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Novell Notifies SCO
Thursday, February 12 2004 @ 05:00 AM EST

It seems SCO did not obey Novell's instructions by the deadline. Consequently, Novell in a new letter, dated February 11, takes the following action:

"Accordingly, pursuant to Section 4.16(b) of the Asset Purchase Agreement, Novell, on behalf of The SCO Group, hereby waives any purported right SCO may claim to require Sequent (or IBM as its successor) to treat Sequent Code as subject to the confidentiality obligations or use restrictions of Sequent's SVRX license."


Here is Section 4.16(b) of the Asset Purchase Agreement, which you can find, along with all the Amendments and Schedules on the Legal Docs page, which has a permanent link on the left of the page:

"(b) Buyer shall not, and shall not have the authority to, amend, modify or waive any right under or assign any SVRX License without the prior written consent of Seller. In addition, at Seller's sole discretion and direction, Buyer shall amend, supplement, modify or waive any rights under, or shall assign any rights to, any SVRX License to the extent so directed in any manner or respect by Seller. In the event that Buyer shall fail to take any such action concerning the SVRX Licenses as required herein, Seller shall be authorized, and hereby is granted, the rights to take any action on Buyer's own behalf. Buyer shall not, and shall have no right to, enter into future licenses or amendments of the SVRX Licenses, except as may be incidentally involved through its rights to sell and license the Assets or the Merged Product (as such term is defined in the proposed Operating Agreement, attached hereto as Exhibit 5.1(c)) or future versions thereof of the Merged Product."

The letter also references Software Agreement No. SOFT-000321 et seq, which may be referring to the Sublicensing Agreement.

Here is the entire letter, and the original is available here.

***************************************************

Joseph A. LaSala, Jr.
Senior Vice President
General Counsel and Secretary

VIA FACSIMILE AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED

February 11, 2004

Mr. Ryan Tibbitts
General Counsel
The SCO Group
[address]

Mr. Ronald A. Lauderdale
Vice-President, Assistant General Counsel
International Business Machines Corporation
[address]

Re: Sequent Computer Systems

Dear Counsel:

Reference is made to the following:

  • Asset Purchase Agreement by and between The Santa Cruz Operation, Inc. and Novell, Inc. dated as of September 19, 1995, and more particularly to Section 4.16(b) of that agreement;
  • Software Agreement No. SOFT-000321, et seq., between AT&T Information Systems Inc. and Sequent Computer Systems, Inc. ("Sequent's SVRX license);
  • Letters dated May 29, 2003 and August 11, 2003 from The SCO Group to Sequent Computer Systems, Inc.;
  • Letter dated August 14, 2003 from IBM to The SCO Group;
  • Letter dated October 7, 2003 from Novell, Inc. to The SCO Group regarding IBM Code; and
  • Letter dated February 6, 2004 from Novell, Inc. to The SCO Group regarding Sequent Computer Systems.

In its February 6 letter to The SCO Group, Novell directed "SCO to waive any purported right SCO may claim to require Sequent (or IBM as its successor) to treat Sequent Code as subject to the confidentiality obligations or use restrictions of Sequent's SVRX license." The letter defined Sequent Code as code developed by Sequent, or licensed by Sequent from a third party, which Sequent incorporated in its UNIX variant but which itself does not contain proprietary UNIX code supplied by AT&T under the license agreements between AT&T and Sequent. Novell directed SCO to take this action by noon, MST, February 11, 2004.

SCO has failed to take the actions directed by Novell.

Accordingly, pursuant to Section 4.16(b) of the Asset Purchase Agreement, Novell, on behalf of The SCO Group, hereby waives any purported right SCO may claim to require Sequent (or IBM as its successor) to treat Sequent Code as subject to the confidentiality obligations or use restrictions of Sequent's SVRX license.

Sincerely,

/s/ Joseph A. LaSala, Jr.

cc: Mr. Darl McBride
President and CEO


  


Novell Notifies SCO | 535 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 05:05 AM EST
Nice!

OffTopic: I can't reach www.thescogroup.com and
www.sco.com. Have they shut off their servers or are they
under attack?

[ Reply to This | # ]

Novell Notifies SCO
Authored by: Totosplatz on Thursday, February 12 2004 @ 05:05 AM EST
Finally - some crystal clarification of the ground rules regarding what is
considered derivative.



---
All the best to one and all.

[ Reply to This | # ]

Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 05:06 AM EST
watch, SCOX stock will rise again today

no one in the main stream tech press is convering this, almost like a massive
conspiracy.

truth is stranger than fiction.

[ Reply to This | # ]

Novell Notifies SCO
Authored by: RSC on Thursday, February 12 2004 @ 05:07 AM EST
One more nail in the coffin.

Is it my imagination or is SCO getting deeper and deeper into the mire? I find
it hard to believe that anyone would now even consider purchase of a SCO linux
license. It seems to be a License that has *no* value what so ever.

Thanks PJ for continuing to make my week. :)

RSC




---
----
An Australian who IS interested.

[ Reply to This | # ]

Novell Notifies SCO
Authored by: Sunny Penguin on Thursday, February 12 2004 @ 05:14 AM EST
Case closed, go home SCO.
Do not pass go, do not collect 200 gazillion dollars.<g>

Can Novell file with the court for The SCO group?
(Judge Wells)

Isn't it a crime to sue someone loudly and publicly over what is not yours?
(If not a law yet, can we make up a new one?)

We should all write letters to congress asking for an Anti-SCO crime bill.



---
Litigation is no sustituite for Innovation.
Say No to SCO.
IMHO IANAL

[ Reply to This | # ]

Novell Notifies SCO - Question to the lawyers
Authored by: Anonymous on Thursday, February 12 2004 @ 05:16 AM EST

OK bear with me, I'm not a lawyer.

If something like this reaches the Judge,
something that pretty much can't be disputed.
Can the judge just decide to either make a
ruling or dismiss the case all together without
further discovery?

[ Reply to This | # ]

Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 05:30 AM EST
So if Novell are in the right here, and I hope they are. Then SCO just lost the
basis for their argument against IBM, no? In other words SCO is finished. Or am
I missing something here?

[ Reply to This | # ]

Employees and/or Agents of the Buyer did agree to the contract terms made by the seller, period.
Authored by: Anonymous on Thursday, February 12 2004 @ 05:33 AM EST
Officers, Employees and/or Actual, apparent or ostensible AGENTS
of the buyer did agree to the terms of the SCO/Novell UNIX related
contract(s).

SCO seems to want to discount or invalidate all actions of their own
past agents. They seem to be hoping that the court will invalidate
the actions of the agents who accepted the terms of the
agreement with Novell, all the terms. AND SCO seems to also wish
that the court will invalidate the actions of previous employees,
agents and managment with regard to their past conrtibutions to
LINUX and their past knowledgeable distribution of the GPL's GNU
LINUX kernel.

So - seems to have lost their minds
...or at least their memory anyway.

One hopes that the court can see all the actions of Caldera/SCO for
the hopeless attempts that they are! SCO wishes to rewrite, the
whole history of their past with UNIX. LINUX, the GPL, the definitions
and case history of agency law, the meaning of the words contract,
estoppel, and acquiescence, by court actions that are simply
hopeless attempts to find any court that will agree to a total rewrite
of history regarding all the actions of SCO's employees and/or
actual, apparent, or ostensible agents.

At least the lawyers for SCO are making themselves happy by
making money all while they make wild stabs at imaginary facts of
their own design.

[ Reply to This | # ]

SOFT-000321
Authored by: Anonymous on Thursday, February 12 2004 @ 05:35 AM EST
This refers to the Sequent SysV license, not the sublicensing
agreement.

[ Reply to This | # ]

Groklaw and PJ in Wired News
Authored by: dahnielson on Thursday, February 12 2004 @ 05:44 AM EST
Congrat' to the Wired News article PJ, from a regular groklurker.

---
Anders Dahnielson

[ Reply to This | # ]

Novell Notifies SCO
Authored by: eric76 on Thursday, February 12 2004 @ 06:00 AM EST
Buyer shall not, and shall have no right to, enter into future licenses or amendments of the SVRX Licenses, except as may be incidentally involved through its rights to sell and license the Assets or the Merged Product (as such term is defined in the proposed Operating Agreement, attached hereto as Exhibit 5.1(c)) or future versions thereof of the Merged Product."

Wouldn't this also mean that even if Linux did have the amount of System V code that SCO claims, SCO would still not have the right to require licenses of Linux users?

[ Reply to This | # ]

OT: Tracking the Canopy Group
Authored by: Anonymous on Thursday, February 12 2004 @ 07:02 AM EST
Since The Canopy Group seems to be the master mind behind this whole SCO thing as described at for example:
http://buffy.sighup.org.uk/sco /note02.html
(If someone has a better description of the selling and trading the Canopy Group does I would be delighted.)

It makes sense to track what other things the Canopy Group is up to. But recently they have changed their website so it is not obvious at all what they are doing. Compare http://www.canopy.com/ with the old version rom the way back machine. Which had a great quote by Daryl McBride: "Canopy adds value to our operations without getting in the way." But the new version of the website doesn't mention anything on SCO or even any of the other Canopy group companies. Hmmmm.

[ Reply to This | # ]

How many fronts?..
Authored by: Debrihmi on Thursday, February 12 2004 @ 07:13 AM EST
Does anybody know exactly how many fronts SCO is fighting; I seem to have lost
count..
;)


---

~
Debrihmi

[ Reply to This | # ]

Novell Notifies SCO [offtopic]
Authored by: Anonymous on Thursday, February 12 2004 @ 07:34 AM EST
notes time of post.

The bed, its that cosy square thing in the corner, you need to get reacquainted.
:)

[ Reply to This | # ]

Novell Notifies SCO
Authored by: blacklight on Thursday, February 12 2004 @ 07:51 AM EST
It looks like the SCO Group just reached the end of its glory road: if they keep
suing IBM over AIX/Dynix, then they stand to be in clear breach of their APA
with Novell - which Novell is quoting chapter and verse. The fact that the APA
includes paragraphs that explicitly state that Novell has waiver power is one
more clear, consistent indication that Novell never intended to transfer all the
copyrights to the SCO Group - just those that the SCO Group needs to conduct its
business as a proxy licensor for Novell.

If BS was publicly asking what did the SCO Group get for the $100 mil APA? I am
not versed with the non-monetary aspects of the APA so I will not comment on
them except to say that they got themselves the right to use the AT&T UNIX
codebase. In terms of finances, the SCO Group gets about $10 mil a year in
license fees, which means that the SCO Group recovers its $100 mil within 10
years.

I expect that by the end of this week, Judge Wells will use a stiff order to the
SCO Group to produce the discovery items. Indications that such an order is on
the way are: (1) Judge Wells intimation of a "strict order", and (2)
her questions to Heise as to how much a time interval the SCO Group would need
in order to comply - Heise said one month.

[ Reply to This | # ]

PALLADIUM
Authored by: hal9000 on Thursday, February 12 2004 @ 07:58 AM EST
Could this be the next Groklaw discussion topic ?

After SCO :)

Just the facts jack, just the facts


[ Reply to This | # ]

OT - IBM should not budge on the "specificity" issue
Authored by: blacklight on Thursday, February 12 2004 @ 08:00 AM EST
IBM should not budge on the issue of specificity because without specificity,
the SCO Group could conceivably sue another licensee over the same code and no
one would be the wiser. The SCO Group said that it did not delineate the lines
of code that were allegedly infringing in a number of files because these lines
were "scattered" throughout those files. The assessment of
"scatter" is irrelevant to the case, no one ever authorized or
deputized the SCO Group to make this assessment, and no one solicited the SCO
Group to make this assessment: the bottom line is that the SCO Group must comply
with the court order so that these allegations are stated with enough
specificity with respect to the location of the code that the provenance of the
code may be established. And it is self-evident that it will be impossible to
establish the facts of the case at trial, if the provenance of the code cannot
be established.

[ Reply to This | # ]

Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 08:02 AM EST
Slam dunk for Novell.
I love how Novell publishes everything so IBM and others, Red Hat, et el can see
it all. It is like an army of ants digging up all the evidence. All these
marvelous comments just help expose and frame the facts for understanding and
legal use.

Great

[ Reply to This | # ]

Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 08:08 AM EST
After all this piecing together, the groklaw community - the first Open Source Paralegal project? - I would be quite keen in seeing a similar exercise done on Microsoft's dominance, monopoly, to allow the public to understand what this really means. Because apart from a unclear project from the US and EU gouverments, I can't really understand what this all means in real terms. The 3rd project that would be of interest is a review of patents and their eligibility and usage. If these reports could be as clear as the SCO following, then I could seriously consider making my own opinion on the issue rather than having to rely on whatever someone else tells me.

[ Reply to This | # ]

  • Novell Notifies SCO - Authored by: DFJA on Thursday, February 12 2004 @ 09:43 AM EST
    • windows - Authored by: Anonymous on Thursday, February 12 2004 @ 01:20 PM EST
Material Breach by SCO?
Authored by: Anonymous on Thursday, February 12 2004 @ 08:49 AM EST
IANAL, but could it be that Novell are trying to establish a fact pattern to
enable them to argue for material breach? If they do that and the contract is
thereby voided, do they automatically get back all the stuff (the
"Business" of Recital A) that passed to SCO?

[ Reply to This | # ]

Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 09:08 AM EST
I love the timing of Novell's actions. They warned SCO way back about their
questionable ownership claim but they just talked trash back to them. So what
did Novell do? They remained silent for a while and let SCO dig their own grave
deeper and deeper. When SCO reached a point of no return, Novell comes out with
all their document proofs, which is about to effectively finish off SCO, and
make them look incredibly stupid in the process.

We'll all miss you Darl, you've been hilarious.

[ Reply to This | # ]

Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 09:17 AM EST
But isn't it the second time Novell does exactly that?
Haven't they already sent on of those in November ordering SCO the same, and
waving the License revocation in the name of SCO for both IBM and SGI?

What's the point of doing it again?

And why the hell isn't ANY of the tech media covering it?
Where's SCO's reply?

It seems like for the second time, the owner of SRVX copyright is ordering SCO
to stop, and for the second time, everyone except us is going "yeah
...yeah...whatever..."

It's just a little beyond me.

[ Reply to This | # ]

Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 09:21 AM EST
And you know? If you're using M$, and you have updated to Media Player 9.
Well you already have the software components of Palladium in place, and you've
already agreed to comply to it's rules...

In fact, it's already in use. I've downloaded a media file off
the Net a few months ago and when I opened it, Media Player went to the maker's
site and got the Certificate to play it.

Of course, I deleted the file right away. But It's here.

[ Reply to This | # ]

Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 09:22 AM EST
I not quite sure I like this. This now gives SCO an exit. They can just say that
after reviewing the Novell APA they determined that Novell is right and they
must drop the IBM case. If that happens there are still several items that will
remain unresolved. Such as, is there any code in the Linux kernel that might
actually be infriging on UNIX code or getting a case law ruling on the GPL. If
SCO bows out now, the door of opportunity will still be open for future attacks
on Linux. But then again, even though this gives SCO the perfect reason to drop
this case so they can focus on defense of IBM countersuit, SCO has not shown
that they can make those kind of intelligent decissions in the past.

I have no doubt that SCO is a doomed company no matter what but if SCO takes
advantage of this then Darl an Co. might be able to walk away with some extra
cash on stock sales and avoid SEC investigation because there will now be no way
to show whether they actully had a case or were just pumping stock with bogus
claims. This might even lead to a buyout from Novell so they can be back in full
control of SVRX. I can see them striking a deal with IBM and Red Hat to have
those suits dropped if this happens as it would be beneficial to all involved.

I don't know if it will end up playing out like that or not but this still looks
like a very easy way for SCO to start backing out without looking like they were
completely wrong to thier investors.

[ Reply to This | # ]

Novell Notifies SCO -- Lawyer Question
Authored by: Anonymous on Thursday, February 12 2004 @ 09:23 AM EST
Does the $ Echo article actually change the contract, or do you need a new
signed document?

[ Reply to This | # ]

Just one problem
Authored by: maroberts on Thursday, February 12 2004 @ 09:29 AM EST
With Novell cutting the ground out from SCO, is there any chance there will be a
legal decision in this case to give more support to the legality of the GPL?

The GPLs legality is part of SCO's defence against IBMs countersuite, and the
question is surely just legal, and therefore should be decided before the case
reaches a jury?

[ Reply to This | # ]

Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 09:39 AM EST

Lately, the ongoing SCO saga reminds me of an old, old `Night Court' episode where Bull (the bailiff) gives an incompetent clerk (Fast Eddie?) special passes to a prize fight to spar for one round with Mike Tyson. As the credits roll by you hear the fight announcer saying something like: ``How can anybody take such punishment?!''

SCO seems to have gotten into the ring with a couple of heavyweights. And they're taking some real punishment.

[ Reply to This | # ]

We Own Unix -- Buyer shall not
Authored by: grouch on Thursday, February 12 2004 @ 09:54 AM EST
This has bugged me from the first time the Asset Purchase Agreement was posted
on Groklaw: how can SCO have believed they own UNIX when Section 4.16(b) is all
about restrictions on what the "Buyer" is allowed to do with
licenses?

An owner has ownership rights. A copyright owner has control over a license
issued regarding the copyright-protected work.

"Buyer shall not, and shall not have the authority to, amend, modify or
waive any right under or assign any SVRX License without the prior written
consent of Seller."

Sure looks like the "Seller" is retaining ownership control of the
"License".

"In addition, at Seller's sole discretion and direction, Buyer shall amend,
supplement, modify or waive any rights under, or shall assign any rights to, any
SVRX License to the extent so directed in any manner or respect by
Seller."

If "Buyer" were buying the copyrights, why does "Seller"
retain such fine control over the "License"?

"Buyer shall not, and shall have no right to, enter into future licenses or
amendments of the SVRX Licenses, except as may be incidentally involved through
its rights to sell and license the Assets or the Merged Product (as such term is
defined in the proposed Operating Agreement, attached hereto as Exhibit 5.1(c))
or future versions thereof of the Merged Product."

The owner of a copyright certainly has the right to enter into future licenses
with respect to the copyright-protected work. Those "Assets" must not
include "SVRX" or else SCO, as "Buyer" could enter into
future licenses and amend old licenses to their heart's content.

No matter how many times I read it, it still looks like SCO->Caldera->SCOX
bought themselves a bill collector position. They have the right to be Novell's
errand boy.

[ Reply to This | # ]

What about corps that did pay ?
Authored by: Zordas on Thursday, February 12 2004 @ 09:58 AM EST
If SCO looses (And I hope they do) Can the Corporations that have already paid
the license fee sue for reinbursement?

[ Reply to This | # ]

The real important case has yet to come...
Authored by: pooky on Thursday, February 12 2004 @ 10:00 AM EST
With Novell waiving rights and claims for SCO, it seems to me that the real
nasty fight has actually yet to start, the one that affects everything.

SCO at some point will have no alternative but to litigate against Novell over
the terms of the APA, since there are now disputes about what assets were
transferred to oldSCO, what rights Novell may exercise under the APA, and
exactly what responsibilities newSCO inherited as the successor in interest to
oldSCO via Caldera Systems. These are the major points of the contract and
there's a great deal of dispute.

I doubt Novell will sue SCO before SCO sues Novell (again), I don't think Novell
really has to sue SCO unless SCO witholds the SVRX licensing revenue from
Novell. In any event, any litigation over the portions of the APA relevant to
IBM is going to be initiated by SCO. It's enough for Novell to simply send
letters to halt SCO's litigation against IBM in it's tracks (and we are not
litigating yet, it's still in discovery).

If SCO sues Novell, SCO puts itself in the position of having to prove the
claim, Novell gets to just tear apart SCO's arguments. It's almost always easier
to defend something like this because were arguing over interpretation and
intent and the plaintiff doesn't get a lot of leway to make their case. It's
really in Novell's best interest to wait for SCO to sue them, especially since
the entire educated world seems to agree with Novell's interpretation of the
APA. What do you think Novell's chances are in a jury trial given this?

No no, Thanks to Novell, we may not see SCO v IBM go anywhere until 2006 or
2007, depending upon how long it takes SCO v Novell round 2 to work out. How
much did SCO have in the bank again, 60 million or so? With litigation costs
hovering around $12 million a year right now and predicted to go up, that's
about 5 years of life for SCO, max, without more investment. Suddenly Canopy's
$20 or $30 million dollar potential loss starts looking much larger if they have
to keep pumping in money to feed the lawyers, and I doubt anyone else is going
to invest more money in SCO in a few years as everyone will be very tired of the
public dribble by then, anaylsts, reporters, and all.

-pooky

---
Veni, vidi, velcro.
"I came, I saw, I stuck around."

[ Reply to This | # ]

Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 10:23 AM EST
A Non-PC reply.

Well looks like the Fat-lady is clearing her thoat and getting ready to sing
hear heart out.

[ Reply to This | # ]

Darl baby, u packin ur bags 2 go to Iraq?
Authored by: Anonymous on Thursday, February 12 2004 @ 10:27 AM EST
... the best place for you to crawl into now, to escape from your investors, is
in that same hole that Saddam was in, but even Sadam couldn't dig himself as
deep as you have, he he he, I'm want to see you with your mouth opened wide :0

he he he he...

Good move Novel.

[ Reply to This | # ]

Purchase Asset Agreement
Authored by: Jeff on Thursday, February 12 2004 @ 10:35 AM EST
It seems to me the after reading this letter, and after reading the Purchase
Asset Agreement, that SCO is now not in any position to sue IBM for contractual
or copyrtight reasons. It will be interesting to see if SCO is as willing to
follow a contract as they are to enforce one.

[ Reply to This | # ]

Hang on a minute
Authored by: mnuttall on Thursday, February 12 2004 @ 10:37 AM EST

In S CO's last letter to Novell Ryan Tibbits wrote,

[Novell] also questioned SCO's introduction of an Intellectual Property License for Linux and whether that was a new SVRX license. It is not. Those licenses are given in order to protect SCO's intellectual property rights in UNIX and UnixWare. I previously provided you a response on this issue in my letter dated January 7, 2004

But in that letter Mr Tibbits wrote,

[I]n Amendment No 2 to the Asset Purchase Agreement, it was agreed that Novell could not prevent SCO from exercising its rights under the agreement with respect to protecting SVRX source code.

(My italics). So is this deliberate obfuscation? What is "UNIX" if not SVRX? And is the IP License for UnixWare, SVRX, or "UNIX" code allegedly in Linux? I wonder.

[ Reply to This | # ]

Novell..."Houston we have problem"
Authored by: Anonymous on Thursday, February 12 2004 @ 10:47 AM EST
It appears that Novell may be sending out a 'mayday' sometime soon on this
one...Novell has been basing its position throughout this mess on the premise
that it held onto the ownership and copyrights to UNIX and UNIXWARE in the
original APA...right?

However, the original (Sept. 19, 1995)APA transfers all of Novell's interest in
the UNIX and UNIXWARE business to SCO...And, the language in the schedules to
that APA, specifying what was transferred, is ambiguous...It's for that reason
that an Amendment was signed on October 16, 1996 by SCO general counsel, Steven
Sabbath, and Novell CFO, James Tolonen.

This amendment applies specifically to Schedule 1.1(b) of the original 1995 deal
and changes the items which Novell retained:

"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."

This Amendment...which PJ needs to post here on groklaw...shows that Novell did
not retain "copyrights and trademarks" it owned as of 1995 required
for SCO to exercise its rights to Unix. Instead, those were transferred in the
APA to SCO. Novell's assertions that it somehow still has those rights,
including the filing in August, 2003 for the copyrights, seems to be frivolous,
to say the least.

There's an informative article on LinuxWorld, Feb. 9, concerning SCO's finding
of this smoking gun...and alluding to Novell's obvious attempts to keep it
hidden. There, the author notes that SCO:

"has collected depositions from people like former Novell CEO Bob
Frankenberg, Santa Cruz co-founder Doug Michels and Santa Cruz CEO Alok Mohan as
to the intent of the original agreement and they all reportedly support SCO's
interpretation of events, not Novell's.

The original 1995 agreement also invests in SCO "all rights and ownership
of Unix and UnixWare... including source code..." (Schedule 1.1(a)),
"all of seller's claims arising after the closing date against any parties
relating to any right, property or asset included in the business" and
"all of seller's rights pertaining to Unix and UnixWare under any software
development contracts, licenses and any other contracts to which seller is a
party or by which it is bound and which pertains to the business (to the extent
such contracts are assignable" (Schedule 1.1(g))."

This Amendment to the original APA clearly affects all of Novell's claims and
assertions...including its correspondence to IBM, Sequent, and SCO...

[ Reply to This | # ]

Can SCO SUE NOVELL?
Authored by: shareme on Thursday, February 12 2004 @ 10:53 AM EST
We know that Novel is not a distinct child corporation of Canopy..however

Can honestly any dirrecotrs of SOC tha thhave Canpoy ties and Novell ties
actually fiducially recommend suing Novell based on their fiduciary duties or do
they have to abstaibn form that type of vote?



---
Sharing and thinking is only a crime in those societies where freedom doesn't
exist.

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  • Can SCO SUE NOVELL? - Authored by: inode_buddha on Thursday, February 12 2004 @ 01:03 PM EST
  • OT reply - Authored by: Anonymous on Thursday, February 12 2004 @ 02:57 PM EST
    • OT reply - Authored by: Anonymous on Thursday, February 12 2004 @ 06:59 PM EST
Take on Open Source and ...
Authored by: blacklight on Thursday, February 12 2004 @ 11:21 AM EST
I believe that we are at the beginning of the end, and I have written this coda
which pretty summarizes my feelings:

"Take on Open Source and we who are your enemies will surge from the
ground, rise from the waters and materialize out of thin air. Take on Open
Source and we will build overnight powerful, sinister and towering strongholds
in a landscape where little children and their pets used to run and play
laughing and squealing among the grass, the flowers and the thyme, lovers ate
lunch and dreamed of their future together under the blooming peach trees and
lonely hawks flew in large circles under the clouds. Take on Open Source and
those of us who are peaceable, kind people will turn into savagely effective
fighters. Take on Open Source and those of us who are ordinary people going
about our day-to-day business will discover in themselves the souls of
undaunted, bold and resourceful combat leaders. Take on Open Source and the
hands of we who are strangers to you will bury you in a shallow grave and write
your epitaph in words that are foreign to you. For this journey into everlasting
darkness is the fate that is written upon the brows of those who would take away
our freedom and sell that which is not theirs and was never theirs to sell. So
if you have evil thoughts and plans toward us, be kind to yourself and to us and
walk away from us for we have no wish to inflict upon you any harm."

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Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 11:47 AM EST
slashdot just posted a SCO story. pretty much the same thing as a DDOS

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Conrol over the code?
Authored by: Anonymous on Thursday, February 12 2004 @ 12:01 PM EST
I am wondering what safeguards Novell had to get control
of the code back in the event that the original SCO went
overboard? Right now, all rights to the code is assigned
to Ray Noorda's company "Canopy Group" when SCO dies.

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Novell to SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 12:01 PM EST
You got served!

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Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 12:08 PM EST
Uh, I sense a Fat Lady approaching. And boy, does she look
mean. Uh-oh...

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Nice CNET article on Open Source - explaining the bigger picture inside Novell, IBM, etc.
Authored by: Anonymous on Thursday, February 12 2004 @ 12:46 PM EST
CNET has a nice piece on the reasons for IBM, etc. adopting OSS. Entitled Companies are facing a cannibalizing dilemma, it begins :
Once every three months, Alan Nugent, chief technology officer of billion-dollar software company Novell, sits down with a small group of colleagues to decide what software the company will give away for free.

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Oh, just great...
Authored by: inode_buddha on Thursday, February 12 2004 @ 12:51 PM EST
(rolls eyes)

Now that there's a story about it on slashdot a few people are nmapping them.. Last I checked, that's a *great* way to get in Federal trouble.

---
"Truly, if Te is strong in one, all one needs to do is sit on one's ass, and the corpse of one's enemy shall be carried past shortly." (seen on USENET)

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Dumb question
Authored by: Anonymous on Thursday, February 12 2004 @ 01:01 PM EST
I've been keepin gup with this as best I can, but in plain English, what does
this mean?

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Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 01:24 PM EST
When the Court finally rules that SCO is claiming rights that it doesn't have
will the poor souls who were suckered into purchasing a Linux license have the
right to demand their money back?

If so could this possible lead to Microsoft demanding the eight million dollar
IP licensing fees that they paid to SCO be returned?

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Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 02:23 PM EST


Isn't SCO performing, yet more, illegal actions?

I was reading /., and saw a link to SCO's [not so funny] top 5 reasons to choose Unix over Linux. The fifth reason given is because SCO claims 'SCO UNIX® is Legally Unencumbered.'

Wouldn't the fact that Novell has been disputing SCO's control over Unix for nearly, ohh what, 5-6 months now[?], make the "Legally Unencumbered" statement from SCO a maliciously false and criminal statement?

Also, if that were the case, could not Linux copyright holders now sue SCO for Slander of Title? (I think that one is a little far-fetched, kinda a; 'they could sue, but it'd be a cold day in hell before they'd win,' sort of deal.

As well, could it not be perceived as false advertising, allowing any Unix Licensee to sue SCO for a refund on the grounds they purchased a Unix license from SCO under the direct impression that SCO's Unix license was not subject to legal liability. (IE: unencumbered)

A link to this statement, and other FUD from SCO, can be found here:
http://www.thescogroup.com/5reasons/

BTW, IANAL. I'd like to hear some opinions on how SCO could be held legally or possibly criminally liable for any statements they made on this page.

-GoMMiX

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5 Reasons to choose Unix over Linux
Authored by: gray_eminence on Thursday, February 12 2004 @ 02:28 PM EST
Although already posted on /. the 5 Reasons page from SCO is starting to reflect
PJ's expectation that the DMCA will be the next attempt. What I noticed in
reading this exerpt is that SCO is now specifically referencing the DMCA in
their PR, unlike before where they've only referred to 'intellectual property'
or 'copyrights'.

The other difference that stuck is that here they assert that using Linux in a
'commercial setting' is a violation. This seems to leave out any mention of
using Linux in a personal, or educational setting. I have noted that they do not
specifically exclude those other settings, and that this document appears to be
written for a commercial audience, so it might not be significant anyway.

===============================
"These facts support SCO's position that the use of the Linux® operating
system in a commercial setting violates our rights under the United States
Copyright Act, including the Digital Millennium Copyright Act."
-REF: http://www.thescogroup.com/5reasons/
(Reason #5, Paragraph 2, last sentence)
================================

Anyone notice: no mention of their own Linux distro.

---
--
I am not a legal professional.
Heck, I don't even play one on TV.

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Where are Didio, Enderle, Lyons, etc ?
Authored by: Anonymous on Thursday, February 12 2004 @ 02:35 PM EST

We haven't heard much from any of these people since friday's hearing; could it be they're busy eating their hats? Where are Darl's buddies when he needs them? Talking about fair-weather friends !

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Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 03:20 PM EST
I've only been following Groklaw for about a month now so I apologize if anyone
else has already used this analogy. I can't help but think of the dueling
knights in Monty Python and the Holy Grail. The Black Knight (SCO) dares anyone
to cross his path. As The Black Knight's first arm is lopped off, he claims
it's only a "flesh wound" (read slander of title). The second arm
comes off (trade secrets) followed shortly by both legs (read UNIX
"ownership" and licensing). SCO's post now about how it might be ok
to use Linux for other than commercial purposes sounds a bit like "come
back here and I'll bite you" or something to that effect. Sorry I can't
grab the link for the Top 5 Reasons to Use Unix Over Linux right now because it
looks like the SCO site is down again. Shux.

Speaking of armor, is that a chink in SCO's stock price? True...not a great day
for the markets, but as of this post the price is down about 2.5%. Perhaps
SCO's armor is full of rust, and the emperor has no clothes!

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SCO's new SEC Filing
Authored by: Anonymous on Thursday, February 12 2004 @ 03:50 PM EST
http://ir.sco.com/EdgarDetail.cfm?CompanyID=CALD&CIK=1102542&FID=1047469
-04-4069&SID=04-00

Very interesting read indeed!

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BayStar cashing out?
Authored by: Anonymous on Thursday, February 12 2004 @ 04:20 PM EST
Do I understand this correctly? Is BayStar cashing out and selling all its SCO
shares?

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OT: 5 Most Frustrating Things in the SCO Affair
Authored by: Anonymous on Thursday, February 12 2004 @ 04:50 PM EST
The 5 things that have been the most frustrating in the SCO Affair to me
personally, are:

(1) SCO's unethical behaviour (stock manipulation, lying/deceiving the
press/investors, slandering Linux developers and Linux users, spreading
impressive amounts of nonsensical FUD, etc).

(2) The shoddy coverage of the SCO case by the media in general (and
particularly by the so called "IT analysts" and other paid
MS-shills... I think we've all had our eyes opened to just how worthless and
uninformed the opinions of these people are).

(3) The glacial speed at which the U.S. court system has moved to put a sock in
SCO (compare for example, Germany). Mitigating factor here is that SCO's
eventual destruction in the courts is pretty much assured and since it will
take so long, we will get lots of entertainment value out of it!

(4) The fact that SCO's directors etc. are making money through insider selling
of this publicly-traded lawsuit, and the SEC has not (visibly) done anything
about it. SCO's use of a loophole does not make what they are doing any less of
a scam.

(5) That SCO has managed to waste a huge amount of the community's time
(collectively) reading about their antics, researching their half-truths and
dispelling their FUD.


Of course, some good things came out of the SCO saga too (like Groklaw for
example, and increased awareness of Linux, and some open-source-friendly
activity by companies like Novell). So it may all have been worth it. =)

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Curse that APA!!
Authored by: Anonymous on Thursday, February 12 2004 @ 05:39 PM EST
There are so many clauses in this agreement that make me wonder what in the world Novell and oldSCO were thinking at the time. What was the understanding of each party regarding the transfer of SysV copyrights? If they weren't transferred, why did Novell have to license back its own code? If they were transferred, why did oldSCO let Novell retain so much power over the license agreements? Sheesh, what good are legal types if they can't even draft an APA that makes sense? No offense, PJ.

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Great Computerworld Article
Authored by: Anonymous on Thursday, February 12 2004 @ 05:46 PM EST
http://www.computerworld.com/governmenttopics/government/legalissues/story/0,108
01,89342,00.html

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Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 07:30 PM EST
I don't really understand what this means... Perhaps a new blog putting it in
layman's terms? Or a summary of what's been going on thus far? A
scorecard? A lot of folks are saying, "Game over," but I don't really

understand why.

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  • In short - Authored by: Anonymous on Thursday, February 12 2004 @ 07:55 PM EST
Novell Notifies SCO (the tone)
Authored by: Anonymous on Thursday, February 12 2004 @ 07:57 PM EST
O Wow! No more "Dear Darl," "Dear Mr. McBride," instead,
just "Dear Counsel". Not so nice any more.

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Novell Notifies SCO
Authored by: Anonymous on Thursday, February 12 2004 @ 08:50 PM EST
I think a lot of people here don't get the significance of this notice from
Novell.

1) this means that SCO has to drop all their charges about Dynix code in the IBM
trial. If they don't, IBM just shows the judge the letter and the judge
dismisses those charges. That is because in the trial SCO is claiming Dynix
rights, and Novell has ordered SCO to waive claims to those rights.

2) disputes about whether the copyrights were transfered to SCO don't matter.
That is because even if they were, the contract unequivocably says that Novell
has the right to order SCO to wave rights.

3) Arguments about derivative code don't matter. If SCO is right and code
written from scratch and put in Dynix became part of SVR4, then Novell is still
waiving SCO's rights to that code when it waives SCO's rights to make claims
regarding DYNIX.

In other words, SCO's case regarding Dynix code is dead. And once SCO sends a
similar notice to SCO regarding AIX, then the rest of SCO's case is also
dismissed. End of story (except for all the countersuit fun)

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How DOES this work?
Authored by: Anonymous on Thursday, February 12 2004 @ 09:32 PM EST
Ok, Novell has rights (derived by contract) and is using them.

IBM can waive a letter in the face of the judge that says, Novell says, that
Novell is allowed to say SCO says, that SCO says...

Novell isn't party to the suit.

But, if Novell has the right, SCO (through Novell) surely has let IBM off the
hook, 100%.

How does the justice get done?

If SCO is right, Novell has no weight, and the IBM case must be found for them.
(Let's assume we live in SCO-ville, where the their claims are otherwise
valid.)

If SCO is wrong, how does the judge know this without settling the SCO/Novell
contract?

How does a judge resolve this?

What weight does do Novell's "for SCO" actions really have? Does
Novell have to sue SCO for breach for not acting the puppet they've been made to
be?

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Novell Notifies SCO
Authored by: Anonymous on Friday, February 13 2004 @ 12:50 PM EST
To:
Osama Bin Laden,
CC: Darl McBride

What cave will you hide in next? What's your next terrorism plot? Both of you
act the same. One hides in caves and the other behind a corporate vail. Justice
does await you gentleman. Truth will be pronounced to you both.

Sign:
Anonymous Penguinite



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