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| Novell Files for Rehearing En Banc! - Petition as text |
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Tuesday, September 08 2009 @ 09:02 PM EDT
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Novell has filed a petition with the U.S. Court of Appeals for the Tenth Circuit asking for a rehearing en banc of the ruling in the appeal of SCO v. Novell:
09/08/2009 - Open Document [9690867] Petition for rehearing en banc filed by Novell, Inc.. Original and 18 copies. Served on 09/08/2009. Manner of Service: email.
En banc means not just three judges, but all the appeals court judges. The filing is 78 pages, and we can read it together.
Oops. One of the judges will be missing. He just retired.
The paramount issue is copyright transfers and what is required: This case raises a question of exceptional importance regarding the interpretation of the Copyright Act: Does Section 204(a) require a writing that specifies the subject matter and essential terms of the copyright transfer with reasonable certainty, as held by courts in the Ninth Circuit and supported by the decisions of other federal and state courts?
The opinion of the Panel in this case, designated for publication, holds that a writing is sufficient if it merely shows an intent to transfer some copyrights, even if the identity of the copyrights is unclear. On that basis, the Panel reversed summary judgment for Defendant Novell and remanded for trial to determine which copyrights, if any, were transferred. The Panel decision, which will become the law of this Circuit if not revised on rehearing, would require a trial whenever a party can show some evidence of intent to transfer copyright ownership, even though, as here, there is no basis in the alleged instrument of transfer to determine with reasonable certainty which, if any, copyrights were to be transferred. This Court should grant this petition to consider whether the Panel Opinion properly interprets Section 204(a) in light of Congress' declared purpose of enhancing predictability and certainty of copyright ownership, or whether this Circuit should instead join other courts in holding that Section 204(a) requires a written instrument of conveyance or memorandum of transfer that specifies the subject matter and essential terms of the transfer with reasonable certainty. The Panel Opinion is contrary to the legislative intent and the weight of authority, and errs in reversing summary judgment for Novell and remanding for trial even under the Panel's interpretation of Section 204(a).
Here it is as text:
**********************************
Appeal No. 08-4217
_____________________________
IN THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_____________________________
THE SCO GROUP, INC.,
Plaintiff-Appellant,
NOVELL, INC.,
Defendant-Appellee.
___________________________
On Appeal from the United States District Court
for the District of Utah
The Honorable Dale A. Kimball, Judge Presiding
(Case No. 2:04-CV-00139-DAK)
___________________________
APPELLEE NOVELL, INC.'S PETITION FOR REHEARING
AND REHEARING EN BANC
______________________________
ANDERSON & KARRENBERG
Thomas R. Karrenberg
Heather M. Sneddon
[address, phone, fax]
MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
Grant L. Kim
David E. Melaugh
[address, phone, fax]
Attorneys for Defendant-Appellee NOVELL, INC.
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................... ii
INTRODUCTION .........................1
BACKGROUND FACTS AND PROCEDURAL HISTORY ................. 2
ARGUMENT ............................. 7
I. THIS CASE PRESENTS AN ISSUE OF EXCEPTIONAL
IMPORTANCE REGARDING THE REQUIREMENTS OF
FEDERAL LAW FOR TRANSFER OF COPYRIGHTS .....................7
II. APPLYING THE INTERPRETATION OF SECTION 204(a) OF
THE COPYRIGHT ACT THAT COMPORTS WITH
CONGRESSIONAL PURPOSE AND LEADING CASE LAW,
THE DISTRICT COURT CORRECTLY HELD AS A MATTER
OF LAW THAT THERE WAS NO VALID TRANSFER OF
COPYRIGHTS .................................. 13
III. EVEN UNDER THE PANEL'S INTERPRETATION OF
SECTION 204(a) OF THE COPYRIGHT ACT, THERE IS NO
TRIABLE ISSUE REGARDING TRANSFER OF
COPYRIGHTS................................ 14
CONCLUSION .............................. 15
CERTIFICATE OF SERVICE ..................... 17
CERTIFICATE OF DIGITAL SUBMISSION .................... 19
i
TABLE OF AUTHORITIES
Page(s)
CASES
American Plastic Equip., Inc. v. Toytrackerz, LLC,
No. 07-2253, 2009 U.S. Dist. LEXIS 27787 (D. Kan. Mar. 31,2009).......... 10
Community for Creative Non-Violence v. Reid,
490 U.S. 730 (1989) ........................... 1, 8
Conwell v. Gray Loon Outdoor Mktg. Group,
906 N.E.2d 805 (Ind. 2009)..................... 11
Effects Assocs. Inc. v. Cohen,
908 F.2d 555 (9th Cir. 1990)................... 8, 9
Foraste v. Brown Univ.,
290 F. Supp. 2d 234 (D.R.I. 2003) ..................10, 14
Konigsberg Int'l v. Rice,
16 F.3d 355 (9th Cir. 1994)........................ 8, 9, 10, 13
Lyrick Studios, Inc. v. Big Idea Prods., Inc.,
420 F.3d 388 (5th Cir. 2005) reversed ................... 9
Morgan v. Hawthorne,
No. 04-1809, 2009 U.S. Dist. LEXIS 31456 (W.D. Pa. Apr. 14, 2009)....... 11
Pamfiloff v. Giant Records, Inc.,
794 F. Supp. 933 (N.D. Cal. 1992) ........................9, 10, 13
Radio Television Espanola S.A. v. New World Entm't,
183 F.3d 922 (9th Cir. 1999) ........................ 8, 9
Saenger Org., Inc. v. Nationwide Ins. Lic. Assocs., Inc.,
864 F. Supp. 246 (D. Mass. 1994) ........................ 10
ii
STATUTES
17 U.S.C.
§ 204 .................... 9
§ 204(a).................. passim
§ 302(a) .................12
§ 302(c)................ 13
OTHER AUTHORITIES
H.R. Rep. No. 94-1476 (1976)........................ 1, 8
Jay Dratler & Stephen McJohn, Intellectual Property Law: Commercial
Creative and Industrial Property § 6.03 (2009) ..............12
Nimmer on Copyright,
§ 10.03 ..........................8, 12
iii
INTRODUCTION
Congress revised the Copyright Act in 1976 with the "paramount goal" of "enhancing predictability and certainty of copyright ownership." Community for Creative Non-Violence v. Reid, 490 U.S. 730, 749 (1989), citing H.R. Rep. No. 94-1476 (1976). Section 204(a), as revised in 1976, provides that: "A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance or a note or memorandum of transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent." 17 U.S.C. §204(a).
Section 204(a) promotes "predictability and certainty" by requiring that any transfer of copyright ownership be specified in a document that will survive long after the memories have faded and witnesses have become unavailable. Written documentation is crucial because copyrights are intangible property rights that survive for 70 years after the death of the original author. Clear identification of the property transferred is important not only to the immediate parties and their successors, but also to third parties, including copyright mortgagees and other secured lenders, who must know what specific work lies at the root of a particular chain of title.
This case raises a question of exceptional importance regarding the interpretation of the Copyright Act: Does Section 204(a) require a writing that specifies the subject matter and essential terms of the copyright transfer with reasonable certainty, as held by courts in the Ninth Circuit and supported by the decisions of other federal and state courts?
1
The opinion of the Panel in this case, designated for publication, holds that a writing is sufficient if it merely shows an intent to transfer some copyrights, even if the identity of the copyrights is unclear. On that basis, the Panel reversed summary judgment for Defendant Novell and remanded for trial to determine which copyrights, if any, were transferred. The Panel decision, which will become the law of this Circuit if not revised on rehearing, would require a trial whenever a party can show some evidence of intent to transfer copyright ownership, even though, as here, there is no basis in the alleged instrument of transfer to determine with reasonable certainty which, if any, copyrights were to be transferred. This Court should grant this petition to consider whether the Panel Opinion properly interprets Section 204(a) in light of Congress' declared purpose of enhancing predictability and certainty of copyright ownership, or whether this Circuit should instead join other courts in holding that Section 204(a) requires a written instrument of conveyance or memorandum of transfer that specifies the subject matter and essential terms of the transfer with reasonable certainty. The Panel Opinion is contrary to the legislative intent and the weight of authority, and errs in reversing summary judgment for Novell and remanding for trial even under the Panel's interpretation of Section 204(a).
BACKGROUND FACTS AND PROCEDURAL HISTORY
This case concerns a 1995 Asset Purchase Agreement (the "APA") between Defendant Novell and The Santa Cruz Operation, Inc. ("Santa Cruz"), the predecessor-in-interest to Plaintiff SCO Group, Inc. ("SCO"). In the APA, Novell
2
agreed to sell to Santa Cruz certain assets related to the UNIX System V operating system but retained significant related assets. (Panel Op. at 3-4; 11985-96.)1
When SCO acquired Santa Cruz in 2001, SCO announced that it would use its UNIX assets to promote the Linux operating system. (06658, 06650.) But two years later, in 2003, SCO sued IBM and sent threatening letters to Novell and hundreds of other Linux users, claiming that Linux infringed SCO's alleged UNIX copyrights. (05808-12, 00871-72, 01908-09, 06955.) When Novell replied that it had retained ownership of the Unix copyrights, SCO brought this action against Novell for "slandering" SCO's alleged title in the copyrights. (Panel Op. at 7.)
The district court granted summary judgment for Novell on the basis, among others, that Novell had retained ownership of the copyrights. The court found that (1) the plain language of the APA as executed in September of 1995 excluded "all copyrights" from the assets to be transferred at the Closing; (2) the Bill of Sale, which implemented the APA by transferring assets in December 1995, therefore did not transfer copyrights; and (3) "Amendment No. 2" to the APA, executed in October 1996, also did not transfer the copyrights. (12033, 12041-42, 12081-82.)
The district court held that Amendment No. 2 did not transfer the UNIX copyrights for three separate reasons; (1) it did not meet the Copyright Act requirements for transferring copyright ownership; (2) no admissible extrinsic evidence showed that Amendment No. 2 was intended to transfer copyright
3
ownership; and (3) SCO presented no evidence that Santa Cruz required copyright ownership to exercise its rights with respect to the UNIX technology. (12041-44.)
The Panel agreed with the district court that the APA as executed in 1995 did not transfer the copyrights at issue. (Panel Op. at 14 ("If we were to interpret the contract based initially only on the APA itself -- without regard to Amendment No. 2 -- we agree that its language unambiguously excludes the transfer of copyrights").) The Panel held, however, that "the APA, as revised by Amendment No. 2, satisfied the Copyright Act's writing requirement." (Id. at 24.) At the same time, the Panel concluded that Amendment No. 2 was ambiguous, and remanded for tiral to resolve based on extrinsic evidence which copyrights, if any, were transferred by Amendment No. 2. (Id. at 25-35.)
As the Panel noted, the original APA, executed in September of 1995, "unambiguously" excluded the transfer of copyrights, by listing "all copyrights" in an attached schedule of "excluded assets." (Id. at 14-15; 00264-65, 00318.) At the Closing on December 6, 1995, the parties signed an Amendment No. 1, which modified the included and excluded asset schedules, but left intact the exclusion of "all copyrights." (00361-63.) On the same date, Novell executed a "Bill of Sale" that transferred the "Assets" as defined in the APA and Amendment No. 1, and thus excluded "all copyrights." (05602.)
The first draft of Amendment No. 2, proposed by Santa Cruz in 2006, would have removed copyrights that pertain to "UNIX and UnixWare" from the "excluded Asset" Schedule 1.1(b) and would have stated that these copyrights
4
were "acquired hereunder" by Santa Cruz. It would have amended Schedule 1.1(b) to exclude:
All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of this Amendment, which pertain to the UNIX and UnixWare technologies and which SCO has acquired hereunder....
(006070 (emphasis added); 06064 ¶8.) Novell rejected this proposal, stating that Novell would confirm Santa Cruz's right to use Novell's copyrighted UNIX and UnixWare products, but "was not going to transfer ownership of any copyrights to Santa Cruz through Amendment No. 2." (06064 ¶10.)
The final, executed Amendment No. 2 deleted any reference to "UNIX and UnixWare" copyrights that Santa Cruz "has acquired." (06065 ¶11.) Instead, the final Amendment No. 2 revised the Excluded Asset Schedule 1.1(b), "[a]s of the 16th day of October 1996," to include:
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 the UNIX and UnixWare technologies.
(00374.) Amendment No. 2 did not specify which copyrights, if any, were "required" for SCO to exercise its rights. It also did not call for a bill of sale, and Novell did not execute a bill of sale on signing Amendment No. 2 or thereafter. (06066 ¶17.)
In holding that Amendment No. 2 did not meet the Copyright Act requirements for transferring copyright ownership, the district court found, first of all, that "Amendment No 2 does not include any provision that purports to transfer ownership of copyrights." (12041.) The court noted that Amendment No. 2 did
5
not add copyrights to the schedule of included assets, was not accompanied by a bill of sale transferring assets, and did not purport to amend the December 1995 Bill of Sale. (Id.) The court also noted that Amendment No. 2 stated that it amended the APA "[a]s of the 16th day of October, 1996," and thus "did not retroactively cause the Bill of Sale to transfer copyrights that were expressly excluded from transfer by the APA and Amendment No. 1." (Id.)
Secondly, the district court held that Amendment No. 2 did not have the specificity necessary to meet the Copyright Act's requirements for a written conveyance of copyright ownership:
Also, significantly, Amendment No. 2 did not identify which copyrights, if any, were "required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." The written instrument required by Section 204 should contain sufficient information "to serve as a guidepost for the parties to resolve their disputes." Konigsberg Int'l [v. Rice,] 16 F.3d [355, 357 (9th Cir. 1994)]. Amendment No. 2 does not meet these standards.
(Id.)
On appeal, the Panel acknowledged that "some courts" "have found that a writing is insufficient to transfer copyrights unless (1) it reasonably identifies the subject matter of the agreement, (2) is sufficient to indicate that the parties have come to an agreement, and (3) states with reasonable certainty the essential terms of the agreement." (Panel Op. at 19 (citing Pamfiloff v. Giant Records, Inc., 794 F. Supp. 933, 936 (N.D. Cal. 1992).)
However, in holding that the APA as amended by Amendment No. 2 satisfied the Copyright Act's writing requirement, the Panel rejected this authority,
6
concluding that "Section 204's writing requirement is best understood as a means of ensuring that parties intend to transfer copyrights themselves, as opposed to other categories of rights." (Panel Op. at 20-21.) The Panel stated that "when it is clear that the parties contemplated that copyrights transfer, we do not think that a linguistic ambiguity concerning which particular copyrights transferred creates an insuperable barrier invalidating the transaction." (Id. at 21.) The Panel also "reject[ed] the significance that the district court attributed to the fact that Amendment No. 2 revised the APA '[a]s of the 16th day of October, 1996' as opposed to the date of the Bill of Sale," on the grounds that "the absence of a Bill of Sale" was not "fatal" because a "note or memorandum of the transfer" is sufficient under Section 204. (Id. at 23-24.)
The Panel acknowledged "the difficulties that follow when the resolution of ambiguous language in a ten-year-old contract is left to trial." (Id. at 26.) Nonetheless, it remanded for trial for a determination based on extrinsic evidence "whether at least some UNIX copyrights were required for [Santa Cruz] to exercise its rights under the [APA]," and therefore transferred by the APA as amended by Amendment No. 2 (Id. at 33.)
ARGUMENT
I. THIS CASE PRESENTS AN ISSUE OF EXXCEPTIONAL
IMPORTANCE REGARDING THE REQUIREMENTS OF
FEDERAL LAW FOR TRANSFER OF COPYRIGHTS
The Panel acknowledges that, in addressing an issue not previously resolved by this Circuit, it diverges from precedent in other circuits over the proper interpretation of the requirements of the Copyright Act for transfer of copyright
7
owndership. The consequences of that divergence are profound. It will mean that in this Circuit any writing that can be construed as evidencing that "the parties contemplated that copyrights transfer" (id. at 21) will meet the requirements of the Copyright Act. The writing need not specify what copyright(s) are being transferred or provide the essential terms of the transfer. A writing will be deemed a sufficient "instrument of conveyance" or "memorandum of the transfer" without these essential terms, which will then be decided -- as in this case -- through a trial where conflicting oral testimony and other extrinsic evidence in presented.
This result is contrary to Congress' "paramount goal" of "enhancing predictability and certainty of copyright ownership." Community for Creative Non-Violence, 490 U.S. at 749; see also H.R. Rep. No. 94-1476 (1976) at 124 ("a specific written conveyance would be required in order for a sale of any material object to carry with it a transfer of copyright"). It is also contrary to the well-considered conclusions of courts in other circuits that have required a higher degree of specificity in writings relied on for transfer of copyright ownership.
As noted by Nimmer on Copyright, which is cited and relied on by the Panel, "[t]he Ninth Circuit ... has made much of the law in this area." Nimmer on Copyright, §10.03. A series of Ninth Circuit cases has applied Section 204(a)'s requirement of a written instrument of conveyance or memorandum of transfer strictly in accord with the Congressional purpose of predictability and certainty. See Effects Assocs. Inc. v. Cohen, 908 F. 2d 555 (9th Cir. 1990); Konigsberg Int'l v. Rice, 16 F. 3d 355 (9th. Cir. 1994); Radio Television Espanola S.A. v. New World Entm't, 183 F.3d 922 (9th Cir. 1999).
8
As construed by those cases, Section 204(a) is a substantive prerequisite, not merely an evidentiary rule; a transfer of copyright is simply "not valid" without the required written instrument. Konigsberg Int'l, 16 F.3d at 357. To satisfy Section 204(a), the written instrument "doesn't have to be the Magna Charta; a one-line pro forma statement will do." Effects Assocs., 908 F. 2d at 557. But it must be specific enough to "force[] a party who wants to use the copyrighted work to negotiate with the creator to determine precisely what rights are being transferred." Konigsberg Int'l, 16 F.3d at 357 (emphasis added). The writing must be sufficiently "clear and definite" that the "property will be readily marketable." Id. It must contain sufficient information to "serve as a guidepost for the parties to resolve their disputes," such that the "parties need only look to the writing that sets out their respective rights." Id. (emphasis added).
As articulated by one case, applying these principles and looking to the statute of frauds by analogy, the written instrument required by Section 204 must "(1) reasonably identify the subject matter of the agreement, (2) be sufficient to indicate the parties have come to an agreement, and (3) state with reasonable certainty the essential terms of the agreement." Pamfiloff, 794 F. Supp. at 936-37.
The reasoning of these cases has also been followed outside of the Ninth Circuit in recent cases. For example, relying extensively on Effects Assocs., supra, Konigsberg, supra, and Radio Television Espanola, supra, the Fifth Circuit in Lyrick Studios, Inc. v. Big Idea Prods., Inc., 420 F.3d 388, 391-96 (5th Cir. 2005) reversed a jury verdict on the basis that the writings at issue were sufficient as a matter of law to meet the requirements of Section 204(a).
9
District courts in the First Circuit have also followed the reasoning of the
leading Ninth Circuit cases. Relying on Konigsberg, Int'l, supra, and Pamfiloff,
supra, the court in Foraste v. Brown Univ., 290 F. Supp. 2d 234, 239-40
(D.R.I. 2003) found no valid Section 204(a) transfer and granted summary
judgment because the writings at issue showed "utter absence of precision
regarding the rights to be transferred" and "no evidence of a ... 'meeting of the
minds.'" See also Saenger Org., Inc. v. Nationwide Ins. Lic. Assocs., Inc., 864 F.
Supp. 246, 250 (D. Mass. 1994) (citing Pamfiloff, supra, and approving a rigorous
standard for Section 204(a) transfers).
Also citing the Ninth Circuit cases, a district court in the Eighth Circuit
recently summarized the purposes of Section 204(a) as follows:
The writing requirement serves several purposes. First, it
ensures that a copyright will not be inadvertently transferred.
Second, it "forces a party who wants to use the copyrighted
work to negotiate with the creator to determine precisely what
rights are being transferred and at what price." Third, it
provides a guide for resolving disputes; the parties can look to
the writing to determine whether a use is improper. In these
ways, the writing requirement "enhances predictability and
certainty of copyright ownership -- 'Congress' paramount goal'
when it revised the [Copyright] Act in 1976."
American Plastic Equip., Inc. v. Toytrackerz, LLC, No. 07-2253, 2009 U.S. Dist.
LEXIS 27787, at *16-17 (D. Kan. Mar. 31, 2009). Applying those principles, the
court found the writings offered by the plaintiff insufficient as a matter of law to
meet the requirements of the Copyright Act and granted summary judgment to the
defendant on the plaintiffs copyright infringement claims.
10
In a decision issued after briefing and argument was complete in this case,
the Supreme Court of Indiana also followed the Ninth Circuit line of cases. See
Conwell v. Gray Loon Outdoor Mktg. Group, 906 N.E.2d 805, 815-16 (Ind. 2009).
Citing Pamfiloff, supra, the court held that "[a] signed contract making no
reference to ownership and lacking essential terms is inadequate as a memorandum
of transfer." Id. at 816. Affirming judgment as a matter of law, the court held that
the language of an accepted written proposal asserted as the basis for transfer of
copyright ownership did "not carry the weight and certainty required by the
Copyright Act." Id.; see also Morgan v. Hawthorne, No. 04-1809, 2009 U.S. Dist.
LEXIS 31456 (W.D. Pa. Apr. 14,2009) (citing Effects Assocs. and Radio
Television Espanola, and emphasizing need for clarity in transfer document).
Relying primarily on authority from the Second and Seventh Circuits, the
Panel in this case acknowledges but rejects the standard articulated in the Ninth
Circuit line of cases and followed elsewhere. The panel opinion asserts that "it is
hardly clear that imposing strict requirements of clarity in order to effect a
copyright transfer will always aid 'predictability and certainty of copyright
ownership.'" (Panel Op. at 19.) It reasons that "[i]f every copyright transaction
were vulnerable to challenge whenever a party is able to point out some ambiguity
within the governing agreement, parties might be forced to engage in costly,
protracted litigation to determine whether the transfer is valid, putting into doubt
the proper holder of the copyright." (Id. at 19-20.)
But this case demonstrates the opposite. Applying the standard developed in
the Ninth Circuit line of cases, the district court correctly held as a matter of law
11
that the APA, even as amended by Amendment No.2, did not have the required
specificity to be a valid instrument of conveyance. It therefore was able to resolve
the issue of copyright ownership on summary judgment. On the other hand, under
the rule articulated by the panel decision, an ambiguous or incomplete writing that
does not meet that standard can nonetheless raise a triable issue of fact -- as the
Panel held here -- resulting in exactly the kind of "costly, protracted litigation to
determine whether the transfer is valid" that the panel opinion purports to eschew.
The Panel also relies on Nimmer on Copyright for the proposition that
ambiguities in copyright grants are common and presumably, therefore, are not
grounds for finding them invalid. (Panel Op. at 19-20 (citing Nimmer, supra, at
§ 10.08).) But the same treatise notes that, in addition to "refer[ring] to the domain
of copyright ownership," a writing to be valid under the Copyright Act "also must
rise above vagueness to clue the reader into its desired intent." Nimmer, supra, at
§ 10.03; see also Jay Dratler & Stephen McJohn, Intellectual Property Law:
Commercial Creative and Industrial Property § 6.03 (2009) ("writing must be
sufficient to show the existence and principal terms of the transactions").
Before going down the route charted by the Panel, this Court should
consider on rehearing the proper interpretation of the Copyright Act's transfer
requirements in light of the important congressional purpose of promoting
predictability and certainty in copyright ownership, and the weight of authority in
other circuits. The Panel acknowledges the difficulties that will result from leaving
for resolution at trial the interpretation of an alleged transfer agreement that was
signed 13 years ago. (Panel Op. at 26.) That difficulty is inherent in copyright,
12
which is typically enforceable for a century or more.2 The principles of specificity
adopted by courts in other circuits, but rejected by the Panel here, would avoid that
difficulty and the uncertainty, lack of predictability, and protracted litigation that
will otherwise result in this and similar cases.
II.
APPLYING THE INTERPRETATION OF SECTION 204(a) OF THE
COPYRIGHT ACT THAT COMPORTS WITH CONGRESSIONAL
PURPOSE AND LEADING CASE LAW, THE DISTRICT COURT
CORRECTLY HELD AS A MATTER OF LAW THAT THERE WAS
NO VALID TRANSFER OF COPYRIGHTS
As tacitly acknowledged by the Panel, the APA as amended by Amendment
No. 2 did not meet the specificity requirements articulated in the Ninth Circuit line
of cases. In particular, Amendment No. 2's reference to copyrights "required for
SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare
technologies" did not "reasonably identify the subject matter of the agreement,"
Pamfiloff, 794 F. Supp. at 936, or identify "precisely what rights [were] being
transferred" such that the "parties need only look to the writing that sets out their
respective rights." Konigsberg, 16 F.3d at 357.
The district court correctly held that the APA as amended by Amendment
No. 2 failed to comply with Section 204(a) as a matter of law because Amendment
No. 2's reference to "required" copyrights did not specify which copyrights, if any,
were being transferred. Indeed, the Panel acknowledged that "[t]he parties each
13
argue for plausible, but diametrically opposed interpretations, of the word
'required,'" and that "Novell has powerful arguments to support its version of the
transaction." (Panel Op. at 32,25.) As the district court found, Santa Cruz did not
"require" transfer of the copyrights since"[t]he APA conferred an implied license
on Santa Cruz to use Novell's copyrights as needed to implement the purposes of
the APA." (12043.)
As was true of the writings at issue in Foraste, the APA as amended by
Amendment No. 2 has an "utter absence of precision regarding the rights to be
transferred" and "no evidence of a...'meeting of the minds.'" 290 F. Supp. 2d
at 239-40. Therefore, under the principles in the leading Ninth Circuit cases and
followed by other courts, Amendment No. 2 was not a sufficient writing to provide
the certainty and predictability of ownership required by Section 204(a) of the
Copyright Act.
III.
EVEN UNDER THE PANEL'S INTERPRETATION OF SECTION
204(a) OF THE COPYRIGHT ACT, THERE IS NO TRIABLE ISSUE
REGARDING TRANSFER OF COPYRIGHTS
Even under the interpretation adopted by the Panel, a writing must make
"clear that the parties contemplated that copyrights transfer" (Panel Op. at 21) in
order to be a valid written instrument of conveyance or memorandum of transfer
under Section 204(a). The panel decision errs in concluding that the APA as
amended by Amendment No. 2 meets even that minimal standard.
As the district court found, "Amendment No. 2 does not include any
provision that purports to transfer ownership of copyrights." (12041.) It does not
state that copyrights "are hereby transferred," "have been transferred," or even
14
"will be transferred." Rather, it merely revises the "Intellectual Property" category
of "Excluded Assets" under Schedule 1. 1(b). (Id.; 00374.)
The only document that effected a transfer of assets between the parties was
the Bill of Sale, which was executed at the Closing on December 6, 1995. As the
district court found, "Amendment No.2 was not accompanied by a separate 'Bill
of Sale' transferring any assets" and did not "purport to retroactively change the
scope of assets transferred by the Bill of Sale that was executed in connection with
the APA in December 1995." (12041.) Indeed, Amendment No. 2 stated that it
"amended" the APA only "[a]s of the 16th day of October, 1996," ten months after
the December 1995 Bill of Sale. (Id.; 00374.)
The panel decision dismisses these omissions with the assertion that "[t]he
Copyright Act does not require its writing requirement be fulfilled concurrently
with the production of a Bill of Sale." (Panel Op. at 24.) This misses the point of
the district court's holding. Amendment No. 2 makes no reference to transfer of
copyrights and fails to amend the only transfer document executed by the parties,
the December 1995 Bill of Sale. Therefore, there is no writing -- whether
executed "concurrently" or later -- that makes "clear that the parties contemplated
that copyrights transfer," as required by the panel opinion. (Panel Op. at 21.)
Therefore, even under the interpretation of Section 204(a) adopted by the panel,
the panel erred in reversing summary judgment for Novell and remanding for trial.
CONCLUSION
For all of the above reasons, the Court should grant Novell's petition for
rehearing and set this case for rehearing en banc.
15
Respectfully submitted on this 8th day of September, 2009.
ANDERSON & KARRENBERG
Thomas R. Karrenberg
Heather M.
Sneddon
[address, phone, fax]
MORRISON
& FOERSTER LLP
George C. Harris
Grant L. Kim
David E. Melaugh
[address, phone, fax]
s/ Michael
A. Jacobs
Attorneys for Defendant-Appellee
NOVELL, INC.
1Citations to five-digit numbers are to the Appendix for this appeal. "Panel Op." refers to the Panel Opinion in this case.
2Under the current version of the Copyright Act, the duration of copyright
protection is the author's lifetime plus a term of 70 years. 17 U.S.C. § 302(a). For
anonymous works, pseudonymous works, and works made for hire, copyright
protection endures for a term of 95 years from first publication, or a term of 120
years from the year of its creation, whichever expires first. 17 U.S.C. § 302(c).
16
CERTIFICATE OF SERVICE
I, Michael A. Jacobs, certify that on this 8th day of September, 2009, a true
and correct copy of the foregoing APPELLEE NOVELL, INC.'S PETITION FOR
REHEARING AND REHEARING EN BANC was served via electronic mail to
the following recipients:
David Boies
Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
Stuart Singer
BOIES, SCHILLER & FLEXNER LLP
[address]
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, PC
[address]
17
Devan V. Padmanabhan
DORSEY & WHITNEY LLP
[address]
Counsel for Plaintiff-Appellant The SCO Group, Inc.
Dated: September 8, 2009
s/ Michael A. Jacobs
MORRISON & FOERSTER LLP
[address, phone, fax, email]
18
CERTIFICATE OF DIGITAL SUBMISSION
I, Michael A. Jacobs, certify that no privacy redactions were necessary for
this filing. This APPELLEE NOVELL, INC.'S PETITION FOR REHEARING
AND REHEARING EN BANC submitted in digital form is an exact copy of the
written document filed with the Clerk. This digital submission has been scanned
for viruses with the most recent version of a commercial virus-scanning program
(using Symantec AntiVirus v.1 0.1.4.4, last updated April 4, 2009) and, according
to the program, is free of viruses.
Dated: September 8, 2009
s/ Michael A. Jacobs
MORRISON & FOERSTER LLP
[address, phone, fax, email]
19
[page left blank]
20
[Ed: Pages 21-78, to the end of the document, in other words, consist of the Appeals Court ruling, which Groklaw has already transcribed as text.]
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| Authored by: bugstomper on Tuesday, September 08 2009 @ 09:16 PM EDT |
Put a one line summary of the correction in the title to make it most useful to
PJ
[ Reply to This | # ]
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- summery -> summary (correct in PDF) - Authored by: bugstomper on Tuesday, September 08 2009 @ 09:31 PM EDT
- tiral > trial - Authored by: Tufty on Wednesday, September 09 2009 @ 01:26 AM EDT
- Exxeptional > Exceptional - Authored by: Tufty on Wednesday, September 09 2009 @ 01:28 AM EDT
- Exxeptional > Exceptional - Authored by: Anonymous on Friday, September 11 2009 @ 12:10 PM EDT
- Du-oh - Authored by: Anonymous on Friday, September 11 2009 @ 02:38 PM EDT
- Corrections Thread - Authored by: Anonymous on Wednesday, September 09 2009 @ 01:48 AM EDT
- 2006 -> 1996 - Authored by: Anonymous on Wednesday, September 09 2009 @ 01:50 AM EDT
- PDF says 2006 - Authored by: achurch on Wednesday, September 09 2009 @ 02:59 PM EDT
- P8: other extrinsic evidence in presented. in -> is - Authored by: AMackenzie on Wednesday, September 09 2009 @ 02:44 AM EDT
- EXXCEPTIONAL >> EXCEPTIONAL - Authored by: Anonymous on Wednesday, September 09 2009 @ 10:51 AM EDT
- Extraneous punctuation - Authored by: The Cornishman on Wednesday, September 09 2009 @ 11:12 AM EDT
- owndership -> ownership - Authored by: Anonymous on Wednesday, September 09 2009 @ 03:37 PM EDT
- ... other extrinsic evidence in presented. - Authored by: Anonymous on Thursday, September 10 2009 @ 08:09 PM EDT
- ... "doesn't have to be the Magna Charta; ..." - Authored by: Anonymous on Thursday, September 10 2009 @ 08:18 PM EDT
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| Authored by: bugstomper on Tuesday, September 08 2009 @ 09:18 PM EDT |
| Please stay off topic here, but feel free to add clicky goodness to your posts. [ Reply to This | # ]
|
- The financial reports. - Authored by: Anonymous on Tuesday, September 08 2009 @ 11:49 PM EDT
- Today's Dilbert... - Authored by: Acrow Nimh on Wednesday, September 09 2009 @ 06:38 AM EDT
- Article: "Nathan Myhrvold’s Evil Genius" - Authored by: Anonymous on Wednesday, September 09 2009 @ 08:05 AM EDT
- Intellectual Property - inherently oxymoronic - Authored by: ByteJuggler on Wednesday, September 09 2009 @ 08:50 AM EDT
- I'm Confused -- The GPL And Runtime Environments - Authored by: TheBlueSkyRanger on Wednesday, September 09 2009 @ 09:19 AM EDT
- Another test of RFC 2549! - Authored by: NetArch on Wednesday, September 09 2009 @ 04:27 PM EDT
- I own SCO Headquarters! - Authored by: th80 on Wednesday, September 09 2009 @ 05:51 PM EDT
- To Bsod or not to Bsod. That is the question . - Authored by: Anonymous on Wednesday, September 09 2009 @ 07:24 PM EDT
- Musicians hit out at piracy plans - Authored by: tiger99 on Thursday, September 10 2009 @ 08:21 AM EDT
- Microsoft's latest misinformation campaign: counterstrike - Authored by: Anonymous on Thursday, September 10 2009 @ 09:32 AM EDT
- OpenID biggest government boost yet for open source - Authored by: tiger99 on Thursday, September 10 2009 @ 01:08 PM EDT
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| Authored by: bugstomper on Tuesday, September 08 2009 @ 09:20 PM EDT |
Please place the title of the News Picks article you refer to in the title of
your post.[ Reply to This | # ]
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| Authored by: PJ on Tuesday, September 08 2009 @ 09:28 PM EDT |
If anyone can do a quick OCR for me, I'd greatly appreciate it. 78 is a lot of
pages to try to do by hand.
[ Reply to This | # ]
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| Authored by: alansz on Tuesday, September 08 2009 @ 10:22 PM EDT |
So, how many judges is the entire appeals court in that circuit, sitting en
banc?[ Reply to This | # ]
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- How many? - Authored by: alansz on Tuesday, September 08 2009 @ 10:23 PM EDT
- How many? - Authored by: mattflaschen on Wednesday, September 09 2009 @ 12:28 AM EDT
- txt 'em! - Authored by: grouch on Wednesday, September 09 2009 @ 02:56 AM EDT
- txt 'em! - Authored by: darksepulcher on Wednesday, September 09 2009 @ 05:12 AM EDT
- txt 'em! -- Huh? - Authored by: lnuss on Wednesday, September 09 2009 @ 09:03 AM EDT
- txt 'em! - Authored by: daveg on Wednesday, September 09 2009 @ 09:15 AM EDT
- txt 'em! - Authored by: Anonymous on Wednesday, September 09 2009 @ 10:28 AM EDT
- txt 'em! - Authored by: Anonymous on Wednesday, September 09 2009 @ 06:41 PM EDT
- How many? - Authored by: Anonymous on Thursday, September 10 2009 @ 09:01 PM EDT
- From the Petition heading, it appears to be 18? - Authored by: Igrepdou on Tuesday, September 08 2009 @ 10:54 PM EDT
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| Authored by: Marc Mengel on Tuesday, September 08 2009 @ 10:25 PM EDT |
So they're appealing the appeal?!? If this works, does this once again settle
the copyright ownership (barring the Supreme Court hearing it)?[ Reply to This | # ]
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| Authored by: grouch on Tuesday, September 08 2009 @ 10:39 PM EDT |
| That goofy ruling needs to be reexamined before it can launch a thousand SCOGger
clones with non-specific almost transferred copyright claims.
---
--
grouch
GNU/Linux obeys you.
[ Reply to This | # ]
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| Authored by: bugstomper on Tuesday, September 08 2009 @ 11:10 PM EDT |
If this appeal is accepted by the en banc Court, will the fact that the Chap 11
Trustee is now in charge of SCO make a difference in what SCO's lawyers are
instructed to do and how Novell's appeal is opposed? Boise's fees for appeals
are supposed to be already paid for in advance, but might the Trustee conclude
that winning the appeal at this stage would only result in SCO wasting money on
the jury trial and it would be better for the creditors for SCO not to argue
this appeal further to make sure that they don't win it?[ Reply to This | # ]
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| Authored by: jbb on Tuesday, September 08 2009 @ 11:58 PM EDT |
| O frabjous day! Callooh! Callay!
I think this was a gusty move by Novell,
but they nailed it. They are
absolutely, positively, 100%
right:
... 204(a) ... 204(a) ... 204(a) ... 204(a)
...
[Disparaging remarks about the appeals court decision
intentionally left
deleted.]
---
You just can't win with DRM. [ Reply to This | # ]
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| Authored by: webster on Wednesday, September 09 2009 @ 12:31 AM EDT |
..
What an annoyance to find this after midnight!
It is really worthwhile. Judges don't like to be embarrassed. This issue is
simple. They don't want to risk being reversed by the Supremes.
The decision is a monument to unpredictability of copyright transfers.
Remember that at oral arguments even McConnell the writer of this decision
seemed to opine that the Federal statutory requirements for the transfer of
copyright had not been met.
He had to strain and base his decision on a foundation of exceptions.
The Court en banc will take a conservative route and probably act without oral
argument or further briefing.
It will be interesting to see if they direct SCO to respond.
Watch out! The issue is simple and easily reversible, or as easy as these
things get.
Clearly Novell has statutory and case Authority. But not tonight!
~webster~
.[ Reply to This | # ]
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| Authored by: The Mad Hatter r on Wednesday, September 09 2009 @ 12:49 AM EDT |
Even if the Trustee was not in charge. This does raise some interesting
questions, since Novell's reason for asking for the En Banc hearing is not
trivial:
1) If the Trustee decides to pull out of the litigation, can Novell still win a
hearing?
2) If Novell doesn't win an En Banc hearing, does the ruling remanding the case
back to the original court for trial become precedent for the enter circuit?
Number 2 is what Novell appears to be saying has happened. Their lawyers have a
vested interest in their client's winning, and thanks to PJ's tutelage I've
learned to take what is said in a filing with a grain of salt (and MoFo does not
have a good reputation in certain circles). If they are correct, and this
changes how copyright ownership changes are litigated, it will have tremendous
repercussions.
---
Wayne
http://crankyoldnutcase.blogspot.com/
[ Reply to This | # ]
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| Authored by: nsomos on Wednesday, September 09 2009 @ 12:56 AM EDT |
It is good to see Morrison and Foerster argue persuasively
to get the first appeal overturned and hopefully Kimball
will be vindicated. The knock-on effects of requiring
jury determinations on all future ambiguous situations
where there could be any disagreement about copyright
transfer in this circuit, is an excellent reason why the
standard for transfer should be a clear and unambiguous
written document. It may take some time, and I understand
it is hard to be patient, but I am quite hopeful that the
Tenth Circuit will finally decide in Novell's favor.
With the chap 11 trustee in charge, it is unlikely
that any further appeal attempt will be made by SCOG.
Should Novell be successful, then nobody in their right
minds would ever want to take over the litigation, and
the trustee will surely want to settle in such a way
as to minimize expenses.
I still think there is some chance to rehabilitate SCOG
by auctioning off Java patent, FC stuff and ME inc, and
by reducing staff (especially management), sticking to
the 100% to Novell, 5% back licensing agent business,
and selling non-transferable source licenses for SCOG
products so some major customers can do ongoing
software maintenance themselves. There can also be
some ongoing support income, and assistance in porting
to Linux can also be sold as a service.
But one thing that will surely NOT fly, is ongoing
litigation.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 09 2009 @ 01:05 AM EDT |
If Novell loses again this time, it seems to me it would establish a conflict
among the circuits worthy of the Supreme Court's attention.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 09 2009 @ 01:05 AM EDT |
If the en banc review uphoolds Kimball's will he "unrecuse"
himself?[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 09 2009 @ 02:36 AM EDT |
About Time! I found the three panel ruling very disturbing. The patent
law seems very clear. Explicit not implicit. In my darkest dreams, I
was wonder if I were Emperor how long I'd let the three judges practice after
such a foolish decision. [ Reply to This | # ]
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| Authored by: gdshaw on Wednesday, September 09 2009 @ 04:21 AM EDT |
Previously Novell had to argue their case two ways in order to cover all
bases:
- Either the contract was unambiguous, in which case no
copyrights were transferred,
- or the contract was ambiguous, in which
case it did not meet the statutory requirements for a copyright
transfer.
Now that they have a ruling that it was ambiguous they
can at least focus on a single, coherent line of reasoning (and the public
policy implications of allowing the ruling to stand).
[ Reply to This | # ]
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| Authored by: Ian Al on Wednesday, September 09 2009 @ 04:33 AM EDT |
Novell still get the rights to the money after the reversal on appeal and that
guarantees the death of SCOG. I suppose it leaves the opportunity for more
SCOG-like trolling if the jury thought that any copyrights did transfer, but
that is an extremely low odds outside chance and the chance of anything remotely
litigable (litigatible, litigiousifiable...) being sold to a troll by the
Trustee seems unlikely.
The only real reason for incurring the costs of the en banc hearing is to settle
the obviously disastrous precedent left by the appeal court for copyright
conveyance.
It seems that pragmatism would militate against the en banc hearing. The only
justification is settling an important legal issue with a strong case.
I did not think they would do it, but I am full of respect for their decision to
go ahead.
---
Regards
Ian Al
Linux: Viri can't hear you in free space.[ Reply to This | # ]
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| Authored by: IMANAL_TOO on Wednesday, September 09 2009 @ 04:38 AM EDT |
The Panel decision, which will become the law of this Circuit if not
revised on rehearing, would require a trial whenever a party can show some
evidence of intent to transfer copyright ownership, even though, as here, there
is no basis in the alleged instrument of transfer to determine with reasonable
certainty which, if any, copyrights were to be
transferred.
Bbbrrr. It is cold here.
That
Circuit could become the Las Vegas of Courts. Gamble
Circuit.
.
---
______
IMANAL
. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 09 2009 @ 05:18 AM EDT |
Original and 18 copies. Served on 09/08/2009. Manner of Service:
email.
Did they really put 18 copies of the original inside of
one Email? Or sent out 19 Emails to the court?
Because printing out
multiple copies of one Email would be a violation of fair use?
I have my
problems seeing how those 18 copies get there, and how they make sense.
Or
do they imply that 18 copies may be made and sent out to parties? [ Reply to This | # ]
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| Authored by: Steve Martin on Wednesday, September 09 2009 @ 06:04 AM EDT |
I did a bit of reading after having read this filing, specifically in the 10th Circuit
Appeals Court Rules. Here are some things I found.
Fed. R. App. P. 35
states that "[t]he petition [for re-hearing en banc] must begin with
a statement that either:
(A) the panel decision conflicts with a
decision of the United States
Supreme Court or of the court to which the
petition is addressed (with citation
to the conflicting case or cases) and
consideration by the full court is therefore
necessary to secure and maintain
uniformity of the court's decisions; or
(B) the proceeding involves one
or more questions of exceptional
importance, each of which must be concisely
stated; for example, a petition
may assert that a proceeding presents a question
of exceptional importance if it
involves an issue on which the panel decision
conflicts with the authoritative
decisions of other United States Courts of
Appeals that have addressed the
issue."
I'd say from my IANAL
perspective that Novell's brief certainly addresses (B).
10th Circuit
Local Rule 35.1(B):
Filing a petition for rehearing or
for
rehearing en banc is not required before filing a petition for
certiorari in
the United States Supreme Court.
So MoFo could have went straight
to the Supreme Court with this. I'm guessing (and it's just a guess) that they
thought they would have more success asking for rehearing en banc in the Tenth
Circuit than they would have getting cert to the Supreme Court. I'm not so sure.
They might have had more luck getting this overturned in the Supreme Court,
since they clearly can demonstrate divergence in rulings between Circuits, more
so probably than they could demonstrate divergence between this ruling and other
Tenth Circuit rulings.
Tenth Circuit Local Rule 35.5:
A
majority of the active judges
who are not disqualified may order rehearing en
banc. The en
banc panel consists of this court's active judges who are
not
disqualified and any senior judge who was a member of the
hearing panel,
unless he or she elects not to sit.
In the Tenth Circuit, there
are twenty judges
(now that Judge McConnell is no longer listed). The only currently active senior
judge that sat on the Panel was Judge Baldock. I don't know if he would elect to
sit on the en banc review or not. I wonder if anyone who attended the appeal
hearing could share some impressions of his presence on the Panel.
Rule
35.6:
The grant of rehearing en banc
vacates the judgment, stays
the mandate, and restores the case on
the docket as a pending appeal. The panel
decision is not vacated
unless the court so orders.
I'm not really
clear on the difference between "vacating the judgment" and "vacating the
decision".
---
"When I say something, I put my name next to it." --
Isaac Jaffe, "Sports Night" [ Reply to This | # ]
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| Authored by: sproggit on Wednesday, September 09 2009 @ 06:09 AM EDT |
The single most amazing thing, from my perspective, is the quality and
completeness of the documentation that was drawn up to support a
multi-million-dollar asset transfer.
I am not going to speculate as to which party is reading this correctly [ for
once! ] but instead have to observe that, if I were paying a lawyer to write an
agreement for something I wanted to purchase for several millions of dollars,
I'd want to make sure that the agreement set out exactly what I was paying for.
OK, notwithstanding my earlier claim about not speculating, as I've followed
this case through, I think there are two key points which the Appeals Judges did
not assign adequate weight in their evaluation:
1. The testimony of Tor Braham. He was there, he drafted the agreement, and his
evidence, for me, explains all the subtleties and complexities of the agreement
extremely well.
2. The approaches by Darl McBride, to Novell, immediately prior to the launch of
their litigation strategy. If Darl McBride felt he needed Novell to formally
transfer *something* to SCO in order to enable their litigation attack on IBM to
take place, then it says to me that they *knew* they didn't have sufficient
ownership. Especially as they asked for it in the early rounds of engagement
with Novell.
Lessons to be learned?
Even if you hire a good lawyer or law firm, read the small print before you
sign. If you don't understand it, get them to rewrite it for you - that's what
they're paid for. If the document doesn't make complete, absolute, crystal-clear
plain English sense, get it re-written. A good lawyer should be able to clarify
a legal point until it is readily grasped by the lay-person.
[ Reply to This | # ]
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| Authored by: darkonc on Wednesday, September 09 2009 @ 06:53 AM EDT |
The amendment only consists of a conditional promise to transfer if
certain conditions are met. Absent proof that
- the conditions have
been met, and
- Novell has been notified of the fact that the conditions have
been met,
the promise isn't triggered.
Even if the conditions are
met and communicated, the contract (and proof) shouldn't classify as a transfer
document... It would still require that Novell issue a separate transfer
document -- the unwillingnes to do would then be a breach of contract issue, not
a copyright issue. The result of the (successful) contract suit would then be a
specific performance order (transfer the copyright) but the contract, itself,
still doesn't call directly for a specific transfer.
IANAL, but that's my
reading of it. ---
Powerful, committed communication. Touching the jewel
within each person and bringing it to life.. [ Reply to This | # ]
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| Authored by: msfisher on Wednesday, September 09 2009 @ 08:49 AM EDT |
Yet again, we are back to just what Caldera/SCO became (as contrasted against
what they bought) when the APA, as amended, was put into effect.
It became the same thing as an auto dealer.
A car dealer doesn’t need trademark, patent or copyrights ownership to sell the
cars. The dealer makes a profit and so does the manufacturer.
The car dealer can offer after-market modifications (sound systems, pinstriping,
“all weather body and undercarriage sealant, GPS, etc.) without giving any of
that profit to the manufacturer.
The car dealer needs to have knowledge of and/or access to trademark, patent and
copyright material in order to market and maintain (i.e. repair) the product.
That is what SCO agreed to. Sell UNIX, getting 5% back from Novell. Do its own
UNIX programming and sell that without owing Novell anything. Market and
maintain the product.
Exactly like a car dealer. No copyright ownership needed. And, according to
the wording of the APA Amendment 2, none sold.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 09 2009 @ 11:38 AM EDT |
The whole point of putting agreements in writing is to avoid subsequent "he
said this, no he said that" disputes. You sign an agreement, and that's
it. If it doesn't say exactly what you thought it said, well, tough. That
happens. But over the years, you come out ahead because you avoid a lot of
lawsuits.
Then along came these bozos on the 10th Circuit appeals panel
and tossed all that in the trash. Every businessman in the country - except law
firms - will be hoping and praying that the en banc appeal will restore the law
to what we all thought it was. [ Reply to This | # ]
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| Authored by: jbb on Wednesday, September 09 2009 @ 12:09 PM EDT |
| Perhaps more than anything else, this is a very clear message to the
chapter 11
trustee, Edward Cahn, whose prime task is to evaluate the
value of SCO's
litigation highjinks. This sad saga has been going on for
over half a decade
with plenty of overlength filings from BS&F trying to
throw sand in the
eyes of the judges. Yet the relatively simple matter
of (not) enforcing 204(a)
of the copyright code is the lynchpin upon
which all of SCO's litigation dreams
rely.
SCO's ex-management will have plenty of opportunity to bend the ear of
Judge Cahn explaining how they have bought the best tap dancers in the
world
who can snow a jury as easily as they can snow a panel of judges.
But Novell
has now focused attention on one key point. They have
provided Judge Cahn
with an easy way to cut through the Gordian knot.
Would it be in the best
interest of the creditors to gamble everything on
the chance that the full
appeals court, the supreme court, and a jury will
all choose to violate both
the words and the spirit of section 204(a) of
the copyright code? He does not
have to make a legal decision of
whether SCO has a chance of prevailing (which
of course they do), he
has to make a business decision of what their odds of
prevailing are.
Novell is sending him a short and simple signal that those
odds are slim
to none.
---
You just can't win with DRM. [ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Wednesday, September 09 2009 @ 12:26 PM EDT |
I wonder what the normal/average/mean time frames are for this court ruling on
such motions, hearing en banc appeals and making decisions.
I know every case is different but it seem there ought to be some rules of thumb
or expsriance out there somewhere.
---
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
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 09 2009 @ 01:00 PM EDT |
Is how I read it speed reading without my glasses
[ Reply to This | # ]
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| Authored by: Jim Olsen on Wednesday, September 09 2009 @ 02:11 PM EDT |
This filing tells the SCO Trustee that he can't expect the appeal to yield a
definitive result that is favorable to SCO any time soon. The circuit court may
not grant a re-hearing, or it may grant it and the re-hearing may go in SCO's
favor, but in either case Novell would then appeal to the Supreme Court. Its
argument of conflict between circuits is clear signal in this regard.
Bottom line, it would be some little while before Boies got to bamboozle a
credulous jury into finding for SCO (pretty much their only hope left), if
indeed that ever happened. In the meantime, SCO's financial position grows
worse by the day. The Trustee is no babe in the woods, and I think he will take
the appropriate conclusions regarding continuation of the lawsuits.[ Reply to This | # ]
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| Authored by: SpaceLifeForm on Wednesday, September 09 2009 @ 02:41 PM EDT |
| Link
"Copyrights and patents are protection
against strangers. Contracts are what you use against parties you have
relationships with," Sontag said. "They end up being far stronger than anything
you do could do with a patent."
That was in May of 2003, and
I'm sure he is finding out
that it is true in spades.
Just not in the
direction he envisioned.
Especially when there is an en banc review of the
APA.
---
You are being MICROattacked, from various angles, in a SOFT manner. [ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Wednesday, September 09 2009 @ 02:55 PM EDT |
Does SCO get a shot?
Can they also appeal parts of the ruling they don't like?
---
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
[ Reply to This | # ]
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| Authored by: webster on Wednesday, September 09 2009 @ 04:04 PM EDT |
1. Every judge has a copy of Novell's petition. Only one judge has to
ask for a vote. Then they all have to vote. There won't be a scoreboard.
Judges are a closed club accountable to no one except possibly higher up judges.
It is easy for them to back one another, affirm everything, without comment,
all the way up the line. Novell has to really scare them or at least appeal to
their professional vanity. They will want to be on the winning side if it goes
up to the Supremes. The law clerks are checking Novell's authority to see which
way the winds blow. They may also be peeking at the decision and briefs. If
one calls for a vote, they are all going to have to study it more and then
vote.
2. SCO can not respond, overlength or otherwise, unless asked by the
Court. FRAP 40(a)(3).
3. Most petitions are denied. Novell needs eleven
votes. They are probably very collegial and will at least discuss it rather
than railroad a significant minority. If they don't deny it, the Court can
order anything at all:
(4) Action by the Court.
If a
petition for panel rehearing is granted, the court may do any of the
following:
(A) make a final disposition of the case without
reargument;
(B) restore the case to the calendar for reargument or
resubmission; or
(C) issue any other appropriate
order.
FRAP 40(a)(4).
It should be fast.
~webster~
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 09 2009 @ 05:29 PM EDT |
Decision Reverses
Earlier Rulings Saying Sleeping Lawyer Did Not Violate Defendant’s Right to a
Fair Trial
Late Monday, the United States Court of Appeals for
the Fifth Circuit ruled that defendant Calvin Burdine is entitled to a lawyer
who not only shows up for trial, but who remains awake throughout the
proceedings as well. This rare decision by the en banc court comes after
multiple reviews by the courts stating that Burdine’s Sixth Amendment right to
counsel had not been violated although his trial attorney, Joe Cannon, slept
repeatedly during the capital murder trial. The state of Texas has 90 days to
decide if they will appeal the decision to the U.S. Supreme
Court.
“Finally, common has sense prevailed,” stated Robert McGlasson,
Burdine’s lawyer in the appeals process. “The full court affirmed what we have
said all along, namely, that a sleeping attorney is the same as no attorney, and
that a death penalty trial conducted under these circumstances violates basic
notions of fairness and decency,” added McGlasson.
In October 2000, a
three-judge panel of the Fifth Circuit Court ruled 2-1 that the record
purportedly did not show that Mr. Cannon slept through “crucial” parts of the
trial and because Mr. Burdine did not, on his own accord, make a record of this
sleeping, Calvin Burdine was not entitled to a
retrial.
Who has slept this time? Our
Darling's brother?
IMANAL_TOO (just didn't login)[ Reply to This | # ]
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| Authored by: HockeyPuck on Wednesday, September 09 2009 @ 06:52 PM EDT |
This reminds me of the movie "Butch Cassidy and the Sundance Kid",
when they are being chased by a posse. They try everything in book to shake
them, to no avail, and look back and say; "who are these guys?". I'm
talking about Novell's lawyers. SCO cries "victory" with the recent
ruling. But Novell responds "not so fast" fellas, we are not done here
yet".
Brilliant move, especially with SCO under "new management" in
bankruptcy. The court already ruled SCO owes Novell money. But money is not an
issue for Novell; that has gone bye-bye already and I think we can all agree on
that. All Novell is trying to do is keep their UNIX property (SCO is toast) and
bury SCO and anyone else regarding Linux (regarding IP). And just in case anyone
forgot; Novell sells Linux. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 09 2009 @ 10:40 PM EDT |
Hit the nail on the head why don't they! That ought to be a bit of a shock to
SCO who thought they were headed back for a jury trial![ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 10 2009 @ 03:32 AM EDT |
like they are using there copyrights in ways without expressed written
permission , um like er a isn't that as the riaa say ILLEGAL ( i know its a
civil matter )[ Reply to This | # ]
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| Authored by: peope on Thursday, September 10 2009 @ 12:28 PM EDT |
What are the chances for a hearing en banc?
Is it always approved?
Is it very common for appeals to have requests for hearings en banc?
What are the odds generally like?
What are the odds in this specific case?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, September 10 2009 @ 01:18 PM EDT |
No inside expose of that sore loser Novell's Hail Mary attempt to block the
Stunning Victory(tm) SCO scored when the appeal panel validated their ownership
of all code ever written and remanded the case back so SCO could have their day
in court?
No statement about how SCO, led by their fearless CEO<delete> Trustee
carrying a briefcase full of code<delete> subpoenas, will triumph over
those evil penguins.
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| Authored by: Anonymous on Thursday, September 10 2009 @ 02:44 PM EDT |
OK normally after any announcement from the courts MOG and others are posting
what a great victory it is for SCO to get their name in the press again. Why
are they now quiet? [ Reply to This | # ]
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| Authored by: rfrazier on Friday, September 11 2009 @ 10:11 AM EDT |
I've read a couple of posts where the idea that Novell could appeal to the
Supreme Court, and the judges on the Appeal Circuit don't want to be
"smacked down" by a bad decision, provides some evidence that the
appeal will be heard en banc.
It occurs to me that sometimes judges, even Appeal Circuit judges, might want
some guidance given by the Supreme Court so that over the long term and over
jurisdictions there will be a consistency in ruling.
So, isn't one judge's "smack down" another judge's
"guidance"?
Best wishes,
Bob
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