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More filings in Novell: SCO's Reply Memo re June 4 Motion (258) & Exhibits |
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Wednesday, May 30 2007 @ 03:50 PM EDT
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More filings by SCO in Novell, including a Reply Memorandum [PDF] and a Supplemental Declaration by Edward Normand [PDF] with exhibits regarding SCO's Motion for Partial Summary Judgment on its 1st, 2nd and 5th Causes of Action and for Summary Judgment on Novell's 1st Counterclaim [PDF]. That last is the one on slander of title. So the theme, once again, is who owns the copyrights? Did the APA and Amendments (and Bill of Sale, according to SCO) give the UNIX copyrights to Santa Cruz, or does Novell still own them? Here's Novell's Memorandum in Opposition [PDF] to this motion, and I have it as text now and will be posting it next. I see one header in the Reply Memo, "The Testimony of Attorneys David Bradford and Tor Braham Regarding the Original APA Is Beside the Point." No kidding? Considering they were the two lawyers for Novell on the deal in question in this litigation, that should be fascinating. Let's look and see how SCO is thinking and whether it makes sense.
First, I see in the exhibits some interesting items: -
The Santa Cruz EU complaint about Xenix and Microsoft's alleged anticompetitive restrictions on Unix as per an early contract which came to a head back in the 90's has shown up, but I don't know why yet. But it's Exhibit 7, the actual application.
- I see Exhibit 6 is a letter to the Justice Department explaining the dispute in detail. We've read the media coverage about the Xenix story, but now we get to see Santa Cruz's view of it in depth.
- There is also a declaration by Ralph Yarro, but I can't find it. I notice that Exhibit 3 has two blanked out exhibits. It doesn't say redacted or sealed, just blank pages, so I am not certain but it could be that is where the Yarro declaration went. If not, this is a heads up to Ted that I don't see the Yarro declaration among the filings. I'm guessing it could be about the incident Novell brought up about him allegedly going to Novell to ask for the copyrights in 2003, mentioned in Novell's opposition memo.
-
And there's another Sandeep Gupta declaration, this one about finding Santa Cruz copyright notices showing a 1996 date. Of course, there would be. He didn't look for Novell copyright notices, I guess, but if he had, I believe he'd find them with even a 1998 date, as we've mentioned over the weekend and earlier reported in depth in 2004.
Now, let's look at SCO's logic in this filing.
We now have lawyers for both parties strongly asserting to the court that the "plain language of the APA" clearly gives copyrights to their client. But notice the level of argument from SCO's side, just one sample: Under Section 1.1(a) of the APA, Novell and Santa Cruz agreed that on the Closing Date Novell would “sell, convey, transfer, assign and deliver” and Santa Cruz would “purchase and acquire” at minimum “all right, title and interest in and to the assets and properties” identified in Schedule 1.1(a) of the APA. (Id.) In turn, Schedule 1.1(a) identifies seven categories of “assets and properties” transferred to Santa Cruz, including: All rights and ownership of UNIX and UnixWare, including but not limited to all versions of UNIX and UnixWare and all copies of UNIX and UnixWare (including revisions and updates in process) and all appropriate technical, design, development, installation, operations and maintenance information concerning UNIX and UnixWare, including source code,” source code products, binary products releases, and products under development . . . including, without limitation: (Id. (emphasis added).) The APA thus provides for the transfer – without limitation – of all right, title, and interest in the UNIX and UnixWare source code and products, and all rights and ownership of UNIX and UnixWare, including a non-exhaustive list of assets and properties. In providing for the transfer of all rights, Section 1(a) and Item I include the copyrights.
I've added my own emphasis in red, to show you the trick. Note that the words "at minimum" are SCO's lawyers' words, not the APA's. Ditto the phrase "non-exhaustive list". If you notice, the SCO quotation ends with a colon. If you had never read the APA, this all might sound good. Plausible at least. But if you have read it, and I know Judge Kimball has, then you already know that the APA this is quoting from had a section listing Excluded Assets, right after the clause SCO is quoting from in part here as if it were the whole story. And just to remind you, that APA section reads in relevant part like this: Schedule 1.1(b) Excluded Assets (Page 2 of 2)
V. Intellectual Property:
A. All copyrights and trademarks, except for the trademarks UNIX and
UnixWare. So how can they, with a straight face, say that there were no limitations? I'll tell you the arguments, but
I can't imagine, at least on my cursory reading so far, it convincing the judge, so I must assume it's either for the peanut gallery or presented with panache to sound as strong as possible to anyone who doesn't look too closely at the details. I don't think that is a description of Judge Dale Kimball. Do you?
SCO has a separate argument regarding Amendment 2, something like Amendment 2 fixed the "error" about excluding copyrights, and it replaced this Excluded Assets clause, but even if you were to accept that the APA didn't mean what it says, the above argument contradicts itself, particularly when you read Amendment 2. If everything transferred, as above argued by SCO without limitation, then why does even Amendment 2 have this clause: A.
With respect to Schedule 1.1(b) of the Agreement, titled "Excluded Assets", Section V, Subsection A shall be revised to read:
All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. However, in no event shall Novell be liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks.
Obviously, Amendment 2 thought there was still a valid section called Excluded Assets in the APA, it didn't excise it from the agreement, and we know that the clause read that all copyrights were excluded. This Amendment doesn't say that the APA or Amendment 1 or the Bill of Sale transferred the copyrights so we can throw the Excluded Assets section out. So that says to me that the Bill of Sale had not already transferred the copyrights, or this Amendment 2, revising the language about copyrights, wouldn't even be needed. Yet it defines what copyrights are not excluded, which tells me that all copyrights * are* still excluded, except for what is specifically described, any SCO can demonstrate it needs for its business. It doesn't list any of those or itemize in any way. And it doesn't say they were transferring that day or had already transferred or anything like that. Now, Amendment 2 was executed long after the APA, Amendment 1 and the Bill of Sale, as I'll show you in a minute, which raises another discussion. But here, it's enough to see that you can't logically argue that there were absolutely no limitations, because even Amendment 2, foggy as it may be to my poor, tired and hurried brain, at least clearly has some kind of limitation language.
SCO logic only works if you just read and stop thinking. There is so much panache, sometimes you do, or can be tricked into just accepting some passing detail as asserted. Or it might work, if you haven't read the documents and can't be bothered to do so. As I say, I think this is maybe more for the peanut gallery.
There were, obviously, limitations. One might argue sensibly about what they consisted of and present convincing arguments and evidence to try to prevail on that, but not that there weren't *any*. Patents, as everyone including SCO agrees, didn't go to Santa Cruz. The UNIX trademark didn't. It went to the Open Group. We all know that, including the judge. So arguing that there was a transfer without limitation -- well, it leaves the audience with a curled lip. Me, anyway. I'm from the school that says if you find out you're wrong about something in civil litigation, you should just say so and not waste everyone's time with more and more abstruse arguments. I feel that if you can only win if everyone is completely confused, maybe you don't deserve to win.
The next sentence is, "There can be no question that the transfer of the copyrights took place." No? Then why are we all here? And why would SCO think it's wise to say that to a judge who has already expressed that he didn't yet see such a conveyance? I am mystified. Next SCO claims that the Bill of Sale was signed on the "Closing Date". Which one? The actual sentence is: "On the Closing Date, Novell and Santa Cruz executed the Bill of Sale, which provides: In accordance with [Section] 1.1(a) of the Agreement, Seller, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby transfer, convey, sell, assign and deliver to Buyer, without recourse, representation or warranty except as otherwise expressly provided in the Agreement, all of the Assets. (Ex. 3 (emphasis added).) The Bill of Sale thus effectuated the transfer, conveyance, sale, assignment, and delivery to Santa Cruz of “all of the Assets.” See how they totally ignore the phrase in red that qualifies "all of the Assets", the part about "without ... representation...except as otherwise expressly provided" in the APA? Also, it's clear that it's talking about the later Closing Date, when the TLA and Bill of Sale were executed, not the APA closing date. In saying "the Assets" it refers to the language of the APA, which has its own representations as to what transferred, and if we look at the APA, there are limitations. The Bill of Sale can't and doesn't remove them. I'll show you what I mean. Let's look a little closer at that Bill of Sale and see some parts SCO didn't quote and when it was executed. Here's the language that follows the part that SCO did quote: Excepted from the transfer of Assets pursuant to the preceding sentence are the rights reserved by Seller pursuant to that certain Technology License Agreement between Seller and Buyer dated as of December 6, 1995. How can SCO, then, argue that all of the Assets transferred without limitation? They themselves argue later that one must, under California law, read the APA and the TLA together. And as you see, the TLA had rights reserved by Seller. It says so right there in black and white. So the TLA doesn't stand for the proposition that this was a transfer of assets without limitation, not to me anyway. The Bill of Sale continues:
Seller does not sell to Buyer and Buyer does not purchase from Seller any interest in any of Seller's assets other than the Assets. Again, it stresses that this deal did have limitations on what would transfer. Buyer got only what is listed in the agreement as "the Assets". But here's the killer clause, as far as SCO's argument is concerned, to my eyes:
It is acknowledged and agreed that this Bill of Sale is intended only to document the sale and assignment of the Assets to Buyer, and that the Agreement is the exclusive source of the agreement and understanding between Seller and Buyer respecting the Assets. Nothing in this Bill of Sale shall limit, expand or otherwise affect any of the representations, warranties, agreements or covenants contained in the Agreement. If any provision of this Bill of Sale is construed to conflict with any provision of the Agreement, the provision of the Agreement shall control.
Could it get any clearer than that? The Bill of Sale can't add to or affect the Agreement. If there were to be any confusion about which controls in a dispute, the Bill of Sale doesn't control. It so obviously is saying that not everything was given to Santa Cruz, that what is excluded in the Technology License Agreement (you can find the Schedules, including copyrights on a pile of manuals and user guides here) and the APA is specifically still excluded, and further that the Bill of Sale was not to be used to change a word in the agreement or to expand it. It can't make the agreement more complete. It can't change any prior understanding. How can it be what transfers, therefore? It says itself it is merely to document what happened in the agreement, whose language is complete and final. Now about those dates. Keep in mind that the APA was not dated December 6, 1995. The TLA was and the Bill of Sale was, but the agreement that started this whole journey was months before, on September 19, 1995. So how could the Bill of Sale be the instrument of conveyance when it didn't occur until months later? And in what qualified sense, then, can it be said that the Bill of Sale was executed on the date of the agreement? Only if you mean the later TLA agreement as opposed to the original APA. See what I mean? You just have to look really closely at everything SCO says to grasp all the finer details. Furthermore, the TLA says this: VIII. ENTIRE AGREEMENT
This Agreement and the Asset Purchase Agreement constitute the entire understanding between the parties with respect to its subject matter, and supersede all prior understandings, both written and oral, between them relating to such subject matter.
That means the Bill of Sale is excluded from this deal. The APA and the TLA stand alone, together, from the date of the TLA onward, namely December of 1995, as being the entire deal, and the TLA says that it includes Amendment 1 as well. So if you wish to understand the APA deal, that is where you look, not to the Bill of Sale. Since the Bill of Sale was signed the same day as the TLA, obviously it was intentionally not included in the documents that would "constitute the entire understanding between the parties". Amendment 1 includes some language, by the way, confirming restrictions on Santa Cruz's right to enter into new SVRX licenses. Logic alone tells you, after you read all the documents, that obviously Novell was not transferring *everything* it had to Santa Cruz, without limitation, as SCO argues, and we see that Novell wished to retain control over what it retained. Amendment 2, in case you are keeping track of all the dates, wasn't signed until the 16th day of October, 1996. So, if we follow SCO's logic, no copyrights transferred on the date of the APA in September of 1995. That didn't happen until December of 1995, with the Bill of Sale. What in the world was Santa Cruz using, then, in the interim, if it's true as they allege that they wouldn't be able to run the business without the copyrights? And if Amendment A is what finally made it all official that the copyrights were intended to transfer, now you have Santa Cruz in the Unix business for more than a year without copyrights, or maybe they got them by the Bill of Sale, but if they did and note that would still be months after the APA, then why was Amendment 2 needed to do that? Just saying. You can find all these contracts, and many more, on Groklaw's Contracts page. Oh, I almost forgot. Here's why SCO says David Bradford's and Tor Braham's declarations are beside the point: The testimony of Messrs. Bradford and Braham relates to the language in the Excluded Assets Schedule of the APA that the parties replaced via Amendment No. 2, and is thus irrelevant. (See Part I.A, above. 7 ) Because the language relied upon by Messrs. Bradford and Braham was replaced, their testimony as to what they sought to accomplish by the supplanted language is of no import, and fails to create any genuine dispute of material fact. Well, I don't think so, since their testimony expresses that Amendment 2 did no such thing, and that in fact Novell had absolutely no intention of tranferring the copyrights by the APA. But there you are. I haven't finished reading this entire piece of work, but if I notice more things to share with you, I will later. Now I want to post this and then the Novell counterarguments in its opposition memo as text. There is
a deadline now of June 4th for oral argument on this motion. I'm thinking this might be the reason there were corrections yesterday on the schedule. In the original schedule, the motion would have been argued tomorrow, and Novell wouldn't even have had time to do more than skim this document, let alone go through all the exhibits. Oodles of exhibits to slog through, which I haven't done thoroughly yet myself. We haven't got the last two documents from Pacer uploaded yet, but we will, and I didn't want you to have to wait. They are just a motion to file excess pages and an order saying OK. As always, the list of what the exhibits are can be found in the declaration, in this case the Supplemental Declaration of Edward Normand, although I had trouble matching it all up, partly because the Pacer notations seem off.
Here's the full list from
Pacer:
05/29/2007 - 346 REPLY to Response to Motion re 258 MOTION for Summary
Judgment (Partial) on SCO's First, Second and Fifth Causes of Action and
for Summary Judgment on Novell's First Counterclaim MOTION for Summary
Judgment (Partial) on SCO's First, Second and Fifth Causes of Action and
for Summary Judgment on Novell's First Counterclaim filed by Plaintiff
SCO Group. (Normand, Edward) (Entered: 05/29/2007)
05/29/2007 - 347 DECLARATION of Edward Normand re 346 Reply
Memorandum/Reply to Response to Motion, filed by SCO Group.
[Attachments: # Exhibit 1 (Exhibits 1-2),
# Exhibit 2 (Exhibit 3),
# Exhibit 3 (Exhibits 4-12),
# Exhibit 4 (Exhibits 13-14),
# Exhibit 5 (Exhibit 15 Part 1),
# Exhibit 6 (Exhibit 15 Part 2),
# Exhibit 7 (Exhibit 15 Part 3),
# Exhibit 8 (Exhibit 15 Part 4),
# Exhibit 9 (Exhibit 15 Part 5),
# Exhibit 10 (Exhibits 16-19_,
# Exhibit 11 (Exhibits 20-26),
# Exhibit 12 (Exhibits 27-34),
# Exhibit 13,
#Exhibit 14]
05/29/2007 - 348 - MOTION for Leave to File Excess Pages re Docket Entry 346
filed by Plaintiff SCO Group. (Attachments: # 1 Text of Proposed Order)
Motions referred to Brooke C. Wells.(Normand, Edward) (Entered: 05/30/2007)
05/30/2007 - 349 - ORDER granting 348 Motion for Leave to File Excess Pages.
Signed by Judge Dale A. Kimball on 5/30/07 (alt) (Entered: 05/30/2007)
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Authored by: lordshipmayhem on Wednesday, May 30 2007 @ 04:00 PM EDT |
Please put the nature of the error in the title [ Reply to This | # ]
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- Semicolon? - Authored by: Anonymous on Wednesday, May 30 2007 @ 04:32 PM EDT
- Semicolon? - Authored by: Anonymous on Wednesday, May 30 2007 @ 05:52 PM EDT
- Semicolon? - Authored by: PJ on Wednesday, May 30 2007 @ 06:26 PM EDT
- s/how/what/ - Authored by: Anonymous on Wednesday, May 30 2007 @ 04:42 PM EDT
- IBM -> Novell - Authored by: DeepBlue on Wednesday, May 30 2007 @ 04:52 PM EDT
- Amendment2 -> Amendment 2 - Authored by: Trollsfire on Wednesday, May 30 2007 @ 06:11 PM EDT
- Confusing syntax - Authored by: wvhillbilly on Wednesday, May 30 2007 @ 10:17 PM EDT
- s/panache/balderdash/ - Authored by: Anonymous on Wednesday, May 30 2007 @ 10:43 PM EDT
- any/and - Authored by: Anonymous on Wednesday, May 30 2007 @ 10:49 PM EDT
- tranferring > transferring (n/t) - Authored by: Anonymous on Thursday, May 31 2007 @ 05:44 AM EDT
- Amendment A? - Authored by: Steve Martin on Thursday, May 31 2007 @ 06:28 AM EDT
- PACER entry for 347 - Authored by: ChrisP on Thursday, May 31 2007 @ 12:18 PM EDT
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Authored by: lordshipmayhem on Wednesday, May 30 2007 @ 04:03 PM EDT |
Remember to make links clickable using <a
href="http://www.example.com/">this</a> text and making the
post mode "HTML Formatted"[ Reply to This | # ]
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Authored by: ThrPilgrim on Wednesday, May 30 2007 @ 04:17 PM EDT |
But PJ,
Amendment two states that Novell transfers "any [copyrights] SCO can
demonstrate it needs for its business."
SCO's current business includes suing Novell for slander of title on the
copyrights, hence SCO needs the copyrights for its business, hence amendment two
transfers the copyrights.
QED.
Now I think I'll go for a lay down[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, May 30 2007 @ 04:20 PM EDT |
She says that Amendment 2 doesn't transfer the copyrights either -- that Sabbath
asked for them and Novell said, "Not so fast, my friend."
[ Reply to This | # ]
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Authored by: lordshipmayhem on Wednesday, May 30 2007 @ 04:41 PM EDT |
>>And why would SCO think it's wise to say that to a judge who has already
expressed that he didn't yet see such a conveyance? I am mystified.<<
And SCOX is desperate.
PJ is having a little fun at SCOX's expense. SCOX is not having even a little
fun, even at their own expense.
Amazing how much fun you can have when you stick to the truth, and the other
guys get tied up in their own prevarications.
(My fervent wish: a ruling from the bench.)[ Reply to This | # ]
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Authored by: dmarker on Wednesday, May 30 2007 @ 04:54 PM EDT |
It really seems to me that tSCOg & BS&F have taken the view that if they
scream long & loud enough, of their interpretation of the sale &
contracts, that they will somehow prevail (or in desperation, must prevail).
The readable facts have nothing to do with their desire.
DSM[ Reply to This | # ]
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Authored by: Bill The Cat on Wednesday, May 30 2007 @ 04:56 PM EDT |
The SCOx game is clear in that with a zillion little details scattered around
for years that the word games may have a chance of slipping by un-noticed. They
don't expect them all to slip by but, if only a few do, it could be beneficial
to SCOx.
Now Groklaw has a zillion little eyes looking for these zillion little details
but, the judge probably doesn't. The judge has an enormous burden keeping all
these zillion other lies by SCOx straight and the judge needs to evaluate every
word that SCOx writes because of the repeated little lies. That has to be an
task of ungodly proportions.
With BSF/SCOx presenting 95% garbage and 5% substance, the filtering and
evaluation of fact is something beyond my ability to even imagine. I certainly
hope nothing slips by the judge.
The volumes of garbage are starting to get a little ripe and I'm surprised that
the court has allowed all these lies and blatantly false statements to
continue.
---
Bill The Cat[ Reply to This | # ]
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Authored by: PM on Wednesday, May 30 2007 @ 04:59 PM EDT |
>>I've added my own emphasis in red, to show you the trick. Note that the
words "at minimum" are SCO's lawyers' words, not the APA's.<<
Whom do they think Judge Kimball is - an idiot?. I wonder whether his blood
pressure rose on reading this, or whether he had a little chuckle.
If a law student put that sort of thing into an assignment, he would probably
flunk it. Coming to think of it, what did SCO's lawyers learn at law school?
Perhaps it was one on a different planet and it, through some aberration,
obtained accreditation.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, May 30 2007 @ 04:59 PM EDT |
In section 1.1A of the APA, as PJ points out, SCO wants to avoid the
"Excluded Assets" clause, which comes directly AFTER the statement
about "all right title and interest", and BSF would like the Judge to
ignore that following clause.
Just to add further emphasis on PJ's analysis, which is spot on, the first word
in the sentence introducing the concept that certain assets are excluded (and
retained by Novell) is "Notwithstanding".
Now, "notwithstanding" is a strong word in a contract, one that
strongly asserts it's point. Opposing lawyers try to negotiate it out, because
is is a clarion note the carries legal weight.
It essentially claims precedence in a dispute, and means literally "despite
anything to the contrary".
"Notwithstanding", like "despite" and "in spite
of" means that something is true even though there are obstacles or
opposing conditions.
LEXLAW[ Reply to This | # ]
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Authored by: DannyB on Wednesday, May 30 2007 @ 05:06 PM EDT |
SCO logic only works if you just read and stop
thinking.
Maybe that is why it works so well on Biff and
SCO's shill journalists?
This could be extended to include the case
where one never started thinking and therefore do not have to
"stop".--- The price of freedom is eternal litigation. [ Reply to This | # ]
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Authored by: AcousticZen on Wednesday, May 30 2007 @ 05:08 PM EDT |
I can't imagine
who SCO's target audience is. The press? It just doesn't
make sense.
Boise came back for this???
AZ [ Reply to This | # ]
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- Boise - Authored by: Anonymous on Wednesday, May 30 2007 @ 05:21 PM EDT
- Boise - Authored by: brooker on Wednesday, May 30 2007 @ 10:34 PM EDT
- Boies - Authored by: Anonymous on Thursday, May 31 2007 @ 12:00 AM EDT
- My Guess - Authored by: Anonymous on Wednesday, May 30 2007 @ 05:46 PM EDT
- Boise is in Idaho... - Authored by: Anonymous on Wednesday, May 30 2007 @ 07:42 PM EDT
- WAG: The real purpose of all these filings... - Authored by: Anonymous on Thursday, May 31 2007 @ 12:05 PM EDT
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Authored by: Wardo on Wednesday, May 30 2007 @ 05:08 PM EDT |
From the opening statement:
The plain language of the Asset
Purchase Agreement (“APA”) as amended establishes that Novell, Inc. transferred
to The Santa Cruz Operation, Inc. (“Santa Cruz”) the copyrights in the UNIX and
UnixWare products and documentation in 1995.
Novell
wrongly seeks to interpret the APA without regard to Amendment No. 2. Construed
together, as they must be, the documents unambiguously convey the
copyrights.
The extrinsic evidence confirming
the foregoing establishes that the senior business executives and lead
negotiators from both Novell and Santa Cruz intended the copyrights to be
transferred.
Ok, if it's in plain language and unambiguous, why
do you need to introduce extrinsic evidence to prove something? Not to mention
the leaving out of the "but not the stuff on schedule 1B" portions of the
contract...
Wardo --- caveat lector...
Wardo = new user(lawyer = FALSE,badTypist = TRUE,badSpeller = TRUE); [ Reply to This | # ]
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- Huh? - Authored by: Anonymous on Wednesday, May 30 2007 @ 05:24 PM EDT
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Authored by: skidrash on Wednesday, May 30 2007 @ 05:30 PM EDT |
"the APA as amended by amendment 2"
is not being refuted hard enough or often enough
In another Novell reply, they write that SCO asked for the copyrights to be
transferred by the amendment, and Novell refused that language. Therefore SCO
may not claim that language transferred - SCO gave up the transfer.
SCO bargained for and did not get what they're saying they got (the copyrights).
SCO bargained for specific language and did not get the speicific language.
but Novell is not pressing that point hard enough, and not specifically with
that "the APA as amended by amendment 2" thing that SCO is now
pushing.
Novell seems to be a little lax on this new point, I hope it doesn't cost them
(or us). [ Reply to This | # ]
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Authored by: Yobgod on Wednesday, May 30 2007 @ 05:37 PM EDT |
"...sell, assign and deliver to Buyer, without recourse, representation or
warranty except as otherwise expressly provided in the Agreement, all of the
Assets."
In your analysis of the above, you emphasize "except as otherwise expressly
provided in the agreement" and interpret it as being a modifier to
"sell assign and deliver to Buyer ... all of the Assets", thus being
another example of how the Assets are limited.
I don't see it that way. To me the punctuation clearly causes the phrase in
question to modify "without recourse, representation or warranty". So
it's saying there is no warranty or recourse except for those expressly provided
in the agreement. It's still not going to help SCO, however, as what's sold,
assigned and delivered are the "Assets" with a capital A, which are
defined through that pair of schedules and exclude patents, trademarks and
copyrights (except the trademarks UNIX and UNIXware).[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, May 30 2007 @ 06:25 PM EDT |
>>>
Under Section 1.1(a) of the APA, Novell and Santa Cruz
agreed that on the Closing Date Novell would “sell, convey,
transfer, assign and deliver” and Santa Cruz
would “purchase and acquire” at minimum “all
right, title
and interest in and to the assets and properties”
identified in
<<<
Doesn't adding words like "at minimum" change the meaning
of the contract and as such does that not constitute a
criminal offense?[ Reply to This | # ]
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Authored by: TheBlueSkyRanger on Wednesday, May 30 2007 @ 06:35 PM EDT |
Hey, everybody!
There's something about all this that puzzles me. It seems to my IANAL eyes
that SCO's arguments are doomed regardless of how Kimball interprets them.
if (Kimball != dummy)
{
ruling for Novell;
}
else
{
ruling for SCO;
Novell appeals on the grounds of massive error on judge's part;
Appeals court hears the arguments;
Appeals court reads documents;
Appeals court wonders how this could be interpreted any other way;
Appeals court rules for Novell;
}
I mean, really. As my uncle from Texas would say, SCO is walking around dead
and don't know enough to lay down. What do they really expect the ultimate
outcome to be?
Dobre utka,;
The Blue Sky Ranger;
// who is thankful for white space[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, May 30 2007 @ 07:05 PM EDT |
Hi, I'm curious about this line in the APA, can a kind soul explain?
So if I get this straight, SCO bought from Novell
- UNIX
- except for all copyrights
- except for "the copyrights and trademarks owned by Novell as of the date
of the Agreement required for SCO to exercise its rights with respect to the
acquisition of UNIX and UnixWare technologies"
(where the word "except" is applied to previous sentence successively
as in +UNIX, -copyrights, +something)
To me this seems to strengthen SCO's case, in that they didn't get all
copyrights, but there was an exception made to that, so that could be
interpreted that they at least got *some* copyrights, as much as "required
.. to exercise its rights".
Do I understand this correctly?
And does "its rights .." in this context mean, the right to collect
those UNIX royalties and pass 100% on to Novell and receive 5% (or whatever it
was) back in return?
I don't see why they'd need the UNIX copyrights for that, as long as they are
the agent for the entity (Novell) that does have the legal right to those
copyrights.
Curious.[ Reply to This | # ]
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Authored by: sproggit on Wednesday, May 30 2007 @ 07:14 PM EDT |
Are we there yet?
Earlier comments posted to this article all carry threads of the observation
that SCO must be mad trying to selectively quote these documents, knowing that
Novell are going to slice and dice them in oral arguments - that's assuming that
Judge Kimball gives them the chance.
So where else can we look for a reason for this?
How about ruling from the bench? We have posts right here asking if Kimball is
likely to do this. From what we know of him I think it's hugely unlikely. In
fact, if it were remotely reasonable, I'd expect him to conduct a de novo review
of all this material just to be sure.
But I just keep coming back to the idea that SCO are trying a sucker punch here.
They are feinting to one side, trying to lead Judge Kimball into any act that
could possibly be grounds for appeal. Then, of course, they'll appeal.
If you remember Judge Jackson, who presided over the DoJ vs Microsoft, was
unfortunate enough to go on record with comments relating to the case before it
had concluded. Microsoft, whether or not they intended that to happen, would
have noticed. So, for that matter, would Boies. After all, he was representing
the DoJ.
Maybe Boies learned from that and has decided that when all else is lost, and
when you have nothing left to lose, then pretty much anything is worth
considering.
I sincerely hope I'm wrong.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, May 30 2007 @ 07:19 PM EDT |
Wow, there's a lot of "so-and-so's testimony does not bear scrutiny"
in there. Is this normal, or is it just a desparate last-ditch effort?
To me (IANAL), it sounds like "You can't believe those people, even though
they were actually involved! Believe our people instead, even though they
weren't really involved and only have hearsay testimony."
Is it really that lame?
MSS2[ Reply to This | # ]
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Authored by: Doghouse on Wednesday, May 30 2007 @ 07:33 PM EDT |
SCO's argument, in a nutshell, comes down to, "Our interpretation of the
standing of the APA is right, so anything which says otherwise is irrelevant and
must be excluded".
That might have internal consistency as a decision that SCO (in their wildest
moments of reverie) would hope to see, but it's not a position that can
logically be reached by due process from where things are today. Basically,
it's flim-flam, and it carries within it the seeds of its own failure.
Until and unless Judge Kimball accepts SCO's view of reality, he can't exclude
those two testimonies on the grounds that SCO would wish. But the testimonies
are to the effect that those very grounds are baseless. Which means that Judge
Kimball has to consider them in order to decide whether or not to reject them.
And as they're clearly massively at odds with SCO's portrayal of matters, at
that point SCO's attempt to claim no "genuine dispute of material
fact" dies horribly.[ Reply to This | # ]
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Authored by: argee on Wednesday, May 30 2007 @ 07:40 PM EDT |
There are two kinds.
You can get a copyright for the individual files, such
as /usr/bin/foo
And you can get a copyright for the whole ensemble.
This is done often in the literary and musical worlds.
Notice that the copyrights that SCOx registered where of the
compilation variety. This is in keeping with SCOx's
arguments about "methods and concepts."
As far as I know, this is an all new Copyright. And they
do *have* a license for the contents; ie, the individual
/usr/bin/foo files inside it from Novell and back to
AT&T.
The individuals who copyrighted the works, such as
/usr/dev/bar etc still retain their copyrights, but by
virtue of their work at AT&T, USL etc, or by virtue of
having licensed it under BSD, allow Novell and now SCOx
to use it.
So here, Novell sells this technology to Santa Cruz and
hence to SCOx, and SCOx piles it all together and takes
out a copyright on the compilation. I notice Novell
countered by doing the same thing.
This makes a difference, because the compilation as a whole
is more than its individual parts. You can replace
/usr/barf/mox with a new version, a different version or
even a whole new file (or groupings of files) with new
stuff, and the overall structure of the compilation still
applies.
This seems to be the crux of the SCOx argument, and one
that IBM wants to ignore by saying it has to be file by
file. The judges went along with the file-by-file
arguments, apparently, but in my opinion they have ignored
this argument at their own peril.
Santa Cruz, and now SCOx do not need individual file
by file copyrights from Novell ... what few there are that
Novell could transfer to SCOx. Its the compilation that
counts: now or in an appeal.
---
--
argee[ Reply to This | # ]
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Authored by: jog on Wednesday, May 30 2007 @ 09:56 PM EDT |
He has sworn (Novell-327-3) that on 27/Sept/07
he and another engineer [did] perform a query
of SCO UnixWare Server v2.1. and that he [did]
find Santa Cruz copyrights.
Well (other than a typo) big deal. Documentation
is nearly all the update work that Santa Cruz
ever did to the UnixWare assets.
jog[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 31 2007 @ 12:05 AM EDT |
Here is something that I do not understand. If Yarro did indeed go to Novell
and ask for the copyrights in 2003 would he only have done it in person? If
SCOG were serious about getting these copyrights, would they not have put this
in writing?
Second, if he did go and ask for it in person, why didn't Novell say "If
you put that request in writing, we will consider it?"[ Reply to This | # ]
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Authored by: vb on Thursday, May 31 2007 @ 01:21 AM EDT |
This stuff is going to sound pathetic in an oral presentation.
Tricks like ending a document quotation with a colon and adding obtuse comma
seperated clauses don't work in spoken form.
The hearing transcript is going to be a great read if SCO/BSF tries to speak
this stuff.
Maybe BSF/SCO intends to mumble a lot. [ Reply to This | # ]
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Authored by: Fogey on Thursday, May 31 2007 @ 01:23 AM EDT |
Looking at all the partial quotes from BSF had me shaking my head, but after a
bit of thought it became obvious. They are just following the plain language and
clear intent of Psalms 23.
You know...
"He maketh me to lie..."
---
Old age and treachery ALWAYS
beats Youth and enthusiasm![ Reply to This | # ]
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Authored by: jog on Thursday, May 31 2007 @ 02:48 AM EDT |
"The Unix and UnixWare copyrights are so required"
Novell-346 page 7, Par. C., line 4
The sentence above seems to be out of context in
that paragraph.
Eight lawyers have their names on this memorandum
and Edward Normand signed it, but *who* read it?
jog[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 31 2007 @ 08:56 AM EDT |
SCO says:The testimony of Messrs. Bradford and Braham relates to the
language in the Excluded Assets Schedule of the APA that the parties replaced
via Amendment No. 2, and is thus irrelevant. But they also
say:The APA thus provides for the transfer – without limitation – of
all right, title, and interest in the UNIX and UnixWare source code and
products, and all rights and ownership of UNIX and UnixWare, including a
non-exhaustive list of assets and properties. In providing for the transfer of
all rights, Section 1(a) and Item I include the copyrights. So which
is it? Are they saying that the original language of the APA transfer the the
asset or not? If they are saying it does, then the testimony of Bradford and
Braham regarding the original language is relevant. And -- so far as I could
see -- SCO advances no explanation on why copyrights were in the list of
excluded assets if they were not to be excluded.
[ Reply to This | # ]
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