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Novell's Memorandum in Support of Motion to Dismiss - as text |
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Friday, February 13 2004 @ 04:55 AM EST
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Thanks to Frank and Rand, here you are, the Novell Memorandum in Support of their Motion to Dismiss, as text.
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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:[?]3
DISTRICT OF UTAH
BY:_______________ |
IN THE UNITED STATES DISTRICT
COURT
DISTRICT OF UTAH, CENTRAL
DIVISION
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THE SCO GROUP, INC.,
a Delaware corporation,
Plaintiff,
vs.
NOVELL, INC., a Delaware Corporation,
Defendant.
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MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS
Case No. 2:04CV00139
Judge Dale A. Kimball
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Defendant Novell, Inc., submits this Memorandum in Support of
its Motion to Dismiss The SCO Group, Inc.'s ("SCO") Complaint for
failure to state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6).
PRELIMINARY
STATEMENT
The crux of SCO's slander of title claim
is its claim that pursuant to an agreement attached to its Complaint, it
owns the copyrights 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 its 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
sufficently to state a claim.
Because SCO's Complaint fails as a matter of law, the motion to dismiss
should be granted.
STATEMENT OF
FACTS
SCO alleges that "[t]hrough an Asset Purchase Agreement dated September
19, 1995, as amended," SCO, "through its predecessor in interest,
acquired from Novell all right, title, and interest in and to the UNIX
and UnixWare business, operating system, source code, and all
copyrights rights related thereto..." (Compl. ¶ 1.)
The operative language from the Asset Purchase Agreement (sometimes,
the "APA") is as follows:
On the terms and subject to the
conditions set forth in this Agreement, Seller will sell, convey,
transfer, assign and deliver to Buyer and Buyer will purchase and
acquire from Seller on the Closing Date (as defined in Section 1.7),
all of Seller's right, title and interest in and to the assets and
properties of Seller relating to the Business (collectively the
"Assets") identified on Schedule 1.1(a) hereto. Notwithstanding the
foregoing, the Assets to be purchased shall not include those assets
(the "Excluded Assets") set forth on Schedule 1.1(b).
(APA § 1.1(a), attached at Compl. Ex. A.)
Schedule 1.1(b) sets forth -- as Excluded Assets -- "[a]ny asset not
listed on Schedule 1.1(a)" and "[a]ll copyrights and trademarks, except
for the trademarks UNIX and UnixWare." (APA Schedule 1.1(b) §§ 1, V.A.,
attached at Compl. Ex. A.) Thus, the Asset Purchase Agreement
specifically excludes all copyrights from the assets to be transferred
to the buyer.
On October 16, 1996, Novell and SCO's alleged predecessor, The Santa
Cruz Operation, Inc. ("Santa Cruz"), executed Amendment No. 2 to the
APA ( See Compl. ¶ 15; APA
Amendment No. 2, attached at Compl. Ex. A.) APA Amendment No. 2
contains the following language:
With respect to Schedule 1.1(b) of the
[Asset Purchase Agreement], titled `Excluded Assets', Section V,
Subsection A shall be revised to read:
All copyrights
and trademarks, except
for the copyrights and trademarks owned by Novell as of the date
of the [Asset Purchase Agreement] required for [Santa
Cruz] to exercise its rights with respect to the acquisition of UNIX
and UnixWare Technologies.
However, in no event shall Novell be liable to [Santa Cruz] for any
claim brought by any third party pertaining to said copyrights and
trademarks.
(APA Amendment No. 2, attached at Compl. Ex. A. (emphasis added).)
Thus, APA Amendment No. 2 continues to exclude copyrights from the
assets to be transferred, except those that SCO can demonstrate are
"required ...to exercise its rights with respect to the acquisition of
UNIX and UnixWare."
SCO's Complaint is silent as to any particular loss it alleges it
suffered as a result of Novell's statements. The only allegations
relating to harm SCO supposedly suffered are the vague assertions that
"[c]ustomers and potential customers of SCO are unable to ascertain the
truth of ownership in UNIX and UnixWare," and that there is a "cloud
of ownership" created by Novell (Compl.¶ 21.)
LEGAL STANDARD
A motion to dismiss must be granted where a plaintiff fails to state a
claim upon which releif can be granted. Fed. R. Civ. P. 12(b)(6). In
ruling on a motion to dismiss under Rule 12(b)(6), the trial court is
to accept the well-pleaded factual allegations in the complaint as true
and construe them most favorably to the plaintiff. Hayes v. Whitman, 264 F.3d 1017,
1022 (10th Cir. 2001).
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 instument attached to
the complaint as an exhibit and made a part thereof." Jackson v. Alexander, 465 F.2d
1389, 1390 (10the Cir. 1972). In such instances, the instrument
controls. GFF Corp. v. Associated
Wholesale Grocers, 130 F.3d 1381, 1385 (10th Cir. 1997); Jackson,
465 F.2d at 1390. Therefore the Court should ignore any allegations in
the Complaint that are contradicted by the Asset Purchase Agreement and
Amendment No. 2.
ARGUMENT
In order to prevail in a slander of title action, SCO must establish:
(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.
First Sec. Bank of Utah v. Banberry
Crossing, 780 P.2d 1253, 1256-67 (Utah 1989). SCO's
Complaint fails on two grounds.
First, SCO has not pled sufficient facts demonstrating falsity. Indeed,
the very documents SCO relies upon fail to meet the requirements of
the Copyright Act for a valid transfer of copyright ownership. In
the absence of such a transfer, SCO cannot show that it is the owner of
the copyrights at issue and cannot show Novell's statements to be false.
Second, SCO has not adequetely pled special damages. SCO is required
to plead with specificity its alleged realized or liquidated pecuniary
damages, and instead has pled speculative damages of a general nature.
SCO's alleged damages, as pled, cannot sustain its slander of title
action.
I.
SCO HAS NOT SHOWN A VALID TRANSFER OF COPYRIGHT OWNERSHIP UNDER THE
COPYRIGHT ACT, AND THEREFORE IT HAS NOT PROPERLY PLED THAT NOVELL'S
STATEMENTS ARE FALSE.
SCO's Complaint is premised on the theory that the Asset Purchase
Agreement and Amendment No. 2 transferred ownership of the copyrights
in UNIX and UnixWare to its alleged predecessor, Santa Cruz (Compl. ¶¶
1, 14, 15, 17.) Therefore, SCO claims, Novell's statements that Novell
still owns the copyrights are false.
The Copyright Act, however, imposes very strict requirements on
purported transfers of copyright ownership. Under section 204(a) of the
Act, "[a] transfer of copyright ownership, other than by operation of
the law, is not valid unless an instument of conveyance, or a note or
memorandum of the 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); Radio Television Espanola
S.A. v. New World Entm't, Ltd., 183 F.3d 922, 926 (9th Cir.
1999). 1 Here, the documents relied upon by SCO do not
constitute such an instrument of conveyance.
Indeed, SCO admits in its own Complaint that it does not own the
copyrights at issue, and that it remains for Novell to transfer them.
(See Compl. p. 10, ¶ 3) (SCO requests the Court issue an injunction
"requiring Novell to assign to SCO any and all copyrights Novell has
registered in UNIX and UnixWare.")
Because the Complaint fails to establish the falsity of Novell's
purportedly slanderous statements, it should be dismissed.
A.
The Asset Purchase Agreement and Amendment No. 2 Are Merely a Promise to
Assign and Therefore Do Not Evidence a Valid Transfer of Copyright
Ownership Under the Copyright Act.
The Asset Purchase Agreement, standing alone, does not constitute a
written instrument of conveyance under the Copyright Act sufficient to
transfer copyright ownership. SCO alleges that Schedule 1.1(a) of the
APA sets forth the assets transferred from Novell to Santa Cruz.
(Compl. ¶ 14.) The operative portion of the agreement, however, is
Section 1.1(a), not Schedule 1.1(a). Section 1.1(a) is merely a promise to transfer, upon closing, all of the assets listed in Schedule 1.1(a), and also states:
Notwithstanding the foregoing, the
Assets so purchased shall not include those assets (the "Excluded
Assets") set forth on Schedule 1.1(b).
(APA Section 1.1(a), attached at Compl. Ex. A.) Schedule 1.1(b) lists
"all copyrights" as being excluded. (APA Schedule 1.1(b) §V.A.,
attached at Compl. Ex. A.) Thus, on it's face, the Asset Purchase
Agreement did not transfer any copyrights to Santa Cruz.
Likewise, APA Amendment No. 2, standing alone, does not constitute a
written instrument of conveyance under the Copyright Act sufficent to
transfer copyright ownership.
Where a document makes no mention of a grant, transfer, or assignment
of copyrights, it is not an instrument of conveyance under the Copyright
Act. Radio TV, 183 F.3d at 927. In Radio
TV,
one of the documents claimed to constitute a section 204(a) instrument
referred to the delivery of certain television episodes but did not
mention a grant of an exclusive license or other assignment. Id.
at 927-28. The court found that this document did not, therefore,
constitute a written instrument of conveyance under section 204(a). Id.
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, read together, the Asset Purchase Agreement and Amendment No.
2 do not constitute an instrument that transfers copyright ownership.
Instead, the two documents at most constitute a mere promise to assign
certain unidentified copyrights if those copyrights are "required." A
review of the first substantive clause of the Asset Purchase Agreement
makes this fact clear:
On the terms and subject to the
conditions set forth in this Agreement,
Seller will sell, convey, transfer, assign and
deliver to Buyer and
Buyer will
purchase and acquire from Seller on the Closing Date (as
defined in Section 1.7), all of Seller's right, title and interest in
and to the assets and properties of Seller relating to the Business
(collectively the "Assets") identified on Schedule 1.1(a) hereto.
Notwithstanding the foregoing, the Assets to be purchased shall not
include those assets (the "Excluded Assets") set forth on Schedule
1.1(b).
(APA § 1.1(a), attached at Compl. Ex. A (emphasis added).) Neither
this clause nor any other clause in the Agreement states that the
Seller "hereby" assigns, or that the buyer "hereby" acquires.
The Asset Purchase Agreement and Amendment No. 2 therefore constitute
solely a promise to assign in the future. A mere promise to assign in
the future, however, is not an actual assignment. This sharp
distinction between a promise to assign and an actual assignment is
well-recognized. See, e.g., Monarch
Licensing, Ltd., v. Ritam Intn'l, Ltd.,
24 U.S.P.Q.2d (BNA) 1456, 1459 (S.D.N.Y. 1992) (distinguishing between
promise to assign trademarks and copyrights and actual execution of
assignment of trademarks and copyrights); Arachnid, Inc. v. Merit Indus., Inc.,
939 F.2d 1574, 1580-1581 (Fed. Cir. 1991) (distinguishing between
agreement to assign patents and actual assignment of patents); Li'l Red Barn, Inc., v. The Red Barn Sys.,
Inc., 322 F. Supp. 98, 107 (N.D. Ind. 1970), aff'd
at 174 U.S.P.Q. (BNA) 193 (7th Cir. 1972) (distinguishing between
agreement to assign trademarks and actual assignment of trademarks).
In the absence of an actual assignment, a promise to assign is
insufficient to satisfy the requirements of a written instrument of
conveyance established by section 204(a). Therefore, the Asset Purchase
Agreement and Amendment No. 2, even when read together, do not
constitute an instrument under the Copyright Act sufficient to transfer
copyright ownership. Absent an actual transfer of copyright
ownership, Novell continues to be the owner of copyrights at issue,
and SCO has accordingly failed to properly allege the falsity of
Novell's ownership assertions.2
B.
Assuming Arguendo that the Asset Purchase Agreement and Amendment No. 2
Purport to Transfer Copyright Ownership, They Fail to Meet the
Copyright Act Requirement That Purported Transfers Specify What
Copyrights Are Being Transferred.
Even if the documents SCO cited facially purported to constitute an
actual transfer rather than merely a promise to transfer, the
agreements would still fail to satisfy the Copyright Act's conveyance
requirements. In order to suffice as a written instrument of
conveyance under the Copyright Act, the purported assignment must state
"precisely what rights are being transferred." Effects Assoc., Inc. v. Cohen, 908
F.2d 555, 557 (9th Cir. 1990); Konigsberg
Int'l, Inc. v. Rice,
16 F.3d 355, 357 (9th Cir. 1994). The terms of the transfer must be
clear and definite in order to fulfill the purposes of the statute, to
"enhance predictability" in copyright ownership and to make
intellectual property "readily marketable." Effects Assoc., 908 F.2d at 557; Konigsberg, 16 F.3d at 357. See also Community for Creative Non-Violence v. Reid,
490 U.S. 730, 749-50 (1989) ("Congress' paramount goal in revising the
1976 [Copyright] Act [was that of] enhancing predictability and
certainty of copyright ownership."); Schiller
& Schmidt, Inc. v. Nordisco Corp.,
969 F.2d 410, 412 (7th Cir. 1992) (explaining that the purpose of the
analogous writing requirement in § 101(2) of the act was "to make the
ownership of property rights in intellectual property clear and
definite.")
Particularly when a purported assignment seeks to transfer something
less than "all the rights," definiteness is required. Here, there are
multiple works potentially at issue, as UNIX and UnixWare had many
versions and releases. Moreover, as to any particular work, copyright
ownership is comprised of a bundle of rights, which can be transferred
in whole or in part. Effects Assoc.,
908 F.2d at 559. Without specificity as to which particular
copyrighted works and which rights within each copyrighted work's
bundle of rights were purportedly transferred, the purported assignment
fails.
Amendment No. 2's vagueness as to which copyrights are at issue is
glaring. It merely amends the schedule of excluded assets as follows:
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.
(APA Amendment No. 2, attached at Compl. Ex. A.) Amendment No. 2 does
not identify which, if any particular rights associated with which, if
any, copyrighted works are "required." It thus fails as a written
instrument of conveyance due to its vagueness, and it is insufficient
to satisfy section 204(a) of the Copyright Act.3
Contrary to SCO's assertions, Amendment No. 2 does not purport to
concern "all copyrights pertaining to the UNIX and UnixWare
technologies." Instead, it concerns only the unidentified rights that
make up copyrights required for Santa Cruz to exercise its rights with
respect to the acquisition of UNIX and UnixWare technologies. Not only
are those rights not identified, but SCO's "rights with respect to the
acquisition of UNIX and UnixWare technologies" are identified. In the
face of such vague and ambiguous language, the governing authority is
clear: the purported assignment must be construed in favor of the
copyright holder and against a transfer of any copyrights. Bieg v. Hovnanian Entes., Inc., 157
F. Supp. 2d 475, 480 (E.D. Pa. 2001). See
Effects Assoc,
908 F.2d at 557 (stating that the writing requirement voids
inadvertent transfers of copyright ownership by copyright holders).
Because the documents SCO relies upon contradict its allegation that it
owns the copyrights, SCO has failed to adequately plead the element
of falsity in its slander of title cause of action. Without pleading
falsity, there is no theory upon which SCO can recover for slander of
tltle. Accordingly, SCO's Complaint should be dismissed.
II.
SCO HAS MADE ONLY VAGUE ALLEGATIONS OF YET UNREALIZED LOSSES AND
THEREFORE HAS NOT PLED SPECIAL DAMAGES SUFFICENT TO STATE A CLAIM FOR
SLANDER OF TITLE.
In order to state a claim for slander of title, a plaintiff must plead
special damages with particularity. Valley
Colour, Inc. v. Beuchert Builders, Inc., 944 P.2d 361, 364 (Utah
1997) ("A slander of title action requires proof of actual or special
damages.") (quoting Banberry Crossing,
780 P.2d at 1257); Bass v. Planned
Mgmt. Servs., Inc.,
761 P.2d 566, 568 (Utah 1988) ("Slander of title actions are based only on
palpable economic injury and require a plaintiff to prove special
damages...There are no general or presumed damages in slander of title
actions.") Utah Rule of Civil Procedure 9(g) ("When items of special
damage are claimed, they shall be specifically stated.") They must be
pled specifically "so that the opposing party has an adequate
opportunity to defend against the plaintiff's claims." Hodges v. Gibson Prods.,Co., 811
P.2d 151, 162 (Utah 1991); see Cohn
v. J.C. Penny Co., Inc.,
537 P.2d 306, 311 (Utah 1975) ("It is a question of whether or not the
pleadings contain such information as will apprise the defendant of
such damages as must of necessity flow from that which is alleged.").
In a slander of title action, the special damages alleged must consist
of a "realized" or "liquidated" pecuniary loss. Valley Colour,
944 P.2d at 364; W.Page Keeton, PROSSER AND KEETON ON THE LAW OF TORTS
971 (1984) ("The special damage rule requires the plaintiff to
establish pecuniary loss that has been realized or liquidated, as in
the case of specific lost sales."); RESTATEMENT (SECOND) OF TORTS §§
624, 633. Merely alleging that the value of the property at issue has
dropped is insuficient to state a claim for slander of title. Valley
Colour, 944 P.2d at 364. Similarly, where a plaintiff has simply
alleged a loss of market capitalization and a negative impact on its
dealings with third parties, it has insufficiently pled special damages
in a slander of title action. Computerized
Thermal Imaging, Inc. v. Bloomberg, L.P.,
312 F.3d 1292,1299 (10th Cir. 2002) (applying Utah substantive law
regarding claim of libel per quod, a claim that requires pleading of
special damages). Finally, the plaintiff must allege that the
specific, realized pecuniary loss alleged is directly caused by the
actions of the defendant. Dowse v.
Doris Trust Co.,
208 P.2d 956, 958 (Utah 1949). Where a plaintiff fails to allege "a
pecuniary loss resulting from the act of the defandant" the plaintiff
cannot prevail. Id.
SCO does not meet the pleading standard. The Complaint contains
allegations relating to harm in three paragraphs, but does not set
forth with particularity a realized pecuniary loss. SCO generally
alleges that Novell has caused and is continuing to cause [SCO] to
incur significant irreparable harm to its valuable UNIX and UnixWare
copyrights, to its business, and its reputation." (Compl. ¶ 7.) It also
states that "[a]s a consequence of Novell's conduct alleged
herein, SCO has incurred actual and special damages in an amount to be
proven at trial." (Compl. ¶ 26.) Finally, it provides the following
general description of its alleged injuries:
Novell's wrongful claims of copyrights
and ownership in UNIX and UnixWare have caused, and continue to
cause, irreparable harm to SCO, in the following particulars:
a. Customers and potential customers of SCO are unable to ascertain
the truth of ownership in UNIX and UnixWare, and make decisions
thereon; and
b. SCO's efforts to protect its ownership of UNIX and UnixWare, and
copyrights therein, are subject to a false cloud of ownership created
by Novell.
(Compl. ¶ 21.) This is the sum total of SCO's damages allegations.
SCO's allegations are plainly insufficient. The alleged injuries are
not a "realized" or "liquidated" loss. Instead, they are precisely the
type of general allegations of some speculative injury that the
special damages pleading requirements for a slander of title action are
meant to avoid. Ordinarily, special damages are alleged by "evidence
of a lost sale or the loss of some other pecuniary advantage." Bass,
761 P.2d at 568. SCO has not alleged anything of the sort. SCO did
not adequately plead special damages, and thus its claim for slander of
title must be dismissed.
CONCLUSION
For the foregoing reasons, SCO's Complaint should be dismissed.
Dated: February 9, 2004.
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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 Fubruary, 2004, I caused a
true and correct copy of the foregoing MEMORANDUM IN SUPPORT OF 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
BOISE, SCHILLER & FLEXNER LLP
__[sig: Heather M. Sneddon]__
1. The question of whether a purported copyright assignment constitutes a written instrument of conveyance under the Copyright Act requires interpretation of the Copyright Act and is sufficient to render this action within the original jurisdiction of the federal courts. Jasper v. Bovina Music, Inc., 314 F.3d 42, 46-47 (2d Cir. 2002).
2. Nor can SCO successfully amend its Complaint by referring to an acquisition closing document that transferred the assets promised to the buyer under the APA. This document merely incorporated the APA's definition of included and excluded assets, and the APA excluded copyrights from the assets to be transferred.
3. In its Complaint, SCO also refers to the copyrights listed in Attachment E to the Seller Disclosure Schedule of the Asset Purchase Agreement. (Compl. ¶ 2.) A review of the Asset Purchase Agreement demonstrates that Attachment E is unrelated to the assets transferred under the Asset Purchase Agreement (APA §1.1(a), attached at Compl. Ex. A; APA Schedule 1.1(a), attached at Compl. Ex. A; APA Schedule 1.1(b), attached at Compl.A.) Moreover, nowhere in its Complaint does SCO reference Attachment E in connection with its claim of ownership. (Compl. ¶¶ 14-17.) Hence, Attachment E is irrelevant to the question of copyright ownership.
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Authored by: Anonymous on Friday, February 13 2004 @ 06:41 AM EST |
thank you PJ [ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 06:51 AM EST |
Is anyone aware of any *exclusive* transfer of "UNIX and UnixWare
technologies" to oldSCO? Presumably other entities were provided access to
or use of these technologies at or about the same time. Would such access or use
have been under similar terms as oldSCO? [ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 06:53 AM EST |
BOISE -> BOIES (in Certificate of Service) [ Reply to This | # ]
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Authored by: xtifr on Friday, February 13 2004 @ 07:15 AM EST |
Althought Novell simply refers to SCOG (aka newSCO) as "SCO", they carefully
edit all references to the Santa Cruz Operation (aka oldSCO) to say "[Santa
Cruz]", helping to emphasize the fact that these are two different companies.
SCOG has been really sloppy (possibly deliberately so) about keeping this
distinction, and I'm glad to see Novell drawing attention to it. I wonder if
they plan to make more of this point?
I am very much in awe of how they
use nothing but SCOG's own complaint and its attachments to demolish SCOG's
case. This is a thing of beauty. (Who ever thought I'd say that about a legal
document?:) [ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 07:16 AM EST |
what is the attachment E (listed in footnote 3) and what does it signify? [ Reply to This | # ]
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Authored by: fjaffe on Friday, February 13 2004 @ 07:17 AM EST |
SCO's Complaint is premised on the theory that the Asset Purchase
Agreement and Amendment No. 2 transferred ownership of the copyrights in UNIX
and UnixWare to its alleged predecessor, Santa Cruz (Compl. ¶¶ 1, 14,
15, 17.)
I love it. Seems like Novell is laying the
groundwork to challenge the claims that the Santa Cruz Operation transferred the
copyrights SCOX claims came from this contract to Caldera (now SCOX). I bet
they have been through the Caldera/OldSCO agreement with a fine tooth comb and
that they found that no Unix System V copyrights (or maybe even UnixWare) were
transferred that could be traced back to whatever Novell held. [ Reply to This | # ]
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Authored by: RealProgrammer on Friday, February 13 2004 @ 07:17 AM EST |
Novell has provided a clear, concise, iron-clad argument to show that Novell
not guilty of slander of title, but even more, that Novell proves SCO does
not own the disputed UNIX copyrights.
Case
Dismissed.
"Turn out the lights, the party's
over..."
--- (I'm not a lawyer, but I know right from wrong) [ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 07:38 AM EST |
I can see the future now, Novell's motion to dismiss is granted, then IBM files
for dismissal based on Novell re-envoking their licence which they have a right
to do in the APA.
SCO stock plummet and IBM continues with the counter suit, to ensure any pieces
left will not raise from the ashes. Darl will then have a hard time getting a
job after being known as the "Person who thought they could confuse and
fool the IT industry, and lost, taking a Major UNIX supplier with him"
If I remember rightly IBM's counter claims include SCO breaching GPL, so the GPL
will still get tested in court as the ashes that was once SCO pile up.
[ Reply to This | # ]
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Authored by: minkwe on Friday, February 13 2004 @ 08:04 AM EST |
Q&A: SCO's Chris Sontag on Linux, Unix and brewing legal
fights
Question:Why did Microsoft get a license from you?
Answer:Completely unrelated. Microsoft has been adding more and
more Unix compatibility and Unix interoperability into their products. We got in
contact with them early this year to let them know that we had concerns about if
they had all the appropriate intellectual property necessary to be providing
that Unix capability. We ended up in negotiations where they have licensed some
of our Unix Systems V intellectual property from us for use in their
Services for Unix products. ... They recognized that it was important to have
appropriate intellectual property licenses for the property they are using.
[Emphasis added]
--- SCO: All your linux are belong to us.
ME : In your dreams Buddy. [ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 08:07 AM EST |
Is this not a no brainer. SCO must know they can't win the slander of title, so
why not refile a copyright action directly rather than beat around the bush with
an action that they are likely to loose, with all the bad press that will come
with that.[ Reply to This | # ]
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Authored by: freeio on Friday, February 13 2004 @ 08:19 AM EST |
Novell's memorandum here is clear enough for anyone to understand. For those of
us who are less into legal matters, it is interesting to see that the citations
are noted as to the significance of each. Especially interesting is that Novell
chose to specifically note the citations regarding copyrights, patents, and
trademarks, individually. It is instructing to watch each checklist item be
addressed, rather than engage in some vague claim of "IP."
So then, this is from the dismissal paperwork filed in Utah state court, just in
case it doesn't get removed to federal court, right?
---
Tux et bona et fortuna est.[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 08:30 AM EST |
SCO is required to plead with *specificity* its alleged realized or liquidated
pecuniary damages, and instead has pled speculative damages of a general nature.
SCO's alleged damages, as pled, cannot sustain its slander of title action.
There they are with that specificity problem again!
[ Reply to This | # ]
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Authored by: Steve Martin on Friday, February 13 2004 @ 08:37 AM EST |
Section I(B),
Not only are those rights not identified, but
SCO's "rights with respect to the acquisition of UNIX and UnixWare technologies"
are identified.
should be
"unidentified".
--- "When I say something, I put my name next
to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 08:38 AM EST |
The basis of SCO's case is that Novell are lying about Novell still owning the
copy rights to System V. But *in the same suit*, SCO are demanding that Novell
transfer those copy rights. You know, the ones that SCO must already own in
order to bring a slander of title case.
Are they going all out for the Chewbacca defence?
[ Reply to This | # ]
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Authored by: Ruidh on Friday, February 13 2004 @ 08:38 AM EST |
I'm looking forward to it. [ Reply to This | # ]
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Authored by: Thomas Downing on Friday, February 13 2004 @ 08:58 AM EST |
Two things jump out at me, the second has already been commented on by
others.
1. The argument put forth by Novell is that 'a
promise to convey' is not the same as 'to convey'. To the layman this might
sound a bit like hair-splitting, but some thought will show that it is not.
(Some other event might intervene, it doesn't identify when the conveyance
occurs, etc.) It seems that there is another argument at least as strong. What
Amendment 2 grants is not "Novell will convey" but rather "Novell will convey
if". Theses are cats of very different color! Novell does mention this;
but in a rather passing way.
2. The second point is the
"alledged successor" bit. Why I mentioned it is: IBM stated (in its assesment
of SCOs compliance with the court order on discovery,) that SCO had failed to
deliver (and AFAIK could not find) certain ammendments,attachments or other
instruments relating to SCOs aquisition of the UNIX business from Tarantella
(aka old SCO).
I thought that Novells was the best nomenclature to date,
"SCO" (the SCO Group, new SCO) versus "Santa Cruz" (Santa Cruz Operation, the
old SCO now Tarantella.) --- Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc. [ Reply to This | # ]
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Authored by: PeteS on Friday, February 13 2004 @ 09:01 AM EST |
Covering Novell
Notifies SCO.
Novell offers SCO last
drink at System V saloon
The correspondent seems to be enjoying this
docudrama as much as we are.
--- Today's subliminal thought is:
[ Reply to This | # ]
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Authored by: Thomas Downing on Friday, February 13 2004 @ 09:11 AM EST |
I think there's a fair chance something may come of this.
Item:
Microsoft does some deal with SCO which results in SCO recieving something close
to $20 million.
Item: SCO says the deal is for SYS V
license.
Item: Novell audits SCO, demands to see contract/license for
above
Item: SCO says that it relates to Unixware, and is not auditable by
Novell
Item: SCOs 10-K attaches a contract with Morgan Keegan, an
investment banking instituion.
Item: M-K recieved commision from
Microsoft deal
So, where does all this lead? Was the deal with MS really
a license? Or was it a loan or some such brokered by M-K? The paper trail
gives some hints that it might be the former, public verbal statements indicate
the latter.
In any case, I think this explains how David Boies was able
to state that neither he nor anyone at his firm had talked to anyone at
Microsloth about and SCO stuff.
Personaly, I think there is a story here
waiting to be investigated and told
--- Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc. [ Reply to This | # ]
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Authored by: lightsail on Friday, February 13 2004 @ 09:23 AM EST |
Novell crushes TSG's attempt to snatch SysV copyrights.
Does courts rejection of TSG's ownership of SysV copyright become the doom of
TSG in the RedHat case?
Does the validation of Novell's contract with old SCO become the doom of TSG in
IBM case?
Does the SysV copyright confirmed as property of Novell eviscerate the new
amended complaint before the court even decides to accept it?
Will TSG be left with even an imaginary legal leg to stand on?[ Reply to This | # ]
|
- Domino Effect? - Authored by: ram on Friday, February 13 2004 @ 10:39 AM EST
- Domino Effect? - Authored by: jdg on Friday, February 13 2004 @ 01:42 PM EST
- Domino Effect? - Authored by: Anonymous on Friday, February 13 2004 @ 03:32 PM EST
- Domino Effect? - Authored by: Anonymous on Friday, February 13 2004 @ 03:57 PM EST
- Domino Effect? - Authored by: Anonymous on Friday, February 13 2004 @ 05:18 PM EST
|
Authored by: Anonymous on Friday, February 13 2004 @ 09:40 AM EST |
Hey,
If I were in SCOs shoes (thankfully I am not) I would plead special damages in
the order of 5Billion, which they now won't get from IBM. ;o)
As always I expect SCO to up the bid with IBM now that they seem to have lost
another straw to hold on to.
o Drop Trade secrets -> up damages 3B to 5B
o Loose Copyrights -> up damages 5B to 50B[ Reply to This | # ]
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Authored by: KevinR on Friday, February 13 2004 @ 09:54 AM EST |
Capital Guardian Trust Company has filed a 13/G
showing that it
owns 9.5% of newSCO (1,312,000 shares) as an investment manager for various
institutions. Although they only filed last night - the 12th Feb - the event
date was 31-Dec-2003.
Is this rather a late filing for such a big
transaction ?
Could this be how the price stayed up ?
There's might be
another hand for BigBlue to shake firmly.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 10:04 AM EST |
OK, this all looks good, but what if SCO's response is that they need these
copyrights to enforce their licenses with *THEIR* licencees? Is this a valid
reason to demand these copyrights from Novell who, presumably could then be
required to actually transfer the copyrights.[ Reply to This | # ]
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Authored by: Jude on Friday, February 13 2004 @ 10:12 AM EST |
The "no instrument of conveyence" torpedo seems to sink the slander of
title lawsuit, and also any subsequent copyright action SCO might have been
contemplating.
I can't see anything else SCO could try except suing Novell in an attempt to
force the "promised" transfer of copyrights. I have no idea how well
this might work, but I do think it would take a long time to litigate.
Opinions?
[ Reply to This | # ]
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Authored by: Jude on Friday, February 13 2004 @ 10:18 AM EST |
Can anyone suggest a good forum for discussion of Linux techincal issues? I
managed to work around a problem I ran into, but now I want to understand why my
first approach didn't work.[ Reply to This | # ]
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Authored by: gnutechguy99 on Friday, February 13 2004 @ 10:20 AM EST |
Did anybody the subtle way Novell pointed out that SCO Group is not Santa Cruz
Operation?
Note last paragraph, page 4:
"SCO's Complaint is premised upon the theory that the Asset Purchase
Agreement No.2 transferred ownership of the copyrights in UNIX and UnixWare to
its ALLEGED predescessor, Santa Cruz." [ALLEGED in caps for emphasis]
The paragrapgh goes on to explain that copyrights can only be transferred in
writing, and SCO's claims of the APA making such transfers are false as there is
nothing in writing to support SCO's claim.
I expect Novell to expose the fiction of SCO Group = Santa Cruz Operation even
more. At some point the SEC should be interested as SCO has mantained this
fiction in their SEC filings.[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 10:22 AM EST |
If they hired Didio, why not? [ Reply to This | # ]
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Authored by: Peter Smith on Friday, February 13 2004 @ 10:30 AM EST |
This question has been perplexing me:
Why did Novell create such a diabolic APA in the first place?
They clearly meant to transfer only very limited rights and moreover wished to
be able to continue exercising some control for ever after.
Of course we can all be extremely grateful to the diabolical genius who drafted
the APA in the first place.
But anyway here is some guesswork.
Perhaps Novell at the time was rather nervous that their successor's business
practices would damage the interests of the Unix world.
So they created this APA as an instrument that could be used to restrain their
successor and protect the interests of their Unix licensees.
If so it is an irony that this very same instrument is being used rather to
protect the interests of the Linux world.
Or maybe not. Perhaps one should see Linux as being the true successor (in
spirit) to the original creators of Unix at AT&T.[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 10:31 AM EST |
SCO likes to make the argument: SCO paid a lot of money, therefore they must
have got Sys V copyright.
- They made this argument at Harvard
- Blake Stowell made this argument to the press when the Novell letters first
came up
- They made this argument in their Novell complaint.
I do not think "therefore they must have got Sys V copyright" follows
from "they paid a lot of money".
A company I used to work for, also paid a lot of money to Novell (although not
nearly as much as Santa Cruz!) in the 90s. Did we therefore get Sys V
copyright??? No... we got a bunch of Netware software (ha ha)...
Instead, what follows from "Santa Cruz paid a lot of money" is
"therefore they got something"
The question is what is the something?
While I'm not in a position to know for certain that Santa Cruz did definitely
not get copyrights (although Novell's arguments seem good), we need to know what
the rest of Santa Cruz and later Caldera got, and see if that could account for
the money, and what they got:
There are two transactions:
1. Novell to Santa Cruz, in 1996, $100m
These elements appear to have been definitely included
(a) UNIXware business (and UNIXware was main rival to Santa Cruz's OpenSever)
(b) Royalty Buy out on Sys V usage (Sun paid $100m just for this in 1994)
(c) Possibly part of the Unixware reseller channel
(d) 5% interest in collecting Novell's Sys V royalties. If Santa Cruz got $10m
per year for this, it would pay off in 10 years just on this.
Santa Cruz paid $100m, and got substantial value even if they didn't get Sys V
copyrights.
In fact it is more credible that they didn't get Sys V copyrights when you look
at other deals like the Sun deal of 1994.
It is even more credible that they didn't get Sys V copyrights because they were
willing to pay $100m for a deal that explicitly gave them no copyrights
(unamended APA).
SCO's position is that Amendment 2, gave Santa Cruz the copyrights on Sys V, a
year after the original deal, for no additional money -- kind of like a free
bonus. Doesn't that seem just a little ridiculous???
In 2000, there was a transaction from Santa Cruz to Caldera (who later renamed
themselves SCO Group).
Caldera appear to have got essentially (a) to (d), plus
(e) Santa Cruz's OpenServer business
(f) Santa Cruz's own reseller channel (which was several thousand resellers)
(g) Two divisions of Santa Cruz's company
Caldera paid $36m in 2000 for (a) to (g)
The certainly got substantial value
We know that they didn't think they were getting much IP from the deal. As:
(i) Their accounts say the IP they did get was worth $6m
(ii) Ransom Love told everybody the reason for the deal was to get the reseller
channel.
[ Reply to This | # ]
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Authored by: MacUser on Friday, February 13 2004 @ 10:33 AM EST |
The piece on internetnews.com appears to modified, and Laura Didio's
infamous
comment deleted. I sent a complaint, and
doubtless so did many others.
ivychamp99 on the SCOX message board
noted the change.
See the revised
article
at:
http://www.internetnews.com/ent-news/article.php/3312451
[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 10:56 AM EST |
http://enterprise-linux-it.newsfactor.com/story.xhtml?story_title=SCO_Sues_Novel
l_over_Unix_Copyright_Claims&story_id=23034
"Novell continues to make claims that they should not be making and
copyright registrations they should not be making," says SCO spokesperson
Blake Stowell
...
According to SCO, legal action against Novell was necessitated by the software
maker's continued claims of Unix ownership. "We had to file what we filed
yesterday because we tried to go about this in a civil way with correspondence
between our two companies, and obviously that has not worked," SCO
spokesperson Blake Stowell told NewsFactor.
~~
Regarding Novell waiver
http://www.pcpro.co.uk/?http://www.pcpro.co.uk/news/news_story.php?id=53583
Gregory Blepp, VP of SCOsource, told us: 'We believe, as we have said in the
past, that there is no substance or platform for Novell's claims. We are
therefore more than happy to meet them in court, and have this ownership issue
resolved as soon as possible for the benefit of customers and the market.'
~~
http://www.sltrib.com/2004/Feb/02132004/business/138387.asp
"This doesn't change a thing," SCO spokesman 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."
Contrary to Novell's claims that it had a contractual right to issue the
Unix-use waiver on a recalcitrant SCO's behalf, Stowell said that "SCO has
no intention of waiving any of its rights against . . . IBM." [ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 11:05 AM EST |
New document at www.thescogroup.com
Under the "company" tab navigate to "company information".
In the "Company" menu sidebar "SCO Code of Conduct" has been
inserted.
Enjoy.[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 12:22 PM EST |
Come now...when has the language of a formal document ever stopped Darl from
suing??[ Reply to This | # ]
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Authored by: pooky on Friday, February 13 2004 @ 12:27 PM EST |
While I admire the beauty in Novell using SCO's ameaturish attempt against them
to dismiss, this ahs no bearing whatsoever on IBM. All this does is potentially
kill the SCO v Novell lawsuit. This is not proof of who owns the copyrights, as
that is not being examined in detail and decided upon by the court. The motion
simply alledges that SCO's claims and references to the APA as to the transfer
of copyright ownership are incorrect, that's all.
Novell still doesn't have to sue SCO either, because Novell is technically not
being harmed by SCO's actions. IBM is not paying royalties to SCO because they
bought their license out, so Novell is not taking a financial hit from the
litigation between SCO and IBM.
Now if SCO sues someone for copyright infringement that deprives Novell of
income, like a Linux end user, then they might be compelled to act. Until then,
there's no reason to engage in open warfare with SCO, to the drain of Novell's
pocketbook.
Now SCO did add a copyright infringement claim against IBM because IBM continues
to ship AIX, allegedly without a license to do so. SCO has rights in the APA
that allow them some enforcement power with this respect, but again Novell is
not being financially harmed by SCO as of yet.
Novell can sit back and continue to send letters without any real risks on their
part unless they say something that is clearly false. While they have little
risk, they add a great affirmitave defense for IBM at trial because IBM can
simply say that Novell has the right to waive the claim against them and they
did so, in writing, on behalf of SCO, and provided reference to their rights to
do so.
All of this will lead eventually, IMHO, to a SCO v Novell lawsuit that SCO
initiates, and that alledges Novell violated the APA. I think Novell is just
waiting for this to happen and is prepared for it, because SCO is in a tougher
position having to bear the burdens of proving their case whereas Novell can
simply shoot down SCO's allegations (ie Novell doesn't have to prove anything,
they just have to disprove SCO's claims).
But until that happens, nothing has changed with respect to the IBM case because
of this particular action, and wont if it's dismissed.
-pooky
---
Veni, vidi, velcro.
"I came, I saw, I stuck around."
[ Reply to This | # ]
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Authored by: sam on Friday, February 13 2004 @ 12:31 PM EST |
The overiding question on my mind which ought to be patently obvious is why
didn't SCO simply sue Novell for specific performance of Amendment 2 and require
the formal transfer of copyrights.
The above strategy is SO obvious that it
begs the question of what is it in there that is so risky, weak or unpalatable
that they wouldn't do it. We can speculate for days, but there's something in
there that they know but.........
[ Reply to This | # ]
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Authored by: BsAtHome on Friday, February 13 2004 @ 01:00 PM EST |
It seems clear that Novell has a good case here. However, I would like to
know how SCOG, under its previous name Caldera, could have put old versions of
UNIX under a BSD license.
If Caldera owned the copyrights, then
they would not need any OK from Novell. But, Novell has the position that
it never transfered the copyrigths. How then can Caldera put something under a
new license?
So, now we have some options:
- Caldera talked to
Novell about putting the old versions under BSD and Novell gave its OK in
written form.
- Novell was never asked or did not consent and
Caldera broke the contract.
Question: Is there a written record
that Novell OKed the publication of old unices under a BSD license? It is
unlikely that number 2 happened, because Novell could have said something back
then when the old versions got published, but did not. --- SCOop of the
day, Groklaw Rulez [ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 01:01 PM EST |
OT, but today would be a week for the judges decision about whether or not SCO
has complied with the judges order to say which code infringes. I guess we're
going to have to wait til next week =([ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 01:03 PM EST |
Wasn't Judge Kimball supposed to release something this week about last weeks
IBM/SCO hearing, or did I miss the announcement in all that has happened this
week?[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 01:03 PM EST |
Huh?
The operative portion of the agreement, however, is Section 1.1(a), not Schedule
1.1(a).
So if it's not 1.1(a) and it is 1.1(a).....
Am I missing something?[ Reply to This | # ]
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Authored by: cxd on Friday, February 13 2004 @ 01:03 PM EST |
Well today it is one week from the wonderfull trip to Court in Salt Lake. I am
looking forward to Judge Wells ruling and the next court date.
Today may be the day for hammer to fall???? It should be soon.
I am so exited and I just can't hide it. I'm about to loose control and I think
I like it....
Karl[ Reply to This | # ]
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Authored by: ericl on Friday, February 13 2004 @ 01:04 PM EST |
2 points:
1. This document actually makes SCO's intentions in the suit much clearer to me,
i.e. that they acknowledge they *don't* own any copyrights to Unix, and that as
relief, they want the courts to award them the copyrights ("requiring
Novell to assign to SCO any and all copyrights Novell has registered in Unix and
Unixware"). That is the reason why it is a slander of title suit: they are
essentially saying that because they own the Unix and Unixware business, and
because of the allegedly malicious things Novell is saying to cloud this
ownership, they want the court to *grant them* the copyrights, making this
ownership clearer. Thus SCO could argue that (in the same way they argue in the
IBM case, that it is not about copyright, it is about contracts) here it is
about the slander of the title to the Unix *business*, not the copyrights
themselves--but as punishment, they want the court to give them these
copyrights. IANAL and all that, but I've never heard of a court transferring
copyrights from one party to another based on such an instance. SCO would then
counter-argue Novell's request for dismissal that
a) it is a slander of title suit because Novell has clouded SCO's ownership of
its business (not its copyrights)
b) SCO's request for copyrights is precisely the injunctive relief they want.
2. if Novell gains the dismissal through their initial argument, doesn't this
automatically preclude SCO's ability to file a copyright suit, as the court
would validate Novell's copyright claims?[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 01:23 PM EST |
"...However, in no event shall Novell be liable to [Santa Cruz] for any
claim brought by any third party pertaining to said copyrights and
trademarks...."
Can this be read to imply that the SCOG is a third party? Because, if it can
...
[ Reply to This | # ]
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Authored by: Sesostris III on Friday, February 13 2004 @ 01:36 PM EST |
PJ,
Slight typo (but important as it changes the meaning of the
paragraph), Where it says:
Not only are those rights not
identified, but SCO's "rights with respect to the acquisition of UNIX and
UnixWare technologies" are identified.
The last word was
wrong. It should be "unidentified", giving:
Not only are
those rights not identified, but SCO's "rights with respect to the acquisition
of UNIX and UnixWare technologies" are unidentified.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 01:52 PM EST |
From an historic perspective, the sloppy copyright language in the APA and Amend
2 makes sense. Novell really didn't know which SYSV material had valid AT&T
or USL copyrights, therefore they had to be cagey.
The 1993-1994 USL v BSDi lawsuit established
1) AT&T was sloppy and failed to get valid copyrights on some (or much) of
UNIX(TM).
2) AT&T was borg-like and assimilated other's work.
Therefore even if the APA w/ Amend 2 transfered _all_ of Novell's applicable
copyrights, SCO may still own _nothing_.
Harry
[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 02:04 PM EST |
Surely SCO's 2nd amended complaint in IBM case should be rejected on the same
grounds as part of what SCO argues for dismissal.
In SCO's complaint against Novell, they effectively admit they do not currently
own the copyrights, but rather want them transfered from Novell.
If SCO doesn't own the copyrights, by their own admission, then how can they sue
IBM for infringing these copyrights. They simply don't have standing.
Based on this alone, SCO's 2nd amended complaint should be rejected.
I understand there is an element of discretion for the court to decide whether
to accept amended pleadings. As SCO have undermined their own arguments, so
badly, this surely is enough.
IANAL, so just my opinion[ Reply to This | # ]
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Authored by: walth on Friday, February 13 2004 @ 02:18 PM EST |
THose silly SCO lawyers!
Still having trouble with "specificity"...[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 02:40 PM EST |
could it be that SCO is really trying to argue title and copyright are different
issues? In this case, they may possess the tile (and no copyrights)?[ Reply to This | # ]
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Authored by: grouch on Friday, February 13 2004 @ 02:51 PM EST |
MS partner fingered
in Windows code leak, Linux box implicated
By John
Lettice
Finally, this is very important: if you propose to
continue working in the IT industry, and somebody offers you a look at the
source, just say no. Remember - if you learn too much about the internals of
Microsoft products, you may find yourself unable to work for anybody except
Microsoft. Yikes.
In other words, heed PJ's warning from
Microsoft
Denies Leaked Code -- UPDATE: Now MS Confirms
[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 03:25 PM EST |
One fact not argued here, if SCO owns Unix copyrights etc, why do they pay
Novell 95% of the license fee ?
Given the transfer documents are so wooly that you could knit a scarf with it,
tSCOg look like they dont actually know what they have (though they know what
Darl claims they have).
All this, and tSCOg's share price increases !
One wonders about the market (and media), dont they care about facts ?[ Reply to This | # ]
|
- Wayward dealer - Authored by: _Arthur on Friday, February 13 2004 @ 03:47 PM EST
- 95% please - Authored by: Anonymous on Friday, February 13 2004 @ 04:15 PM EST
- 95% please - Authored by: Chugiak on Friday, February 13 2004 @ 04:47 PM EST
- 95% please - Authored by: Anonymous on Friday, February 13 2004 @ 04:53 PM EST
|
Authored by: Anonymous on Friday, February 13 2004 @ 03:28 PM EST |
That Linux users are NOT liable for illegal use of code...
that IBM did NOT donate from AIX and Dynix...
which is NOT a derived work of AT&T Unix...
which SCO does NOT own.
I'd say that either Darl McBride is in a league with the greatest illusionists
of all time, or that some heavy-duty collusion should be investigated among
SCO's executives, its high-profile investors, and its hired counsel - all of
whom, if I am not mistaken, have profited handsomely from this affair.
brain[sic][ Reply to This | # ]
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Authored by: Turing_Machine on Friday, February 13 2004 @ 03:43 PM EST |
IANAL, etc.
If the Magistrate is going to release her decision, and she is waiting until the
markets to close at 4:00 to prevent a sell-off, then we have 30 minutes left
till she does rule. I am so anxious I feel like a 5 year old on Christmas Eve.
Please, oh PLEASE make your ruling today. I don't think I can WAIT until
Tuesday.
(For all Non-USAers, Monday is President's Day, and a national holiday. The
courts will be closed.)
I'll even leave cookies and milk out.
---
No, I'm not interested in developing a powerful brain. All I'm after is just a
mediocre brain, something like the President of the AT&T --Alan Turing[ Reply to This | # ]
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Authored by: Anonymous on Friday, February 13 2004 @ 04:00 PM EST |
I have been wondering about that....waiting with anticipation for some word, yet
nothing. It makes me wonder how late the courst stay open, and how long it takes
to post her order online. Also, the time zone differences.
The anticipation is killing me.
Arrggh.[ Reply to This | # ]
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- Clerk? - Authored by: Anonymous on Friday, February 13 2004 @ 04:38 PM EST
|
Authored by: Eric Damron on Friday, February 13 2004 @ 04:00 PM EST |
It seems that Novel is stating that there was a promise to assign but that the
assignment never took place.
My question is: How does this put an end to SCO's licensing scheme? What will
prevent SCO from demanding that Novel make good on the promise? After they do
have the copyrights wouldn't they be free to again follow their plans.
[ Reply to This | # ]
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Authored by: Chugiak on Friday, February 13 2004 @ 05:31 PM EST |
I just read some more of the amended
Asset Purchase Agreement . The intent of the amendment 2 is unclear
regarding Schedule 1.1(b) section V(A)...
A. 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.
Here's my issue: this amended
paragraph says that the needed copyrights and trademarks are not excluded. It
does not say that they are included.
Now juxtapose that with Schedule
1.1(b) Section I that states what is excluded:
I. Any asset not
listed in Schedule 1.1(a) including without limitation any asset which pertains
to NetWare which is not listed on Schedule 1.1(a)
A literal
reading of the amended APA states clearly that if it is not in Schedule 1.1(a)
then it is not an asset being transferred. Now why on earth Santa Cruz would
request an amendment to an exclusion and not get an amendment to the scedule of
included assets is beyond me. It makes it pretty hard to determine what exactly
the meeting of the minds was between Novell and Santa Cruz.
[ Reply to This | # ]
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Authored by: geoff lane on Friday, February 13 2004 @ 05:32 PM EST |
Some time ago I was looking at the SCO success stories and noticed that a
large percentage of them (up till about a year ago) involved some kind of Linux
installation.
SCO was a Linux company.
The new web site
still has a success story area and
now it has a convienient search function.
So I enter "linux" and guess what...
only a very few entries are returned and most of them are just passing
references.
The old success stories included a large batch of Caldera
related entries -- they seem to have gone as well (or possibly have been heavily
edited.)
Shades of the Ministry Of Truth.
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Authored by: xtifr on Friday, February 13 2004 @ 07:42 PM EST |
I apologize for some mild redundancy here, as I've posted these points
elsewhere in various threads, but I wanted to post them at the top level to
increase their visibility and possibly get more feedback.
First point: a
lot of people are questioning the rationale behind Amendment 2. My new theory
(and I think it fits all the facts) is that oldSCO wanted to exchange code
between Unixware and Openserver in order to improve both products (I believe
this desire has been documented elsewhere), and wanted to ensure that there
wouldn't be any unfortunate copyright issues blocking these improvements. I
further suspect that this turned out to be a non-issue in practice, which is why
oldSCO never ended up asking for any copyrights. In other words, it was always
about Unixware, never about SysV.
Second point: I see a lot of people
suggesting that SCOG should now just be able to ask for the copyrights, using
the IBM case and the potential Linux suits as the reason why they need
them now. The problem with that argument is that it's circular. Amendment two
only promises to transfer copyrights needed by "SCO" to exercise their rights.
That is to say, to exercise their existing rights, not rights they wish
they had! They don't have the copyrights, so they can't argue that they need
the copyrights to defend the (copy)rights they don't have. [ Reply to This | # ]
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Authored by: KevinR on Friday, February 13 2004 @ 08:30 PM EST |
I keep coming back to this, as do a few others.
We get contracts and amendments
on Edgar but many of the exhibits are not available online. This raises
two possibilities, i) those exhibits were left out of the filing even though
their absense reduces the value of the filing, OR ii) those exhibits were given
on PAPER.
If the exhibits did go to the SEC on paper could someoone get at
them from the SEC's public library. I quote:
3. The
Commission makes public information available in its PRR as follows:
*
Electronic filings made with the Commission on the Electronic Data Gathering,
Analysis and Retrieval System ("EDGAR") since July 1, 1992 are available in the
PRR through computer terminals that access EDGAR.
* Paper filings are
available in the PRR on a self-service basis for thirty days. After thirty days,
paper filings made on or after January 1, 1995, other than Ownership and
Restricted Securities Reports, are made available in the PRR on the Global
Access Data System and on CD-ROMs. Ownership and Restricted Securities Reports
filed on or after January 1, 1998, are available in the same manner. Paper
filings made prior to these time frames are maintained in microfiche.
Can a financial/legal participant comment on this ?
Can
anyone go to the SEC Reading Room and ask ? [ Reply to This | # ]
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Authored by: Sandtreader on Saturday, February 14 2004 @ 12:12 PM EST |
It seems strange that Novell didn't include a third defence based on the lack of
malice; at the very least it's clear that the APA and amendments were
spectacularly sloppy bits of drafting, and therefore there is doubt as to the
validity of transfers - hence Novell is non-maliciously capable of believing and
asserting that it does still hold the title. There is no malice in protecting
(what you believe to be) your own rights.
On the downside, I don't think too much should be made of the fact that SCO is
asking for an injunction for title to be transferred. Remember that there are
now two conflicting registrations of these copyrights, and one would expect the
outcome of a case like this to result in that being clarified. Requesting
clarification is not tantamount to admission that they do not own them, as some
(even Novell) seem to be suggesting.
Finally, I think people might be getting overconfident on the failure of the APA
(as amended) to transfer the copyrights - good ol' English law will look to the
intent of the parties where there is ambiguity, and it seems clear(-ish) to me
that the intent was to transfer the benefit of the Unix business, copyrights and
all. But having said that, and returning to my main point, since there _is_
clear ambiguity which will require a contract trial to resolve, Novell could
easily claim lack of malice, and I don't understand why they haven't...
IANAL, of course.
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Authored by: Anonymous on Sunday, February 15 2004 @ 10:26 AM EST |
Included assets: All rights and ownership to Unix and Unixware...
No ownership without copyrights.
But copyrights and trademarks were explicitly listed under Excluded Assets.
Thus this had to be corrected by means of Amendment 2.
The copyrights related to The Business ( Unix and Unixware ) were lifted OUT of
the Excluded Assets.
Result: ownership of Unix and Unixware including copyrights to Unix and Unixware
as they were eliminated from Excluded Assets.
Fairly simple. [ Reply to This | # ]
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Authored by: DK on Monday, February 16 2004 @ 12:07 PM EST |
"Santa Cruz Organization" should of course be "Santa Cruz
Operation" (correct in the pdf)
DK[ Reply to This | # ]
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- typo - Authored by: DK on Wednesday, February 18 2004 @ 10:29 AM EST
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