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| Novell's Declaration Re Ownership of Copyright - Lowry & Melaugh Declarations |
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Wednesday, October 27 2004 @ 02:57 AM EDT
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Here is Novell's Certificate of Recordation, with its Declaration Regarding Ownership of US Copyright Registration Number TXU-510-028. It is attached as an exhibit to Bruce Lowry's Declaration. You will notice that he describes this document as "the declarations Novell submitted to the Copyright Office for recordation against SCO's UNIX copyright registrations". Both were submitted in support of Novell's Motion to Dismiss, as was this Declaration of David E. Melaugh in Support of Novell, Inc.'s Motion to Dismiss, in which you will learn how attorneys do research on Lexis, because he did a search for SCO and IBM from the date of the filing of the lawsuit against IBM in March of 2003 until July 28, 2004, and he found a hair-raising 2,845 articles, which illustrates that Prosco.net can't be needed, surely, as a way to get their message out. It's out already. Our thanks go to Frank Sorenson for obtaining these documents, scanning them and doing the transcript for us. I note that the one document I really want to see is referenced in the first paragraph of the Declaration Regarding Ownership of Copyright, an Agreement and Plan of Reorganization between UNIX System Laboratories, AT&T, Novell Acquisitions Corp., and Novell. Of course the reason I want to read it is to see exactly what Novell got under that contract. I'd so love to read the paperwork in the setting up of USL as well. You will note that Novell states that SCO "acquired certain rights to, inter alia , carry out the business of licensing of UNIX, subject to various obligations to Novell". It goes on to say that under Amendment 2, all copyrights were excluded "except for the copyrights . . . owned by Novell as of the date of the [Asset Purchase] Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies" but that the SCO Group, as well as its predecessor SCO, Inc., "has failed as of the date of this Declaration to demonstrate that any of the UNIX copyrights . . . are required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies, despite Novell's request that SCO do so." That last part woke me up. On that basis, Novell concludes that "it retains all or substantially all of the ownership of the copyrights in UNIX. . ." Yes, I did notice that their attorney has the last name McBride. I hope they are not close relatives, though, because that would surely be painful. UPDATE: I did some checking and they are not related at all.
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DECLARATION REGARDING OWNERSHIP OF
U.S. COPYRIGHT, REGISTRATION NUMBER TXU-510-028
WHEREAS, pursuant to an Agreement and Plan of Reorganization entered into between UNIX System Laboratories, Inc., a Delaware corporation, American Telephone and Telegraph Company, a New York corporation, Novell Acquisition Corp., a Delaware corporation, and Novell, Inc. ("Novell"), a Delaware corporation, Novell became the owner of all right, title, and interest, including all copyrights, in that certain computer operating system and related systems software known as UNIX;
WHEREAS, pursuant to an Asset Purchase Agreement (the "Asset Purchase Agreement") between Novell and the Santa Cruz Operation, Inc., a California corporation ("SCO, Inc."), SCO, Inc. acquired certain rights to, inter alia, carry out the business of licensing of UNIX, subject to various obligations to Novell;
WHEREAS, pursuant to Section 1.1(a) and Schedule 1.1(b), Excluded Assets, to the Asset Purchase Agreement, "[a]ll copyrights" were excluded from the assets purchased by SCO, Inc.;
WHEREAS, pursuant to Amendment No. 2 to the Asset Purchase Agreement, Schedule 1.1(b) was revised to read, in relevant part, "All copyrights . . . except for the copyrights . . . owned by Novell as of the date of the [Asset Purchase] Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies"; and
WHEREAS, The SCO Group, Inc. ("SCO"), the successor to SCO, Inc., has failed as of the date of this Declaration to demonstrate that any of the UNIX copyrights owned by Novell as of the date of the Asset Purchase Agreement are required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies, despite Novell's request that SCO do so.
NOW, THEREFORE, Novell declares that it retains all or substantially all of the ownership of the copyrights in UNIX, including the U.S. Copyright Registration referenced above.
Executed at Provo, Utah on October 2nd, 2003.
signature of Patrick McBride
Patrick McBride
Intellectual Property Counsel
Novell, Inc.
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| Authored by: Anonymous on Wednesday, October 27 2004 @ 03:59 AM EDT |
OT goes in here.[ Reply to This | # ]
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- OT STUFF - Authored by: amhagp on Wednesday, October 27 2004 @ 04:28 AM EDT
- OT STUFF - Authored by: feldegast on Wednesday, October 27 2004 @ 05:34 AM EDT
- OT STUFF - Authored by: Anonymous on Wednesday, October 27 2004 @ 07:06 AM EDT
- Not so. - Authored by: Anonymous on Wednesday, October 27 2004 @ 07:20 AM EDT
- OT STUFF - Authored by: Anonymous on Wednesday, October 27 2004 @ 12:41 PM EDT
- "Freedom... - Authored by: Ed L. on Wednesday, October 27 2004 @ 02:50 PM EDT
- OT STUFF FUD CONTROL!!! - Authored by: Anonymous on Wednesday, October 27 2004 @ 05:48 PM EDT
- Balmer attacks Linux - Authored by: Greebo on Wednesday, October 27 2004 @ 06:38 AM EDT
- LAMLAW offline? - Authored by: Anonymous on Wednesday, October 27 2004 @ 08:24 AM EDT
- innovators to inhibitors in one easy step - Authored by: skip on Wednesday, October 27 2004 @ 09:22 AM EDT
- Novell and Dell - Authored by: Anonymous on Wednesday, October 27 2004 @ 10:10 AM EDT
- Land of the Free. - Authored by: Anonymous on Wednesday, October 27 2004 @ 10:52 AM EDT
- SCOX today... - Authored by: tiger99 on Wednesday, October 27 2004 @ 01:16 PM EDT
- PJ - please - Authored by: codswallop on Wednesday, October 27 2004 @ 01:21 PM EDT
- Sender ID - M$ submits again, while bullying ISP's for support - Authored by: bbaston on Wednesday, October 27 2004 @ 01:58 PM EDT
- PCs 'raped me as my children slept Misread the title as New Windo$ virus - Authored by: Anonymous on Wednesday, October 27 2004 @ 04:12 PM EDT
- LinuxWorld.com Followup - Authored by: Rsnable Person on Wednesday, October 27 2004 @ 05:34 PM EDT
- News report: MS Word used by terrorists - Authored by: gdeinsta on Wednesday, October 27 2004 @ 06:02 PM EDT
- Obligatory Highlander Reference (OT) - Authored by: Anonymous on Wednesday, October 27 2004 @ 07:25 PM EDT
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| Authored by: Greebo on Wednesday, October 27 2004 @ 04:21 AM EDT |
All big hairy Yeti things post here please.
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Recent Linux Convert and Scared Cat Owner[ Reply to This | # ]
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- Blown away? - Authored by: Anonymous on Wednesday, October 27 2004 @ 05:25 AM EDT
- Message from the grammar fairy - Authored by: Anonymous on Wednesday, October 27 2004 @ 08:13 AM EDT
- Funny - Authored by: billyskank on Wednesday, October 27 2004 @ 11:54 AM EDT
- Funny - Authored by: Anonymous on Wednesday, October 27 2004 @ 12:11 PM EDT
- U done it! - Authored by: Anonymous on Wednesday, October 27 2004 @ 05:37 PM EDT
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| Authored by: Greebo on Wednesday, October 27 2004 @ 04:33 AM EDT |
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WHEREAS, The SCO Group, Inc. ("SCO"), the successor to SCO, Inc., has failed
as of the date of this Declaration to demonstrate that any of the UNIX
copyrights owned by Novell as of the date of the Asset Purchase Agreement are
required for SCO to exercise its rights with respect to the acquisition of UNIX
and UnixWare technologies, despite Novell's request that SCO do
so.
Do we know if any documents relating to this have been admitted
as evidence? This would seem pretty damning evidence that SCO did not receive
the copyrights.
Greebo ---
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Recent Linux Convert and Scared Cat Owner [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, October 27 2004 @ 04:35 AM EDT |
Talking about how people should talk to one another, when did a word like
"recordation" make it into the english language.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, October 27 2004 @ 04:44 AM EDT |
Patrick McBride? So SCO-Novell is all a family quarrel?
No wonder it's bitter!
p.s. for the humour-impaired,
:-) [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, October 27 2004 @ 04:56 AM EDT |
I see Frank Sorenson's name frequently mentioned here, usually in connection
with time consuming work like the scanning and conversion of documents. Thanks
Frank, it's appreciated![ Reply to This | # ]
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- Yes, thanks Frank - Authored by: Anonymous on Wednesday, October 27 2004 @ 07:03 AM EDT
- I second that (eom) - Authored by: MadScientist on Wednesday, October 27 2004 @ 07:08 AM EDT
- Thank you, Frank (n/t) - Authored by: WojtekPod on Wednesday, October 27 2004 @ 09:00 AM EDT
- Thanks, Frank - Authored by: Anonymous on Wednesday, October 27 2004 @ 09:57 AM EDT
- Thanks Frank. And Go Cougars! nt - Authored by: Anonymous on Wednesday, October 27 2004 @ 12:15 PM EDT
- Thanks, Frank - Authored by: Anonymous on Wednesday, October 27 2004 @ 02:46 PM EDT
- Thanks, Frank - Authored by: RPN on Wednesday, October 27 2004 @ 04:20 PM EDT
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| Authored by: minkwe on Wednesday, October 27 2004 @ 05:06 AM EDT |
| I don't know if any body has noticed the following:
Schedule 1.1(b) was
modified to read
"All copyrights . . . except for the copyrights . . .
owned by Novell as of the date of the [Asset Purchase] Agreement required
for SCO to exercise its rights with respect to the acquisition of UNIX and
UnixWare technologies"
Rather than
"All copyrights . . . except
for the copyrights . . . required for SCO to exercise its rights with respect
to the acquisition of UNIX and UnixWare technologies"
Which copyrights
exactly did Novell own at the time of the agreement? The amendment seems to
indicate that they had doubts about which specific copyrights were transfered
from AT&T.
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"Corporate views on IP law might be described as
similar to a 2-year-old's concept of who gets to play with all the toys
regardless of who brought them" -- PJ [ Reply to This | # ]
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| Authored by: Ian Al on Wednesday, October 27 2004 @ 06:01 AM EDT |
I assume that the Lowry & Melaugh Declarations are, in part, a demonstration
of how to get court documentation from another case exhibited in the current
case.
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Regards
Ian Al[ Reply to This | # ]
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| Authored by: Jadeclaw on Wednesday, October 27 2004 @ 06:31 AM EDT |
First, the oldSCO side of Novell --> SCO sale. That should confirm, what
really changed hands.
Second, those, who were involved in the oldSCO --> Caldera/SCO sale.
I can't believe, that Caldera/SCO was left in the dark, what was included in
that sale. I can imagine, that SCO isn't very keen to have that one publicly
examined...
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include('IANAL.php');
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| Authored by: NZheretic on Wednesday, October 27 2004 @ 11:50 AM EDT |
| What
evidence of origin,ownership,copyright + GPL. [ Reply to This | # ]
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| Authored by: CraigG on Wednesday, October 27 2004 @ 11:51 AM EDT |
PJ:
the one document I really want to see is referenced in the
first paragraph of the Declaration Regarding Ownership of Copyright, an
Agreement and Plan of Reorganization between UNIX System Laboratories, AT&T,
Novell Acquisitions Corp., and Novell. Of course the reason I want to read it is
to see exactly what Novell got under that contract. I'd so love to read the
paperwork in the setting up of USL as well.
Yes, indeed.
This is one of the two crucial docs so far missing from the picture (the other
one being the Novell/Santa Cruz "Operational Agreement", which outlined the
planned use Santa Cruz was going to make of the Unixware source to create a sort
of i386/iTanic SuperUNIX).
In this connection, there's an interesting document
at Dennis
Ritchie's BSDi page (near the bottom) presenting a complaint filed after the
BSDi suit by the Regents of the University of California against
USL:
...
8. On or about November 1, 1989, AT&T assigned
and transferred its rights to, among other things, System V, Release 4 of the
Unix Operating System to USL. The University is informed and believes that
AT&T assigned and transferred its rights under the BSD Agreements to
USL.
9. The 4.3 BSD-Tahoe software expressly provides
as
follows:
Copyright (c) 1982, 1986 Regents of the
University of
California. All rights reserved.
Redistribution and use in source
and binary forms are
permitted provided that the above copyright notice and
this
paragraph are duplicated in all such forms and that
any documentation,
advertising materials, and other
materials related to such distribution and
use
acknowledge that the software was developed by the
University of California,
Berkeley.
USL failed to include the University's
copyright notice in its Unix System V, Release 4.
10. Substantial portions
(perhaps as much as 50%) of the current version of USL's Unix Operating System,
"System V, Release 4," is comprised of the University's BSD code. USL has paid
no royalties for its use of the University's BSD software, although USL
currently licenses its Unix Operating System for approximately $200,000.
Although USL itself states, the Unix Operating System has become "one of the
most highly regarded computer systems in the world," this is largely the result
of BSD software developed by the University and its contributors which has been
incorporated into USL's Unix Operating System. The only form of compensation the
University required USL to provide (other than the nominal license fee) was
credit and recognition to the University for its valuable software and related
documentation. USL failed to provide the University with its due credit and
recognition under the applicable license
agreements.
...
This is yet more circumstantial evidence to
support the speculation that, aside from the "compilation" copyright on the
collective whole and the usual "printed book" copyrights on the manuals, the
justiciable nature of any purported AT&T copyrights in the SysV
source is highly questionable.
Remember the old story about someone thinking
Pandora's Box was a treasure chest?
Craig [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, October 27 2004 @ 04:26 PM EDT |
If he didn't already know that, Patrick just breathed a sigh of relief. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, October 27 2004 @ 04:29 PM EDT |
Around a year ago, Novell was attempting to audit SCO to see if they were
entitled to 95% of the Sun/MS money.
http://www.novell.com/licensing/indemnity/pdf/11_21_03_n-sco.pdf
There is additional correspondence over the next few months and then nothing.
Has there been any news that I missed?
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, October 28 2004 @ 02:19 AM EDT |
| Remember all those old
pre-System III Unixes
that Caldera released under
BSDish licenses, before they turned to evil?
If Caldera doesn't own the copyrights to those Unixes,
then their release was
an infringement of Novell's
copyright and the Unix Heritage Society is
technically
breaking the law by hosting them on its web site.
One could
hope, of course, that Novell might go ahead and
release them a second time. [ Reply to This | # ]
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| Authored by: GLJason on Thursday, October 28 2004 @ 12:43 PM EDT |
I just figured out what amendment 2 means.
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.
From
reading various cases, the courts look at the copyrights as individual rights.
The right to copy, the right to create derivative works, the right to
distribute, and the right to perform the work publicly.
Now, think about
what Santa Cruz was buying. They were buying the right to create a new merged
product and to conduct the UNIX business. They couldn't afford everything so
they didn't buy the copyrights and have to give 95% of the money for existing
licensees to Novell.
However, in order to conduct the business and create
the "merged product", they have to be able to create derivative works and to
copy the product. THAT is why amendment 2 is there. Novell is just saying
"we're selling you the Unix business, so of course you can copy it for customers
and create the merged product".
The only "copyright" required for SCO to
conduct its business is the right to copy the software for their customers and
to create the derivative work, UnixWare. They don't require the exclusive
copyrights to conduct the business. Novell is saying "we are giving you the
right to copy and create derivative works", not "we are transferring the
exclusive copyrights for UNIX to you". [ Reply to This | # ]
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