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| More Filings in SCO v. Novell - Declaration by G. Gervaise Davis as text |
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Tuesday, May 22 2007 @ 11:22 AM EDT
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Lots of entries on the docket in SCO v. Novell, but SCO has filed them in as sealed documents. The one that is readable that will interest you is this one, Declaration of G. Gervaise Davis III, in which he opines as an expert on whether the Unix copyrights did or didn't transfer and tells the court how it should understand the APA and Amendments, based on logic and industry custom, which I doubt the court will care tremendously about, since Davis had nothing whatsoever to do with its preparation, negotiation, execution, or implementation and all the people who did are all available, if the court feels it even needs parol evidence, and they have already told the court that the copyrights didn't transfer.
Here's what he was hired for:6. In connection with the lawsuit between SCO and Novell, I have been retained by counsel for SCO to offer expert testimony in the areas of industry customs and practices relating to copyrights and the use and manner of negotiating and drafting software acquisitions and the licensing agreements typically used in the industry. Specifically, I was asked whether it would be necessary, and expected, for the copyrights relating to the UNIX operating system to be transferred to SCO, as part of the sale of the UNIX business assets, in order for SCO to obtain the legal rights needed to use, create derivatives of, distribute and license the technology and the actual source and object code and other materials being used in the active software business purchased from Novell by SCO. My full analysis will be set forth in my expert report due on May 29, 2007. Since SCO hired him, of course he says that normally you'd expect the copyrights to transfer. This case is so strange. I've never seen a contract case decided on the basis of what normally happens in an industry or on what would be logical. Maybe if the contract was so old everyone involved had died, and you couldn't figure out the wording at all. Of course, there's always a first time for everything, and one thing you have to give Boies Schiller: they'll try everything. And if you notice the date, this was signed yesterday, so that tells me the SCO side is worried they didn't have enough. And there may be cases I just don't know about, but it seems a bit of a stretch, since parties entering a contract aren't bound by custom, and the two people who did write this contract for Novell and the lawyer executive in charge of the deal who attended the Novell board meeting the night before the signing of the APA where it was decided to retain the copyrights told us that there were particular reasons specific to *this* deal for doing things in such a way that copyrights would not transfer. Some of you may remember that name. Here you go, Davis is the man who first helped Linus get his trademark back. He also said in a discussion about SCO in 2003 that litigating over intellectual property was insane: "The most rational companies recognize that litigation of intellectual property is just insane from a cost-benefit standpoint." Here's more of what he had to say back in 2003:
Q: In the SCO case, does that mean we should look for the public relations ramifications as much as the legal ones?
Davis: Absolutely, because once the dispute becomes public knowledge, it becomes a public relations war-not just for the opinions of you, me and other interested parties, but for the board of directors of IBM. They will keep reading about the case and wondering-do we have a problem here or not? Many of these cases effectively become like blackmail in the sense that somebody decides that it is worth paying the money just to stop all the questions and fuss....
Q: There's been a lot of confusion on the letter sent by SCO to the companies using Linux. The letter never told the recipient what actions to take.
Davis: There are two reasons for that letter. One is to get publicity over their claim. The other is that, under the intellectual property laws, if you claim copyright infringement, you must pursue the claim-or you may very well lose your rights. Numerous companies, when they think something has been infringed, will be very careful not to send a cease and desist letter. They will just notify people in a general way that they have these rights, and that companies may be infringing on them. In this way, they are not forced to bring a suit right away, but the implication is there.
Q: Does that mean one could look at the letter and say this has more to do with the IBM lawsuit than it does to the recipient?
Davis: Yes. Exactly. Because if they really thought that the other people were infringing, they probably would send them a cease and desist letter. But once you send that letter, you have to file suit within a reasonable time, or you'll lose your rights Ah. Like blackmail. Don't look at me. That's what the man said.
Here are the docket entries: 05/18/2007 - 306 - **SEALED DOCUMENT** SEALED MEMORANDUM IN OPPOSITION re:
275 MOTION for Summary Judgment on SCO's First Claim for Slander of
Title and Third Claim for Specific Performance, filed by Plaintiff SCO
Group (oversized document is not scanned - will be kept in permanent
storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 307 - **SEALED DOCUMENT** SEALED RESPONSE IN OPPOSITION re: 277
MOTION for Summary Judgment on SCO's First Claim for Slander of Title
Based on Failure to Establish Special Damages, filed by Plaintiff SCO
Group (oversized document is not scanned - will be kept in permanent
storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 308 - **SEALED DOCUMENT** SEALED DECLARATION OF MARK F. JAMES
filed by Plaintiff SCO Group (oversized document is not scanned - will
be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 309 - **SEALED DOCUMENT** SEALED EXHIBITS 9-14 re: [308] Sealed
Document filed by Plaintiff SCO Group (oversized document is not scanned
- - will be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 310 - **SEALED DOCUMENT** SEALED EXHIBITS 15-20 re: [308]
Sealed Document filed by Plaintiff SCO Group (oversized document is not
scanned - will be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 311 - **SEALED DOCUMENT** SEALED EXHIBITS 21-34 re: [308]
Sealed Document filed by Plaintiff SCO Group (oversized document is not
scanned - will be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 312 - **SEALED DOCUMENT** SEALED EXHIBITS 35-40 re: [308]
Sealed Document filed by Plaintiff SCO Group (oversized document is not
scanned - will be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 313 - **SEALED DOCUMENT** SEALED EXHIBITS 41-50 re: [308]
Sealed Document filed by Plaintiff SCO Group (oversized document is not
scanned - will be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 314 - **SEALED DOCUMENT** SEALED EXHIBITS 51-59 re: [308]
Sealed Document filed by Plaintiff SCO Group (oversized document is not
scanned - will be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 315 - **SEALED DOCUMENT** SEALED EXHIBITS 60-63 re: [308]
Sealed Document filed by Plaintiff SCO Group (oversized document is not
scanned - will be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 316 - **SEALED DOCUMENT** SEALED EXHIBITS 64-70 re: [308]
Sealed Document filed by Plaintiff SCO Group (oversized document is not
scanned - will be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 317 - **SEALED DOCUMENT** SEALED EXHIBITS 71-75 re: [308]
Sealed Document filed by Plaintiff SCO Group (oversized document is not
scanned - will be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 318 - **SEALED DOCUMENT** SEALED EXHIBITS 76-86 re: [308]
Sealed Document filed by Plaintiff SCO Group (oversized document is not
scanned - will be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 319 - **SEALED DOCUMENT** SEALED EXHIBITS 87-104 re: [308]
Sealed Document filed by Plaintiff SCO Group (oversized document is not
scanned - will be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/18/2007 - 320 - **SEALED DOCUMENT** SEALED EXHIBITS 105-120 re: [308]
Sealed Document filed by Plaintiff SCO Group (oversized document is not
scanned - will be kept in permanent storage) (alt) (Entered: 05/21/2007)
05/21/2007 - 321 - ORDER granting 304 Motion for Leave to File Excess Pages.
Signed by Judge Dale A. Kimball on 5/21/07 (alt) (Entered: 05/21/2007)
05/21/2007 - 322 - ORDER granting 305 Motion for Leave to File Excess Pages.
Signed by Judge Dale A. Kimball on 5/21/07 (alt) (Entered: 05/21/2007)
05/21/2007 - 323 - ORDER granting 300 Motion for Leave to File Excess Pages.
Signed by Judge Dale A. Kimball on 5/21/07 (alt) (Entered: 05/21/2007)
05/21/2007 - 324 - DECLARATION of G. Gervaise Davis III re [306] Sealed
Document, SCO'S MEMORANDUM IN OPPOSITION re: 275 MOTION for Summary
Judgment on SCO's First Claim for Slander of Title and Third Claim for
Specific Performance, filed by SCO Group. (Attachments: # 1 Exhibit
A - Exibit B)(Normand, Edward) (Entered: 05/21/2007) [ Update: I forgot to tell you that this is accompanying SCO's sealed Memorandum in Opposition to Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title and Third Claim for Specific Performance [PDF], one of the four summary judgment motions Novell has filed, and that means that Novell can attach an expert's opinion saying the opposite, or two of them, I suppose, if they think they need it, when they reply.]
Here is the declaration by Davis as text, thanks to Steve Martin.
********************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, PC
[address]
[phone]
[fax]
David Boies (admitted pro hac vice)
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Devan V. Padmanabhan (admitted pro hac vice)
DORSEY & WHITNEY LLP
[address]
[phone]
[fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stuart Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for Plaintiff, The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.,
a Delaware corporation,
Plaintiff/Counterclaim-Defendant,
vs.
NOVELL, INC.,
a Delaware corporation,
Defendant/Counterclaim-Plaintiff.
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DECLARATION OF G. GERVAISE
DAVIS III
Civil No.: 2:04CV00139
Judge Dale A. Kimball
Magistrate Brooke C. Wells
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(1)
I, G. GERVAISE DAVIS III, declare as follows:
1. I was admitted to the District of Columbia Bar in 1958 and the California Bar in
1959 (CA Bar #29501). Since then I have been admitted in nearly all the federal courts in the
State of California, as well as before the U.S. Supreme Court, the U.S. Tax Court, and numerous
Federal Circuit and District Court in states other than California. I am no longer an active
member of the D.C. Bar. I have been practicing law for nearly fifty years, except for two recent
years when I was inactive due to medical issues. (My Curriculum Vitae is attached hereto as
Exhibit A to this Report.)
2. During the time I practiced law as a technology and intellectual property lawyer
(over forty years), I devoted approximately 90% of my time to the representation of computer
software and hardware companies, as well as hundreds of corporate and business users of
software. The subject matter of this practice covered (among other topics) the creation and
development, authorship, sale, licensing, distribution and use of computer software. The practice
involved the core issues arising under the federal and state laws relating to copyright, patent, and
trade secret protection of computer software. During that time, I participated in the negotiation
of software licenses acquiring, transferring, licensing, or otherwise permitting end-user
companies and individuals to use highly valuable and expensive software and other assets in
these businesses. My representation of clients also often included situations where the software
package was being acquired and/or licensed for further development and the future marketing of
it by a second party to third party end users.
3. In that work, my involvement included helping clients by developing business
strategies for protecting, acquiring, selling and licensing software. Such work required that I
gain a detailed understanding of the economics of software licensing and ownership, including
1 (2)
how to control and help clients derive maximum economic benefits from the high cost of
developing, selling and acquiring such software, or conversely, how to keep the transaction costs
associated with acquiring or licensing software to a minimum. Those goals were often in
opposition, depending upon the client I was representing. Based on such experience (among
other factors), I believe I have a detailed, accurate and useful understanding of the complex
customs and practices of software licensing and how those practices bear on the instant dispute
between The SCO Group, Inc. ("SCO") and Novell, Inc. ("Novell").
4. Some of the major companies I represented with respect to the foregoing issues
were Sun Microsystems, Silicon Graphics, Hewlett Packard, Atari and Fujitsu, as well as my one
of my primary clients, Digital Research, Inc., the developer of the first recognized, standardized
microcomputer operating system called "CP/M" and later called "DR-DOS." On behalf of my
clients I have written and negotiated software licenses with Apple, DEC, IBM, Intel, Control
Data, NCR, Burroughs, Ashton Tate, Word Perfect, Novell, and at least a hundred or more
smaller software and hardware companies, as well as for or with many other businesses using,
acquiring, licensing or selling the copyrights and other rights in the software at issue.
5. In the course of such representation, I was often asked to advise these clients on
software copyright issues and questions copyright ownership and the various rights such
ownership creates, as well as the obligations it imposes upon the owners and licensors of the
copyrights. In such capacities, I had to understand the relative industry customs and practices
relating to ownership warranties and other necessary provisions in licenses. This also involved
working on many acquisition and purchase agreements relating to software businesses and
software copyrights, trade secrets, and patents. I consider myself an expert in copyright, trade
secrets and trademarks as these subjects relate to software and software licensing. I do not
2 (3)
consider myself an expert on software patents as such, but I am quite familiar with the impact of
the more recent growing influence of patent law on the foregoing subjects.
6. In connection with the lawsuit between SCO and Novell, I have been retained by
counsel for SCO to offer expert testimony in the areas of industry customs and practices relating
to copyrights and the use and manner of negotiating and drafting software acquisitions and the
licensing agreements typically used in the industry. Specifically, I was asked whether it would
be necessary, and expected, for the copyrights relating to the UNIX operating system to be
transferred to SCO, as part of the sale of the UNIX business assets, in order for SCO to obtain
the legal rights needed to use, create derivatives of, distribute and license the technology and the
actual source and object code and other materials being used in the active software business
purchased from Novell by SCO. My full analysis will be set forth in my expert report due on
May 29, 2007. Based on the work I have completed, however, I have concluded the following.
a. The parties intended to transfer, and did transfer, the same UNIX and UnixWare
copyrights that Novell owned and used to run those businesses, as well as those inchoate
and not yet completed or registered copyrights for projects underway.
b. Novell obtained by a "grant back" license certain non-exclusive rights in those
copyrights that continued to allow Novell to market its Netware product line of software.
c. Novell's argument that SCO obtained an "implied license" to use the copyrights is
contrary to the relevant customs and practices regarding the sale and licensing of
software and source code when sold as a business (as opposed to merely the sale of a
specific program), because (among other relevant considerations) SCO could not
effectively continue to run, and further develop, the UnixWare business based solely on
3 (4)
the unspecified implied licenses and the unidentified scope thereof that Novell claims to
have created or intended to have granted SCO.
d. There is no evidence I have seen substantiating Novell's argument that SCO
received or relied upon any implied copyright licenses to run the businesses it purchased
from Novell. In my experience, Amendment No. 2 to the APA does not use any
language suggesting either that the APA had conferred an implied license on SCO or that
the Amendment itself constituted such a license. Instead, the language of the
Amendment merely confirms the intended transfer of all of the copyrights necessary for
SCO to exercise its rights in the UNIX and UnixWare technology it had acquired. Those
are the same copyrights that Novell had itself acquired and then owned before it sold the
assets of the business using those copyrights.
e. It would not have been logical or necessary for legal counsel to Novell to rely on
some alleged unspecified concern about possible loss of its license rights under the
bankruptcy laws in deciding not to transfer the actual copyrights, because Section 365(n)
of the Bankruptcy Code protected licensees of intellectual property rights in such events
after its addition to the laws in 1988, for that very reason.
f. In 1995, the year of this transaction, and for many years before and for some
years thereafter, there were serious reservations in the software industry about whether
software could be patented. Today, patents effecting software use are becoming more
important than they were in 1995 when the APA was negotiated, even though patents are
still not anywhere near as significant as copyright protection, without which the software
industry could not function as an industry. For those reasons and others, the question of
the scope of any patents on isolated technology in UNIX and UnixWare would not have
4 (5)
been a major concern to the parties or to lawyers familiar with the software industry in
the early and mid-1990s.
7. I declare under the penalty of perjury that the foregoing is true and correct.
EXECUTED AT MONTEREY, CALIFORNIA ON MAY 21, 2007:
(signature)
G. Gervaise Davis III
5 (6)
CERTIFICATE OF SERVICE
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and
correct copy of the foregoing Declaration of G. Gervaise Davis III was served on this 21st day of
May, 2007, via CM/ECF to the following:
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]
Michael A. Jacobs
Matthew I. Kreeger
Kenneth W. Brakebill
MORRISON & FOERSTER
[address]
/s/ Edward Normand
6 (7)
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| Authored by: lordshipmayhem on Tuesday, May 22 2007 @ 12:19 PM EDT |
| Please put as much detail in the Title as possible. [ Reply to This | # ]
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| Authored by: lordshipmayhem on Tuesday, May 22 2007 @ 12:21 PM EDT |
Please make links clickable <a
href="http://www.example.com/">Like this</a>. Don't forget
to change the post mode to "HTML Formatted"!![ Reply to This | # ]
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- Microsoft sponsored report on GPLv3 - Authored by: Anonymous on Tuesday, May 22 2007 @ 12:39 PM EDT
- If the judge - Authored by: Anonymous on Tuesday, May 22 2007 @ 12:42 PM EDT
- RIAA wants royalties from radio ? - Authored by: Latesigner on Tuesday, May 22 2007 @ 03:02 PM EDT
- [Dell] Dell’s not really serious about Linux - Authored by: Aladdin Sane on Tuesday, May 22 2007 @ 03:13 PM EDT
- Windows Vista Amazon email - Authored by: osaeris on Tuesday, May 22 2007 @ 03:14 PM EDT
- Anyone have a voucher? - Authored by: Anonymous on Tuesday, May 22 2007 @ 04:40 PM EDT
- Off topic here - Authored by: Anonymous on Tuesday, May 22 2007 @ 04:42 PM EDT
- Web page as evidence - Authored by: Anonymous on Tuesday, May 22 2007 @ 04:48 PM EDT
- Web page as evidence - Authored by: PJ on Tuesday, May 22 2007 @ 04:54 PM EDT
- Web page as evidence - Authored by: Anonymous on Tuesday, May 22 2007 @ 10:35 PM EDT
- Logs - Authored by: argee on Wednesday, May 23 2007 @ 12:23 AM EDT
- Logs - Authored by: Anonymous on Wednesday, May 23 2007 @ 05:37 AM EDT
- Sue Me First, Microsoft - Authored by: Anonymous on Tuesday, May 22 2007 @ 05:42 PM EDT
- An unfortunate endgame? - Authored by: justjeff on Tuesday, May 22 2007 @ 10:40 PM EDT
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| Authored by: Just_Bri_Thanks on Tuesday, May 22 2007 @ 12:23 PM EDT |
Any chance Novell will amend their recent motion to strike to include this
(these?) items(s) too?
---
Bri. Just Bri. Thank you.
(With a long i sound.)
Without qualification, certification,
exception, or (hopefully) bias.[ Reply to This | # ]
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| Authored by: dhcolesj on Tuesday, May 22 2007 @ 12:32 PM EDT |
This declaration could just be a way for BS&F and/or SCO to avoid sanctions.
Simply stated its obvious to anyone who reads the APA, or who asks those
actually involved that the copywrites did NOT transfer. Not only that, but some
of the depositions as noted, were not properly authenticated, etc. etc.
So, this could be a way for SCO to back out and say, "Well, we assumed this
deal would be no different than 'normal' practices."
IANAL BTW.
---
See Ya'
Howard Coles Jr.
John 3:16![ Reply to This | # ]
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- Exactly! - Authored by: Totosplatz on Tuesday, May 22 2007 @ 12:41 PM EDT
- Doesn't work: how did SCO get them from Caldera? - Authored by: Anonymous on Tuesday, May 22 2007 @ 01:25 PM EDT
- Doesn't work: how did SCO get them from Caldera? - Authored by: Alan(UK) on Tuesday, May 22 2007 @ 03:43 PM EDT
- Excellent point - Authored by: Anonymous on Tuesday, May 22 2007 @ 05:35 PM EDT
- Excellent point - Authored by: Anonymous on Tuesday, May 22 2007 @ 06:36 PM EDT
- Wrong - Authored by: Anonymous on Tuesday, May 22 2007 @ 08:48 PM EDT
- Wrong - Authored by: Anonymous on Tuesday, May 22 2007 @ 10:55 PM EDT
- Wrong ??? - Authored by: dmarker on Wednesday, May 23 2007 @ 12:41 AM EDT
- Wrong - Authored by: dmarker on Wednesday, May 23 2007 @ 12:48 AM EDT
- Osmosis? (n/t) - Authored by: roadfrisbee on Tuesday, May 22 2007 @ 03:48 PM EDT
- Doesn't work: how did SCO get them from Caldera? [Kbd alert] - Authored by: wvhillbilly on Wednesday, May 23 2007 @ 12:53 AM EDT
- Doesn't work: how did SCO get them from Caldera? - Authored by: Anonymous on Thursday, May 24 2007 @ 06:20 AM EDT
- More Filings in SCO v. Novell - Declaration by G. Gervaise Davis as text - Authored by: skidrash on Tuesday, May 22 2007 @ 03:57 PM EDT
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| Authored by: skidrash on Tuesday, May 22 2007 @ 12:38 PM EDT |
(the meeting that Ty Mattingly and Frankenberg attended, but forgot about )
Also confirms that copyrights were not to be transferred.
And Caldera's lack of a section 204 writing confirms that copyrights were not
transferred
And Santa Cruz Operation's lack of a section 204 writing confirms that
copyrights were not transferred
Everything that can be backed up with proof is on one side, all the hot air is
on the other.
Par for the course in this case. [ Reply to This | # ]
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| Authored by: PolR on Tuesday, May 22 2007 @ 12:40 PM EDT |
Davis: Yes. Exactly. Because if they really thought that the other
people were infringing, they probably would send them a cease and desist letter.
But once you send that letter, you have to file suit within a reasonable time,
or you'll lose your rights
When I read this text, I can't help but
connect the dots. Does an official declaration to the media count as a cease and
desist letter? Do you have to sue within reasonable time for patents as well?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 12:42 PM EDT |
> For those reasons and others, the question of the scope of any patents
on isolated technology in UNIX and UnixWare would not have been a major concern
to the parties
This is pure speculation.
He cannot properly testify as to the 'concerns' of the parties involved without
proffering personal knowledge.
The whole testimony is subject to strike since it offers only information
related to "general practices in the industry", but in no way provides
tangible evidence related to the contract in question.
Any first-year student has a field day with this declaration.
____
magicmulder[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 12:47 PM EDT |
one of my primary clients, Digital Research, Inc., the developer of
the first recognized, standardized microcomputer operating system called "CP/M"
and later called "DR-DOS."
CP/M did not become DR-DOS. They were
both developed by Digital Research, but they were separate and distinct
operating systems.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 01:03 PM EDT |
c. Novell's argument that SCO obtained an "implied license" to use
the copyrights is contrary to the relevant customs and practices regarding the
sale and licensing of software and source code when sold as a business (as
opposed to merely the sale of a specific program), because (among other relevant
considerations) SCO could not effectively continue to run, and further develop,
the UnixWare business based solely on the unspecified implied licenses and the
unidentified scope thereof that Novell claims to have created or intended to
have granted SCO.
SCO didn't obtain anything. Santa Cruz got
the contract not SCO so this para is incorrect from the start. The contract
wasn't an "implied" license, it was a contract. Any new materials that were
part of further development of Unixware by Santa Cruz would have been under
copyright of Santa Cruz and they could definitely have based their business on
that.[ Reply to This | # ]
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| Authored by: bb5ch39t on Tuesday, May 22 2007 @ 01:03 PM EDT |
| As stated by him: operating system called "CP/M" and later called
"DR-DOS."
Nope, sorry. CP/M was written for the Intel 8080 (8 bit)
chip. Any hardware vendor who wanted to run CP/M had to create their own BIOS
equivalent, with a specific API, which CP/M could invoke for functions such as
disk and terminal I/O.
The version of CP/M for the Intel 8086 (and 8088) was
called CP/M-86.
DR-DOS is a clean room implementation of MS-DOS (originally
QDOS from Seattle Computer Products). Now, the original QDOS and MS-DOS used a
similar API to CP/M so that conversion of CP/M programs would be simplified. But
the code base (I would bet) is totally different. DR-DOS is not a direct
evolution of CP/M. At best, it is a cousin.
Why harp on this? Simply because
if an expert is incorrect in such a simple thing as this, why should I believe
him in another, related area?
I will retract this if somebody has the source
to CP/M and DR-DOS and can show that indeed, the CP/M (or CP/M-86) source was
the initial evolutionary predecessor of DR-DOS. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 01:37 PM EDT |
lots of them, from SCO, are they filing code? or have they
just found a way to get docs on the record that could
never find their way online[ Reply to This | # ]
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| Authored by: webster on Tuesday, May 22 2007 @ 01:42 PM EDT |
..
From the SCO-World News
SCO has hired G. G. Davis to Decide the Motions for Summary Judgment relating to
the Asset Purchase Agreement between Novell and SCO. Mr. Davis in his
Declaration not only interprets the contracts for the Court, he decides the
issues and promotes SCO arguments. He decides in favor of SCO despite the
wording of the Agreement and the declared intentions of those who negotiated,
drafted and executed the contract.
Mr. Davis compares his role to that of a middle reliever in baseball. He is
just trying to keep his team close and in the game. He doesn't expect to be
around for any cross-examination where the Novell lawyers have already planned
an ambush:
----1. Can you read English?
----2. What does this say? "List of excluded assets"
----3. What is this word on that list? "copyrights"
----4. Does this writing mean that copyrights are not transferred by this
agreement?
----5. Does that differ from your conclusion? How do you explain the
difference?
----6. In your long career did you ever adjust a contract to vary for the
situation and intent?
Judge Kimball had no comment about the proposed substitution.
---
webster
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 01:59 PM EDT |
If you read paragraph 2 of his statement, it sounds exactly like the Novell to
original SCO deal. He then contradicts himself when describing the lawsuit.[ Reply to This | # ]
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| Authored by: mcinsand on Tuesday, May 22 2007 @ 02:11 PM EDT |
>>And there may be cases I just don't know about, but it >>seems a
bit of a stretch, since parties entering a >>contract aren't bound by
custom
If contractual behavior were only defined by what is customary, would we even
need contracts?
This new line of SCOX 'logic' is only too typical of whatever irrational
universe they inhabit.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 02:14 PM EDT |
I've never seen a contract case decided on the basis of what
normally happens in an industry or on what would be
logical.
Exactly. This is why SCO's argument in the very
early days of the case never made sense to me. "Well, of course we have the
copyrights. We would never pay $X million and not get the copyrights. If the
copyrights didn't transfer, why would we pay $X million? It just doesn't
stand to reason, therefore the contract couldn't have meant that."
If you
sign a contract in which you pay $X million for a small box of rocks, then
that's the deal. What "normally happens" or what "would be logical" has nothing
to do with it. This is why you pay a lawyer to carefully read anything you're
about to sign.
Oh, and though you'd think it goes without saying: This is
also why you don't file a lawsuit without knowing what you have and what you
don't. [ Reply to This | # ]
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| Authored by: danb35 on Tuesday, May 22 2007 @ 02:28 PM EDT |
I've never seen a contract case decided on the basis of what
normally happens in an industry or on what would be logical.
Well,
that principle is pervasive in the UCC. Along with course of dealing between
the parties (how they've behaved in other transactions) and course of
performance (how they've behaved in this transaction previously), the UCC places
lots of emphasis on being "commercially reasonable"--or, IOW, how the industry
in general behaves. And, in principle at least, it's reasonable to consider the
general industry practices when interpreting a contract. They won't supersede
the expressed intention of the parties, but in the absence of such expressed
intent they can be helpful in understanding a transaction.
However, as you
note, this won't really do anything here, as the declarations of everybody who
was actually involved in the contract contradict this guy's conclusion as to
what they must have meant. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 02:42 PM EDT |
For a lawyer and an expert there is one very surprising error in this filing:
"The parties intended to transfer, and did transfer, the same UNIX and
UnixWare copyrights that Novell owned and used to run those businesses, as well
as those inchoate and not yet completed or registered copyrights for projects
underway."
The important part here is the part after 'as well ...'
Any work that is not in tangible form is not protected by copyright. A project
underway is by definition not complete - that is not yet fixed in tangible form.
Since such a work is not protected by copyright it cannot be transfered.
Secondly even if it could be transfered under Jasper (the controling case for
copyrights transfer in this circuit) any copyright transfer has to be clear. If
neither party can see the copyright - as it has yet to be fixed in form - then
it is very difficult to see how this could be clear to anyone.
This chap has been practicing law for ~50 years. There is no way he would make
such an elemenry error in his wording. Therefore we must conclude this choice of
wording was deliberate.
The next question is why would he do this? It wont fool the judge for a fraction
of a second. Perhaps BSF dreamed this up to keep SCO happy??
--
MadScientist [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 03:05 PM EDT |
Whats Next:
SCO files motion to leave to add Parallel Universe Evidence.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 03:14 PM EDT |
This guy wasn't on the payroll of M$, ever?
He worked for IBM, Novell, and many other big software companies, but never for
M$?
I just ask this, because I thought M$ used to 'taint' as many people as they
could so they won't be able to work against it later.
So avoiding M$ might have required a conscious effort.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 04:10 PM EDT |
I'm no lawyer, but this just doesn't get out of the gate for anyone who's been
following along:
Specifically, I was asked whether it would be
necessary, and expected, for the copyrights relating to the UNIX
operating system to be transferred to SCO ...
I can't find where
he ever said it would be necessary for the copyrights to transfer. That seems a
rather important omission.
I also can't find where he states that he has any
experience in Unix licensing. That seems relevant to me because Unix
licensing was probably fairly unique in the software business, in that AT&T
sold lots of Unix licenses to people who went on to successfully
...
create derivatives of, distribute and license the [Unix]
technology...
without owning any Unix copyrights. IBM, Sun and
oldSCO, just to name a few.
It is true that such a license would not give
the licensee the ability to sub-license the Unix source code, but that was not
necessary for systems builders and integrators like oldSCO. Novell has
explicitly said that they expected Santa Cruz to create derivitive products and
that any new code they wrote would be owned by Santa Cruz. No copyright to the
Unix source code was necessary and this was the usual practice in the Unix
industry since forever.
Next, Davis talks about Novell's concerns should SCO go
bankrupt:
e. It would not have been logical or necessary for legal
counsel to Novell to rely on some alleged unspecified concern about possible
loss of its license rights under the bankruptcy laws in deciding not to transfer
the actual copyrights, ...
Eh? Novell wasn't worried about losing
their "grant back" license to Santa Cruz's enhancements, they were worried about
losing their ability to use and sell Unix itself--they didn't want to lose their
ownership of the Unix copyrights. Imagine one of their competitors buying them
at fire-sale prices should oldSCO go under.
Here's what David Bradford said
in his declaration (emphasis mine):
This retention of intellectual
property rights was implemented with an eye to protecting Novell's interest in
the significant revenue stream that Novell would be retaining from SVRX
source code. Novell's copyright ownership would permit Novell to continue to
have rights to this revenue, should Santa Cruz go bankrupt.
I think
the most SCO could get out of this is to build a case against sanctions for a
frivolous lawsuit.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 04:32 PM EDT |
Talking about industry customs isn't so crazy in a contracts case. Where a
contract is unclear or incomplete, courts may legitimately inform themselves as
to the likely intent of the parties by reference to a) previous agreements
between the parties ("course of dealing") b) what's normal in a given
industry ("usage of trade"), and c) how the parties actually behaved
before they started accusing each other of breaching the contract ("course
of performance"), in addition to asking the parties themselves (who might
not give unbiased answers).
However, this is a very strange declaration. Most of it proffers *legal*
conclusions, based on evidence selected by one party. I've never heard of a
lawyer being used as an "expert" in this way, but I can think of
several rules of procedure that would become meaningless if it were allowed. In
other words, most of the declaration is improper and should be stricken - but it
should be good for some delay while that gets sorted out. I just can't figure
out why Davis signed his (her?) name to it.
[ Reply to This | # ]
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| Authored by: Alan(UK) on Tuesday, May 22 2007 @ 05:53 PM EDT |
G. Gervaise Davis III was, as far as I can ascertain, a much respected man in
his field. One writer uses the word 'honest' to describe him.
It would be easy to make negative comments about G. Gervaise Davis III and his
'Declaration'.
The thing that decided me against doing so was when I realised that he had no
idea that 'The SCO Group, Inc. ("SCO")' was not the Santa Cruz
Operation.
I feel that he has been taken advantage of. I hope the judge rejects this
document on other grounds than its inaccurate and apparently dishonest content.
---
Microsoft is nailing up its own coffin from the inside.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 06:31 PM EDT |
Maybe I'm wrong but, I believe BS&F are confusing two separate issues and
trying to turn them into one issue.
As background, as I understand the pre-Caldera SCO history, the origins of the
pre-Caldera SCO Unix operating system product comes from Microsoft's Xenix.
Microsoft licensed Xenix from AT&T, and when Microsoft decided it no longer
wanted to be in the Unix OS business it sold/transfered Xenix and presumably the
license from AT&T as well to pre-Caldera SCO. Thus post-Caldera SCO already
had a license for its Unix business, prior to the Novell transaction, caused by
the Microsoft transaction. Caldera, bought the AT&T Unix business and
UnixWare OS from Novell. but not the Unix or Unixware copyrights, in order to
create a merged pre-Caldare SCO OS with Novell (AT&T) Unixware OS product.
My question, is since post-Caldera SCO already had a OS license from Novell
(AT&T via what pre-Caldera SCO acquired from Microsoft for pre-Caldera SCO
OS activities), why is BS&F referring to an "implied" license in
BS&F filings?
There is nothing implied about having a Unix license from Novell caused by a
separate transaction, before the acquisition of the Unix business and Unixware
from Novell.
Why is BS&F ignoring the facts (history) that there are in point of fact two
separate transactions with Novell (AT&T), that occurred at different points
in time for different rights.
Is this a case of ignoring facts that destroy their case?
[ Reply to This | # ]
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| Authored by: PTrenholme on Tuesday, May 22 2007 @ 06:43 PM EDT |
| Terra Law
From a
quick Google search. ---
IANAL, just a retired statistician [ Reply to This | # ]
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| Authored by: electron on Tuesday, May 22 2007 @ 09:03 PM EDT |
> Since SCO hired him, of course he says that normally
> you'd expect the copyrights to transfer.
Funny thing that, but didn't one of Novell's witnesses say something along the
lines of "when it became apparent that SCO could not afford the asking
price for the entire Unix business they renegotiated the deal so that Novell
kept the copyrights and the royalty stream from existing licensees."
That suggests to me that Novell would have sold the complete and entire Unix
business if SCO could have paid for it.
SCO couldn't, and so they didn't purchase the royalty stream from existing
licensees, nor the Unix copyrights; and thus did not purchase the entire Unix
business.
As a part of the sale of assets from SCO to Caldera they should have had a list
of assets being sold. Copyrights would not have been on that list. If they were,
then SCO would have been guilty of selling something that they did not own.
Perhaps SCO might wanna buy Auckland Harbour Bridge as well.
---
Electron
"A life? Sounds great! Do you know where I could download one?"[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 09:21 PM EDT |
So now Scos xpurt is assuming the thoughts of the rest of the way things are
usually done?
These judges have way too much patience for this type of non factual dimentia.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 22 2007 @ 10:01 PM EDT |
It would be nice to see a declaration from one of the Old SCO lawyers involved
in the transfer. SCO has carefully avoided finding any of them. Turning
instead to experts that were not there. I suspect Novell doesn't want to take a
chance. But it could put an end to all SCO has said about this.
Bill[ Reply to This | # ]
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| Authored by: dcf on Wednesday, May 23 2007 @ 12:23 AM EDT |
This declaration isn't about the original APA, which, despite SCO's efforts
to obfuscate, clearly excludes copyrights. That provision can't be countered by
parol evidence much less a declaration after the fact from someone who wasn't
involved.
Instead, Davis's declaration is about Amendment No. 2 which
revised the excluded assets by making an exception
for the
copyrights and trademarks owned by Novell as of the date of the Agreement
required for SCO to exercise its rights with respect to the acquisition
of UNIX and UnixWare technologies. [emphasis added]
Davis is
arguing that the copyrights were necessary for SCO to carry on the
business they had purchased, and trying to counter Novell's arguments that
- the APA carried an implied license, and
- this implied
license was sufficient for SCO to carry on the business
[ Reply to This | # ]
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- About Amendment No. 2 and exception for copyrights "required" - Authored by: dmarker on Wednesday, May 23 2007 @ 01:06 AM EDT
- Interesting, but I'm not sure it flies. - Authored by: Anonymous on Wednesday, May 23 2007 @ 01:14 AM EDT
- Furthermore... - Authored by: Anonymous on Wednesday, May 23 2007 @ 01:23 AM EDT
- About Amendment No. 2 and exception for copyrights "required" - Authored by: dmarker on Wednesday, May 23 2007 @ 01:32 AM EDT
- This declaration is absolutely about the original agreement., NOT about the amemdment - Authored by: Anonymous on Wednesday, May 23 2007 @ 12:22 PM EDT
- He's trying to re-write the original, he's not taling about the amendment. - Authored by: Anonymous on Wednesday, May 23 2007 @ 12:33 PM EDT
- About Amendment No. 2 and exception for copyrights "required" - Authored by: Anonymous on Wednesday, May 23 2007 @ 01:18 PM EDT
- Allison Amadia's declaration puts the lie to this position. - Authored by: Anonymous on Thursday, May 24 2007 @ 12:53 AM EDT
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| Authored by: RTH on Wednesday, May 23 2007 @ 02:09 AM EDT |
...SCO could not effectively continue to run, and further develop,
the UnixWare business based solely on the unspecified implied licenses and the
unidentified scope thereof that Novell claims to have created or intended to
have granted SCO.
So, IBM, if SCO loses the Novell case, that
little balloon they floated about a licence being enough for them to run their
scam against IBM is contradicted by their own expert witness.[ Reply to This | # ]
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| Authored by: pcrooker on Wednesday, May 23 2007 @ 02:11 AM EDT |
Can they keep just trotting out this nonsense till when? - the summary judgment
rulings? I can see them requesting yet another time extension so they can reply
to IBM's reply ad nauseum.[ Reply to This | # ]
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| Authored by: Ian Al on Wednesday, May 23 2007 @ 03:45 AM EDT |
Even PJ is at a loss to know what this declaration is for. I think PJ has given
us the answer in the dim distant past, but my research has come up blank.
The story goes like this. If a contract is clear, that wins the day. If the
contract is not clear, parol evidence can be used to clarify the intent and
therefore the meaning. If parol evidence pulls in too many directions then the
standard industry approach for the aspect of the contract in question can be
brought to bear on the text of the contract. My poor old memory recalls a piece
of case law that SCO cited to a case that involved this approach. I cannot find
it in the archive. Are there better informed folk or grokers with better memorys
who can help me out?
---
Regards
Ian Al[ Reply to This | # ]
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| Authored by: DaveJakeman on Wednesday, May 23 2007 @ 04:14 AM EDT |
I am not a lawyer, nor an Expert, but I do have great expertise at opinionating
and generally shooting my mouth off. So here is my Expert opinion:
It is the generally accepted industry custom and practice to write a contract to
mean what it says.
There. Easy, isn't it?
---
Only two things are infinite: the universe and human stupidity – and I'm not
sure about the former. -- Einstein[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 23 2007 @ 04:25 AM EDT |
They hand in vaporware with a promise that there are plans to make a castle in
the air at one time?
How could a judge admit something like that, and as _what_?
It is not an expert opinion. It is an expert's opinion about what his
"expert" opinion might at some point of time be as long as first-hand
knowledge of the deal is kept away from him.[ Reply to This | # ]
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| Authored by: EsTurn on Wednesday, May 23 2007 @ 06:04 AM EDT |
Why is this the only submission that is not redacted? Hasn't SCO submitted
redacted expert declarations in the past? Maybe this is an indicator of what SCO
means to get out of this declaration.[ Reply to This | # ]
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| Authored by: PeteS on Wednesday, May 23 2007 @ 03:39 PM EDT |
as part of a Business degree I had to do business law. A contract between two
parties may be effectuated in numerous ways (to the woe of many, incidentally),
but a written contract, we were told, trumps any considerations of 'what is
ordinary', 'what is expected' and so forth. Provided the contract is not
unreasonable and the parties have each received a reasonable consideration for
their side, then the plain language of the contract prevails - or so I was
taught ;)
This [paid] testimony simply shows SCOg (or perhaps BS&F) are running
completely and utterly scared. They know they have lost and are merely trying to
delay the day of 'hole in the ground in Utah' as IBM shall most surely leave
them if Novell doesn't do it first.
PeteS
---
Only the truly mediocre are always at their best[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 23 2007 @ 06:44 PM EDT |
If this argument is allowed by the judges, and if it wins in court, no one will
ever be allowed to enter into any sort of unusual long term commitment or sale,
because years down the road, the clearly specified terms of the contract will be
invalidated by whoever it benefits, because he or she will just say "that's
not how it's usually done." And if the interests are transferred, as in
SCO, anyone who was not part of the original agreement (like Darl) can come in
and reinterpret it as he wants. [ Reply to This | # ]
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