exception in the
sense that this Court wasn't about to let the plaintiffs in that case
after having gone clear to trial and getting a judgment, then being
the one to take advantage and say, never mind. Gee, we want to take a
second bite in state court. And since they had brought their case
under federal law, I think the Court allowed it to be - die its
intermediate death under federal law.
Simply put, the 204(a) is the same. It doesn't apply any standards at
all. Just like Jasper, its only requirement is there be a writing.
And I don't think there can be really honest dispute that there is a
writing here.
Now, Novell is trying to make what we believe are very convoluted
arguments that there may be some issue as to what the writing meant.
But isn't that really the gravamen of any contract claim that is
decided in state court where there's a dispute between the parties?
And I don't think that in and of itself makes it a federal claim.
So, Your Honor, as much as we'd like to be here -
THE COURT: I can tell.
MR. HATCH: And in reality, I think we would. But the difference is I
think we have to raise this because we don't want to be put in a
position where one or the other parties having received a bad ruling
at the end of the matter then says, wait a minute -
THE COURT: No jurisdiction.
MR. HATCH: - no jurisdiction, for the exact reason Your Honor raised,
and that's the kind of thought process we went through. We'd rather
be here. But the bottom line is it can't be waived, and so - and it
can can be raised at any time. And we don't want to have to go
through the time and expense of getting really quite far down the road
when we want to be able to see this through as quickly as possible and
have somebody who doesn't think the litigation is going particularly
well say, oh, wait a minute, we just discovered there isn't subject
matter jurisdiction here. Because, gosh, that is a writing. And
since it's a writing and we are interpreting the contract, we really
ought to be in state court.
That ought to happen now, not later.
Thank you, Your Honor.
THE COURT: Thank you, Mr. Hatch.
Mr. Jacobs? You have a somewhat different view in this matter.
MR. JACOBS: Indeed, Your Honor. Good afternoon.
Your Honor, I think SCO's argument understates the significance of
Section 204(a) and understates the significance of this dispute. And
what I'd like to do is walk you through the structure of the relevant
provisions of the Copyright Act so you can see how 204(a) sits in
context. Where I'm going is this.
THE COURT: You would agree, before you go wherever you're going, you
would agree it's your burden to establish - you're the removing
defendant. It's your burden to establish federal jurisdiction because
you removed and claimed it.
MR. JACOBS: That's correct, Your Honor.
THE COURT: And the standard is preponderance.
MR. JACOBS: Well, I don't know that there is a preponderance
standard. I think the standard is -
THE COURT: What do you think it is if it isn't preponderance?
MR. JACOBS: I think the question - the standard is whether applying
Jasper - whether there's a substantial 204(a) issue raised by the
complaint. And I'll come to the issue of boundaries so that we see
that isn't infinitely elastic.
THE COURT: Okay.
MR. JACOBS: 204 is in the Copyright Act around some other sections
that make clear that the Copyright Act is going to supplant state law
when it comes to the question of transfers of copyright interests.
Section 201, for example, says that ownership can be transferred by a
conveyance. So there's no question. I'm a copyright owner. I can
transfer. And what it goes on to say is, this will be relevant to
sort of a tertiary issue about what the amendment Number 2 means, 201
says that:
Any of the exclusive rights and any subdivision of the exclusive
rights can be transferred by conveyance.
So we have a lot of flexibility under the Copyright Act. We can
transfer. If you ever thought there was some issue about
transferring, the 1976 Copyright Act says, no. It's broadly
transferable.
Section 202 says, if I give you a physical object, that doesn't
necessarily mean I gave you any copyright rights in that physical
object. The two are distinct. So we're going to deal with any
ambiguity that might have been lurking in the law about whether, if I
give you a physical object, you own the copyright rights to that object.
Section 204 says, however, you have all these rights to transfer, you
can transfer in a very open-ended sort of way, but you have to have a
written instrument of conveyance in order to do so. And what case
after case says is if you don't have a written instrument of
conveyance, then there is no transfer. And federal law, not state
law, is the law that says that that is so.
And our contention here is that there is no written instrument of
conveyance. There's a writing. There's a contract. We agree that's
undisputed. But SCO's argument reads out of the statute the words of
conveyance. And our point here, our position is that 204(a) says a
written instrument of conveyance, in order to transfer the copyrights,
I need a piece of paper that looks more or less like a deed,
THE COURT: You agree with Mr. Hatch that there's a writing, but you
don't think there's a written instrument of conveyance.
MR. JACOBS: Precisely. There's a contract, but it didn't convey
ownership.
THE COURT: And because there's not a written instrument of
conveyance, then we have to get to the 204(a) question.
MR. JACOBS: Well, 204(a) tells us that we need to look to whether
there is a written instrument of conveyance before they get to the
first paragraph of their complaint, which is that SCO, acquired by new
SCO -- pause, definitional moment, I'm going to use SCO interchangeably
referred to SCO that contracted with Novell and the SCO that we're
dealing with today so I don't have to repeatedly say old SCO and new SCO.
So in the very first paragraph of SCO's complaint, they allege that
they obtained ownership under the asset purchase agreement. We say,
how? Where's the instrument of conveyance? Where's the transfer? We
see a promise. We see an asset purchase agreement that says something
will occur, and then I'll walk you through the asset purchase
agreement, perhaps, if we get to the merits. But we say there is no
written instrument of conveyance.
So our point is if you look at the very first paragraph of their
complaint, you see the federal issue. They did not say, under Section
204(a) we obtained ownership. But the cases teach us that they can't
plead around that problem.
Contrary to SCO's view on this, there are lots of ownership cases as
to which federal jurisdiction under 1331 and 1338 has been held to
lie. Those ownership issues are ones in which there's a substantial
federal question relating to ownership. What is a widow? What is a
work for hire? What is a joint author? And we submit, and Jasper
demonstrates, has the 204 bridge been crossed?
Paragraph 1 of their complaint again doesn't say, we crossed the
204(a) bridge, in hac [sic] verba. But we submit the question is there and
can't be avoided. You can't hand wave and say, no, there's a writing
so there's no 204(a) issue.
SCO says that 204(a) cases are really about the distinction between a
written agreement and an oral agreement. And that's not right. The
best example of that is the Radio Television Espanola case --
THE COURT: You say the distinction here is between one kind of
written agreement and perhaps another kind.
MR. JACOBS: Precisely. And it's a sharp distinction in the law. The
Arachnid case is probably the best one to look at if you really want
to see plain as day a context of the patent, a case where the court is
saying, well, no. For this period, we didn't have an assignment. For
this period, we had a promise.
So that's right. Of course, if there was an oral issue, we'd have a
204(a) versus an oral promise. But 204(a) says you have to have a
written instrument of conveyance.
Now, SCO says, there is no real law around this, and that's just not
right. 204(a) sets up federal standards for an instrument of
conveyance. The Radio Television Espanola case says that, and a very
good case to look at is the Pamfiloff case at 794 F Sup 933.
What Pamfiloff says, it's very interesting. What Pamfiloff says is
that 204(a) is so powerful that it displaces all other bases on which
you could argue ownership. Equitable estoppel, for example. 204(a)
displaces equitable estoppel. So to say there is no law here for a
requirement of writing, that's simply incorrect. 204(a) sets up what
might be thought of as federal common law for the transfer of
copyright ownership.
Is Jasper infinitely elastic? I think that's a tough question here.
Jasper says, is there a substantial 204(a) issue? If so, federal
jurisdiction lies. I think we are still looking at --
THE COURT: What did Jasper mean when it says this is rare?
MR. JACOBS: There are -- I don't know what it really means when it says
that it is rare because there are a fair number of ownership cases
that turn on federal law and, therefore, make their way into federal
court. What Jasper literally says is this is the rare contract case
in which there's a 204(a) issue. There the 204(a) issue was trivial
compared to the one here. There the 204(a) issue is whether -- if some
of the co-owners signed the documents after the purported transfer
took place, what does that mean? Does that mean effective conveyance?
And the Court said yes. It didn't spend a lot of time on the issue.
But if you look at the history of the 204(a) law, it is an issue
whether you can have an after-signed, a later-signed document somehow
affects the transfer of copyright. So it was an issue, and the Court
looked at it and passed on it.
They don't argue that Jasper was incorrectly decided. And if Jasper
wasn't incorrectly decided, then I don't see how they can credibly
argue here there is no federal jurisdiction.
THE COURT: Well, there was -- I guess Mr. Hatch will get to reply
since this is his motion. But maybe he does think it was incorrectly
decided because he thought the circuit let it go because it had
already been to trial and they didn't want to disturb it and so on.
MR. JACOBS: Those are the facts of the case. But let's be clear on
whether we are arguing to you that you should not follow Jasper or
not, because that's an important -- that's really a strong argument to
make to you, that you should not follow Jasper. We say Jasper was
correctly decided. But even if Jasper was kind of out here given the
fact that the Court had to construct its own 204(a) issue to maintain
jurisdiction, we're well inside of Jasper because we're not asking you
to construct the 204(a) issue. We're saying it's as plain as day,
right on the face of the complaint, even though they don't utter the
words 204(a).
So what are the boundaries? We still have a well-pleaded complaint
rule. We contend, however, that the well-pleaded complaint doesn't
allow them to recharacterize what is an ownership dispute as a slander
of title claim, not mention 204(a) and avoid as plain as day copyright
ownership 204(a) issues. They can't do that because the Supreme Court
told us even in the Christensen case that the well-pleaded complaint
doesn't mean that the plaintiff is entirely the master of his claim.
Got a lot of mastery over the claim and a lot of mastery where the
case ends up, but not entirely. You penetrate into the complaint, and
you look at whether there is a substantial 204(a) issue.
Since copyright law governs ownership transfers and since this case
pleads an ownership transfer, right on its face, right in the opening
paragraph, this complaint necessarily goes through a proper bridge and
through a gate, a bridge and a gate defined by 204(a). This is not a
side issue. This is not an issue within an issue. This is a
threshold question they don't get anywhere close to making out their
slander additional element if they haven't shown that ownership
occurred. And that's why there's federal jurisdiction here.
THE COURT: Thank you, Mr. Jacobs.
You get to reply, Mr. Hatch.
MR. HATCH: Thank you.
THE COURT: Slander action does presuppose ownership, doesn't it?
MR. HATCH: Yes, it does, Your Honor. And I assume they've raised
that as one of their remaining defenses.
What's interesting here is what they're essentially saying is that this
is not an instrument of conveyance, the APA and the Amendment 2. And
a lot of this gets into the argument that they're also making on the
motion to dismiss. To a large degree, they're putting the cart before
the horse, because they're asking you, and I will argue in that
motion, as well, given an opportunity, that they're asking you to look
at things in a vacuum. I mean, they're really putting substance ahead
of form because it really defies logic to say this isn't a 204(a)
writing. It's a contract -
THE COURT: You meant form ahead of substance.
MR. HATCH: What did I say?
THE COURT: Substance ahead of form.
MR. HATCH: Sorry.
THE COURT: Isn't that what you meant?
MR. HATCH: Yes.
THE COURT: Okay. I just wanted to make sure I understood you.
MR. HATCH: I'll hear about that back at the office, but I appreciate
that.
No, they truly are, because it really defies one to be able to say
this is not a standard, in a sense a standard contract that is
purporting to transfer copyrights to have a party pay millions of
dollars for it. By asking you to look at it in a vacuum, they're
basically saying, you know, gee, this isn't it. But we alleged, one,
ownership. We alleged, two, the contract. We alleged it's closed and
its pact. And for eight years the parties have acted as though it is.
One of the exhibits that we attached to the motion is very interesting
because they're saying, well, this isn't an instrument of conveyance.
Well, this is a press release put out by them. And what did they say
about it? Because you'll recall - well, one of the things you may not
be aware of is when this deal closed in 1996, most of the executives
in that period of time moved on to other endeavors. The management
caused what we are calling the problems today are all new management
with presumably different agendas. And when they first started making
these types of slanderous comments about the copyright ownership, they
pointed only initially to the APA. The APA has what we consider to be
an error, and it did not reflect the intent of the parties, which was
fixed by Amendment 2, which made it very clear that the copyrights
were transferred.
The CEO of Novell, apparently because he hadn't been there and he
wasn't aware of the transaction and apparently didn't do his homework
before he started making the comments he was making to the public,
basically went out and said, well, look, we've got the APA, and it
doesn't transfer copyrights. The words aren't in there.
So my client sent him a copy of Amendment 2. And immediately what he
told the public upon receiving that is he had to make a public
statement because he saw that he was wrong. And he says in a May 28th
letter to SCO:
Novell challenged SCO's claims to UNIX patent and copyright ownership
and demanded that SCO substantiate its allegations that Linux
infringed SCO's property rights. Amendment 2 to the 1995 SCO-Novell
asset purchase agreement was sent to Novell last night by SCO. To
Novell's knowledge, this plan is not present in Novell's payment. The
amount of energy support SCO's claim that certain copyrights bringing
did transfer to SCO in 1992.[sic]
So he's even acknowledged that the way they view the contract is it
was - that it was transferred at the time, the APA was a transferred
document.
Now, the cases that Mr. Jacobs cited to you claiming that there's a
lot of law, and I'll point - put to you that none of them cite Jasper,
nobody cites Jasper. There's only one case that I'm aware of that
cites Jasper, and it sites[sic] Jasper for our position, for the good
law that it does quote like when it's quoting Judge Friendly. But
most of the other cases he's talked about are totally different kinds
of cases. They are cases where there wasn't an adequate right. The
writing that was alleged in those cases didn't make a transfer.
That's true. The Radio case, the Arachnid case. He's saying that
Arachnid, it does not rise to the level of present agreement and
existing invention. It doesn't vest legal title.
Now, we've alleged the exact opposite. We've alleged that this is the
operative agreement and that the deal closed. And as a matter of
fact, he's saying it didn't - in the motion to dismiss, he makes a lot
of arguments that somehow puts again this agreement out as in a vacuum
as though we can't look at anything else.
I mean, I posed the question to one of the lawyers in the firm today,
you know, what would they go on if we hadn't even - if we'd never
attached the agreement, we just made the allegations? I don't think
we'd be here. I mean, every piece of evidence isn't attached to a
complaint or put in a complaint. We're in another pleading state.
I just went back today, pulled off a Novell cite[sic]. How did Novell look
at this deal? And this is their press release, and it's still on
their sight[sic] as of today. You can get it yourself. Dated
November 6, 1995. And it's saying:
Novell states it completed the sale of UnixWare business to SCO
finalizing the agreement first announced in September of 1995.
That's the APA.
And so it really kind of - it really does stretch the imagination to
be able to try and take what was a transaction that was treated as a
transfer of copyright for the last eight years and then all of a
sudden there was a dispute between the new management of Novell and
SCO, and all of a sudden, this becomes a federal issue because 204(a)
requires a writing, and they don't think this is enough of a writing,
but didn't have any problem over the last eight years? I mean, this
is the same company that upon the closing of the agreement, the
evidence is going to show, immediately wrote letters to virtually
every one of their clients saying, we don't own it anymore. Here's
contact to SCO. They're who you have to deal with now.
So I would urge the Court not to look at it in a vacuum that
apparently Novell wants you to to be able to not look at the
reality out there and take it for what it is. This couldn't be more
clear as an instrument of conveyance even if you want to put it that
way.
Thank you, Your Honor.
THE COURT: Thank you.
I'll take the motion under advisement. And since I don't yet know how
I'm going to rule on the motion to remand, I don't want to bring you
all back, I'll now hear arguments on the motion to dismiss.
Mr. Jacobs? Obviously if I end up remanding, I wouldn't worry about
the motion to dismiss. But if I do don't, [sic] I will.
[to be continued]
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Authored by: WhiteFang on Sunday, June 27 2004 @ 07:35 AM EDT |
Transcript errors here please [ Reply to This | # ]
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Authored by: stevem on Sunday, June 27 2004 @ 07:35 AM EDT |
"that isn't where they other side is located"
Presume should be "the" not "they"
- SteveM[ Reply to This | # ]
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Authored by: WhiteFang on Sunday, June 27 2004 @ 07:37 AM EDT |
OT URLs and Comments here please [ Reply to This | # ]
|
- Upcoming Legal Events - Authored by: Anonymous on Sunday, June 27 2004 @ 11:22 AM EDT
- Prior art for M$ hunam data tranfer. - Authored by: Franki on Sunday, June 27 2004 @ 11:31 AM EDT
- prior MS art, how about electric impulse exercise machines, ?? - Authored by: Franki on Sunday, June 27 2004 @ 04:05 PM EDT
- Forget SCO, David Boise has a new client - Authored by: leguirerj on Sunday, June 27 2004 @ 08:48 PM EDT
- How to behave in a hostile environment: M$ in the EU - Authored by: m_si_M on Sunday, June 27 2004 @ 09:12 PM EDT
- Now we know 1 reason Boise isn't available for SCO - Authored by: Anonymous on Sunday, June 27 2004 @ 11:29 PM EDT
- Gates in Australia - Authored by: Anonymous on Monday, June 28 2004 @ 03:45 AM EDT
- EU Temporarily lifts Microsoft Injunction - Authored by: martinjh99 on Monday, June 28 2004 @ 03:51 AM EDT
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Authored by: WhiteFang on Sunday, June 27 2004 @ 07:40 AM EDT |
So that we can more easily ignore them if we choose to. [ Reply to This | # ]
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Authored by: WhiteFang on Sunday, June 27 2004 @ 07:47 AM EDT |
Today's Humor Post brought to you by the letter 'P'. [ Reply to This | # ]
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Authored by: stevem on Sunday, June 27 2004 @ 07:54 AM EDT |
One can't but help think that perhaps one of the reasons that Mr Hatch's firm
accepted this case is that it would be _huge_ exposure for them.
"Oh yes, SCO has no chance, but think how much this will light up the IT
Trade Press. Especially after our recent super public cases with David B."
<Microsoft and that presidential thingy you USAian's went thru>
It just seems interesting that Mr Hatch is about the only major SCO lawyer we
see much of. Almost like he's been groomed for the spotlight.
The outside chance of squillions would have been another factor I am sure.
But then, I've always been a dreadful cynic.
- SteveM
[ Reply to This | # ]
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- On Lawyers and Fame - Authored by: Anonymous on Sunday, June 27 2004 @ 09:53 AM EDT
- However... - Authored by: Anonymous on Sunday, June 27 2004 @ 10:05 AM EDT
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Authored by: Anonymous on Sunday, June 27 2004 @ 07:58 AM EDT |
SCO's current position (implied by their statements in this hearing and repeated
by Darl in a press interview) appears to be:
1 The copyrights did or were intended to transfer in 1995
2. The fact the APA says they are all excluded is a scriveners error
3. Amendment 2 corrects scrivener's error #2
4. They have a clear memory (including Darl) of #1
The problem with this is it contradicts their own prior actions
5. In the first half of 2003 they apparently knew the copyrights were not
transfered, and asked Novell to transfer them. This rather contradicts item #4
in particular.
6. The clear memory of #4 only seems to have emerged after they discovered the
vague language in Amendment 2, clause A
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 27 2004 @ 10:04 AM EDT |
SCO's arguements in court read the same way as their press releases. They put
forward that one is to believe their misrepresentations while they hide known
facts behind their backs, right before your very eyes.
Pity anyone that states that SCO doesn't seem to get it.
Misrepresentating their case is their case.
I think all parties involved in the lawsuits realize this by now.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 27 2004 @ 10:46 AM EDT |
Hatch's only argument during the motion to *remand* is that newSCO clearly own
the copyright? So he's trying to get Judge Kimball to send it back to State
while at the same time effectively trying to get him to *rule on the actual
controversy in newSCO's favor*?
Well, that's certainly a... bold... strategy.
You know, with all his asides and anecdotes and stumbling, I really feel like
she should be prefacing all his statements with "IANAL, but..."[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 27 2004 @ 10:56 AM EDT |
Judge Kimball is a legal master. The court transcripts and his court order
demonstrate judicial control. From the top level organization to the bottom
level grammar, this judge assembles sufficient legal facts to nail his points
and construct solid legal markers.
The IBM lawyers are very good, but Judge Kimball outshines them. In
contrast, the TSCOG lawyers act opportunistically and are unfocused,
maybe hoping for a mistake they can exploit. I anticipate that TSCOG
lawyers are simply bidding their time until they can bamboozle a jury
because they are not doing the right things to win their many court cases
this far into their cases.
The good guys apply their knowledge and skills to illuminating the legal
truth. Meanwhile, the bad guys lie, lie, lie. Judge Kimball will become more
widely known because of these TSCOG cases.[ Reply to This | # ]
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Authored by: bobn on Sunday, June 27 2004 @ 11:10 AM EDT |
THE COURT: Can you get to your title claim without somehow deciding something
about 204(a)?
THE COURT: Slander action does presuppose ownership, doesn't
it?
I don't think TSG had a chance at this hearing, whihc is as it should
be, since TSG is full of crap. I think the Judge had his mind made up by the
law, precedents and the written filings.
--- IRC:
irc://irc.fdfnet.net/groklaw
the groklaw channels in IRC are not affiliated with, and not endorsed by,
either GrokLaw.net or PJ. [ Reply to This | # ]
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Authored by: codswallop on Sunday, June 27 2004 @ 11:21 AM EDT |
One point that went by very fast was that the federal issue has to be part of
the plaintiff's well pleaded case. It can't be raised by the defense, even if it
is inevitable the defense will do so and it is the only matter in
dispute.
I'm adding some of the relevant cites from Durgom v. Janowiak,
which summarizes the law in this area a considerable length. I've included some
excerpts.
“Arising under” jurisdiction is measured by the
“well-pleaded complaint” rule. Under this rule, “‘ . . . federal jurisdiction
exists only when a federal question is presented on the face of the plaintiff’s
properly pleaded complaint.’ [Citations.]” (Rivet v. Regions Bank of Louisiana
(1998) 522 U.S. 470, ___ [118 S.Ct. 921, 925, 139 L.Ed.2d 912].)
It is part
and parcel of the well-pleaded complaint rule that “[a] defense is not part of a
plaintiff’s properly pleaded statement of his or her claim. [Citations.]” (Rivet
v. Regions Bank of Louisiana, supra, 522 U.S. at p. ___ [118 S.Ct. at p.
925]
“Thus, it is now settled law that a case may not be removed to federal
court on the basis of a federal defense . . . even if both parties concede that
the federal defense is the only question truly at issue. [Citation.]”
(Caterpillar Inc. v. Williams, supra, 482 U.S. at p. 393.)
The rationale for
disregarding defenses is that “[o]therwise the plaintiff — who can’t be sure
what defenses the defendant will plead — would not know whether to sue
in state
or federal court.” (Saturday Evening Post Co. v. Rumbleseat Press, Inc., supra,
816 F.2d at pp. 1194-1195; see also State of Tennessee v. Union & Planters’
Bank,
supra, 152 U.S. at p. 459 [“‘[T]he right of the plaintiff to sue cannot
depend on the defense which the defendant may choose to set up. His right to sue
is anterior to that
defense, and must depend on the state of things when the
action is brought.’”].)
Similarly, in State, DHRS v. Southpointe Pharmacy
(Fla.Ct.App. 1994) 636 So.2d 1377, the plaintiff sought a copy of a transcript
from the defendant, a government agency, under a state public records law. (Id.,
at pp. 1378, 1380.) The defendant argued this would violate the court reporter’s
copyright. (Id., at p. 1379.) The appellate court held the presence of this
issue did not deprive the state courts of jurisdiction. (Id., at pp.
1378-
1380.) “[C]opyright law is not an essential element of [the plaintiff’s]
claim. . . [A] copyright law defense ought not defeat state court jurisdiction
‘even if the defense is
anticipated in the plaintiff’s complaint, and even if
both parties admit that the defense is the only question truly at issue in the
case.’ [Citation.]” (Id., at p. 1380, quoting Franchise Tax Bd. v. Const.
Laborers Vac. Trust, supra, 463 U.S. at p. 14.)
So, does the
necessity to demonstrate title in a slander action cause the section 204(a)
question about the APA to be part of the plaintiffs case, or is it part of the
defense?
Hatch drops the ball on this, but it goes by very fast. Judge Kimball
will give you one cue, but that's it. Then he moves on.
THE COURT:
How is your case different than Jasper?
MR. HATCH: Well, I would urge the
Court to look very close to Jasper because the Court there made it very clear
that it is the rare exception to the rule. And I would report to the court that
Jasper - and in their briefs Novell says it is a leading case in its area. I
would agree it's a leading case in the area, but on a very different point than
they do. I think it's a leading case in the area of the following.
In
Jasper, the plaintiff himself brought his case in federal court, unlike us. He
claimed that his case was one that fell under federal copyright laws, the
plaintiff himself. Again, unlike our case. The defense in that case never raised
an issue as to whether or not subject matter jurisdiction properly was laid in
the federal court.
Oops, he's lost the thread of the argument,
the defense is irrelevant and the rare case thing too. Now Judge Kimball asks an
important question.
THE COURT: The ultimate question, though, is
still the same, isn't it? Is there appropriate federal jurisdiction?
MR.
HATCH: Exactly. Eventually what happened here, the case went to a bench trial,
and the plaintiff lost. In other words, it was found that he didn't have a case.
And this matter for the first time on jurisdiction was raised on appeal. And it
really doesn't take a lot to read why the court found this a rare exception.
Now, in our brief we point out one of the reasons here is because there
were third parties involved and there had to be some clarification as to the
copyright. But the reality is they cite the law, which would apply directly
here, and say this is the rare case because it's pretty clear the Court said,
you had your day in court. You wasted all of our time. This is a rare
case
He has drifted off into that rare case nonsense and not
answered the question. He has say something like -
"Yes, your honor, but
not the answer. Where the federal question arises is vital to determining
jurisdiction. The plaintiff is master of his claim. The plaintiff has not raised
a federal question. The issue of 203(a) comes from the defense. So while the
ultimate question is the same, the legal answer will be quite
different."
The essential part of the plaintiff's case issue is probably the
slipperiest part of remand. [ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 27 2004 @ 11:35 AM EDT |
I mean, this is the same company that upon the closing of the
agreement, the evidence is going to show, immediately wrote letters to virtually
every one of their clients saying, we don't own it anymore. Here's contact to
SCO. They're who you have to deal with now.
Are those letters
available? The ones where Novell tells everyone that it's collecting licensing
fees from that they should now pay Santa Cruz Operations who is now collecting
the money on Novell's behalf? Since this may come again as part of newSCO's
defense, it' be interesting to see what Novell told everyone after the APA was
signed.[ Reply to This | # ]
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Authored by: chaz_paw on Sunday, June 27 2004 @ 12:22 PM EDT |
Is it me, or is Judge Kimball interrupting Hatch quite often? I am unfamiliar
with these types of proceedings. I have noticed this before in other documents.
It may be my bias, but I get the definite impression that in all these different
hearings, SCO's lawyers are not getting the same treatment as the opposing
lawyers, perhaps deservedly so.
If I am right, and I may very well not be, can this become a factor, heaven
forbid, in a SCO appeal(s)?
---
IAFTL- I am finally trying Linux.
Charles[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 27 2004 @ 12:31 PM EDT |
given to SCOG's arguments.
Not one word about most of the things SCOG argued.
How much money was spent.
"Executives did this, changed that, different executives now"
"doesn't have to be the magna carta"
"we have a writing!!! WE HAVE A WRITING!!!!!"
[ Reply to This | # ]
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Authored by: moogy on Sunday, June 27 2004 @ 12:48 PM EDT |
In SCOG's complaint, one of the remedies they seek from
Novell is that Novell should transfer all the relative
copyrights to SCOG. This seems to presume that there
is an uncertainty and a controversy that the copyrights
were ever transfered. I mean, if the transfer has
already clearly taken place what sense does it make to
seek that as a remedy? From their perspective, they appear
to be demanding something that they already claim to have.
If Novell does not own the copyrights, which SCOG
presumes by filing a Slander of Title case, how could
the court possibly order Novell to transfer something
they do not own?
I am assuming that this is somehow irrelevant for the
jurisdiction issue, but can someone explain to me why?
I can't make sense of this. I must be missing something.
---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win -Gandhi[ Reply to This | # ]
|
- SCOG's Remedies - Authored by: Sunny Penguin on Sunday, June 27 2004 @ 01:30 PM EDT
- SCOG's Remedies - Authored by: oldgreybeard on Sunday, June 27 2004 @ 02:07 PM EDT
- SCOG's Remedies - Authored by: codswallop on Sunday, June 27 2004 @ 02:12 PM EDT
- SCOG's Remedies - Authored by: IrisScan on Sunday, June 27 2004 @ 03:17 PM EDT
- SCOG's Remedies - Authored by: micheal on Sunday, June 27 2004 @ 03:28 PM EDT
- SCOG's Remedies - Authored by: Anonymous on Sunday, June 27 2004 @ 07:07 PM EDT
- SCOG's Remedies - Authored by: Anonymous on Monday, June 28 2004 @ 12:53 PM EDT
- conflicting registrations - Authored by: codswallop on Sunday, June 27 2004 @ 08:48 PM EDT
- SCOG's Remedies - Authored by: jfw25 on Sunday, June 27 2004 @ 09:22 PM EDT
- SCOG's Remedies - Authored by: Anonymous on Monday, June 28 2004 @ 10:38 PM EDT
|
Authored by: Anonymous on Sunday, June 27 2004 @ 01:08 PM EDT |
THE COURT: You meant form ahead of substance.
MR. HATCH: What did I say?
THE COURT: Substance ahead of form.
MR. HATCH: Sorry.
THE COURT: Isn't that what you meant?
MR. HATCH: Yes.
THE COURT: Okay. I just wanted to make sure I understood you.
MR. HATCH: I'll hear about that back at the office, but I appreciate that.
Yeah, and you should be sure you'll hear about that on Groklaw as well :)
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Authored by: tredman on Sunday, June 27 2004 @ 01:21 PM EDT |
My favorite part of the whole thing was towards the end, where Hatch made the
comment about the CEO of Novell "not doing his homework" and spouting
off to the public without thinking.
I think I actually laughed out loud there.
I didn't know that Darl McBride was the CEO of Novell, too...
Tim[ Reply to This | # ]
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Authored by: Tim Ransom on Sunday, June 27 2004 @ 01:23 PM EDT |
Don't know if this has been posted yet, but Tim Lambert has an article called
When Tanks Attack on his blog, wherein he lists several tanks besides AdTI who
are also participating in the MS PR blitz against open source.
Link
--- Thanks again,
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 27 2004 @ 01:46 PM EDT |
From Judge Kimball's decision on the SCOG vs Novell
hearing about
remanding: ...owned by Novell
as of the date of the [APA]
required for [SCO's
predecessor] to exercise...
Highlighting mine. It sure looks like the good Judge
Kimball is easily
able to keep SCOG's name games sorted
out. That does not bode well for SCOG at
all.
RS
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Authored by: Anonymous on Sunday, June 27 2004 @ 02:14 PM EDT |
I think this is a point important enough to pull it out of my reply
elsewhere...
"...There is one other issue here. Are new SCO the
copyright holders anyway?"
Bingo! We have a winner!
Give the man
a cigar!
This still remains an *enormous* question, in my mind.
Given
that no one has recently seen the mysterious Exhibits to the "AGREEMENT AND PLAN
OF REORGANIZATION BY AND AMONG CALDERA SYSTEMS, INC., CALDERA HOLDING, INC., AND
THE SANTA CRUZ OPERATION, INC." no one really knows exactly what is was that
TSCOG (aka the New SCO) got, anyway.
I'm wondering if this will become a
significant turning point, and is directly related to one of my favorite quotes:
"...which is that SCO, acquired by new SCO -- pause, definitional
moment, I'm going to use SCO interchangeably referred to SCO that
contracted with Novell and the SCO that we're dealing with today so I
don't have to repeatedly say old SCO and new SCO..."
So Novell is
making it *very* obvious that they see another shell game here, and that they're
going to want to tip over all the shells on the table at a moment's
notice.
Until we see the exhibits, no one knows *exactly* what it is that
TSCOG got, anyway.
And, surprise, surprise!
For some reason neither
TSCOG nor Caldera.* seem to be able to find them.
t_t_b --- Release the
missing Exhibits! [ Reply to This | # ]
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Authored by: Tim Ransom on Sunday, June 27 2004 @ 02:26 PM EDT |
How can Hatch argue that Novell's stance is form over substance, then go on in
the next breath to say that the APA is a standard conveyance, while ignoring the
fact that the words only promise to transfer only the copyrights necessary to
run the business when they are identified in the future?<BR>
Whew! I challenge you to write a longer sentence!
---
Thanks again,
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Authored by: blacklight on Sunday, June 27 2004 @ 02:46 PM EDT |
Had Judge Kimball decided that murky as it is, the text of Amendment 2
nonetheless constitutes an adequate instrument of conveyance, he would have at
the minimum created a very bad precedent in terms of contract law, he would also
have given Novell solid grounds to appeal his decision: Congress passed the
copyrights Act including Section 204a dor a reason and that reason is certainly
not that Congress included Section 204a so that it could be either ignored or
violated at will.
Brent Hatch obviously stands the truth on its head, when he argues that SCOG's
interpretation of it was the correct one for all these past eight years.
Unfortunately, SCOG is free to say anything in court until they get nailed down
so we'll have to put up with their garbage a while longer.
The content of the Novell CEO's May 28 letter to the effect that the
"...energy supports SCO..." troubles me. However, the letter runs
counter to the text of the APA, the actions of both signatories both at the
time of the agreement and the years subsequent to it, and the research executed
by Dr. Stupid and recently published on groklaw. In fact, Novell did keep its
part of the bargain and the promise implied in Amendment 2 in actually
transferring several copyrights by the time Amendment 2 has been included a year
after the main body of the APA was signed. I will also note that this copyrights
transfer was done in full compliance with the provisions of Section 204a.
I will add one more "however", however: the text of the Novell CEO's
May 28 letter does not mention which copyrights were to be transferred, and I
must conclude that the May 28 letter also fails as an instrument of conveyance
if the paragraph that SCOG quoted from that letter is the best SCOG can produce
from that letter.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 27 2004 @ 03:11 PM EDT |
Was Hatch refering to... what?
"MR. HATCH:...The management caused what
we are calling the problems today are all new management with presumably
different agendas..."
An instructive timeline:
1979 - SCO
founded as The Santa Cruz Operation by Doug and Larry Michels as a UNIX® system
porting and consulting company.
1987 - SCO ships SCO XENIX 386, the
first 32-bit operating system (and first UNIX System) for Intel 386
processor-based systems.
1998 - SCO delivers UnixWare 7 operating
system, the most advanced server operating system for Intel
processors.
2001 - Caldera Systems completes the acquisition of SCO's
Server Software and Professional Services Divisions, becoming Caldera
International (Caldera) and providing the world's largest Linux/UNIX
channel.
2002 - Caldera names a new CEO, Darl McBride.
2002 -
Caldera changes its name to The SCO Group (SCO), returning to the SCO
brand.
2003 - SCO Files Lawsuit Against IBM
2003 - SCO Files
Lawsuit Against Red Hat
2004 - SCO Files Lawsuit Against Novell
2003 - SCO Files Lawsuit Against AutoZone
2004 - Thursday,
June 10, 3:38pm ET - Reuters - UPDATE - SCO posts loss vs profit; revenue down
52 pct
"...The management caused what we are calling the problems
today..."
Yup.
Good job, Darl...
t_t_b --- Release the missing
Exhibits! [ Reply to This | # ]
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Authored by: Tim Ransom on Sunday, June 27 2004 @ 04:15 PM EDT |
seeks to make hidden digital archives available.
Link
--- Thanks again,
[ Reply to This | # ]
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Authored by: blacklight on Sunday, June 27 2004 @ 06:31 PM EDT |
"SCO at the hearing purports to prefer to stay in federal court in Judge
Kimball's court but says they are compelled to argue for remand to state court
because they worry that down the road, if there is a ruling adverse to Novell,
Novell will argue that the court lacks jurisdiction"
On the other hand, Brent Hatch was quoted saying that he is happy with Judge
Kimball's decision not to remand the case back to state court and that
"Novell has nowhere to run".[ Reply to This | # ]
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Authored by: Glenn on Sunday, June 27 2004 @ 07:46 PM EDT |
By PJ: "And so he isn't going to shy away from a detailed, granular and
fundamental examination of the issues, and he's willing to think as deeply as he
needs to. And happily, he can. That's what he just did in this very complex
case, and it was a beautiful sight to behold."
I doubt that the SCOG would agree with that particular assessment. <g>
Glenn[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 27 2004 @ 07:55 PM EDT |
From the transcript, it looks like Mr. Hatch may have been talking from memory
and paraphrasing Novell's response after SCO sent Novell a copy of APA Amendment
2. Part of this "quote" seems to be word salad, though.
"So my client
sent him a copy of Amendment 2. And immediately what he told the public upon
receiving that is he had to make a public statement because he saw that he was
wrong. And he says in a May 28th letter to SCO:"
Novell
challenged SCO's claims to UNIX patent and copyright ownership and demanded that
SCO substantiate its allegations that Linux infringed SCO's property rights.
Amendment 2 to the 1995 SCO-Novell asset purchase agreement was sent to Novell
last night by SCO. To Novell's knowledge, this plan is not present in
Novell's payment. The amount of energy support SCO's claim that certain
copyrights bringing did transfer to SCO in
1992.[sic]
The press release on Novell's website
Novell
Press Release is somewhat different and more coherent. Mr. Hatch did not
mention the last sentence about patents remaining with
Novell.
Press Release
Novell Statement on SCO
Contract Amendment
PROVO, Utah — June 6, 2003 — In a May 28th
letter to SCO, Novell challenged SCO's claims to UNIX patent and copyright
ownership and demanded that SCO substantiate its allegations that Linux
infringes SCO's intellectual property rights. Amendment #2 to the 1995
SCO-Novell Asset Purchase Agreement was sent to Novell last night by SCO. To
Novell's knowledge, this amendment is not present in Novell's files. The
amendment appears to support SCO's claim that ownership of certain copyrights
for UNIX did transfer to SCO in 1996. The amendment does not address ownership
of patents, however, which clearly remain with Novell.
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Authored by: Anonymous on Sunday, June 27 2004 @ 08:34 PM EDT |
Caldera Systems International Inc. SEC filing March 26, 2001
Some choice highlights picked
out:
CALDERA SYSTEMS(R) PREVIEWS NEW COMPANY
-- CALDERA INTERNATIONAL --
AT CeBIT WITH
INDUSTRY SUPPORT
New Company First to Unify UNIX (R)
with Linux (R) for Business and Pioneers
And
As reflected in the
Caldera mission statement, the new Caldera International will focus on three
distinct areas, "...to help all
businesses and customers interested in
developing, deploying and managing Linux and unified UNIX platforms." The
new
company will provide unified UNIX and Linux products on Intel
architecture with global sales, services, support and training to
companies of
any size.
"The goal of Caldera Systems from its inception was to make
Linux the alternative business platform in the industry," said
Ransom Love,
president and CEO of Caldera Systems. "To achieve this goal we knew we needed a
comprehensive Develop
on, Deploy on and Manage
strategy - a strategy that some
Linux companies are now trying to brand as their own. Over the last seven
months, since
announcing our intent to acquire SCO's server and professional
services divisions, we have worked to jointly develop and
deploy integrated
products and solutions that allow us to unify UNIX with Linux to provide this
alternative platform. Today, we
are proud to preview our accomplishments."
And
"As a leading Linux for Business company, Caldera has
significantly enhanced its industry position in a short period of time,"
said
George Paolini, vice president of technology evangelism and marketing, Sun
Microsystems(TM). "The company has
substantially contributed to the advancement
of the powerful union of Java(TM) technology and Linux and brought its
rich
experience in developing open source solutions to the broad developer
community through such programs as the Java
Community Process (JCP)(SM).
Unifying UNIX with its Linux for Business focus makes for a solid foundation
on which the
new Caldera International will be built."
"Novell(R) stands behind the new Caldera International," said
Blake Modersitzki, vice president, Global Strategic Alliances for
Novell, the
leading provider of Net services software. "Novell's eDirectory provides a fully
developed and powerful directory
service for Caldera's key products. We believe
the pending acquisition will strengthen Caldera's maturity and
infrastructure,
providing even greater enterprise-level solutions."
And
(in case anybody misses the irony in this, CA was sued by Canopy's Center7 over
Unicenter TNG, and apparently ended up with a bunch of UnixWare licenses
(including thrown in SCO Linux IP licenses) as part of the eventual
settlement:
COMPUTER ASSOCIATES - "CA will continue to provide eBusiness
management solutions to support the Caldera and
SCO customer bases," said Allan
Andersen, Divisional VP, CA corporate marketing. "Users of Caldera Linux, SCO
Unix and
the entire unified Unix community, can rely on CA's industry leading
Unicenter TNG to maximize the business value achieved
from their investments in
Caldera International systems."
Novell, again:
NOVELL - "Novell
stands behind the new Caldera International," said Blake Modersitzki, vice
president, Global Strategic
Alliances for Novell, the leading provider of Net
services software. "Novell's eDirectory provides a fully developed and
powerful
directory service for Caldera's key products. We believe the pending acquisition
will strengthen Caldera's maturity
and infrastructure, providing even greater
enterprise-level solutions."
And while not part of the same irony. There
is an interesting absence of any reference to UNIX copyrights or UNIX ownership
in describing Santa Cruz Operation, Inc. and the 2 divisions acquired.
THE
SANTA CRUZ OPERATION, INC.
With headquarters in Santa Cruz, CA, The Santa
Cruz Operation, Inc. is comprised of three independent divisions --
Tarantella,
Inc., the Server Software Division, and the Professional Services Division. The
Server Software Division is a leading
provider of UNIX server operating systems.
Tarantella, Inc. promotes a range of software technologies and products
that
web-enable any application instantly, for access by users anywhere. The
Professional Services Division helps organizations
create and deploy
personalized IT strategies. The three divisions sell and support their products
and services through a
worldwide network of distributors, resellers, systems
integrators, and OEMs. Please visit www.sco.com and
www.tarantella.com for more
information.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 27 2004 @ 10:18 PM EDT |
Q1. Who is, where is John Harker, "vice president of product management". And is
he on any known deposition list? Any clues anybody?
Q2. Does anybody
know what the terms of the "Open Access" to Open Unix 8 were? (apparently some
sort of signed agreement was required but they gave you code to Unix free of
charge for reference, or so the press release says). Perhaps there is even a
Groklaw member who was a recipient of this material?
The significance
of Mr Harker is that he appears in a Caldera press release
from 2001 in which they are announcing open access to Open Unix 8, and GPLing of
UNIX awk.
The press release in
question is the same one as the one which features
John Terpstra, whom we know
is on IBM's
deposition list, then "vice president of technology for Caldera
International", who seems to have been involved in GPLing UNIX
awk.
(SCO apparently claims parts of GNU's awk (see Exhibit
28, Exhibit G) as copyright infringements).
Here is most of the
press release in question, with some of the good parts
highlighted:
FORUM 2001, SANTA CRUZ, CA - August 20, 2001 - Caldera
International, Inc. (Nasdaq: CALD) today announced it will Open Source the AIM
performance benchmarks and the UNIX Regular Expression Parser, along with two
UNIX utilities awk and grep. These technologies will be released under the GPL
(Gnu General Public License). In a related move, Caldera will also be making
the Open UNIX 8 source code available to members of its developer program who
request it. Information about the Caldera developer network is available at
http://www.caldera.com/partners/developer/.
The AIM performance
benchmarks are industry-standard server benchmarks acquired from the former AIM
Technology. By Open Sourcing the benchmarks, companies may use them to establish
independent validation of internal benchmarking. For example, Caldera can
independently establish scalability and stability comparisons between Open UNIX
8 and other platforms. Although the sources will be released under the GPL, the
use of the AIM Benchmark trademark in connection with these programs will be
restricted based on published guidelines to assure the integrity of these tests
as industry standard references.
The UNIX Regular Expression Parser is
a library function from Open UNIX 8 used by a number of standard UNIX utilities
for complex pattern matching of pieces of text. By Open Sourcing this, along
with the awk and grep utilities, Caldera begins a process of making some of the
original UNIX utilities, upon which the GNU/Linux system was modeled, available
as reference sources. This gives the Open Source community an opportunity to
reference these implementations and incorporate the best of both source streams
into future GPL implementations of these tools.
"Many in the
Open Source community have asked Caldera to GPL these technologies," said John
Terpstra, vice president of technology for Caldera International. "We have now
delivered these utilities and benchmarks. We have chosen the GPL license to
directly support corresponding GNU projects."
The Regular
Expression library and tools will be made publicly available on SourceForge this
week at http://unixtools.sourceforge.net. In coming months, Caldera will Open
Source other UNIX tools and utilities, including pkgmk, pkgadd, pkgrm, pkginfo,
pkgproto and more, as well as the Bourne shell, lex, yacc, sed, m4 and make. The
licenses under which these technologies will be Open Sourced will be decided
based on community and business needs.
"We are very pleased to offer
much of the UNIX source code that laid the foundation for the whole GNU/Linux
movement," said Ransom Love, CEO of Caldera International. "In each case, we
will apply the right license - GPL, Berkeley, Mozilla, Open Access, or other
license - as appropriate to our business goals.
"Our intention is to
steer the middle course in the public debate - it’s not a case of free or Open
Source versus proprietary, but both, as the situation warrants. We believe the
industry is evolving to a model where source code is freely available,
innovation is nurtured at the grass roots, and businesses, such as Caldera, can
add value as both product and service companies." Open Access to Open UNIX 8
The Caldera Open Access license is intended to give customers the
ability to both reference and modify the source code. However, the initial
release of source code will be read only, giving customers and software
developers a significant reference as they develop applications for Open UNIX 8.
In the future, customers and developers will be allowed to change the source
code as long as they return the changes to Caldera. This will allow Caldera to
maintain a standard business quality platform.
Open UNIX incorporates
some proprietary third party technology which means source code for certain
third party modules will not be available due to licensing
restrictions.
"Over time the licensing and delivery of our Open Access
sources will evolve and improve," explained John Harker, vice president
of product management. "Our immediate goal was to provide basic source reference
access following the model of SCO’s source products by simply eliminating the
license fee. We’re looking at ways to make this as streamlined as possible."
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Authored by: codswallop on Monday, June 28 2004 @ 01:01 AM EDT |
For some time I've been saying that the timing issue with the APA and the 2nd
amendment isn't significant. Certainly there's a lot of case law that would
indicate that the sloppiness of the situation wouldn't prevent the combination
from being a section 204(a) writing. This is all true, but it completely misses
the point.
There are a several good ways to attack the APA both as a 204(a)
wrting and as a contract conveying copyrights. What's thin on the ground are
arguments against remand. The issue with the timing etc. is a close parallel to
the situation in Jasper, and it's a essential part of SCO's case. Unlike the
issue of "required" it's not a matter of interpretation. It's a set of facts
about an integrated contract and an amendment. There is little or no scope for
new issues of fact. I'll let Judge Kimball tell the tale the bolding is
mine:
It is undisputed that the APA did not transfer any
copyrights. Under the APA, 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 the Excluded Assets schedule, Schedule 1.1(b).
There is no dispute that all copyrights were excluded on Schedule 1.1(b) and,
therefore, no copyrights transferred on the Closing Date under the terms of the
APA. Also, Amendment No. 2 merely amends the schedule of excluded assets and
does not constitute a transfer of copyrights on its own. Therefore, the issue
raised by Novell is whether the APA as amended by Amendment No. 2 is a
sufficient writing under Section 204(a) to transfer ownership of copyrights.
For purposes of SCO's motion to remand, the issue is not whether copyrights were
in fact transferred under the APA as amended, but whether the Section 204(a)
determination raises a federal question sufficient for this court to exercise
jurisdiction over the case.
The APA Amendment No. 2 excludes from transfer
"[a]ll copyrights and trademarks, except for the copyrights and trademarks owned
by Novell as of the date of the [APA] required for [SCO's predecessor] to
exercise its rights with respect to the acquisition of UNIX and Unixware
technologies." The Amendment does not identify which copyrights are required
for SCO to exercise its rights with respect to the acquisition of UNIX and
Unixware and provides no date for the transfer. The Amendment mentions
copyrights owned by Novell as of the date of the APA but it is not retroactive
to the date of the APA. Furthermore, although Amendment No. 2 states that its
effective date is the date of the amendment, the language of Amendment No. 2
does not state that a transfer of the copyrights is to occur as of the date of
the amendment.
The Amendment also contains no transfer language in the form
of "seller hereby conveys to buyer." Given the similarly ambiguous language in
the APA with respect to the transfer of assets-seller "will" sell, convey,
assign, and buyer "will" purchase and acquire-it is questionable on the face of
the documents whether there was any intention to transfer the copyrights as of
the date the amendment was executed. Moreover, the use of the term
"required" in Amendment No. 2 without any accompanying list or definition of
which copyrights would be required for SCO to exercise its rights in the
technology is troublesome given the number of copyrighted works involved in the
transaction. There is enough ambiguity in the language of Amendment No. 2 that,
at this point in the litigation, it is questionable whether Amendment No. 2
was meant to convey the required copyrights or whether the parties contemplated
a separate writing to actually transfer the copyrights after the "required"
copyrights were identified. Therefore, this is not a case where the court can
immediately conclude that there is a writing under Section
204(a).
It's very neat. He needs an attack that doesn't start out
interpreting the contract language. If it's an inevitable discovery, it's better
that it come out to him. Then it can't be argued that the analysis is
interpreting the contract looking for problems.
He asks a simple question.
When was the conveyance supposed to happen. SCO's take was "we don't know when,
but it's in the past so who cares". This may be acceptable, but it's unusual. If
things get unusual enough, there's a section 204(a) question. Is this weird
pattern for which we have no clear precedent OK?
In any case a little
further examination is in order. Does the amended APA really say it's conveying
copyrights at any particular time, even if we're not clear on what particular
time? Inch by inch he noses the camel into the contract.
1) That the
pieces individually didn't convey is stipulated.
2) Therefor we have to have
a little peek at the effective date of the amended contract.
3) Confusion
reigns. The amendment supplies no conveyance date. It's effective date is its
signing. It modifies a contract specifying conveyance happens at closing, when
the closing is in the past, and it doesn't say it's retroactive.
We need to look
further.
4) Now that we have an excuse to be here, we notice the will convey
language. That's a big nono with copyright conveyance. It's a Yoda thing -
"there is convey, and there is not convey. There is no will convey".
Judge
K. pokes at the "required" language a bit, but we will leave him to it. Our job
here is done. There's even a bit of unused ammo in the section about bringing
all instruments to the closing. I guess he didn't think he needed it.
A
thing of beauty. There's a timing issue as in Jasper plus some other problems,
and they were there all along. There's no way SCO could demonstrate title
without running into the "when did it happen" question. Can you validly modify a
contract that specifies (possibly) conveyance at closing, after the closing,
non-retroactively and with an effective date a year after the closing? This is
just like Jasper. It's not that hard, but nobody has ever ruled on it.
Even
better the "will convey" issue is now fair game. It's part of the same long
pseudosentence where section 1.1 is continued in schedules 1.1(a) and 1.1(b).
[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 28 2004 @ 04:14 AM EDT |
If I remember correctly (I could be wrong), Judge Kimbal gave SCO 30 days to
come up with something.
When is the deadline date for SCO.[ Reply to This | # ]
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- 30 Day deadline - Authored by: Anonymous on Monday, June 28 2004 @ 08:24 AM EDT
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Authored by: turambar386 on Tuesday, June 29 2004 @ 10:01 AM EDT |
If all parties involved in this have been acting for eight years like the
copyrights were transferred, why didn't Caldera open source System V when it
open sourced the older UNIX source codes?
Because they KNEW they did not own the copyrights to it!
[ Reply to This | # ]
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