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SCO's Motion to Remand |
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Thursday, March 11 2004 @ 07:09 AM EST
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Here is SCO's Motion to Remand as text. Don't get confused by their opening. It's Novell that asked that the matter be heard in federal court, where it is now, in front of Judge Kimball, the same judge as in the IBM case. SCO may have meant to write: "While Novell may prefer to have its claim heard in federal court," but instead their opening words are "While SCO may prefer to have its claim heard in federal court", which is a mistake. Or, as some readers have pointed out, it could be SCO saying that while they'd simply adore to have the matter heard by Judge Kimball, they are compelled to ask that it be remanded. Take your pick. SCO is asking to send it back to the local Utah courts. They want it to be a contract case, which can be heard in the local courts; they very much do not want it to be a copyright case. Guess why.
Actually, the reasons are quite complex, legally, and I'll write about it separately. There is a very murky area of law on contract v. copyright. You may recall that Kevin McBride spoke on the subject in the December 5th hearing.
They focus their argument here on the one issue of whether this case should be a copyright case, heard in federal court, or a contract case, heard in local courts, by trying to shoot down a case that Novell used (in footnote [1]: "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)" In their Notice of Removal, Novell argued the matter like this: "16. The question of whether a purported copyright assignment constitutes an 'instrument of conveyance' or 'note or memorandum of [ ] transfer' 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)."17. Therefore, this action is removable to this Court pursuant to 28 U.S.C. ยง 1441." Everything else Novell argued is answered or should be in the other motion, their Memorandum in Opposition to Novell's Motion to Dismiss. Because this argument hinges on this Jasper case, here is Jasper v. Bovina Music, Inc., which you might want to take a look at it. Novell's Memorandum in Support of their Motion to Dismiss is here. And SCO's Memorandum in Opposition to that Motion is here.
***********************************************
Brent O. Hatch (5715)
Mark R. Clements (7172)
HATCH, JAMES & DODGE, P.C.
[address, phone, fax]
Stephen N. Zack (pro hac vice)
Mark J.Heise (pro hac vice)
BOISE, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for Plaintiff The SCO Group, Inc.
______________________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
______________________________________________
THE SCO GROUP, INC.,
a Delaware Corporation,
Plaintiff,
vs.
NOVELL, INC,
a Delaware Corporation,
Defendant.
_______________________________________________
PLAINTIFF'S MEMORANDUM
IN SUPPORT OF MOTION TO
REMAND
Civil No.: 2:04CV00139
Judge Dale A. Kimball
Magistrate Judge Brooke C. Wells
________________________________________________
Plaintiff The SCO Group ("SCO") respectfully submits
this Memorandum in Support of Motion to Remand. [1]
INTRODUCTION
While SCO may prefer to have its claim heard in federal
court, it is obliged to raise the following legal issues
which SCO believes preclude this Court from exercising
subject matter jurisdiction over this case. Novell has
improperly removed this case, claiming that SCO's claim
arises under the Copyright Act. As explained below, this
is a Utah common law tort action for slander of title.
It involves the interpretation of a contract. The
well-established rule is that such cases, even where
the transfer of copyrights is a subject of the
contract, present state law issues which should be
determined in state court absent jurisdiction based on
diversity grounds. Because both parties are Delaware
corporations, there is no basis for diversity jurisdiction
in this case. Novell has failed to meet its burden of
establishing federal jurisdiction on federal question
grounds under 28 U.S.C. 1331, and this case should be remanded.
BACKGROUND
Through an Asset Purchase Agreement dated September 19, 1995, as
amended, SCO, through its predecessor in interest, paid Novell 6.1
million shares of SCO common stock, valued at the time at over $100
million, to acquire from Novell all right, title, and interest in and to
the UNIX and Unixware business, operating system, source code, and all
copyrights related thereto, as well as all claims arising after the
closing date against any parties relating to any right, property, or
asset included in the business. Although several years have passed
since this transaction, in a recent and bad faith effort to interfere
with SCO's exercise of its rights, and in concert with IBM who is in
litigation with SCO in this Court, Novell has publically and falsely
represented that it owns the UNIX and Unixware copyrights. Novell has
made false representations with the specific intent to cause customers
and potential customers of SCO to not do business with SCO and to
slander and impugn the ownership rights of SCO in UNIX and Unixware and
to attempt to hinder SCO's ability to protect the valuable copyrights it
paid Novell so much to obtain. SCO has filed its claim for slander of
title against Novell seeking, among other remedies, to prevent Novell
from further representing in any forum that it has any ownership
whatsoever in the UNIX and Unixware copyrights it sold to SCO in 1995.
STANDARD OF REVIEW
The burden of establishing federal jurisdiction lies with the removing
defendant, who must establish jurisdiction based on a preponderance of
the evidence. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290
(10th Cir. 2001). "This court must deny jurisdiction in all cases where
jurisdiction does not affirmatively appear in the record and ... any
ambiguities or doubts are to be resolved against removal." Harris v.
Nationwide Ins. Co., 78 F.Supp.2d 1215, 1217 (D. Utah 1999).
ARGUMENT
In its removal papers, Novell claims that for the Court to determine the
falsity of Novell's claims of purported ownership of the UNIX and
Unixware copyrights, the Court must consider the parties' 1995 Asset
Purchase Agreement. Novell claims that because Section 204(a) of the
Copyright Act provides that copyrights may only be transferred by a
written instrument, note or memorandum, SCO's claim arises under the
Copyright Act because the Court must determine whether the 1995 Asset
Purchase Agreement is a written instrument, note, or memorandum.
Numerous courts have considered and rejected the precise argument Novell
makes in this case.
It is well-settled that "an action 'arises under' the Copyright Act if
and only if the complaint is for a remedy expressly granted by the
[Copyright] Act, e.g. a suit for infringement or for the statutory
royalties for record production..." T.B. Harms Co. v. Eliscu, 339 F.2d
823, 828 (2nd Cir. 1964) (affirming dismissal of copyright contract
dispute for lack of federal question jurisdiction) (citations omitted).
"[I]f the case concerns a dispute as to ownership of a copyright, and
the issue of ownership turns on the interpretation of a contract, the
case presents only a state law issue, and unless the complaint asserts a
remedy expressly granted by the Copyright Act, federal jurisdiction is
lacking." Jasper v. Bovina Music, Inc. 314 F.3d 42, 46 (2d Cir. 2002).
See also Yount v. Acuff Rose-Opryland, 103 F.3d 830, 835 (9th Cir. 1996)
("We have indicated that state law determines the rights and obligations
arising under a publishing contract that assigns a copyright."); Dolch
v. United California Bank, 702 F.2d 178, 180 (9th Cir. 1983) (affirming
dismissal of a contract claim for lack of federal question jurisdiction
even though it involved copyrights, as "federal courts have consistently
dismissed complaints in copyright cases that present only questions of
copyright law"); Noble v. Great Brands of Europe, 949 F.Supp. 183, 185
(S.D.N.Y. 1999) (finding "federal jurisdiction does not attach to a claim
involving only...ownership of a copyright, because such a claim does not
'arise under' the Copyright Act.").
In an attempt to avoid the clear application of the general rule, Novell
cites the Second Circuit's opinion in Jasper where the court determined
that federal subject matter jurisdiction was appropriate. As the Second
Circuit went out of its way to make clear, Jasper "is the rare contract
interpretation case that does present a substantial issue" under the
Copyright Act. Id., at 47. "In most cases, there will be no doubt that
the contract is a Section 204(a) writing, and the only substantial issue
will be contract interpretation." Id. As set forth below, Jasper is
clearly distinguishable from this case. [2]
First, the plaintiff in Jasper alleged its claim under the Copyright Act
and sought remedies under federal law. Id. at 46-47 (outlining the
issues creating federal jurisdiction "as [plaintiffs] see the case").
As the Tenth Circuit has held in determining questions of subject matter
jurisdiction
It is for the plaintiffs to design their case as one arising under
federal law or not, and it is not within the power of the defendants to
change the character of plaintiff's case by inserting allegations in the
petition for removal. It is fundamental that the action is not one
arising under federal law where the federal question is supplied by way
of defense.
Warner Bros. Records, Inc. v. R.A. Ridges Dist. Co., Inc., 475 F.2d 262,
264 (1973); see also Cardtoons, L.C. v. Major League Baseball Players
Ass'n, 95 F.3d 959, 964 (10th Cir. 1996) (holding that it is the
character of the complaint and not the defenses that "determines whether
there is federal question jurisdiction"). Unlike the plaintiff in
Jasper, SCO has specifically alleged its slander of title claim under
state law and is not seeking a remedy under federal law. Novell's
attempt to recharacterize SCO's common law claim as a claim raising
substantial issues under the Copyright Act should be rejected. See
Jasper, 314 F.3d at 47 (stating that "[t]he difficulty is that almost
every case involving contract interpretation...could be recharacterized
as a case appropriate for a federal court simply by framing the issue to
be whether the disputed contract qualified as a writing...However, the
line drawn in T.B. Harms connot be obliterated by such gymnastics.").
Second, the "rare" issue in Jasper was whether an assignment of
copyrights made separately from the contract by defendants to a third
party and signed only after the fact by the copyright owner, was a
"writing" under the Copyright Act. 314 F.3d at 46-47. The plaintiff in
Jasper raised questions involving the Copyright Act beyond merely
asserting title to a copyright. Here, there is only the language of the
1995 Asset Purchase Agreement as amended. There are only two parties in
interest, and no third party or assignees to complicate the matter.
SCO's slander of title claim presents a simple contract question
regarding whether Novell's claim of ownership of the UNIX and Unixware
copyrights is contrary to the 1995 Asset Purchase Agreement as amended.
Contrary to Novell's assertion, Jasper does not support removal in this
case.
CONCLUSION
While SCO believes this Court can fully and properly address the issues
raised in SCO's Complaint, this Court lacks subject matter jurisdiction
to do so. This is a Utah common law tort action for slander of title
and involves the interpretation of a contract. Novell has failed to
meet its burden of establishing jurisdiction on federal question grounds
under 28 U.S.C. 1331, and this case should be remanded to the Third
Judicial District Court for the State of Utah where it may proceed
forward on the merits.
[1] Novell has filed a Motion to Dismiss SCO's Complaint. This Court
should not address Novell's Motion until it has addressed and ruled on
SCO's Motion to Remand. See In re Bear River Drainage District, 267
F.2d 849 (10th Cir. 1959)(when a district court is faced with a motion
to remand and a motion to dismiss, the court should "rule first on the
motion to remand" and if granted send "the motion to dismiss back to
state court").
[2] As an initial matter, it should be noted that the issue of federal
court jurisdiction in Jasper was first raised by plaintiff on appeal
following a full bench trial on the merits of the case. Certainly, the
procedural posture of the case weighed heavily on the Second Circuit's
determination that Jasper was the "rare" exception to the
well-established rule against federal court jurisdiction over claims
involving contract interpretation.
DATED this 5th day of March, 2004.
By: _[sig: Brent O. Hatch__
HATCH JAMES & DODGE
Brent O. Hatch
Mark R. Clements
BOISE, SCHILLER & FLEXNER LLP
Stephen N. Zack
Mark J. Heise
Attorneys for Plaintiff
_________________________________________
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 5th day of March 2004, I caused to be
mailed a true and correct copy of the foregoing to the following by the
method described below:
By Hand Delivery:
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]
By U.S. Mail, postage prepaid:
Paul Goldstein
[address]
Michael A. Jacobs
Matthew I. Kreeger
MORRISON & FOERSTER
[address]
__[sig:]__
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Authored by: PJ on Thursday, March 11 2004 @ 07:12 AM EST |
Please put news and urls, updates, here so people can find them easily.
Thank you.[ Reply to This | # ]
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- Updates and URLs here please - Authored by: Anonymous on Thursday, March 11 2004 @ 08:20 AM EST
- Updates and URLs here please - Authored by: jmc on Thursday, March 11 2004 @ 08:50 AM EST
- SCO suit is only a bump on the road - Authored by: Peter Smith on Thursday, March 11 2004 @ 09:54 AM EST
- OSDL offers legal fund to SCO targets - Authored by: Peter Smith on Thursday, March 11 2004 @ 10:06 AM EST
- See how far PJ is going - Authored by: insensitive clod on Thursday, March 11 2004 @ 10:11 AM EST
- theStreet.com spins pro SCO - Authored by: skyisland on Thursday, March 11 2004 @ 10:18 AM EST
- Updates and URLs here please - Authored by: cxd on Thursday, March 11 2004 @ 11:03 AM EST
- SCO Buyback Program - Authored by: JustFree on Thursday, March 11 2004 @ 11:06 AM EST
- Business Week Online Synopsis ... - Authored by: lnx4me on Thursday, March 11 2004 @ 11:29 AM EST
- Question for PJ - Authored by: Anonymous on Thursday, March 11 2004 @ 11:33 AM EST
- Updates and URLs here please - Authored by: Anonymous on Thursday, March 11 2004 @ 11:50 AM EST
- suggestion - Authored by: Anonymous on Thursday, March 11 2004 @ 01:26 PM EST
- OT: Baystar top 10 investors - Authored by: John Goodwin on Thursday, March 11 2004 @ 01:59 PM EST
- Mr Anderers business licence. Status: Delinquent - Authored by: DavidAtkinson on Thursday, March 11 2004 @ 02:02 PM EST
- Very OT, but also funny - Authored by: coolmos on Thursday, March 11 2004 @ 02:56 PM EST
- NEWS: HP Sets Up Linux Lab in China - Authored by: RedBarchetta on Thursday, March 11 2004 @ 05:28 PM EST
- BayStar admits Microsoft introduced them to SCO - Authored by: LouS on Thursday, March 11 2004 @ 07:22 PM EST
- BayStar admits Microsoft introduced them to SCO - Authored by: LouS on Thursday, March 11 2004 @ 07:23 PM EST
- Updates and URLs here please - Authored by: ChocoNutDancer on Friday, March 12 2004 @ 08:40 PM EST
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Authored by: PJ on Thursday, March 11 2004 @ 07:14 AM EST |
Please record my mistakes for posterity here. Thanks. That way I can find
them quickly.[ Reply to This | # ]
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- Mistakes, Typos here - Authored by: Anonymous on Thursday, March 11 2004 @ 07:20 AM EST
- Mistakes, Typos here - Authored by: Electric Dragon on Thursday, March 11 2004 @ 07:36 AM EST
- Mistakes, Typos here - Authored by: DeepBlue on Thursday, March 11 2004 @ 07:37 AM EST
- Mistakes, Typos here - Authored by: Anonymous on Thursday, March 11 2004 @ 07:54 AM EST
- Mistakes, Typos here - Authored by: jmc on Thursday, March 11 2004 @ 08:40 AM EST
- Here is a mistake or typo - Authored by: Anonymous on Thursday, March 11 2004 @ 09:08 AM EST
- Extra word at end of sentence - Authored by: Ted Powell on Thursday, March 11 2004 @ 12:07 PM EST
- Mistakes, Typos here - Authored by: Anonymous on Monday, April 12 2004 @ 05:51 PM EDT
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Authored by: brenda banks on Thursday, March 11 2004 @ 07:28 AM EST |
isnt there a California restriction that the contract has to held to california
law?
is so wouldnt that still require federal court?
---
br3n
irc.fdfnet.net #groklaw
"sco's proof of one million lines of code are just as believable as the
raelians proof of the cloned baby"[ Reply to This | # ]
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Authored by: n8dawg on Thursday, March 11 2004 @ 07:33 AM EST |
Ok slightly off topic, but I used to work at SCO about 4 years ago. I worked as
a software engineer while all the project Monterey stuff was happening and saw
some interesting stuff going on. Most of Unixware I'd say was developed on
Linux using Linux tools. That was the OS of choice for most developers.
Another interesting point is that SCO had a few contractors working on the
Kernel, these guys were good. Guess what they worked in their spare time...
Other amusing points were, AIX pretty much compiled out of the box on x86, and
was far far faster than UnixWare, thats on x86.[ Reply to This | # ]
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- See parent: SCO insider! - Authored by: swengr on Thursday, March 11 2004 @ 08:06 AM EST
- Used to work at SCO - Authored by: phrostie on Thursday, March 11 2004 @ 08:12 AM EST
- Hmmm - Authored by: Anonymous on Thursday, March 11 2004 @ 08:41 AM EST
- It could be worse, - Authored by: Jadeclaw on Thursday, March 11 2004 @ 08:52 AM EST
- Hmmm - Authored by: Anonymous on Thursday, March 11 2004 @ 09:07 AM EST
- The parent is the smoking gun! - Authored by: DarlingMcBribe on Thursday, March 11 2004 @ 09:38 AM EST
- Did management bless the moonlighting? - Authored by: Boundless on Thursday, March 11 2004 @ 10:32 AM EST
- Did they have a "Chinese wall"? - Authored by: Anonymous on Thursday, March 11 2004 @ 11:34 AM EST
- Used to work at SCO - Authored by: Anonymous on Thursday, March 11 2004 @ 12:46 PM EST
- Slow up there kidz - Authored by: Anonymous on Thursday, March 11 2004 @ 05:20 PM EST
- Please Parse Parent Post; Cross Platform Development Is Common; I Smell Two Shills Herein - Authored by: Anonymous on Friday, March 12 2004 @ 09:03 AM EST
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Authored by: vonbrand on Thursday, March 11 2004 @ 07:37 AM EST |
First, I think you are mistaken about the first line being a typo. Even exactly
as written it makes sense: "SCO would so very very much like this to be
tried in federal court, but we are so extremely sorry this doesn't apply
because..."
Secondly, are there any differences in the way a transfer
of rights has to be expressed between state and federal? This would explain a
lot of the weirdness of this suit... by keeping this in state court I assume
they want weaker transfer of rights standards to apply than the stringent ones
in copyright law. [ Reply to This | # ]
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Authored by: uchuha on Thursday, March 11 2004 @ 08:04 AM EST |
Unless AC means that you should save all of your
comments
and publish
them in a book... ;) [ Reply to This | # ]
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Authored by: nealywilly on Thursday, March 11 2004 @ 08:05 AM EST |
For consistency's sake, I hope you bothered to e-mail Bob Mims of his mistake.
And Enderle, DiDio
And even truly unbiased reporters/columnists who made honest mistakes.
But I doubt it.[ Reply to This | # ]
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Authored by: bete noire on Thursday, March 11 2004 @ 08:06 AM EST |
Okay, so it has nothing to do with this post. But The Register is running a
rather brilliant parody of the SCO affair here:
http://www.theregister
.co.uk/content/30/36116.html
Be warned it is of a scatalogical bent, so
those who demur at such language should shy away.
Apologies for the
off-topicness, and also if this is something that has already been posted here. [ Reply to This | # ]
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Authored by: penfold on Thursday, March 11 2004 @ 08:13 AM EST |
Second, the "rare" issue in Jasper was whether an assignment of
copyrights made separately from the contract by defendants to a third party and
signed only after the fact by the copyright owner, was a "writing" under the
Copyright Act. 314 F.3d at 46-47. The plaintiff in Jasper raised questions
involving the Copyright Act beyond merely asserting title to a copyright. Here,
there is only the language of the 1995 Asset Purchase Agreement as amended.
There are only two parties in interest, and no third party or assignees to
complicate the matter.
Seems to me they have conviently
forgotten they ARE the third party. The first two parties being OldSCO and
Novell.
--- Blood from a turnip? That's easy! Try getting SCOX to
produce evidence! [ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 08:31 AM EST |
I am not sure I have a real good handle on all the details here, but SCO knows
full well that this is a copyright case. They are claiming it is not because
tranfer of existing copyrights (basically the ones Novell has) is not
necessarily a federal matter, and does not fall under the remedies available to
a copyright infringement case. But remember, SCO is basing this on their initial
claim, not on where the case could end up. Novell will most likely make this a
copyright case.
I see this as more SCO delay tactics. Get the case remanded to the state court,
have Novell turn it into a federal case, then delay while filing the federal
case, then delay some more because of the change in venue and eveidence
required.
SCO does not want to see a trial.
[ Reply to This | # ]
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Authored by: blacklight on Thursday, March 11 2004 @ 08:39 AM EST |
From the SCO Group's motion to remand:
"While SCO may prefer to have its claim heard in federal court, it is
obliged to raise the following legal issues which SCO believes preclude this
Court from exercising subject matter jurisdiction over this case."
Crocodile tears
From the SCO Group's motion to remand:
"..." T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2nd Cir. 1964)
(affirming dismissal of copyright contract dispute for lack of federal question
jurisdiction) (citations omitted). "[I]f the case concerns a dispute as to
ownership of a copyright, and the issue of ownership turns on the interpretation
of a contract, the case presents only a state law issue, and unless the
complaint asserts a remedy expressly granted by the Copyright Act, federal
jurisdiction is lacking."
That citation could be a problem for Novell, but the specifics of that citation
seems to be that it was the plaintiff who wanted to sue in Federal Court and was
precluded from doing so. However, Novell is the defendant in this case and is
the one who wants to move the proceedings to Federal Court. At this point,
Novell probably needs to come up with a memorandum that specifically addresses
the SCO Group's citations.
From the SCO Group's memorandum in opposition to Novell's motion to dismiss:
". As the Ninth Circuit has held in a leading case on the subject,
"[t]he [ยง204(a)] rule is really quite simple: If the copyright holder
agrees to transfer ownership to another party, that party must get the copyright
holder to sign a piece of paper saying so. It doesn't have to be the Magna
Charta; a one-line pro forma statement will do." Effects Associates, Inc.
v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990). The Asset Purchase Agreement as
amended and as alleged in SCO's Complaint clearly meets the requirements of a
Section 204(a) writing."
The SCO Group is probably citing Reflects Associates Inc. vs. Cohen out of
context: for all I know, this case was about a single copyrights whereas Novell
owns hundreds of copyrights. Given that Novell owns hundreds of copyrights, it
makes sense that any copyrights transfer agreement specifically states which
copyrights are to be transferred in connection with that agreement, unless the
agreement specifically states that all copyrights of a clearly delineated
category are to be transferred. Amendment 2 does not appear to meet either
criterion. Within this context, the SCO Group's assertion that the APA and its
amendments clearly meet the requirements of Section 204(a) is probably an
exercise in wishful thinking. The SCO Group made the citation, probably hoping
that the judge does not have the ability to think for himself or herself.
[ Reply to This | # ]
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- T.B. Harms Co. v. Eliscu - Authored by: cbc on Thursday, March 11 2004 @ 10:02 AM EST
- Film Analogy - Authored by: Anonymous on Thursday, March 11 2004 @ 11:23 AM EST
- Touche - Authored by: sam on Thursday, March 11 2004 @ 03:56 PM EST
- Touche - Authored by: Anonymous on Thursday, March 11 2004 @ 10:01 PM EST
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Authored by: jog on Thursday, March 11 2004 @ 09:20 AM EST |
I guess they want it seen (today) hmmm.
jog[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 09:22 AM EST |
I personally think that SCO's objective is to delay the actual trial as long as
they possibly can. SCO plans to publicly insist that they absolutely,
positively hold undisputed ownership until a court rules otherwise, allowing
them to continue their little extortion game.
Another benefit of moving the trial to state court is that they get a new
judge(s?) that might fall for the same delaying tricks they used in SCO vs IBM.
I think SCO has pretty much exhausted the patience of Judge Wells and Judge
Kimball, and would be unlikely to get away with repeating the same nonsense in
their courtrooms.
A further benefit would be if the case was remanded, and then turned out to be a
federal issue anyway and had to be moved again. Boies could probably milk at
least another two years of delay out of that little dance.
[ Reply to This | # ]
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Authored by: be2weenthelines on Thursday, March 11 2004 @ 09:22 AM EST |
IANAL, but it looks to me like SCO is right on this one. It does seem to me
that SCO's claim to own the copyright hinges on the interpretation of the APA
which is just a matter of contract law, and so, from my limited understanding, a
state court matter.
I still think SCO will lose their Slander of Title action in state court because
ownership of the copyrights is far from clear. I think the state court will go
only as far as saying "The APA is a mess, it is not clear what the parties
intended, or who owns the copyrights, so no Slander of Title because no clear
title." without even addressing the issue of who actually owns the
copyrights. That will become the subject of yet another court case...
be2[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 10:12 AM EST |
For some reason SCO has climbed 7+ % in the first 20 minutes today...
Are people really believing SCO execs will start buing back shares?
Sheessh.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 10:12 AM EST |
I haven't seen this mentioned in the comments yet, sorry if it's duplicate:
Brave New World
Reloaded
BraveGNUWorld has paid tribute to our own fantastic
PJ!
Long-time lurker, first-time poster. Keep up the good work!
[ Reply to This | # ]
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Authored by: Turing_Machine on Thursday, March 11 2004 @ 10:14 AM EST |
A very powerful and free spam scanning software that plugs directly into the
free version of sendmail has pulled support and even permission from TSG to use
or ship this product.
It is called Kai's SpamShield, and it is probably the
most comprehensive and extensible, as well as user-friendly spam filter
available. It can be found Here, and
has been very successful in spam and even virus protection for our company. If
your company or group is using sendmail for mail transfer, it is a great
product. Anyway, this product may not be sendmail, itself, which TSG does
distribute, but it IS the best spam solution for those very servers that TSG is
selling.
I wonder if there should be a list of all software that has dropped
support or licensing for TSG somewhere. This product, while not appearing in
movies like Fyodor's NMAP is an equally valuable friend to any sysadmin.
--- 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: Bill The Cat on Thursday, March 11 2004 @ 10:23 AM EST |
I'm a music publisher and I've been following a copyright-contracts case that
was in the U.S. District Court (Northern District) of Texas. The similarities
have been quite a few.
That case was dismissed because it was determined to be a "contract"
case and not a copyright case. The gist is that an artist had signed some
copyright transfer agreement with a record label. When the artist left the
label, they wanted to retain their copyrights. Since the argument was about the
wording of the "contract" and not copyright, the Federal court decided
not to hear the case.
I'm not sure what the status is today. When the court opinion is put on the
net, I will know more.
---
Bill Catz[ Reply to This | # ]
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Authored by: capitalist_pig on Thursday, March 11 2004 @ 10:34 AM EST |
I have an Ameritrade account, and I just used it to get a quote on SCOX. On
the news bar appeared this clueless gem:
http
://www.thestreet.com/_yahoo/markets/marketfeatures/10148199.html
Note
how they call it a "campaign to privatize Linux" and they still repeat the
misinformation about Computer Associates' Linux license. Amazing. Run lemmings
run! Go long on that stock! Wheeeeeee!
You know, I wonder how much
other news in the investment world is this poorly researched and full of
baloney? It's actually pretty scary when you think about it.
A lot of
clueless investors are going to have a big coyote morning pretty soon when they
wake up next to that pig wearing lipstick.
[ Reply to This | # ]
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Authored by: belzecue on Thursday, March 11 2004 @ 10:49 AM EST |
So just how good is Robert K. Bench, CFO. Can he steer the good ship SCOX out
from the jagged maw of Big Blue?
Let's take a retrospective look at Bob's employment history and track
record.
First up to the plate is Envirofoam Technologies where Bob served
as Vice President and director for six months from April 2000 to November 2000.
What do these guys do? Well, if you get covered in anthrax then they'll
probably hose you down with their foamy goop -- which just so
happens to be a mixture of hair conditioner and laundry detergent. I kid you
not.
Here is what they say about themselves: EFT specializes in providing
a complete package of services including EasyDECON solutions, application
equipment and technical support services. EFT's goal is straight forward:
provide the client with a one-use effective decontamination for weapons of mass
destruction and major commercial industrial chemicals.
How is
Envirofoam doing since Bob left? Well, their news releases cut out at
the end of 2002, which doesn't look like a good omen. Hey, don't blame Bob --
he was only there for six months.
Moving right along, we come to
Webmiles.com, where Bob spent a year (April 1999 to April 2000) clocking up his
frequent browser miles as VP & CFO. I'd love to give you a link to their
website, but, alas, they are defunct, so it would seem. Were they not defunct,
here is how they would describe themselves: About WebMiles.Com, Inc
Provider
of e-commerce services that rewards customers with a certain amount of bonuses
for each airline ticket that they purchase online.. Uh-hum. Yes, seemed
like a good idea at the time, same as Darl's
foray into web content management.
Sento Corporation (NASDAQ: SNTO) is
where Mr Bench VPed & CFOed for three years from April 1996 to April 1999.
Poor Sento fell hard with the DotBomb (who didn't?), with their stock tumbling
from ~$28 preDB to a couple of bucks in 2003, and they are just now starting
to recover (~$5). Interestingly, around the time Bob left them, Sento's
stock was tanking around $7 after reaching about $20 in mid 1997. Soon
after Bob's own rubber hit the road, Sento stock soared on the DotCom wave to
the aforementioned $28. Then, of course, WALLOP!
Sento describe themselves thusly: Sento
Corporation (NASDAQ: SNTO) was founded in 1986 and has emerged as a leading
provider of outsourced customer contact solutions that combine web-enabled
customer service with best-in-class CRM. Sento has experience operating contact
centers worldwide and provides customer support in 17
languages.
Finally, CerProbe,
where as CFO Bob tinkered with the financials of semiconductors for five years
from April 1991 through April 1996. CerProbe used to be listed on the Nasdaq
(CRPB), but no longer, it seems.
Smashcut to present day... with
Robert K. Bench now holding SCO's purse strings, and he figures there's room in
there for... oh, about 5 billion dollars, give or take. Two questions from me:
what kind of fumes does that envirofoam stuff put out, and how much of it did
they stack in Bob's office when he worked there? [ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 10:53 AM EST |
While Novell may prefer to have its claim heard in federal court, Novell is
obliged to raise the following legal issues which SCO believes preclude this
Court from exercising subject matter jurisdiction over this case.
That makes sense.
PJ, you've outdone youself lifting the obfuscation that SCO tries to introduce
on each occasion.[ Reply to This | # ]
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Authored by: bobn on Thursday, March 11 2004 @ 11:01 AM EST |
This is totally off-topic, but is another chance to improve competition and
choice. This petiton deals with getting Verisign (aka Network Solutions) out of
the position they have used to abuse DNS Domain registration and DNS function in
the .com and .net TLDs.
https://www.recallverisign.com/ [ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 11:05 AM EST |
I've noticed something fishy on Yahoo! Finance lately.
When you enter a
stock symbol into the search box it brings up a page containing that stock's
recent performance data and the latest news headlines related to it. So when you
enter NOVL (http://finance.yahoo.com/q?d=t&
amp;s=NOVL) you'll see among the related news headlines some items that
paint a less than rosy portrait of SCO.
The headlines displayed today
contain links to juicy articles such as:
- NEWS ANALYSIS: SCO's Suit: A
Match Made in Redmond?
- SCO Aimed at Bank of America
...and
so on.
Yet when you visit the page for SCOX (http://finance.yahoo.com/q?d=t&
amp;s=SCOX) the aforementioned stories are nowhere to be found among the
headlines. In fact, there are no articles at all that even hint that
something might be rotten at SCO. Why is that?
At first I thought there must
be some kind of rule at Yahoo! Finance against posting negative articles about a
stock on that stock's info page, but then a quick look at IMCL (Imclone, of
Martha Stewart fame) disproved that theory.
Some investors doubtless are
making decisions based on the information Yahoo! Finance provides on their site.
Let's just hope that's not their only source of investment information. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 11:42 AM EST |
that this is a mistake on SCO's part??? It might have been done purposely to
undermine Novell. It would NOT surprise me, AT ALL![ Reply to This | # ]
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Authored by: blacklight on Thursday, March 11 2004 @ 11:46 AM EST |
The situation as I currently understand it is that the dispute is a contract
dispute that requires an interpretation of the US Copyrights law to be
adjudicated properly, and only Federal Courts are empowered to interpret the US
Copyrights Act. Therefore, it's off to Federal Court with the Novell-SCO Group
dispute. Some day, I am going to be good at this![ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 12:21 PM EST |
Wan't there an order giving SCO a few extra days to file their response to
Novell's motion to dismiss? Wasn't one of the conditions in that order that SCO
would not be allowed to file any other motions? Is filing a motion to remand to
state court a violation by SCO of that order?
Sorry, only questions, no answers.
[ Reply to This | # ]
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Authored by: phrostie on Thursday, March 11 2004 @ 12:42 PM EST |
a thought just acured to me.
TSG just made an annoucement that will may start buying back scox stock. i
think it is safe to say that this was only intended to boost the price of scox.
for the moment it seems to be working.
if anyone gets the chance to ask a question, ask if they will buy back their IP
licences also?
---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/snafuu[ Reply to This | # ]
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Authored by: sam on Thursday, March 11 2004 @ 12:57 PM EST |
Reading everything in context tells me that SCO intended the motion as it is
written. They are kissing up to Judge Kimball while at the same time attempting
to argue that another court would be better than his. They really don't want to
upset him. They know their motion will not succeed and they are stuck with him.
Their opposition to the move to Federal court is simply a matter of "going
through the motions". No pun intended.
Why? Granted the core issue is a
contract issue, but a minimal interpretation of the copyright act is required to
determine if the contract is a sufficient document to execute transfer of
copyrights.
I still maintain that Novell also wins the copyright issue.
Despite SCO repeated assertions (pleadings) regarding the "plain language" of
the APA, sayin' it's so don't make it so. The copyrights REMAIN on the schedule
of EXCLUDED assets in both the APA and the amendment. The amendment simply adds
a criteria, a trigger, wherein certain required copyrights, not all, will be
subsequently transferred. Although SCO argues that all UNIX copyrights are
"required", they have yet to prove that or even advance an argument in support
of that. They have yet to show any infringments from copyrighted UNIX material
so Novell can easily argue that they still do not need the copyrights in order
to "exercise" their rights. At a minimum, Novell can easily ask SCO to specify
precisely *which* copyrights they presently need (are required).
Novell can
also argue as SCO has done, that the contingency/trigger applies to the
acquisition of UNIX and UnixWare technologies. They only need to argue a
different meaning, that the acquisition of the "technologies" is complete and
has been complete for many years hence the copyrights are not and were not
"required".
The next sentence in the 2nd amendment also allows Novell to
argue that the contingency/trigger only applies to "defending" copyright claims
from third parties. However, in no event shall Novell be liable to SCO for
any claim brought by any third party pertaining to said copyrights and
trademarks.
It is just too far of a stretch to say that the language
intended all copyrights to be transferred while remaining on the schedule of
excluded assets.
All in my opinion and IAAL. (I am a layman.)
Apologies
for arguing the merits when the issue at hand is federal vs. state court.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 01:48 PM EST |
This makes me very happy. It's nice to see that people
are finally figuring it out. [ Reply to This | # ]
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Authored by: Tim Ransom on Thursday, March 11 2004 @ 02:42 PM EST |
If this has been addressed already, my apologies.
Is there any relevant cases where Slander of Title was contingent on waiting for
copyright to be established? Perhaps I should wade through the cases cited by
Novell - do any of these perfectly fit? I know I should read them myself, but I
am up to my eyeballs and hoping to benefit here from the good work of others -
also I am not the sharpest knife in the drawer, so the legalese tends to cripple
my comprehension.
---
Thanks again,
[ Reply to This | # ]
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- Daffy Question - Authored by: Anonymous on Thursday, March 11 2004 @ 03:34 PM EST
- Daffy Question - Authored by: sam on Thursday, March 11 2004 @ 04:02 PM EST
- Nope - Authored by: Anonymous on Thursday, March 11 2004 @ 07:29 PM EST
- Jasper - Authored by: Anonymous on Thursday, March 11 2004 @ 04:30 PM EST
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Authored by: kbwojo on Thursday, March 11 2004 @ 02:49 PM EST |
Has any one found out anything about TSG's new cousel in the IBM case? [ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 03:45 PM EST |
SCO's Motion to Redmond? WOW!
(Oh, never mind.)
- The Precision Blogger
http://precision-blogging.blogspot.com
[ Reply to This | # ]
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Authored by: wllacer on Thursday, March 11 2004 @ 04:03 PM EST |
For those interested, the Spanish Supercomputer IBM is building will enter into
service early next year (and not in 4 years as i previously reported) according
to the spanish newspaper ABC Still to few technical details
Was frontpage
this morning but due to the sad events is now deep buried.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 04:59 PM EST |
Whatever SCO was trying to pull with its buyback program, it ain't working.
The fat lady should start singing anytime soon. SCOX 9.25 -0.26 (-2.73%)[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 05:04 PM EST |
http://www.ecosyn
.us/SCO_v_IBM_copyright_issues.html
- First, an
exaggerated 'silly' example is presented.
- Then, the silly part is pointed
out/explained why it is silly.
- Then, a corresponding silly premise of the
SCO controversies is shown in concise form.
- Then, an explanation why
100,000,000 bytes per day of comments and discussion on SCO's silly arguments is
a waste of bandwidth and waste of time -- pure
misdirection.
Let's say I buy a house on some land. I
obtain a clear reseached title to the land. It is mine, and I can set rent at
any price I choose on the land. I decide I would like to charge every person
rent at my set price who has ever occupied that land, going back in history as
far as I can research occupations of "my" land.
This is a 'silly' position
for me to take, because the laws do not apply current status to retroactive
events before current status came into being. Are we all agreed that this "silly
argument' is not worthy of court time or 100,000,000 bytes of daily discussion
on the pros and cons of my silly argument?
- The SCO
controversies are "silly" because they apply present status to preceeding
events.
- The SCO controversies are "silly" because they attempt to apply
current status "derivative works" copyright standards as if the work was mostly
protected copyrighted original works of authorship, when analysis demonstrates
that UNIX System V is a derivative work on a largely PUBLIC DOMAIN collection of
modules, reflecting prior status under prior law.
- The SCO controversies
are "silly" because "old SCO" was intimately involved in porting UNIX to XENIX
in 1983, only three years after software first became a protectable work and 14
years after UNIX origin, at a time in history that they knew the irrevokable
largely public domain status of UNIX modules constituting the majority of the
source code they were creating as a derivative work, known in Copyright Law
parlance as a new "compilation".
Beginning in 1980,
computer software became copyrightable. Before 1980 no software source code
and/or object code was copyrightable. Old code written before 1980 could be
grandfathered into copyright protected status only if it had been continually
maintained in confidentiality according to the legal standards of pre-1980
"trade secret" laws. Any software pre-1980 vintage which can be shown to have
forfeited "trade secret" status prior to 1980 was irrevokably in public domain.
You do not have to like the law, but you and judges in courts are compelled to
obey the laws as written, and as interpreted by caselaw.
I assert that there
is ample evidence that UNIX forfeited "trade secret" status by multiple
"publications" to assorted universities where the code was freely available to
computer science students without "non-disclosure" agreements with the majority
of them.
Furthermore, people are applying current status of copyright grants
retroactively to events which occurred under prior law from 1969 to 1976.
Today's status, based on amended laws of 1976, 1980, and the Berne Convention
Treaty ratification in 1989, make "original works of authorship" automatically
protected by copyright immediately "upon fixed expression of tangible form". The
opposite was the status during the 1969 through 1976 period of UNIX early
development -- when the applicable status was all works were NOT COPYRIGHTED
until strict compliance with mandatory duties required by then current copyright
law of the "Copyright Act of 1909".
Under the law during the 1969 to 1976
time period, publication was defined as "offering for sale, lease or loan" one
or more copies of a work. Each tape, each revision on each computer tape,
constituted publication. There is not the shadow of a doubt that UNIX was
"published" between 1969 and 1976.
The questions to ask
are:
- Did UNIX have affixed the mandatory copyright notices in all
publications prior to 1976, when that requirement was dropped?
- Did "Trade
Secret" requirement get violated during the 1969 through 1976 time span?
- Is
there some "good faith" efforts to preserve copyright protection signified by at
least compliance with deposit of copies with the Copyright Office or Library of
Congress, as required by law? What is the date of first compliance?
- Did
AT&T, and/or USL, acknowledge the copyright defects in UNIX in sealed court
records of USL v BSDi?
- Did AT&T publically acknowledge public domain
status of UNIX versions slightly preceeding UNIX System V release 4?
- Are
the contested include files, header files, ABIs substantially identical to the
prior versions in known Public Domain compilations?
- What year did copyright
notices first get affixed to UNIX source code, and how many publications were
there prior to that date?
- At what time did AT&T establish trade secret
compliance programs, and what evidence exists that they effectively excluded
innumerable computer science students from close examination of the source
code?
To spend lengthy back and forth arguments over UNIX
copyrights is "silly" waste of bandwidth and "silly" spreading of disinformation
that the assumption should be that current status copyright laws should be
argued over code created under different legal conditions.
- First,
it needs to be demonstrated how much of UNIX is actually copyrighted.
- Then,
it needs to be demonstrated how much of that small portion of UNIX is among the
contested code.
- Then, it needs to be established that those tiny fragments
were improperly conveyed to Linux.
Novell conveyed clear
copyrights to old SCO on manuals only. There was no clear copyright code other
than that to convey. Old SCO was intimately involved with UNIX from 1983 porting
to XENIX, and no disclosures of the vague and ambiguous copyright status of UNIX
was required by full disclosure laws unpon transfer of the "UNIX business".
"Copyrights, to be transferred, if requested" had an implicit requirement for
lengthy and detailed investigations to determine the status of each line of code
-- it was a burdensome and expensive undertaking which would not report much
good news to either party of the contractual transfer. Both parties to the
transfer were equally knowledgeable about the murky UNIX copyright
history.
Transfers of UNIX from Old SCO to the successors in interest,
i.e., the new SCO, may have imposed burdens of full disclosures which were not
done, opening SCO to sue its parents, but that is the only possible lawsuits
that have legal merit. SCO bought a "pig in a poke", and the courts are not
their guardians for their own defects in due diligence to investigate
purchases.
http://www.ecosyn
.us/SCO_v_IBM_copyright_issues.html
[ Reply to This | # ]
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Authored by: Ted Powell on Thursday, March 11 2004 @ 05:17 PM EST |
A serious
article on LinuxInsider, by Paul Murphy, about intrinsically different
design philosophies between Windows and Linux/Unix.
Here's a
snippet:
To the extent, for example, that we know what decisions
the Microsoft people made, it appears that they generally made choices
preferring efficiency for -- and external controls over -- a small number of
processes over scalable multiprocessing and internal process control. In
contrast, Unix developers, whether aiming at a true microkernel-like BSD (or
Darwin) or a monolithic kernel like Linux, generally made the opposite choices
to favor multiple processes running under adaptive internal
controls.
Perhaps this accounts for the idea that different
Windows services should be run on different boxesso there aren't too many
important processes competing for the same hardware.
A good read,
IMHO.
--- his, her, its ..... not hi's, he'r, it's [ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 05:57 PM EST |
Let me start by saying that SCO's memorandum appears to
contain a lot more
substance (references to case law,
specific argument) than some of their filings
in the IBM
case dealing with SCO's novel "derivative works" theory. However,
some of SCO's citations appear to miss the point
in that the respective
copyright transfers were not at
issue, but some surrounding contractual
obligations were.
Most of the comments on Groklaw seem to imply that the
lawsuit is
about the APA and whether it actually transferred copyright.
However, the lawsuit is about "slander of title". As a
layman, I'm surprised
that you need a contract with someone
that allegedly slanders your title. After
all, a complete
stranger could do that, and you want to be able to protest
and
recover damages. See July 1 entry in the
Calendar of
Conspiracy:
Anti-abortion activist Dale Pultz goes on
trial in Dane County for filing a $700,000 bogus lien against a Milwaukee
judge who ruled him in contempt of court. He also filed a "Common Law Arrest
Warrant" against the judge. He is charged with slander of title and
forgery.
To repeat, the "slander of title" lawsuit
appears not to be
a lawsuit primarily about the APA contract itself.
(Given
that SCO's allegations about the contract may be construed true when considering
Novell's motion to dismiss,
that could mean the motion to dismiss won't work
out.)
That said, two aspects of "slander of title" are falsity and
maliciousness (of Novell's utterances), and the falsity
issue directly ties into
the copyright transfer allegedly
performed via the APA: If Novell says it still
owns the
copyrights, but the APA clearly would say otherwise,
that would help
SCO. However, the APA is certainly
less than clear. It looks like an
interpretation of the
APA regarding copyright transfer is due, and that seems
to
be federal jurisdiction.
Btw, I'm not a lawyer.
Jens Maurer [ Reply to This | # ]
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Authored by: technoCon on Thursday, March 11 2004 @ 05:59 PM EST |
Suppose that two entities in some state enter in to a contract to transfer
something between them, but it is worded ambiguously. Suppose further that the
Feds have specific rules for the transfer of copyrights.
It seems to me that the state court would decide whether something has indeed
transferred between them or not. And it seems to me that the state court might
even specify that the something in question was a copyright.
However, I don't see how that would settle the issue. Are edicts of a state
court about a contract binding upon the federal government? If the State upholds
the putative transfer of property, the Feds would still have to interpret the
contract to establish that the transfer satisfied the Fed's rules concerning
such transfers. If the Feds held the transfer invalid, that would probably bear
upon any "slander of copyright" suits arising from the dispute.
Given the line of reasoning above, I would think that someone who wanted to
quickly resolve ownership of the copyrights in question would seek resolution at
a Federal level.
Of course, I don't understand the issues well enough to disabuse myself of the
nagging unease that I'm missing something.
Have I said IANAL lately?
Question of the law: [ Reply to This | # ]
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Authored by: xtifr on Thursday, March 11 2004 @ 06:16 PM EST |
From the Introduction: "It involves the interpretation of a contract."
If it involves interpretation of a contract, doesn't that mean that
"Slander of Title" doesn't apply? Doesn't that one statement
basically undermine their whole suit? This seems to me like a classically
SCOGish attempt to have their cake and eat it too. They want to claim that the
case doesn't involve interpretation of a contract so it won't be dismissed, but
they also want to claim that it does involve interpretation of a contract so it
can get moved to a more friendly (they hope) local court.
Can the judge look at the Motion to Remand while deciding the Motion to Dismiss?
Can the judge deny the Motion to Remand because Slander of Title, by
definition, does not involve contract interpretation, and then dismiss the case
(presumably without prejudice) because the Motion to Remand admits there is a
contract dispute? That would certainly seem like the most reasonable and just
course, but it might violate some procedural rules.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 11 2004 @ 11:08 PM EST |
As usual, SCO has it dead bang backwards. The state action can't get off square
one until the Federal question is resolved.
When I looked at the motion
to remand yesterday, my first impression was that Boise et Cie. had actually
done some legal work for a change. On closer inspection, and having looked at
Jasper v. Bovina (thanks for the link, PJ) (and everything else, not
incidentally), I realized that they were up to their old tricks: carefully quote
half of Novells claim, purport to knock down the straw man, and hope the
judge is distracted from the real issue. To wit:
"...the Court must
determine whether the 1995 Asset Purchase Agreement is a written instrument,
note, or memorandum."
Bogus. The issue is not "is the APA a writing?"
It is "is that writing a 204(a) transfer?" Two questions immediately
arise. Only a Federal judge can answer at least the second (and IMHOETIANAL
both). And only if both are answered yes can SCO sue for slander of
title.
1) Did a transfer of rights take place?
2) If so, was it an
exclusive transfer of all Title 17 rights?
As to (1), a
promise to act is not itself the action. Willingness to transfer some
undetermined set of rights, at some unspecified date, contingent upon an event
(SCO's demonstration that they need the rights) that AFAIK has never taken
place, does not equate to unqualified intent to transfer right now. We've
discussed this.
But (2) even if some transfer and some demonstration
is held to have occurred, it's not a copyright transfer unless the complete
suite of rights available under Title 17 has been conveyed
exclusively to the new owner, with the old owner retaining none. Yet
under any interpretation of the APA, Novell unquestionably retains (a) the right
to profit 95 cents on every dollar SCO takes in under UNIX licenses, along with
(b) the right to override and void any license agreement SCO enters into.
That's not an exclusive transfer, it's a sub-licensing deal. If
I were to write that up as a classified ad, it would read:
OUTSIDE
SALES REP - UNIX.
5% commission, no car allowance.
Call Ray,
1-800-555-NOVELL.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, March 12 2004 @ 03:28 AM EST |
SCO is trolling for Trash [ Reply to This | # ]
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