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Novell's Motion to Dismiss and Memorandum in Support
Friday, February 13 2004 @ 02:12 AM EST

I'm never going to get any sleep, I guess. Not this amazing week. Because here is Novell's Motion to Dismiss. And their Memorandum in Support of the motion is absolutely fascinating, too fascinating not to read right now. Here's the pdf.

Essentially, they've done something very clever. They are trying to get SCO's action dismissed on the pleadings alone. Shazam.

From media reports, I couldn't figure out why they didn't argue that there was an absence of malice shown. On reading the memorandum, I see they've chosen to try to avoid anything that would require a trial to resolve. They list elements that they assert SCO has failed to plead sufficiently in their Complaint, giving the judge the opportunity to dismiss the case on the pleadings alone, for failure to state a claim.

There are four necessary elements you must prove in a slander of title action, and if they fail to sufficiently plead even one of them, it means dismissal. This means it could be over very soon. SCO does have an opportunity to answer this motion, of course, but they'd better have something more specific to say than what they said in their letters to Novell.

Presumably SCO could try, try again with better pleadings, unless it's dismissed with prejudice, or they could try stating a different cause of action, but to do that, they'd need better facts. I don't know where they can find some of those. If this Motion to Dismiss fails, Novell can always use the lack of malice argument later as a defense, if the case does go forward. In short, Novell means business. They saw flaws in SCO's legal pleadings, and lawyers start happily salivating when that happens. Obviously, they were not going to let it slip by them.

The umbrella terminology is that they are asking to dismiss SCO's complaint "for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6)." I have to tell you that you see that phrase in virtually all responsive pleadings. You always throw that in, but it's boilerplate usually, thrown in for good measure along with the arguments you really think will win. This is the first time in my career I've seen failure to state a claim pled on its own like this and in a way that actually might prevail.

There are four things SCO has to prove in a slander of title action, and Novell lists them:

  • 1. there was a publication of a slanderous statement disparaging claimant's title,
  • 2. the statement was false,
  • 3. the statement was made with malice, and
  • 4. the statement caused actual or special damages.
SCO's complaint fails on two of the four (2 and 4), falsity and special damages, they argue (they could obviously assert 1 and 3 down the road), but they only need to prove one to get the motion dismissed. First, SCO didn't prove that Novell's claim to be the owner of the copyrights is false. SCO is relying on a document that fails to meet the requirements of the Copyright Act for a valid transfer of copyright ownership, Novell states. Without a transfer, SCO can't prove it is the owner of the copyright and it also, necessarily, can't prove element two, above, that the statement was false.

First, Novell argues, it actually is the copyright owner, because the Asset Purchase Agreement and Amendment 2 do not constitute a proper transfer of the copyright. At most, it's a promise to do so on certain future events, but not a conveyance. They point out the language is "will convey" not "hereby conveys". And also, it doesn't specifically list what copyrights were to be conveyed, a requirement for any such transfer to be legal. Because SCO relies on the APA and Amendment 2 for its slander of title action, the fact that the documents prove Novell continues to be the owner of the copyrights makes a dismissal proper, they argue:

"All documents attached as exhibits to the complaint are properly considered in ruling on a motion to dismiss. Issa v. COMP USA, No. 03-4024, 2003 U.S. App. Lexis 26280, at *10 (10th Cir. Dec. 24, 2003). The trial court need not accept as true 'allegations of fact that are at variance with the express terms of an instrument attached to the complaint as an exhibit and made a part thereof.' . . .

Therefore the Court should ignore any allegations in the Complain that are contradicted by the Asset Purchase Agreement and Amendment 2."

Neat slice, huh?

They also land a blow SCO left themselves open to. SCO admits, they point out, that they are not the copyright owners in the very relief they ask the court to grant them: namely, they ask that the Court issue an injunction "requiring Novell to assign to SCO any and all copyrights Novell has registered in UNIX and UnixWare." You can't ask for copyrights to be assigned to you if you already have them, can you? If you don't already have them, you can't scream slander of title if the person you want to assign them to you says they own them. Duh. Some things are just obvious. How could SCO not notice that the relief they were asking for undermines their claim?

But that's not all. The motion should be dismissed, they say, because SCO didn't adequately plead special damages. You have to say something like, "I lost a contract worth XXX dollars and xx cents", not vague "there is uncertainty in the marketplace". On those two elements, both of which are essential to a slander of title claim, they say the slander of title action must be dismissed. Here is how the Preliminary Statement puts it:

"The crux of SCO's slander of title claim is its assertion that pursuant to an agreement attached to its Complaint, it owns the copyright to UNIX and UnixWare; that Novell's statements that SCO does not hold such title are false; and that these statements have left SCO's customers and potential customers unable to ascertain the truth about copyright ownership.

"The Complaint fails, however, to allege facts sufficient to support two necessary elements of slander of title: falsity and special damages. As to falsity, the documents SCO relies upon to establish ownership of the copyrights fail on their face to meet the federal copyright law requirements for such an instrument. Without conclusively establishing that it owns the UNIX and UnixWare copyrights, SCO cannot show that Novell's statements to the contrary are false, and cannot prevail. As to special damages, SCO has not set forth its alleged special damages sufficiently to state a claim.

"Because SCO's Complaint fails as a matter law, the motion to dismiss should be granted."

Another more fascinating detail. On page three, there is this sentence:

"On October 16, 1996, Novell and SCO's alleged predecessor, The Santa Cruz Operation, Inc. ('Santa Cruz"), executed Amendment No. 2 to the APA." [emphasis added]

Catch their drift? I expect we will hear more on this.

The detailed arguments on why the APA and Amendment 2 don't measure up as a copyright transfer sound a lot like Harlan's comments for the last few months. It's complex, and you have to force your eyes not to glaze over, but here it is: First, the APA's Section 1.1(a) is "merely a promise to transfer, upon closing" of all of the assets listed in Schedule 1.1(a), which also says that this does not include those "Excluded Assets" set forth in Schedule 1.1(b). That schedule lists "all copyrights" as being excluded. So the APA didn't transfer any copyrights on the day of closing.

Then Amendment 2, standing alone, doesn't transfer either, because it doesn't mention specific copyrights being transferred. A copyright transfer must mention with specificity what is being transferred:

"APA Amendment No. 2 similarly does not purport to transfer anything in and of itself; it merely amends a section of the 'Excluded Assets' section of the Asset Purchase Agreement."

Finally, even if you put both documents together, they are still insufficient, being merely a promise "to assign unidentified copyrights if those copyrights are 'required'." The agreement says Seller "will sell, convey, transer", etc., not that Seller "hereby sells, conveys", etc. Nowhere in the agreement, Novell points out, does it ever say that "Seller hereby assigns" or that "Buyer hereby acquires". This, they say, makes the documents a promise to assign in the future. That's not the same as an actual assignment, under the Copyright Act. They cite some cases to prove their point.

Therefore, there has been no actual copyright transfer to date under these written documents, which leaves Novell the continuing owner of the copyrights at issue. So SCO perforce can't prove that Novell's claiming to be the owner is a false statement, the first element they need to prove and now can't.

Even if the APA and Amendment 2 were an attempt to transfer the copyright, their motion would have to fail anyway, Novell says, because of the failure to meet the Copyright Act's requirement that a transfer document specify what copyrights are being transferred specifically and especially so when a purported assignment is seeking to transfer less than all rights, as in this case. Copyright ownership isn't one right; it's a bundle of rights, and you can transfer all or some or part. Amendment 2 is too vague on this point. Remember the famous clause?

"All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the [Asset Purchase Agreement] required for [Santa Cruz] to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies."

Clear as mud? Precisely. What copyrights are required? It's not clear, they say. This vagueness means it can't meet the requirements to be a conveyance under the Copyright Act. Novell, with a touch of irony, adds that this writing requirement "avoids inadvertent transfers of copyright ownership by copyright holders." I like lawyers with a killer sense of humor.

More when we get it transcribed. Meanwhile, here is the motion.

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

MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice pending)
Matthew I. Kreeger (pro hac vice pending)
[address, phone, fax]

Paul Goldstein (pro hac vice pending)
[address, phone]

ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address, phone, fax]

Attorneys for Defendant Novell, Inc.
FILED
9 FEB 04 PM 4:33
DISTRICT OF UTAH
BY:_______________

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware corporation,
Plaintiff,
vs.
NOVELL, INC., a Delaware corporation,
Defendant.
MOTION TO DISMISS

Case No. 2:04CV00139

Judge Dale A. Kimball


Defendant Novell, Inc., by and through its attorneys of record, hereby moves this Court to dismiss The SCO Group, Inc.'s Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 1(b)(6). The grounds for this Motion are more fully set forth in the Memorandum in Support, filed concurrently herewith.

Dated: February 9, 2004

ANDERSON & KARRENBERG

__[sig: heather M. Sneddon]__
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
Attorneys for Defendant Novell, Inc.




CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this _9th_ day of February, 2004, I caused a true and correct copy of the foregoing MOTION TO DISMISS to be served via first class mail, postage prepaid, to the following:

Brent O. Hatch
Mark R. Clements
HATCH JAMES & DODGE, P.C.
[address]

Kevin P. McBride
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

_[sig: Heather M. Sneddon]__



  


Novell's Motion to Dismiss and Memorandum in Support | 227 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Novell's Motion to Dismiss and Memorandum in Support
Authored by: inode_buddha on Friday, February 13 2004 @ 04:48 AM EST
I must admit that I was terrified of legal issues until I met groklaw. Now I must subit that we need a strong adjective for "insomnia", because I've picked up a bad case of it. Perhaps this form of sleeplessness could be called "PJ"
Example: "I saw something interesting and PJ'd on it."

Seriously, I actually followed most of that, and wonder if that might just do the whole thing in.

---
"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)

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum in Support
Authored by: Anonymous on Friday, February 13 2004 @ 04:51 AM EST
Quote

they ask that the Court issue an injunction "requiring Novell to assign to
SCO any and all copyrights Novell has registered in UNIX and UnixWare."
You can't ask for copyrights to be assigned to you if you already have them, can
you?"

End Quote

Would not the Copyrights that SCO seeks to have transfered be those that Novell
had just recently applied for and not those which they (Novell) owned fron the
original AT&T purchase, which SCO believes they own already?

[ Reply to This | # ]

Transcription - Place your bids here
Authored by: Anonymous on Friday, February 13 2004 @ 04:53 AM EST
Reply to this post placing the number of the page(s) you are transcribing in the title of your post please

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum in Support
Authored by: azrael on Friday, February 13 2004 @ 04:53 AM EST
I love seeing new stuff on here when I'm at work in the morning. But I really think you ought to get some sleep.

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum in Support
Authored by: Anonymous on Friday, February 13 2004 @ 04:55 AM EST
Darl is somehere in Utah this very moment crying out "Make the bad men go
away mommy, those Novell and IBM men, make em' go away!"

[ Reply to This | # ]

SCO requests to transfer
Authored by: Anonymous on Friday, February 13 2004 @ 04:57 AM EST
Novell has stated before (published letters to SCO) that SCO has requested transfer of the copyrights:
We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights. Apparently, you share this view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has rejected.
I would think this correspondence would be evidence that not only do SCO not own the copyrights but also that they know they don't own them - and yet now they are suing Novell for alleging they don't own them...

[ Reply to This | # ]

New PJ article
Authored by: Anonymous on Friday, February 13 2004 @ 04:59 AM EST
Hey PJ, you really are getting busy aren't you! Where do
you find the time?

Fantastic article in the March 2004 edition of Linux
Format Magazine (UK) This stuff is finally starting to get
out! Keep up the great work.

Thanks PJ

Simon Brooks

[ Reply to This | # ]

Nice analysis, PJ
Authored by: Anonymous on Friday, February 13 2004 @ 05:03 AM EST
I concur with the above post - it is nice to have "scary" legal talk broken down in such a way as it no longer seems so intimidating. After several months of lurking at this website, I am beginning to feel less intimidated by it all. Groklaw is my own personal Babelfish. :)

As a fellow insomniac, I want to thank PJ for staying up late and giving me something to read in the wee hours. I'm just passing the time and waiting anxiously for the decision from Judge Wells to be released today. Unlike Kevin McBride, I actually believe her when she says within a week.

Seems like Novell is putting together a strong case - I am really intrigued by the alleged part - oh, the teasing!

Mike A.

"You keep using that word. I do not think it means what you think it means."

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum in Support
Authored by: Anonymous on Friday, February 13 2004 @ 05:05 AM EST
firstly...
1) IAMAL
2) I have little idea about how the US Legal System operates (especially as I am
located in Australia)

Considering that SCO has filed the suit under 'Slander of Title', if this is
dismissed is there any chance that they can then file against Novell for 'Breach
of Contract'?

Norbert from Western Australia

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum - How Long?
Authored by: superpat on Friday, February 13 2004 @ 05:17 AM EST

How long do the experts on US legal matters think it will be before Novell's
Motion is ruled on? hours?, days? weeks?

Superpat

[ Reply to This | # ]

A few minor typoes
Authored by: Anonymous on Friday, February 13 2004 @ 05:23 AM EST
KARENBERG -> KARRENBERG
Remove "/" from Heather M./ Sneddon
1 -> 12 in "Civil Procedure 1(b)(6)"
Capital for sig of "heather M. Sneddon"
Fubruary -> February (in Certificate of Service)
BOISE -> BOIES

and [address] should come below the BOIES details, not below the final signature

[ Reply to This | # ]

  • one more minor typo - Authored by: Anonymous on Friday, February 13 2004 @ 06:03 AM EST
  • One more - Authored by: Anonymous on Friday, February 13 2004 @ 12:07 PM EST
Novell's Motion to Dismiss and Memorandum in Support
Authored by: roger on Friday, February 13 2004 @ 05:49 AM EST
As usual, well done PJ for the prompt update of GROKLAW.

Congratulations to the Novell lawyers, they have systematically taken SCO
slander allegations apart. Backing up each point with previous case histories. I
can't wait for SCO's reply. Who says lawyers aren't creative. The SCO lawyers
have changed tack a few times now, with their IBM case, but slowly the avenues
are running out. I think in this case they have hit a road block. I will be
quite surprised if the Novell SCO case is not dropped. We await SCO's reply in
eager anticipation, creative writing at it's best...

Avid reader from South Africa.

[ Reply to This | # ]

Case Law
Authored by: wllacer on Friday, February 13 2004 @ 06:03 AM EST
(From a civil law country NAL national)
Have you noticied the sheer amount of case law cited in Novell's motion to
dismiss ? It looks pretty well researched, as if it has been in the making for a
long time.

I can't avoid, after reading it, to have the distinct impresion of deja v; as
if Novell's lawyers are summing up was has come up here in Groklaw, and adding
legal flesh to it.

And about the style (I'm sure Judge Kimball will also appreciate it) as usual,
Caldera attorneys look totally unprofessional againts Novell / IBMs ones.

Did you notice how Novell's got away with Adm. 2 ambiguities?

[ Reply to This | # ]

I almost feel sorry for SCO
Authored by: dvf on Friday, February 13 2004 @ 06:16 AM EST
I am not a lawer, but it does very much seem they are losing it out...

I thought I'd have a good lough when they'll be run over by IMB, but now I
almost feel sorry. Probably not everybody at SCO is like their new CEO.

Of course it was pretty odd in the first place to come up with ideas like IBM is
a communistic organization and a threat to US economy just because it makes
money on GNU/Linux.

But... now it seems they'll be repeatedly run over and over and then over again
in courts by a couple of real big steamers.

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum in Support
Authored by: Woad_Warrior on Friday, February 13 2004 @ 06:34 AM EST
I wonder at what point Novell will sue SCOG for slander of title?

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum in Support
Authored by: RSC on Friday, February 13 2004 @ 06:48 AM EST
I love the contradiction.

SCO: We want the copyrights transfered to us. You know the ones we own.

:)

RSC.


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

[ Reply to This | # ]

OT : DIlbert following Darl?
Authored by: PeteS on Friday, February 13 2004 @ 06:51 AM EST
At http://www.dilbert.com/

Truly hilarious.

If you go sometime other than Friday 13 2004, hit the 'read past comics'.



---
Today's subliminal thought is:

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum in Support
Authored by: eggplant37 on Friday, February 13 2004 @ 06:51 AM EST
Well, I must say this again about SCO and their legal team:

Is this really the best legal representation that SCO can buy?

I hope McBride, et al, intend upon asking for a refund. Their legal team is
just the worst. The slander to title claim reads like something that a first
year law student cobbled together in a hurry to make final exams.

[ Reply to This | # ]

Dismissal and damages
Authored by: Anonymous on Friday, February 13 2004 @ 06:51 AM EST
IANAL, but can someone who is (or at least knows the answer) please clarify what
the position is on Novell seeking damages should they get a dismissal? My
impression is that should the case simply be thrown out as it stands now, then
Novell is not in a position to seek damages, yet if they had pursued the slander
aspect then they would have been. Given the usual "see you in court"
attitude companies seem to have these days, Novell's approach is intriguing to
say the least and hints at something going on behind the scenes with IBM.

Even if they are eligable for damages, ever since Novell really got involved in
the SCO case, their goals "conincidentally" seem to have been aimed at
getting the SCO-IBM case scuttled as fast as possible. Everything else,
including damages, seems to be secondary to this which is leading me to the
conclusion that IBM and Novell have come to an understanding and course of
action that goes far above and beyond the SCO case. Given what each side can
bring to the table, I'm expecting a line up of IBM desktops and servers
preinstalled with Novell/SuSE Linux *real* soon.

[ Reply to This | # ]

What kind of remedy is that?
Authored by: Anonymous on Friday, February 13 2004 @ 07:08 AM EST
How can transfer of copyright even be considred remedy for 'slander of title'?
Aren't damages monetary? Can SCO in that vein ask to have Novell's old car
transfered to them as remedy?
Vainov

[ Reply to This | # ]

OT- it's been a week
Authored by: Anonymous on Friday, February 13 2004 @ 07:25 AM EST
any word from Magistrate Wells? It's a week
since the hearing ...

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum in Support
Authored by: Steve Martin on Friday, February 13 2004 @ 07:35 AM EST

SCO admits, they point out, that they are not the copyright owners in the very relief they ask the court to grant them: namely, they ask that the Court issue an injunction "requiring Novell to assign to SCO any and all copyrights Novell has registered in UNIX and UnixWare." You can't ask for copyrights to be assigned to you if you already have them, can you?

Hey, waitaminnit... didn't I see this very same point discussed here on Groklaw way back ago? :D

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

The "S" word again!
Authored by: Tsu Dho Nimh on Friday, February 13 2004 @ 08:09 AM EST
"A copyright transfer must mention with specificity what is being
transferred:"

There's that "S" word again! SCO has a problem with being specific,
and the opposing lawyers are shredding them because of it.

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum in Support
Authored by: odysseus on Friday, February 13 2004 @ 08:10 AM EST

"On October 16, 1996, Novell and SCO's alleged predecessor, The Santa Cruz Operation, Inc. ('Santa Cruz"), executed Amendment No. 2 to the APA."

I almost spilled my coffee on that bit too. My mind started spinning as to what this Freudian slip from Novell could mean. Would they be challenging the OldSCO to SCOG transfer??? Then I realised their intent was just to imply SCOG are ALLEGING they own the copyrights without producing any real proof, when in fact Novell didn't transfer the copyrights to OldSCO, and so there's no way SCOG could ever have got hold of them. Their claim that their ownship is being slandered is thus just so must hot air (in fact so much Fraudulant Activity...) and therefore doesn't meet the requirements for proving ownership. They are also just gently reminding the judge not to get confused by the SCO's shell game with the names, and to imply that SCOG didn't do the original deal, so how can their word on what the deal meant carry any weight.

By moving to dismiss immediately based on an imperfect claim, Novell really are trying to force SCO to file a breach-of-contract suit, giving Novell the chance to force SCO to reveal their hand, and to set up yet more Lanham Act damages. Novell's lawyers may not be collaberating with IBM's, but they sure as hell are studying their play-book.

I am a little annoyed though in their use of SCO's request in the complaint to transfer the copyrights as somehow proving ownership. What they were asking was that the late registrations Novell made for the same stuff that SCO had just regstered be transferred to SCO. They were saying "Thats my ball, you took it now give it back". To represent it as some acknowledgement that they don't own the copyrights is just a bad reading that could score negative points in the judges eyes. Given the strength of the other arguments, it was unneccesary, so why bother?

John.

[ Reply to This | # ]

Greatest Irony .. Novel suing SCO for slander of title
Authored by: ijramirez on Friday, February 13 2004 @ 08:54 AM EST
It will be a great irony that at the end of the game, at least this inning, SCO
suit gets dismissed and Novell goes forward and among other things sues SCO for
slander of title. Am sure Novell can prove the four conditions required for
Slander of Title.

# 1. there was a publication of a slanderous statement disparaging claimant's
title,
Darl publictly called Novell's copyright registrations as fraudulent.

# 2. the statement was false,
The letters from Novell over the past year show that Novell informed them and
calimthe copyrights. Moreover, SCO's admitted attempt to get the copyrights
transferred to mthem prior to the suit against IBM shows that they knew they
didn't own the copyrights.

# 3. the statement was made with malice, and
If they knew the were making a false statement and that they still went ahead
with their lawsuits and threats and disparaging comments against Novell (and
SuSE), that indicates malice.

# 4. the statement caused actual or special damages.
Am sure SuSE can come up with the names of companies that have slow down or
cancelled a contract or two.

[ Reply to This | # ]

Know what I like...
Authored by: Anonymous on Friday, February 13 2004 @ 10:03 AM EST
Know what I like about a good court document such as this? Rather than being the
long, tedious, impenetrable legalese one might expect, it presents with great
clarity the facts and law behind their submission. Presumably this is so that
even if the judge is drunk, stupid, and incompetent, he or she can see the
righteousness of their arguments.
<p>
One unintended consequence is that dolts like me can read it and learn. Or
perhaps it is intentional - they may view their
court submissions as a form of public relations.

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum in Support
Authored by: wvhillbilly on Friday, February 13 2004 @ 10:25 AM EST
Looks to me like Novell has a pretty airtight case, well based on point of law
itself and on case law as well. What I am wondering is if by some chance SCO
could re-plead the case with better evidence, would it be possible to find
someone from Santa Cruz Operation (now Tarantella) who could testify as to
exactly what they understood they were receiving from Novell, and what they
transferred to new SCO (formerly Caldera)?

Disclaimer: IANAL.


---
What goes around comes around, and it grows as it goes.

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum in Support
Authored by: Anonymous on Friday, February 13 2004 @ 10:27 AM EST
What will happen if SCO says "NO" to Novell request?

Under normal software licence, the code must be delete or at least return to
owner, so with that in mind.

If SCO violates, the sell agreement would SCO have to return UNIX to Novell?
And no return of payment!

[ Reply to This | # ]

IP doesn't seem to be a strength...
Authored by: Anonymous on Friday, February 13 2004 @ 10:40 AM EST

... of the SCO legal team. Bob Cringely noted this in one of his columns a couple or three months ago. It's not often you find a pundit that hits one as squarelyon the nose as that.

[ Reply to This | # ]

Novell's Motion to Dismiss and Memorandum in Support
Authored by: Anonymous on Friday, February 13 2004 @ 11:17 AM EST
Note how the APA uses "will transfer" versus "shall"
transfer? The difference is huge.

Will is permissive.

Shall is mandatory.

krp

[ Reply to This | # ]

Does this affect Caldera's release of the Ancient Unix code?
Authored by: Anonymous on Friday, February 13 2004 @ 12:49 PM EST
Here's a question: If Caldera/SCO never owned the copyrights to UNIX, did they have the right to release the Ancient Unix code under the BSD-style license, or is that now called into question?

Link

[ Reply to This | # ]

minor (possibly major?) quibble
Authored by: Anonymous on Friday, February 13 2004 @ 01:21 PM EST
The agreement says Seller "will sell, convey, transer", etc., not that Seller "hereby sells, conveys", etc.

Notice that the full text quoted in Novell's memorandum goes on to say "Seller will sell, convey, transfer... and Buyer will purchase and acquire from Seller on the Closing Date..."

Does this on its face appear to execute the transfer and not be simply an open-ended promise for some future date? It says "Seller will" because the Closing Date is later than the date on which the agreement is signed. So yes, the APA by itself, or even the APA plus the Amendments, does not constitute a transfer of copyrights.

But the APA, Amendments, AND Closing Date together seem to constitute a complete transfer of copyright. (Disregarding other complaints about the vagueness of which copyrights are included in the second ammendment.)

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PJ, did SCO really ask the court to force Novell to give them the copyrights?
Authored by: wildcat on Friday, February 13 2004 @ 01:34 PM EST
I just don't remember this coming up in discussion before; therefore, it took me
by surprise.

The extent of SCO's gall and disrespect for the court is nothing short of
staggering. Who else but SCO would start a slander of title suit by asking the
judge to force the defendant to give them the copyrights they wish to use in the
suit against them?

Why didn't the judge just toss this suit out at the get go since SCO was asking
for the copyrights to be transfered in theirrequest for an injunction?
___
Bill Malmberg
IANAL - IACAH (I Am Not A Lawyer - I Am Confused As Hell)

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  • Yes - Authored by: Anonymous on Friday, February 13 2004 @ 04:04 PM EST
    • Yes - Authored by: wildcat on Friday, February 13 2004 @ 06:41 PM EST
Request to assign copyrights is not admission that Novell owns them
Authored by: pythonista on Friday, February 13 2004 @ 02:07 PM EST
Hi everyone - long-time lurker finally joins in.

The request "requiring Novell to assign to SCO any and all copyrights Novell has registered in UNIX and UnixWare." doesn't strike me as a contradiction and admission of guilt. I read this as a demand that invalidly-registered copyrights be transferred so as not to cloud title.

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Novell's Motion to Dismiss and Memorandum in Support
Authored by: Anonymous on Friday, February 13 2004 @ 02:37 PM EST
Are you sure about that?

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Of course Novell has strong case: They're Right!
Authored by: Anonymous on Friday, February 13 2004 @ 02:45 PM EST
One of the things I find uneasy in this whole legal circus is the amount of
praise given the various high priced legal teams and their clients bills.

One of the things thats harder to discuss but eventually much more important is
that Novell's case is solid because it is Right. IBM's case against newSCO is
Solid because of their integrity as a company. Linux's case against newSCO is
solid because of the 'cleanliness' of its code thanks to, among other things,
the GPL and the FSF.

Moneyed elements can be more glamorous, and it might be tempting to go into
detail about 'lifestyles of the rich and litigious' but they have not
established what was right here. Honest people and careful contracts have made
linux a thing of beauty. When Linux removes the blemesh that is newSCO it will
not be primarily because of the money and the lawyers, although they will help,
it will be because SCO was wrong.

ls

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Novell's Motion to Dismiss and Memorandum in Support
Authored by: Anonymous on Friday, February 13 2004 @ 03:00 PM EST
Good one.

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Novell's Motion to Dismiss and Memorandum in Support
Authored by: Anonymous on Friday, February 13 2004 @ 03:43 PM EST
All of you who appreciate good work...remember you can donate to PJ through the
links on the top left. Don't let good work go unrewarded ! Sorry for the
shameles plug PJ...just a thought. Keep up the excellent work

JM

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"as required"?
Authored by: Anonymous on Friday, February 13 2004 @ 04:59 PM EST
I wonder what the "as required" thing was all about. What sort of
things might the purchaser need some copyrights for? It is amazing it was left
so unclear.

Especially since the purchaser could tell the seller some particular copyrights
were required, and the seller is free to say "no, we don't think those
rights are required" and the purchaser would be stuck with no legal
recourse.

In fact, I am guessing that is what happened last year when SCO was trying to
get Novell to turn over the copyright, and Novell refused. Seems that the two
parties who signed the agreement must have had a lot of trust, otherwise they
would not have left this so undefined.

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Open defence for open source
Authored by: Anonymous on Saturday, February 14 2004 @ 12:55 PM EST
Open defence for open source, sounds appropriate, and I hope it is.
Still it makes me feel worried.
Open Source never made me feel worried, but then I am a programmer.

Lets assume that two IT friends (company A and B) decide to bye or sell
something.
They speak, they agree and then they turn to some lawyer to produce the
"text".

Neither A or B will understand the "text" because it is not, the
intention of the lawyers.

Next A and B have a slight problem, or rather, the grandson
of A and the grandson of B disagree.

At that point the lucrative business of the ortopsy of the "text" by
the lawyers start.

My advice for anybody dealing with IT, having to make some
agreement with somebody is.

Produce a flowchart with every possible, if, then, else, while and untill.

Then let your lawyer produce the "text" according to the flowchart.
And if the "text" does not correspond with the
flowchart then the chart rules.

Now, would it be possible to explain say, linux the kernel, as a
"text" by some lawyer, hardly. To be honest it is just impossible, but
as a flowchart, yes.

Let there be no misunderstanding, I hope SCO will loose the case.

But, see, I am already affected by this "world of the lawyers".

What I wanted to say is that i believe the "truth" will win and SCO,
the crook, will be revealed.

Last, do not forget the old story by Jonathan Swift,about the poor lady with her
cows, and the lawyer.
If not familiar, then just read it.

Regards,



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Novell's Motion to Dismiss and Memorandum in Support
Authored by: Anonymous on Monday, February 16 2004 @ 01:32 AM EST
Now SCO is finding itself very badly engaged with Novell. As the time for the
IBM hearing is ticking. I think its time RedHat should up the Ante in the RH vs
SCO case. SCO will find itself divided between mongoose and the rabbit. That
would be a good lesson to SCO.

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I don't see how Novell can win . . .
Authored by: Anonymous on Monday, February 16 2004 @ 09:25 PM EST
I don't see how Novell can win this motion. With a 12(b)(6) motion, the court
has to assume that everything in the complaint is true. The crux of Novell's
argument seems to be that some of the Complaint is false. Novell thus loses.

Maybe I understand 12(b)(6) motions wrong. I'll post a hypo and see if anyone
here can correct me.

I file a complaint, saying that on February 14, 2004, Bill Gates assualted me in
Washington DC and owes me damages. His defense may be that he wasn't in
Washington DV on 2/14/04 and can prove it. But those types of facts are
irrelevant on a 12(b)(6) motion. Since I pled that Bill Gates assaulted me, the
court has to assume that he did assault me. Then decide whether or not assault
can lead to damages.

In other words, since SCO merely says "We own UNIX" that is
sufficiently pled. Whether or not they actually do own UNIX is the key to the
whole matter and it doesn't seem that the court can just say "SCO doesn't
own it" without looking at the disputed facts first.

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  • Why they can win - Authored by: Anonymous on Tuesday, February 17 2004 @ 12:03 AM EST
Novell's Motion to Dismiss and Memorandum in Support
Authored by: Kai on Monday, February 16 2004 @ 11:50 PM EST
This article from the Salt Lake Tribune is dated February 13th...compared to Groklaw they're pretty slow.

...Blake Stowell said Thursday. "It remains SCO's strongly held legal position that Novell has no rights to step in and change or alter the source code license agreements that SCO owns and holds with its Unix licensees."

"Strongly held legal position" my arse !
With the exception of blatently lying, clutching at straws, living on borrowed time and trying to defraud people, McBride's (both of them) and Stowell haven't proven anything yet.

I sooooo can't wait to see what Madgistrate Wells' decides !

---
Another (Western) Australian who is interested.

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