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| Declaration of David E. Melaugh Supporting Novell's Motions in Limine No. 1-3 (EV1 Agreement) |
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Monday, August 27 2007 @ 03:01 PM EDT
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There are more filings in SCO v. Novell. There is a Declaration by David E. Melaugh in Support of Novell's Motion in Limine No. 3, with 15 exhibits attached. Actually, 14 to us. One is sealed.
I'm heading for Exhibit 4-6 first, as that is where the freshmeat is, Novell's Second Set of Interrogatories (interrogatories 4-13) and some of SCO's responses to those interrogatories. IIRC, we've never seen any of this before. Next, believe it or not, the EV1 agreement, Exhibit 1. We finally get to see it.
The interrogatories are mainly asking in multiple ways for what proof SCO had that it owned the UNIX and UnixWare copyrights (SCO answers it owned them all, including common law copyrights, whatever that is) and why it thought it could keep 100% of the Sun and Microsoft monies. From the judge's incorrect assumption that Novell must have received what it needed in discovery, I gather he hasn't seen this before either. The EV1 agreement isn't like the template Linux license we saw back in 2003. And we find out what they paid, after a "50%" unit quantity discount and "Licensee Promotional Allowance" of $600,000 off if EV1 would let SCO trot them out to the public and provided EV1 would "discuss favorably the benefits of the Agreement" and not tell how much it paid. We learn now that after all the discounts, it was only $800,000. That's a lot for a pig in a poke, of course, but it's not the $699 per CPU fee SCO told the world all commercial users needed to pay. I can't believe any company would sign such an agreement, since you lose all the benefits of Linux. But to each his own. It was a promise not to sue. Say. Just like Microsoft is doing with patents. What a coincidence. Note especially paragraph 6.0, regarding SCO's representations of ownership: SCO represents and warrants that it has full right and title to grant the rights hereunder to the SCO IP and related materials, and all copyrights, trade secrets and other intellectual and proprietary rights therein, are and remain the valuable property of SCO and its suppliers. SCO makes no representations or guarantees concerning the outcome of any pending or potential litigation, as outlined above, regarding SCO's claims of violations of its IP or contractual rights in the Operating System. Licensee acknowledges that SCO's claims regarding its IP as it relates to the Operating System are being litigated in one or more cases, with possibly more litigation to follow, and that SCO has not guaranteed that it will ultimately prevail in any of this litigation. Licensee, to avoid any such litigation and to effectuate a productive and prompt resolution of any and all issues relating to use of SCO's IP, desires to obtain this license. I note that while SCO didn't guarantee it would win in litigation, it does claim rights that the judge just ruled it doesn't have in all respects. I notice too in Exhibit 2, right after the EV1 agreement, that the Linux License was tied to the copyrights SCO filed. I guess we should look through those again. And if anyone can do the entire agreement as text so we can add it to our collection, that would be lovely.
Here are all the new filings from PACER, and note that #396, which had redaction issues, has been fixed and replaced by #397: 396 -
Filed & Entered: 08/24/2007
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [395] MOTION in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument of SCOsource Revenue [REDACTED] filed by Defendant Novell, Inc.. (Sneddon, Heather) Modified on 8/27/2007 by sealing document image. The image attached was not redacted and was mistakenly attached as the redacted version. Please see image #[397] for the redacted image (blk).
397 -
Filed & Entered: 08/24/2007
Notice (Other)
Docket Text: NOTICE of Corrected Filing of MEMORANDUM IN SUPPORT by Novell, Inc. re [396] Memorandum in Support of Motion in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument Regarding Apportionment of SCOsource Revenue (Sneddon, Heather) Modified on 8/27/2007 by linking to #[395] Motion (blk).
398 -
Filed & Entered: 08/24/2007
Declaration
Docket Text: DECLARATION of David E. Melaugh re [395] MOTION in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument of SCOsource Revenue, [391] MOTION in Limine No. 1 to Preclude SCO from Challenging Questions Already Decided as a Matter of Law, [393] MOTION in Limine No. 2 to Preclude SCO from Contesting Licenses Conveying SVRX Rights are "SVRX Licenses" [REDACTED] filed by Novell, Inc.. (Attachments: # (1) Exhibit 1 & 2 # (2) Exhibit 3 Pt. 1# (3) Exhibit 3 Pt. 2 # (4) Exhibit 4-6 # (5) Exhibit Ex. 8-15)(Sneddon, Heather)
399 -
Filed & Entered: 08/24/2007
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of Declaration of David E. Melaugh in Support of Novell's Motions in Limine Nos. 1-3 (Filed Under Seal), Opening Brief in Support of Novell's Motion in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument Regarding Apportionment of SCOsource Revenue (Filed Under Seal) filed by Defendant Novell, Inc. (Sneddon, Heather) I haven't read it yet thoroughly, so we can do it together and as I see anything noteworthy, I'll swing back by and tell you. And vice versa. Exhibit 7 is the one filed under seal, which is why it's not on the list. It's more answers from SCO to Novell interrogatories. The Melaugh Declaration describes it like this: 10. Attached as Exhibit 7 are true and correct copy of Exhibits C and C-1 to SCO's Supplemental Responses and Objections to Novell's Second and Third Sets of Interrogatories dated July 12, 2007. This exhibit is being filed under seal pursuant to the August 2, 2006 Stipulated Protective Order. Catch the date, July of 2007. So Novell never stopped trying to get the information it would need to apportion, I gather. I think that will prove to be significant in any decision the judge reaches.
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| Authored by: tiger99 on Monday, August 27 2007 @ 03:02 PM EDT |
To assist PJ in her constant and important quest for accuracy, which makes
Groklaw special.[ Reply to This | # ]
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- Corrections here please, if any - Authored by: MathFox on Monday, August 27 2007 @ 03:32 PM EDT
- $400,000? - Authored by: Anonymous on Monday, August 27 2007 @ 03:36 PM EDT
- $400,000? No: $800,000 - Authored by: whoever57 on Monday, August 27 2007 @ 04:26 PM EDT
- $400,000? - Authored by: PJ on Monday, August 27 2007 @ 05:03 PM EDT
- $400,000? - Authored by: whoever57 on Monday, August 27 2007 @ 05:36 PM EDT
- $400,000? - Authored by: PJ on Monday, August 27 2007 @ 06:12 PM EDT
- $400,000? - Authored by: Anonymous on Tuesday, August 28 2007 @ 09:13 AM EDT
- SCO's claimed rights - a nitpic - Authored by: Anonymous on Monday, August 27 2007 @ 03:38 PM EDT
- freshmeat -> fresh meat - Authored by: Aladdin Sane on Monday, August 27 2007 @ 04:08 PM EDT
- I cannot open exhibits 4-6 file - Authored by: Anonymous on Monday, August 27 2007 @ 04:18 PM EDT
- (4) Exhibit 4-6 in error - Authored by: Anonymous on Monday, August 27 2007 @ 04:35 PM EDT
- exhbit --> exhibit (in temporary note) - Authored by: ankylosaurus on Monday, August 27 2007 @ 07:00 PM EDT
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| Authored by: tiger99 on Monday, August 27 2007 @ 03:04 PM EDT |
| Clickies would be nice, where possible..... [ Reply to This | # ]
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| Authored by: _Arthur on Monday, August 27 2007 @ 03:06 PM EDT |
| See ? Now Novell is SCO's "supplier" ! [ Reply to This | # ]
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| Authored by: tiger99 on Monday, August 27 2007 @ 03:08 PM EDT |
[ Reply to This | # ]
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| Authored by: tiger99 on Monday, August 27 2007 @ 03:14 PM EDT |
Guessing (IANAL).
Maybe they mean the copyright which applies even when you
have not put © or Copyright.... on it, which I seem to
remember should be called implied copyright. Or, maybe they mean the
copyrights that existed prior to the Berne conventions.....Or have we some
new and stupid legal theory in the making? On past performance, I favour the
latter explanation! :-) [ Reply to This | # ]
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| Authored by: tiger99 on Monday, August 27 2007 @ 03:20 PM EDT |
Well, maybe, but more litigation costs more money, and last time I heard, they
seemed to have an imminent problem in that area.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, August 27 2007 @ 03:32 PM EDT |
"The EV1 agreement isn't like the template Linux license we saw back in
2003."
I thought we saw the EV1 agreement earlier, or one like it. I recall, even,
posting to PJ that the licensing agreement that presumably was in the initial
drafts has transmuted itself, through negotiated edits, into an almost pure
covenant not to sue.
I commented that BSF was selling protection -- against their own creepy selves
-- rather than licensing a product.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, August 27 2007 @ 03:52 PM EDT |
I'm no lawyer, so I've only heard of them once. I believe there was some case
in New York where someone made a CD containing out-of-copyright songs (that,
IIRC, were in-copyright in the UK or something?) and got sued by someone who
held rights elsewhere.
The judge somehow decided that the distributor was being unfair, so they pulled
out some crazy theory of "common law copyright" and found for the
plaintiff. So even distributing a _public domain_ recording was considered
infringement thanks to their crazy theory.
I don't recall that they cited any actual precedent for this; I think they
pulled it out of thin air. Of course, IANAL, so if someone could find that old
case, they might be able to make more sense of this. If it helps any, I think
it was discussed on Slashdot (and I think that NewYorkCountryLawyer posted
there).
So the short answer of what I know about it is this: it's the kind of
ill-defined unwritten law a judge might pull out of thin air to punish a party
they disagreed with, even though that party had every reason to believe that
they were obeying the law as written. In other words, it's another flimsy hope
for SCO, but I think that Judge Kimball is too smart to buy into that sort of
nonsense.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, August 27 2007 @ 03:52 PM EDT |
I cannot read exhibit 4.6 Foxit and Adobe Reader 8 both say it is not valid
pdf.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, August 27 2007 @ 04:09 PM EDT |
The EV1 agreement is submitted as support for Novell's motion to restrict SCO
from submitting new evidence about how much of the SUN and Microsoft licenses
belongs to Novell. (ie. motion in limine re. apportionment)
Since the EV1 license seems to differ from previous (template) licenses we have
seen, how is it relevant? Shouldn't the SUN and Microsoft licenses speak for
themselves? What am I missing?
[ Reply to This | # ]
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| Authored by: BobinAlaska on Monday, August 27 2007 @ 05:02 PM EDT |
Given how long it took to decide the other motions, how likely is it that the
Sept. 17th trial start date will be delayed? I believe each side gets to respond
and then there will be a rebuttal for each. Is the time for response and
rebuttal shortened in the limine process?
---
Bob Helm, Juneau, Alaska
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| Authored by: Anonymous on Monday, August 27 2007 @ 05:04 PM EDT |
... to the SCO IP and related materials".
Well, of course, they did indeed have the right to grant rights to SCO IP - it's
just a shame that said IP didn't include UNIX! <grin>[ Reply to This | # ]
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| Authored by: bbaston on Monday, August 27 2007 @ 06:41 PM EDT |
| This is not new news, but:
This license (Novell-398Ex1-2.pdf) specifically
applies to Linux (1.6) and imposes additional terms on the use of Linux (2.2,
2.3, 2.4 and elsewhere) in direct violation of the GPL.
So, tSCOg violated
the GPL, which is alleged by IBM. Did EV1 also? IMHO yes, and they should
immediately be stopped from using ANY GPL'd software.
Extending this
finding, I'd also guess that Microsoft and (gulp) Sun and all other participants
in SCOsource are in violation of the GPL and thus could be prohibited from using
(much less distributing) GPL software. ---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold [ Reply to This | # ]
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| Authored by: Anonymous on Monday, August 27 2007 @ 06:44 PM EDT |
Just reading Exhibit 1, per section 2.1 of the SCO license to EV1 (Exhibit 1),
SCO plainly and clearly licenses the "SCO IP" and that is the primary
consideration for the contract.
It goes without saying that if one purchases a license, then one has a right to
the licensed product and therefore SCO's further covenant not to sue is just
extra "fluff", not the primary consideration.
The SCO IP is expressly defined as the UNIX code alleged to be in Linux. So it's
"some" amount of SVRX code, and it's nothing but SVRX code.
There is, therefore, nowhere for SCO to turn. They are trapped. I can't believe
they won't try to settle this before the trial.
By the way, since SCO defines the "SCO IP" as "the UNIX IP
alleged to be in Linux", I don't actually see how they can succeed in their
motion to eliminate mention of the IBM litigation, since that's where the
"alleging" occurred.
LEXLAW
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| Authored by: David Dudek on Tuesday, August 28 2007 @ 04:05 AM EDT |
| In Novell-398Ex4-6, Response to Interrogatory No. 7:
"... SCO further
specifically objects to this request on the grounds it assumes incorrectly
that SCO acquired the requested information from Santa Cruz.
..."
Are they are admitting that 'SCO is NOT Santa Cruz' & 'SCO only
bought (acquired) a piece of Santa Cruz'?
---
David Dudek [ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Tuesday, August 28 2007 @ 10:06 AM EDT |
I guess they can learn something things.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
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| Authored by: jpvlsmv on Thursday, August 30 2007 @ 09:15 AM EDT |
I don't see where a strict reading of the contract has anything wrong with it.
It's the reason you NEED to read contracts fully before you sign (and preferably
have a lawyer who understands your interests review them too)
SCO
represents and warrants that it has full right and title to grant the rights
hereunder to the SCO IP and related materials,
Here SCO is saying
that it is capable of entering into this agreement (licensing the "SCO IP" and
related materials). Even the recent PSJs didn't change the title on SCO's
developments. But also note that "SCO IP" does not include
UNIX.
and all copyrights, trade secrets and other intellectual and
proprietary rights therein, are and remain the valuable property of SCO and its
suppliers.
Remember SCO's crazy theory that Novell's agreement to
sell UNIX to SCO necessarily meant that the copyrights transfer? Here's how SCO
gets around that line of reasoning -- Specifically exclude copyrights from the
things the buyer purchased. Hmm... That sounds familiar. Too bad Novell
didn't put a similar exclusion in the APA. Oops, they did.
SCO
makes no representations or guarantees concerning the outcome of any pending or
potential litigation, as outlined above, regarding SCO's claims of violations of
its IP or contractual rights in the Operating System.
SCO is
trying to protect itself against a fraud lawsuit here,
apparently.
Licensee acknowledges that SCO's claims regarding its
IP as it relates to the Operating System are being litigated in one or more
cases, with possibly more litigation to follow, and that SCO has not guaranteed
that it will ultimately prevail in any of this litigation.
This is
reinforcing that EV1 "knowingly" entered into this risky license scheme, when in
fact there may be nothing to license.
Licensee, to avoid any such
litigation and to effectuate a productive and prompt resolution of any and all
issues relating to use of SCO's IP, desires to obtain this
license.
Again, SCO's trying to protect against fraud allegations
by codifying the reason EV1 was taking the license.
--Joe[ Reply to This | # ]
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