decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights
Wednesday, November 10 2004 @ 04:30 AM EST

Something extraordinary has happened. Novell has filed its Reply in Support of Novell's Motion to Dismiss Amended Complaint [PDF], and in the document it reveals that it has filed an exhibit, the 1995 minutes from the corporate kit of a meeting of the Board of Directors, which clearly and unequivocably say that Novell was to retain the UNIX copyrights in the sale to Santa Cruz that year:

"Moreover, contemporaneous, authoritative documentary evidence shows that at the highest levels of the organization, Novell approved the transaction on the understanding that "Novell will retain all of its . . . copyrights." (September 18, 1995, Minutes of the Meeting of the Board of Directors of Novell, Inc. at 2, attached as Ex. A to Declaration of Kellie Carlton in Support of Novell, Inc.'s Motion to Dismiss.)"

I think it is safe to say that this document from 1995 is likely to prove dispositive. September 18, 1995 is the day before the APA was signed. And here is the Carlton Declaration with the board minutes attached. In attendance at the meeting were Jack Messman, Bob Frankenberg, Elaine Bond, Larry Sonsini, Alan Ashton, Ian Wilson, John Young, David Bradford, Ty Mattingly, and Jeff Turner. The last three were there by invitation, not being members of the board.

And there is another bombshell. Novell says that by introducing evidence outside the complaint, such as the Ed Chatlos declaration, SCO is inviting the Court to convert the motion to dismiss into a summary judgment, which they say means the Court now has the option to decide the matter once and for all and with finality right now. They cite a case that says that introducing such outside evidence is "a tactical mistake".

Here is how corporate paperwork is done: a corporation is required to document every major move it makes and typically such documentation is kept in its corporate kit. Normally, that is also where you keep the company's bylaws, articles of incorporation, and annual meetings minutes, as well as minutes of meetings held to approve corporate acts. This documentation is to prove that the corporation is acting with the appropriate approvals and also as a way of showing that the corporation, deemed a person, so to speak under the law, actually is a separate entity that acts, not as a way for the individuals in the company to avoid taxes and liability, but as a legitimate corporate entity. When you go to court, it's not unusual for a judge to tell a party to present its corporate kit, if there is any question about the legitimacy of the corporation. It comes up usually with small close corporations, where there may be only one individual or two or three in the corporation. If they show up with a kit minus such careful documentation, it usually does not go well for them. It's one way to pierce the corporate veil. What a wonderful requirement that turns out to be in this case.

Now that Novell has submitted this document to the court, it reasonably tilts any ambiguity in the APA and Amendment 2 in Novell's favor. And how can SCO possibly win the argument that Novell knew it didn't have copyright ownership, now that they have presented a 1995 document from the corporate kit showing that at a meeting of the board at the time of the sale, Novell absolutely believed that they retained copyrights? As for Ed Chatlos' declaration, it wipes it away as a statement by a man who didn't know what was going on at the highest levels of the company, which is how Novell paints it.

It's up to Judge Kimball to decide what persuades him, but this document gives him a peg to hang his hat on and to dismiss SCO's complaint. And if he decides SCO has no UNIX copyrights, what exactly can it do to anyone then? The legal cases would then start to stagger and fall, like dominos in a row.

I wish to thank Frank Wales most sincerely for helping me transcribe this so quickly. Here then, is the Reply as text:



MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
David E. Melaugh (pro hac vice)
Maame A.F. Ewusi-Mensah (pro hac vice) [address, phone, fax]

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

Attorneys for Defendant Novell, Inc.

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware corporation,
Plaintiff,
vs.
NOVELL, INC.,  a Delaware Corporation,
Defendant.
REPLY IN SUPPORT OF NOVELL'S
MOTION TO DISMISS AMENDED
COMPLAINT


Case No. 2:04CV00139

Judge Dale A. Kimball


TABLE OF CONTENTS

STATEMENT OF ISSUES . . . . . . . . . . . . . I

SUMMARY OF ARGUMENT . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. SCO HAS INVITED THE COURT TO CONVERT NOVELL'S
MOTION INTO A MOTION FOR SUMMARY JUDGMENT . . . . . . . . . . . . 3

II. ON SUMMARY JUDGMENT, THE COURT SHOULD FIND FOR
NOVELL BECAUSE SCO HAS NOT SHOWN A GENUINE ISSUE OF
MATERIAL FACT ON NOVELL'S PRIVILEGES . . . . . . . . . . . . . . . . . . 5

A. There Is No Triable Issue Whether Novell's Statements Are
Privileged . . . .. . . . . . . . . . 5

B. SCO Has Not Shown a Triable Issue Whether Novell Made
Statements With Malice Or Excessively Published Its Statements . . . . . . . . 7

1. Novell's Uncontroverted Facts Demonstrate the Absence
of a Knowing Falsehood . . . . . . . . . .. . 9

2. The Asset Purchase Agreement Does Not Demonstrate a
Knowing Falsehood . . . . . . . . . . . . 10

3. The Bill of Sale Does Not Modify the APA . . . . . . . . . 11

4. The TLA and Paragraph 1.6 of the APA Are Consistent
With Novell's Ownership Position . . . . . . . . . . . . . . . 12

5. SCO Has Retreated From Arguing That Amendment No. 2
Evidences Malice . . . . . . . . . . . . . 13

6. Novell's Post-Sale Conduct Does Not Evidence Malice . . . . . . 14

7. The Chatlos Declaration Does Not Support SCO's Theory . . . . . . . . 15

C. SCO Has Not Shown a Triable Issue of Fact on Excessive
Publication . . . . . . . . . . . . . . 17

1. SCO Misstates the Law Applicable to Excessive
Publication in the Context of Slander of Title . . . . . . . . . 17

2. Undisputed Facts Preclude SCO From Carrying its Burden
to Show Excessive Publication . . . . . . . . . 18

III. EVEN IF THE COURT DOES NOT CONVERT THE MOTION
NOVELL IS NEVERTHELESS ENTITLED TO DISMISSAL .. . . . . . . . 19

CONCLUSION . . . . . . . . . . . . 25


STATEMENT OF ISSUES

SCO's citation to material outside the record invites the Court to convert Novell's motion to dismiss into a motion for a summary judgment. In the event the Court does so, the issues presented are:

(i) Has Novell established that there is no triable issue of fact that its statements were protected by conditional privilege?

(ii) Has SCO demonstrated the existence of a triable issue of fact whether Novell made its statements with actual malice or excessively published its statements, which would overcome Novell's privileges?

If the Court declines to consider any of SCO's material outside the record and any argument based upon it, Novell's motion will remain a motion to dismiss. As a motion to dismiss, the issue presented is:

(i) In light of the record available to the Court establishing Novell's privileges and the merits of Novell's rival claim of ownership, can SCO sustain its claim that Novell acted with malice sufficient to overcome those privileges?

SUMMARY OF ARGUMENT

On Novell's earlier motion to dismiss, the Court found that while Novell had "persuasive arguments" that the APA as amended by Amendment No. 2 did not transfer ownership of the UNIX copyrights, a final determination awaited further litigation. (Memorandum and Decision Order filed June 9, 2004, at 15, "Order".) The Court concluded, however, that it was "undisputed" that the Asset Purchase Agreement ("APA"), standing alone, did not transfer the UNIX copyrights to SCO's alleged predecessor. (Order at 8.)

SCO's Opposition Memorandum nonetheless argues that the APA itself transferred the copyrights to its alleged predecessor, that Amendment No. 2 was merely confirmatory, that Novell knew all of this to be so, and that Novell therefore acted with malice in stating that it owns the UNIX copyrights.

In rearguing the intent and effect of the APA, SCO has submitted evidence outside the pleadings, including a six-page declaration from a former Novell employee. 1 Under well-settled law, SCO has thereby invited the Court to consider Novell's motion as a motion for summary judgment. In view of the parties' respective burdens of proof, Novell's motion therefore should be evaluated as follows:

  • Has Novell established that there is no triable issue of fact that its statements were protected by conditional privileges?

  • Has SCO demonstrated the existence of a triable issue of fact whether Novell made its statements with actual malice or excessively published its statements, which would overcome Novell's privileges?

SCO must have thought that its additional evidence would not only overcome the weight of the Court's earlier findings on the merits of Novell's ownership position, but also would create a jury issue on the factual predicate for Novell's defense. Even with its additional evidence, however, SCO has not created a jury issue. The Court therefore should enter summary judgment in favor of Novell.

Alternatively, if the Court declines to convert Novell's motion (and thus declines to consider SCO's additional evidence and the argument based on it), SCO's complaint should nonetheless be dismissed. Novell's statements demonstrate the absence of malice, and Novell's ownership position is meritorious. Any further inquiry into Novell's subjective state of mind -- especially on the very legal issue the Court has already evaluated -- is unnecessary and irrelevant. Novell's motion invited SCO to file a claim for declaratory judgment of copyright ownership, but SCO has declined to do so. SCO should not be given yet another chance to file a complaint stating the proper cause of action, and its case should be dismissed with prejudice.

ARGUMENT

I. SCO HAS INVITED THE COURT TO CONVERT NOVELL'S MOTION INTO A MOTION FOR SUMMARY JUDGMENT

SCO's Opposition Brief relies on material outside the scope of the complaint and thereby invites the Court to convert this motion for summary judgment. SCO submitted or cites:

  • A declaration from a former Novell employee attesting to his understanding of the intent of the parties to the APA (Opp. at 14-16; Ex. 4 to Opp.);

  • The Bill of Sale between Novell and The Santa Cruz Operation, Inc. (Opp. at 9; Ex. 1 to Opp.);

  • A "Technology License Agreement" (Opp. at 11-13; Ex. 2 to Opp.);

  • Additional documents that are cited in the brief but not attached as exhibits: an "Intellectual Property Assignment" between The Santa Cruz Operation, Inc. and Caldera and "hundreds of license agreements for UNIX products" (Opp. at 14.);

  • Public statements allegedly made by Novell executives that are not cited in the Amended Complaint (Opp. at 11-12; Ex. 3 to Opp.); and

  • Copyright notices in "countless UNIX-related products" (Opp. at 14.).

By relying on material outside the pleadings, SCO has invited the Court to convert Novell's motion to dismiss into a motion for summary judgment. Fed. R. Civ. P. 12(b); David v. City of Denver , 101 F.3d 1344, 1352 (10th Cir. 1996); Nichols v. United States, 796 F.Supp. 361, 364 (10th Cir. 1986); Jane I. v. Bangerter, 794 F. Supp. 1537, 1539 (D. Utah 1992), rev'd in part on other grounds, 61 F.3d 1493 (10th Cir. 1995); Wright & Miller, Federal Practice and Procedure (2004) § 1366 at 153-55 (noting that it is a tactical mistake for plaintiff to introduce material beyond the pleadings in response to motion to dismiss, as motion "will be converted into a motion for summary judgment and may result in a binding final determination against [the plaintiff]").

SCO's decision to go outside the pleadings permits conversion of this motion even though SCO is not the moving party. See, e.g., Arnold v. Air Midwest, Inc., No. 93-2426-JWL, 1994 WL 247442, at *4 (D. Kan. May 24, 1994) (applying summary judgment standard even though movant relied solely on pleadings because non-movant attached outside materials to its response) (attached hereto as Ex. 1), aff'd by 100 F.3d 857, 859 (10th Cir. 1996)(upholding conversion of defendant's motion to dismiss into motion for summary judgment based on plaintiff's reliance in opposition to motion on materials outside complaint). See also Building & Constr. Dep't v. Rockwell Int'l Corp., 7 F. 3d 1487, 1492 n.4 (10th Cir. 1993). SCO's decision also places it on constructive notice that Novell's motion may be converted into a motion for summary judgment and obviates the need for any further notice to SCO. See Rockwell, 7 F.3d at 1495-96 (explaining that the notice requirements of Rules 12(b) and 56(c) are met where party attaches outside materials to its brief and triggers conversion of motion). SCO therefore has no basis for claiming "unfair surprise." See Arnold, 100 F.3d at 859 n.2; Nichols, 796 F.2d at 364.

Accordingly, the Court may and should resolve Novell's motion by applying the summary judgment standard. Alternatively, the Court is within its discretion to exclude the extensive material outside the record that SCO cited, in which case this motion will remain a motion to dismiss. Novell will nevertheless be entitled to dismissal. 2

II. ON SUMMARY JUDGMENT, THE COURT SHOULD FIND FOR NOVELL BECAUSE SCO HAS NOT SHOWN A GENUINE ISSUE OF MATERIAL FACT ON NOVELL'S PRIVILEGES.

Upon conversion of Novell's motion into a motion for summary judgment, SCO's unsupported assertions of fact in its pleading and briefing are to be given no weight. A triable issue can be created only from admissible evidence, not from conclusory allegations contained in pleadings and briefs. Fed. R. Civ. P. 56(e); Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1019 (10th Cir. 2002); Bruce v. Martin-Marietta, 544 F.2d 442, 445 (10th Cir. 1976).

SCO's evidence is insufficient to create a triable issue of fact whether Novell is protected by the rival claimant and common interest privileges, and whether Novell acted with malice or excessively published its statements.

A. There Is No Triable Issue Whether Novell's Statements Are Privileged.

Novell's Motion to Dismiss set forth the following factual basis for its contention that it is protected by the rival claimant and common interest privileges:

  • SCO publicly claimed ownership of the UNIX copyrights in its suit against IBM. (Declaration of David E. Melaugh In Support of Novell, Inc.'s Motion to Dismiss filed August 8, 2004 ("Melaugh Decl."), Exs. A-B.) Thousands of articles have been written about this controversy. (Melaugh Decl. ¶¶ 4-5 & Exs. C-D.)

  • SCO has initiated or is defending itself in at least six lawsuits before five judges in four states and two countries, has threatened 1,500 "of the world's largest corporations" with liability, and has implied that all Linux users infringe on SCO's ownership rights. ( See Novell, Inc.'s Motion to Dismiss filed on August 8, 2004 ("Mot. to Dismiss"), at 4.)

  • In its May 28, 2003, press release, Novell stated that SCO had asked Novell to transfer the copyrights to it and that to its knowledge the APA did not transfer the UNIX copyrights to SCO. (Amended Complaint filed July 9, 2004 ("Am. Compl."), ¶ 19(a); Declaration of Bruce Lowry In Support of Novell, Inc.'s Motion to Dismiss Filed August 8, 2004 ("Lowry Decl."), Ex. A.)

  • Shortly thereafter, SCO sent Novell a copy of Amendment 2. (Am. Compl. ¶ 19(b); Lowry Decl. Ex. B.)

  • On June 6, 2003, Novell issued a statement saying that Amendment No. 2 "appears to support" SCO's claim of ownership. (Am. Compl. ¶ 19(c); Lowry Decl. Ex. C.)

  • The parties then exchanged private correspondence in which Novell asserted that Amendment No. 2 had not effected a transfer and invited SCO to articulate its ownership position. (Am. Compl. ¶¶ 19(d)-(f); Lowry Decl. Exs. D-F.) The record is devoid of any meaningful response from SCO.

  • SCO publicly claimed that Novell was no longer asserting ownership of the UNIX copyrights. (See Mot. to Dismiss at 9 n.4.)

  • SCO registered its claims to the UNIX copyrights with the U.S. Copyright Office. (Am. Compl. ¶ 3.)

  • Novell publicly announced that it still believed that it owned the UNIX copyrights. (Am. Compl. ¶ 19(i); Lowry Decl. Ex. H.)

These facts, which SCO's Opposition did not controvert, demonstrate that Novell was a rival claimant to the UNIX copyrights and that Novell directed its statements at the wide community that was interested in SCO's claims. (Mot. to Dismiss at 15-21.) Accordingly, there is no triable issue whether Novell qualifies for the rival claimant and common interest privileges.

Instead of contesting Novell's factual showing, SCO's Opposition argues that the privilege does not exist under Utah's slander of title law. (Opp. at 37.) SCO says its argument "derive[s] from the Restatement of the Law on Torts." (Id.)

In fact, as our opening brief explains, the Restatement explicitly provides for these privileges and applies them to slander of title claims. Restatement (Second) of Torts at §§ 594-96, 646A, 647, 650 (1977); see Mot. to Dismiss at 16-17, 20-21. To accept SCO's argument, the Court would have to find that in this area Utah would not adopt the Restatement, even though Utah courts generally look to the Restatement and have applied other privileges detailed in the Restatement to slander of title claims. See, e.g., Hansen v. Kohler, 550 P.2d 186, 189-190 (Utah 1976) (citing Restatement and finding absolute privilege to slander title during judicial proceedings). SCO advances no argument why Utah would depart from the Restatement in this particular instance.

Even Dowse, the Utah case on which SCO relies most heavily, does not say what SCO contends -- that a privilege can never defeat a slander of title claim because malice is an element of a slander of title claim, or that "the absence of privilege" is simply "the existence of malice." (Opp. at 37.) Instead, in a portion not quoted by SCO, Dowse states that there is a privilege in slander of title law. "[T]he fact that an act [of publication] will necessarily result in harm to another and is not done for a purpose of sufficient importance to give the [publisher] a privilege to do it is expressed in the Restatement by saying that the act is done without a privilege to do it." Dowse v. Doris Trust Co. , 208 P.2d 956, 958 (Utah 1949). Thus, under Dowse, a privilege exists where the publisher is making the statement for a purpose of sufficient importance.

SCO advances no argument why, if the Restatement's view of the privileges applies, Novell has not demonstrated these privileges' initial applicability to Novell's statements. The uncontroverted facts demonstrate that Novell was conditionally privileged in communicating its ownership position to the community that shared its interest in the ownership issue. See, e.g., Fischer v. Bar Harbor Banking & Trust Co., 857 F.2d 4 (1st Cir. 1988); Restatement (Second) of Torts §§ 596, 647 (1977).

B. SCO Has Not Shown a Triable Issue Whether Novell Made Statements With Malice Or Excessively Published Its Statements.

In order to overcome Novell's conditional privileges, SCO must show that there is a triable issue whether Novell made its statements with malice or that Novell excessively published these statements.

Having argued that the conditional privileges do not exist in Utah, SCO does not address what level of malice -- "actual malice," that is, spite, ill-will or hatred, or merely a knowing falsehood -- is required to overcome the privileges. 3 The logical corollary to the existence of the privileges as affirmative defenses to a claim of slander of title is that the level of malice required to overcome the privileges should be higher than a mere knowing falsewhood, which, as the Court noted, is required to state a slander of title claim. (Order at 5.)

As we noted in our opening brief, however, the Court need not decide this issue, as SCO cannot meet its burden under either standard. (Mot. to Dismiss at 22 n.8.) SCO has failed to present sufficient evidence to create a genuine issue of material fact with respect to either level of malice. The same is true for excessive publication.

SCO's Opposition does not present any evidence that creates a genuine issue of material fact on ill will, spite, or hatred. SCO does not dispute that the allegedly slanderous statements themselves are, as we said in our opening brief, "a model of equanimity" and evidence no malice. ( Id. at 25.)

SCO instead expends considerable effort rehashing its argument that Novell transferred the UNIX copyrights, and thereby acted based on a knowing falsehood. The question Novell's motion presents, however, is not who owns the UNIX copyrights, but whether, in light of the apparent strength of Novell's arguments on ownership, Novell can be said to have acted with malice. In order to prevail on this motion, SCO must come forward with some evidence showing that there is a genuine issue of material fact on this question. As discussed in more detail below, SCO also has not presented such evidence.

1. Novell's Uncontroverted Facts Demonstrate the Absence of a Knowing Falsehood.

Aside from the text of the APA and Amendment No. 2, discussed below, several facts Novell presented in its opening papers -- facts that are uncontroverted by SCO -- demonstrate that Novell could not have disseminated a knowing falsehood:

  • In its May 28, 2003, press release, and in correspondence with SCO that Novell included in the release, Novell confirmed that SCO had recently asked Novell to transfer the copyrights to SCO. (Lowry Decl. Ex. A.)
  • In its correspondence with SCO, Novell asserted its position that Amendment No. 2 did not effect a transfer of the UNIX copyrights, and asked SCO to explain how Amendment No. 2 could have effected such a transfer. (Lowry Decl. Exs. A & F.) The record is devoid of any response from SCO providing such an explanation.

These facts, even standing alone, are sufficiently powerful to defeat a claim of knowing falsehood. SCO's then-recent request to Novell to transfer the UNIX copyrights to SCO represented an acknowledgement by SCO that Novell owned the copyrights. Obviously, SCO did not have some document in its files or other proof that established that it owned the copyrights; otherwise, it never would have asked Novell to transfer.

For SCO now to claim that Novell perpetrated a knowing falsehood actually points the finger in the wrong direction. SCO asked for a transfer, Novell refused, and then SCO asserted that it owns the copyrights anyway. It thus is more likely that SCO made a knowingly false claim than Novell.

Novell's correspondence with SCO and the absence of a meaningful response from SCO also negate an inference of knowing falsehood. Novell conducted due diligence on its ownership claim by inviting SCO to lay out the basis for SCO's ownership. If SCO held incontrovertible evidence of ownership, it could have and should have come forward with it during that period of time. Novell did what it should have done: it engaged SCO and sought the basis of its claims to the UNIX copyrights. SCO can claim no misconduct in the face of this factual record.

2. The Asset Purchase Agreement Does Not Demonstrate a Knowing Falsehood.

SCO has retreated from the position, advanced in its briefing on the Motion to Remand and the first Motion to Dismiss as well as in its Amended Complaint, that the APA, as amended , transferred the UNIX copyrights from Novell to SCO's predecessor. (Plaintiff's Mem. in Oopp. to Def.'s Mot. to Dismiss, filed March 4, 2004, at 7, 8 (repeatedly referring only to "Asset Purchase Agreement, as amended"); Am. Compl. ¶1 (claiming that APA "as amended" transfers copyrights).) SCO's main argument in opposition to this motion is now that the APA, standing on its own, acted to transfer the UNIX copyrights from Novell to The Santa Cruz Operation, Inc., and that this should have been so clear to Novell as to give rise to an inference of malice. (Opp. at 7-9.)

As the Court has already observed, however, SCO cannot overcome the actual language of the APA:

Under the APA, Novell agreed that on the Closing Date (December 6, 1995) it would assign all assets on Schedule 1.1(a) but that it would transfer no assets listed on the Excluded Assets schedule, Schedule 1.1(b). There is no dispute that all copyrights were excluded on Schedule 1.1(b) and, therefore, no copyrights transferred on the Closing Date under the terms of the APA.

(Order at 8.) This language is unambiguous, and leaves no room for SCO's argument that the APA transferred ownership, and certainly not for SCO's argument that Novell knew that the APA transferred ownership when Novell made its ownership claim. Indeed, in the Order, the Court drew precisely the opposite conclusion, observing that "[i]t is undisputed that the APA did not transfer any copyrights." (Id..) 4

SCO evidently has not yet settled on what legal theory to advance in claiming ownership of the UNIX copyrights. Novell cannot be charged with making a knowingly false statement when SCO's legal theories change from month to month.

3. The Bill of Sale Does Not Modify the APA.

The Bill of Sale does not alter the conclusion that the APA effected no copyright transfer. Rather, the Bill of Sale incorporates by reference the APA provisions the Court has already evaluated in favor of Novell. 5

The Bill of Sale addresses the transfer of "Assets" and specifies that this capitalized term takes its definition from the APA. (Opp. Ex. 1 at ¶ 1.) The APA defines "Assets" as those properties set forth in Schedule 1.1(a) and not excluded on Schedule 1.1(b). (APA §1.1(a).) As the Court has already correctly found, Schedule 1.1(b) excludes all copyrights. (Order at 8.) The Bill of Sale also expressly provides that "Nothing in this Bill of Sale shall limit, expand or otherwise affect any of the representations, warranties, agreements or covenants contained in the [APA]." (Opp. Ex. at ¶ 5 (emphasis added).) Thus, the Bill of Sale has no effect on the ownership issue underlying SCO's slander of title claim.

Hence, as with the APA, the Bill of Sale does not constitute evidence of malice on Novell's part. Indeed, as Novell explained in its earlier briefing on ownership, the opposite is true. Relying on Section 204(a) of the Copyright Act, Novell points to the absence of a post-Amendment No. 2 bill of sale in support of its legal position that no transfer of copyrights occurred pursuant to Amendment No. 2. Section 204(a) requires a post-Amendment 2 bill of sale or similar "instrument of conveyance," and SCO has not produced such a document.

4. The TLA and Paragraph 1.6 of the APA are Consistent With Novell's Ownership Position.

SCO claims that the "license back of assets" contemplated by a provision in the APA and by a separate Technology Licensing Agreement (Opp. Ex. 2, "TLA") support its ownership claims and demonstrate malice on Novell's part. Neither the relevant provision of the APA nor the TLA refer to "copyrights," however, let alone "UNIX copyrights." Instead, like the Bill of Sale, these documents refer to "Assets" or "Licensed Technology" -- terms that are defined by the inclusions and exclusions of Schedules 1.1(a)-(b) and that therefore cannot act to convey the UNIX copyrights.

Section 1.6 of the APA contemplates an agreement licensing back to Novell not only "all of the technology included in the Assets" (which does not include the UNIX copyrights but does, under the definition of "Assets" in Schedule 1.1(a), include "technical . . . information concerning UNIX, including source code") but also "all derivatives of the technology included in the Assets." The APA then defines that "licensed back technology" as the "Licensed Technology." (APA § 1.6.)

The TLA, in turn, incorporates by reference the APA's definition of "Licensed Technology." (TLA § I ("The term[] . . . 'Licensed Technology' . . . shall have the respective meanings attributed to such terms in the Asset Purchase Agreement.").) It provides Novell "retains" certain licenses to the Licensed Technology. (TLA § II.A.) It states that, as between Santa Cruz and Novell, ownership of Licensed Technology shall reside in Santa Cruz. (TLA § III.)

In its Opposition, SCO inquires as to the purpose of such provisions if not to license back the UNIX copyrights that, therefore, must have been assigned to Santa Cruz. (Opp. at 11-12.) Implicit in this inquiry is the assumption that the only relevant form of intellectual property is the UNIX copyrights. This assumption is wrong on two fronts. First, the APA transferred a variety of assets that can be licensed back, including technical information and the UNIX source code. Second, Section 4.18 of the APA conveys to Santa Cruz the right and duty to develop a "Merged Product." Santa Cruz was thus to undertake additional development work; as the author of that additional work, Santa Cruz would own intellectual property rights -- including copyrights -- in the derivative work. Under the TLA, Santa Cruz licensed all of those rights back to Novell with certain limiations. Providing for such a "grant back" license is in no way inconsistent with Novell retaining ownership of UNIX copyrights; indeed, the two mesh perfectly: Novell retained ownership of the UNIX copyrights, and retained a grant back license of all other rights it transferred to SCO, including those rights that arose from SCO's creation of derivative works.

To sum up: under the APA and the TLA, Novell retained ownership of the UNIX copyrights but transferred ownership of UNIX technology such as source code to Santa Cruz; under the TLA, Novell retained a grant back of the UNIX technology it sold to Santa Cruz and the derivative works that Santa Cruz created. Far from reinforcing SCO's claim that the APA transferred to Santa Cruz the UNIX copyrights, and that Novell is maliciously arguing to the contrary, the TLA reinforces the basic ownership structure of the APA and buttresses Novell's position that it retained UNIX copyright ownership.

5. SCO Has Retreated From Arguing That Amendment No. 2 Evidences Malice.

SCO's Opposition says little about Amendment No. 2. Mr. Chatlos does not mention it. Instead, SCO merely recites the language of the Amendment, asserting that it "reaffirms" the transfer effected by the APA. (Opp. at 10.) As the Court has already found, the APA alone did not transfer any copyrights. SCO's assertion that Amendment No. 2 "reaffirmed" that the APA transferred the UNIX copyrights therefore must also fail, and cannot be given any weight here. 6

SCO's Opposition also relies heavily on a supposed admission of SCO's ownership in Novell's June 6, 2003, press release, but in doing so SCO ignores the careful wording of the release. (Opp. at 33-34.) In the release, Novell stated merely that Amendment No. 2 " appears to support" SCO's view that certain copyrights transferred to Santa Cruz. Stating that a document "appears to support" a claim is not an admission of the claim. Rather, "appears to support" means that, on its face, the document may favor SCO, but that Novell reserved judgment about whether there is other evidence or analysis that goes the other way. What Novell did not say in the press release is that it now agreed with SCO's claim of ownership. Novell merely commented on this particular piece of evidence and noted that it appeared to favor SCO's view. In response to SCO's demand for immediate comment, Novell provided a conditional, preliminary evaluation of the Amendment, and did not admit SCO's ownership.

6. Novell's Post-Sale Conduct Does Not Evidence Malice.

SCO's Opposition cites a variety of post-sale conduct that SCO argues supports its claim to the UNIX copyrights. (Opp. at 13-14.) Of the five items SCO cited, however, three are conduct by SCO. (Id. (citing SCO's shipment of products, its entry into license agreements and the alleged transfer of copyrights between various entities).) SCO provides no explanation as to how its unilateral conduct can act to transfer Novell's rights.

Of the remaining two, one is an alleged transfer of the "physical possession of UNIX copyrights." (Opp. at 14.) It is unclear what SCO means by this. Because SCO has presented no admissible evidence in support of this statement, it must be disregarded for the purpose of summary judgment.

The remaining item of "post-sale conduct" is Novell's alleged silence. As SCO well recognizes, Novell was not silent regarding the issue of ownership of the copyrights. As mentioned above, Novell stated in its May 28, 2003, press release that SCO requested that Novell transfer the copyrights to it, and Novell refused to do so.

Besides ignoring that Novell refused SCO's requests for transfer of the copyrights, SCO does not allege or show that Novell had, until recently, any reason to contest copyright ownership. During much of this alleged silence, Santa Cruz was apparently directing its energies toward the activities contemplated under the APA -- developing and licensing a "Merged Product." SCO then bought UNIX assets from Santa Cruz and changed the focus of the company: from developing products to launching its well-publicized lawsuits and licensing demands. It is the change of ownership of the UNIX business and the associated change in strategy that brought the UNIX copyright ownership issues to the fore. Under these circumstances, no triable issue of fact arises from Novell's alleged "silence."

Finally, the evidence SCO offers is legally irrelevant. In Pamfiloff v. Giant Records, Inc., 794 F. Supp. 933 (N.D. Cal. 1992), the plaintiff, presented with a contract that on its face transferred no copyrights, attempted to resort to allegedly corroborating documents and conduct to save its claim. Id. at 936-37. The Court held that Section 204(a) of the Copyright Act precludes such an effort. Id. at 938.

SCO's citation to Novell's purported silence does serve, however, to justify the very Novell statements SCO claims are slanderous. If, as SCO appears to claim, silence should be read as an affirmation of SCO's property claims, Novell's statements were appropriate to avoid a claim of waiver.

7. The Chatlos Declaration Does Not Support SCO's Theory.

SCO submits the declaration of Mr. Ed Chatlos to show that Novell is now maliciously claiming UNIX copyright ownership, when supposedly it never thought at the time of the APA that it was retaining such ownership. SCO's effort is unavailing.

First, as discussed above, the APA is clear on its face and is therefore in no need of Mr. Chatlos's testimony on the parties' intent. Indeed, the California parol evidence rule would bar consideration of the Chatlos Declaration to support SCO's interpretation of the APA because the agreement is not susceptible to the interpretation SCO offers.7

Second, even if the parties' intent were relevant, Mr. Chatlos does not claim that he had a role in actually drafting any of the language of the APA, let alone the provisions currently under dispute. It is not clear from Mr. Chatlos' declaration whether he even read the APA at the time of the transaction. Moreover, contemporaneous, authoritative documentary evidence shows that at the highest levels of the organization, Novell approved the transaction on the understanding that "Novell will retain all of its . . . copyrights." (September 18, 1995, Minutes of the Meeting of the Board of Directors of Novell, Inc. at 2, attached as Ex. A to Declaration of Kellie Carlton in Support of Novell, Inc.'s Motion to Dismiss.) This renders Mr. Chatlos' "belief" as to what he would have known (Chatlos Decl. ¶ 10) of no evidentiary impact.

______________

Far from showing malice, the foregoing evidence negates any showing of malice, whether of the ill will, spite, or hatred or knowing falsehood varieties. This is an ownership dispute, and all the evidence shows that Novell was more than reasonable in asserting its ownership position. Indeed, reviewing the record, one single uncontroverted fact is enough to defeat SCO's claim: that SCO asked Novell to transfer the copyrights to it. Novell cannot have acted with malice when SCO's request would lead Novell reasonably to believe that Novell -- and not SCO -- owned the UNIX copyrights.

______________

C. SCO Has Not Shown a Triable Issue of Fact on Excessive Publication.

Novell does not dispute that excessive publication may overcome the privileges it has asserted. SCO has failed, however, to present admissible evidence on the issue of excessive publication sufficient to negate Novell's privileges.

1. SCO Misstates the Law Applicable to Excessive Publication in the Context of Slander of Title.

SCO argues that no qualified privilege is available to Novell where Novell (even together with SCO) made its statements publicly. SCO cites several cases for the general proposition that "the defense of a qualified privilege does not extend to a publication to the general public." (Opp. at 39 (citing Knudsen v. Kansas Gas & Elec. Co., 807 F. Supp. 1413, 1443 (N.D. Iowa 1994); Adserv Corp. v. Lincecum, 385 So.2d 432, 435 (La. Ct. App. 1980); Owens v. Scott Publ'g Co., 284 P.2d 296, 304 (Wash. 1955)).)

These are not slander of title cases, however, and they thus concern the elements of different privileges in different contexts. The extent of publication is not an element of the privileges asserted by Novell; it is relevant only to the question of abuse of the privileges. See Restatement (Second) of Torts § 604 (1977). Moreover, none of these cases involved the fact pattern here, where Novell, the defendant, responded publicly concerning a dispute that SCO, the plaintiff, had first made public. In fact, SCO cites to no cases that are on all fours with the current dispute over UNIX copyright ownership.

The issue, therefore, is whether through excessive publication Novell lost the protection of its conditional privileges. Under Utah law, whether or not a publisher has abused the conditional privileges by excessive publication necessarily depends on the level of publication of the claim to which it responds. Excessive publication is defined as publication to "more persons than the scope of the privilege requires to effectuate its purpose." DeBry v. Godbe, 992 P. 2d 979, 985 (Utah 1999) ( citing Brehany v. Nordstrom, 812 P.2d 49, 58 (Utah 1991) (emphasis added)). The Restatement puts it as follows:

One who, upon an occasion giving rise to a conditional privilege for the publication of defamatory matter to a particular person or persons, knowingly publishes the matter to a person to whom its publication is not otherwise privileged, abuses the privilege unless he reasonably believes that the publication is a proper means of communicating the defamatory matter to the person to whom its publication is privileged.

Restatement (Second) of Torts § 604 (1977) (emphasis added). In other words, if a party chooses a means of publication that he reasonably believes is the proper means of communicating his privileged statement to those who need to know it, the statement is privileged. This is so even if the statement reaches people other than those who need to know it. The law thus protects Novell if it acted reasonably under the circumstances.

2. Undisputed Facts Preclude SCO From Carrying its Burden to Show Excessive Publication.

SCO bears the burden of showing that there is a triable issue of fact on the excessive publication issue. In order to do so, it must adduce some evidence in its favor. As Novell discussed at length in its Memorandum, SCO began this public controversy by suing IBM based on SCO's claims to the UNIX copyrights. (Melaugh Decl. Ex. A (SCO v. IBM complaint).) SCO has done nothing but stir that controversy since its inception. (Mot. to Dismiss at 3-5.)

In its Opposition, SCO makes no effort to contest these facts, and has therefore conceded that: (i) this controversy is public; and (ii) the public nature of this controversy is SCO's own doing.

Novell's Motion also made clear that SCO has taken public actions directly adverse to Novell's property interests. On June 26, 2004, in a private letter to SCO, Novell stated, "SCO's statements [claiming to own 'the patents, copyrights, and core techology associated with the UNIX system'] are simply wrong." (Am. Compl. ¶ 19(e); see also Lowry Decl. Ex. E.)

Notwithstanding this and other private communications asserting Novell's rival claim, SCO's CEO stated in an interview on July 21, "If you go talk to Novell today, I'll guarantee you what they'll say, which is that they don't have a claim on those copyrights." (Mot. to Dismiss at 9 n.4.) SCO does not dispute the text of Novell's private correspondence or the contradictory public statements of its CEO. SCO falsely told the world Novell had acceded to SCO's position; Novell really had no choice but to tell its side of the story.

SCO has presented no evidence to counter Novell's evidence showing that SCO's assertion of its rival claim was itself widely public. All SCO has presented is the argument that "Novell could have preserved its claim . . . simply through its filings with the U.S. Copyright Office." (Opp. at 40.) This is a concession that Novell's filings with the Copyright Office -- which SCO alleges constitutes several of the allegedly slanderous statements -- were not excessively published. (Am. Compl. ¶ 19(g)-(h).)

That aside, whether or not Novell "could have preserved its claim" in a manner other than the one it chose is not an element of abuse of the conditional privileges Novell has asserted. See Restatements (Second) of Torts § 604 (1977). Where public statements of ownership are made in response to equally public rival claims of ownership, those public statements cannot be said to have been excessively published. See, e.g., Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1563 (4th Cir. 1994) ("The reply must reasonably focus on the audience which heard the attack. . . . [W]here the original attack was widespread, the response can be widely disseminated as well.")

Novell has conclusively established that the ownership of the UNIX copyrights was a public issue, that SCO made public its assertion of ownership of the UNIX copyrights, and that Novell was a rival claimant to those copyrights. Applicable law permits Novell to make a rival public claim to counter an equally public contrary claim.

Given these facts and this governing law, there can be no genuine issue of material fact whether Novell excessively published its assertions of ownership of the UNIX copyrights.

III. EVEN IF THE COURT DOES NOT CONVERT THE MOTION, NOVELL IS NEVERTHELESS ENTITLED TO DISMISSAL.

The Court is within its discretion to exclude the extensive material outside the record that SCO cited, in which case this motion will remain a motion to dismiss. Novell is nevertheless entitled to dismissal. After ignoring SCO's extraneous material, its related argument, and the Board of Directors meeting minutes Novell has presented in the summary judgment context, the Court is left with the following record properly before it:

  • The APA, which on its face excludes copyrights from any transfer of assets. (Order at 8.)

  • Amendment No. 2, which itself transfers no copyrights, but which when combined with the APA creates "enough ambiguity" that "it is questionable whether [it] was meant to convey the required copyrights or whether the parties contemplated a separate writing to actually transfer the copyrights after the 'required' copyrights were identifed." (Order at 9-10.)

  • The text of Novell's statements. (Am. Compl. ¶ 19; Lowry Decl. Exs. A-I.)

  • Novell's public statement that SCO contacted Novell seeking a transfer of the UNIX copyrights, and SCO's failure to deny this. (Am. Compl. ¶ 19(a); Lowry Decl. Ex. A.)

  • Novell's request that SCO articulate its ownership position, and SCO's failure to meaningfully respond. (Am. Compl. ¶ 19(d)-(f); Lowry Decl. Exs. D-F.)

  • The existence of a public controversy of SCO's own making. (See above, Section II.C.)

  • SCO's involvement in other lawsuits, its explicit threats against 1,500 of the world's largest companies, and its implicit threats against the Linux community as a whole. (Id.)

This record supports Novell's interposition of the conditional privileges described in Novell's Motion to Dismiss, against which SCO offers only the legal argument disposed of above at Section II. (See also Mot. to Dismiss at 15-21.) The burden therefore lies on SCO to overcome these privileges through its mere allegations of "malice."

Once again, the record defeats SCO's pleading. SCO does not dispute that Novell's statements regarding its ownership of the UNIX copyrights are "a model of equanimity." (Opp. at 28.) SCO further acknowledges that a court can sometimes determine from a defendant's public assertion of ownership whether the defendant made the statement maliciously. (Opp. at 28 n.14.) Courts in slander of title cases routinely look to the statements at issue to determine if they were made maliciously. See, e.g., First Sec. Bank, N.A. v. Banberry Crossing, 780 P.2d 1253, 1257 (Utah 1989) (after reviewing statements that allegedly slandered plantiff's title, court found that they "did not malign" plaintiff).

The question Novell's motion to dismiss presents is whether, in view of this record, further inquiry into Novell's subjective intent is necessary. As discussed in more detail below, the persuasive answer is "no."

As noted in our opening brief, SCO advanced the same position when defending against a similar claim brought by Red Hat. (Mot. to Dismiss at 24.) In its Opposition, SCO claims that because its statements were made in the context of a Lanham Act claim, they are irrelevant. (Opp. at 35 n.18.) A more complete examination of that briefing contradicts that characterization.

Red Hat sued SCO, inter alia, for trade libel and disparagement based on public statements made by SCO. SCO moved to dismiss all counts. SCO characterized its allegedly disparaging statements as pertaining to "issues of ownership of intellectual property rights [and] public statements of ownership in those rights." (Melaugh Decl. Ex. G at 19 (SCO's Motion to Dismiss Red Hat's Complaint, filed July 22, 2003).) SCO noted, "[T]he press has taken a keen interest in the issues raised in the SCO v. IBM case," and described its statements as "part of a wider debate...about the scope of intellectual property protection in a digital age." (Id. at 27.) SCO cited a string of cases for the proposition that its speech was protected and that dismissal was appropriate. SCO acknowledged that the cases it cited "were decided on motions for summary judgment," but maintained that "based on the facts as presented in Red Hat's Complaint...this Court is likewise in a position to rule on the issues of the protected speech as a matter of law on this Motion to Dismiss." (Id. at 22 n.18.)

SCO's effort to distinguish the case law cited in the Motion to Dismiss is similarly unpersuasive. Contrary to SCO's claim, the only Utah slander of title case either party was able to locate on this question -- Timpanogos Highlands, Inc. v. Harper, 544 P.2d 481, 486 (Utah 1975) -- supports Novell's position.

In Timpanogos, the plaintiff sought to enforce a contract for the sale of land, and the defendant counterclaimed that the contract had been abandoned and that the plaintiff slandered the defendant's title. The Utah Supreme Court affirmed the trial court's holding that the contract was abandoned and that the plaintiff therefore had no claim to the property. Nevertheless, the court also affirmed the trial court's dismissal of the slander claim, holding that because the plaintiff "had sufficient basis for believing that it had rights under the contract . . . there is no foundation upon which it could be found that [the plaintiff] willfully and knowingly recorded a false or fraudulent instrument for the purpose of slandering the defendants' title."

The First Circuit in Fischer, 857 F.2d at 8, came to a similar conclusion, holding that a defendant was not liable for filing an eventually abandoned lien because it was not "obvious" that the defendant's position was baseless.

SCO attempts to distinguish these cases by pointing out that both decisions came after discovery and were based on the evidence the parties put before the courts. SCO's implication -- that the Court's Order finding Novell's position meritorious was based on anything less than sufficient evidence -- is erroneous.

The Court has before it a considerable record: all of the documents alleged to have transferred the copyrights and all of the statements alleged to slander. The contracts say what they say, and after reviewing them the Court concluded that the APA alone did not transfer any copyright, that at most the APA as amended may do so, but that Novell has marshaled good arguments in support of the position that the amended APA does not do so. Even assuming that SCO could ultimately convince the trier of fact that any ambiguities in the amended APA should be resolved in its favor, Novell has a legitimate argument that no transfer took place.

As Novell also noted in its Motion to Dismiss, courts in analogous circumstances have also held that a plaintiff must demonstrate that the defendant's statements were "objectively baseless" before liability attaches. (Mot. to Dismiss at 24-25.) SCO attempts to distinguish these cases by pointing out that they are merely analogous cases. (Opp. at 35 n.19 (noting that Professional Real Estate Investors is not a slander of title case and is instead part of a separate line of federal authority).)8

That is not enough. SCO must provide some reason why the analogy does not have persuasive power.

In Professional Real Estate Investors, for example, the U.S. Supreme Court found that where a litigant is found to have "probable cause" to assert a claim, no antitrust liability can attach, and that a litigant's "motiviations in bringing suit [are] rendered irrelevant by the objective legal reasonableness of the litigation." Professional Real Estate Investors, 508 U.S. at 61, 65 (holding that no antitrust liability attaches if "an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome").

To hold otherwise would be to permit inquiry into subjective intent in every case and to promote efforts to apply liability, ex post, to any unsuccessful litigant. Novell submits that the Court, though declining to dispositively rule on the merits of Novell's rival claim, has essentially found that Novell has "probable cause" to assert such a claim and that that the same logic that led the Professional Real Estate Investors Court to cut off inquiry into subjective intent applies here.

SCO's effort to distinguish Golan v. Pingel Enter., Inc., 310 F.3d 1360, 1371 (Fed. Cir. 2002), Globetrotter Software, Inc. v. Elan Computer Group, Inc., 362 F.3d 1367, 1377 (Fed. Cir. 2004), and On Command Video Corp. v. Columbia Pictures Indus., Inc., 764 F. Supp. 1372, 1374 (N.D. Cal. 1991), is no more persuasive. Though these cases employ standards like "bad faith" that suggest the need to inquire into the hearts and minds of the defendants, each court nevertheless found that an objective evaluation of the merits of the defendant's claim was sufficient and declined to inquire into the defendant's subjective motivation.9

In the end, SCO claims that all it needs to do in the face of Novell's privileges, the text of the documents, and the Court's interpretation of those documents is utter the word "malice." If SCO's position advocating easy availability of a claim for slander of title is accepted, however, then any party to a property dispute holds such a claim, a point that SCO's Opposition ignores. Indeed, one natural consequence of SCO's view is that **Novell** has a viable claim of slander of title against SCO. 10

The proper way to have resolved this dispute was not with accusations of slander, but rather with a declaratory judgment action, which Novell's Opening Memorandum invited SCO to file. The difference between a declaratory judgment action and dueling slander claims is not trivial. Should the latter progress to discovery -- something Novell argues is unnecessary here -- both parties will seek material concerning each other's "state of mind," a topic that may implicate complex issues of privilege. As the cases SCO cites in its Opposition illustrate, SCO might even attempt to disqualify opposing counsel. (See Opp. at 32 n.17 & Ex. F (citing Miller v. Colorado Farms, No. Civ. A 97 WY 2015WD, 2001 WL 629463 (D. Colo. Jan. 16, 2001) (disqualifying counsel in slander of title action because of discovery into party's reliance on advice of counsel)). 11 None of this would arise were SCO to have focused on the real dispute between the parties: who owns the UNIX copyrights.

CONCLUSION

SCO has had ample opportunity to reframe this dispute properly, but it has failed to do so. If the Court grants Novell summary judgment, it will end SCO's case. If the Court declines to convert Novell's motion and treats it as a motion to dismiss, Novell requests that the Court dismiss SCO's Amended Complaint with prejudice.

DATED: November 8, 2004.

ANDERSON & KARRENBERG

____[signature]______
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
Attorneys for Defendant Novell, Inc.




1 SCO also refers to ownership of "SVRX source code licenses" and "IBM and Sequent license agreements." (Memorandum in Opposition to Novell, Inc.'s Motion to Dismiss SCO's Amended Complaint, filed October 1, 2004 ("Opp."), at 10 n. 6 & 17 n. 7.) These matters are not at issue in this motion.

2 SCO's assertion that Novell waived its right to move for dismissal based on the absence of malice is contradicted even by the case SCO cited. (Opp. at 21-24.) District courts frequently hear subsequent Rule 12 motions where such motions are not interposed for delay or harassment. See Thorn v. N.Y. City Dep't of Social Servs., 523 F. Supp. 1193, 1196 n.1 (S.D.N.Y. 1981) (cited by SCo in Opp. at 23)(stating that despite the consolidation language of Rule 12(g), "the court will entertain the [second motion to dismiss] because it was not interposed for delay, and its consideration will expedite the disposition of the case on the merits"); Donnelli v. Peters Secs., LLC, No. 02-091, 2002 WL 2003217, at *3-4 (N.D. Ill. AUg. 29, 2002) (attached hereto as Ex. 2); Steele v. Stephan, 633 F. Supp. 950 (D. Kan. 1986).

3 SCO's discussion of the types of malice is directed to a different question: which level of malice is required to make out a claim of slander of title in the first instance. ( See Opp. at 26 n.13.) SCO cites Charles Atlas, Ltd. v. Time-Life Books, Inc. , 570 F. Supp. 150, 155 & n.5 (S.D.N.Y. 1983), for the proposition that ill will, spite or hatred can be inferred from a knowing falsehood. Charles Atlas does not so hold; rather, after a lengthy discussion of the difficulty of the actual question facing the court, the court opines in dicta on a related question and states, "It also seems that, if the plaintiff proved that the defendant knew the falsity of the statements or if it proved that the statements were made with recklessness, malice, and intent to injure the plaintiff, ill will, spite, or hostility could be inferred." Id. at 150 n.5. Moreover, Charles Atlas is a slander case, not a slander of title case.

When discussing overcoming a conditional privilege, SCO does not distinguish among the various levels of malice or the interplay between the malice necessary to make out a slander of title claim in the first instance and the malice necessary to overcome a conditional privilege. ( See Opp. at 37 n.20.)

4In an apparent effort to argue that the Court's Order was without legal support, SCO cites nearly a dozen cases that, SCO argues, compel the conclusion that the APA, standing alone, transfers the UNIX copyrights. (Opp. at 7-9.) Individual rebuttal of these cases is unnecessary, as none hold that a contract transferring assets that explicitly excludes copyrights can somehow act to transfer such rights.

5SCO notes that the Bill of Sale document was not before the Court on Novell's initial motion, but overlooks Novell's reference to it in the briefing. (Opp. at 9.) Novell's motion to dismiss noted the existence of a "closing document that transferred the assets promised to the buyer under the APA," and reported that this document (the Bill of Sale) takes its definition of assets from the APA. (Mem. in Supp. of Mot. to Dismiss, filed February 9, 2004, at 8 n.2.)

6 Even if SCO had not retreated from its original position that the APA as amended transferred the copyrights, SCO would not survive summary judgment. The most SCO can muster from the amended APA is ambiguity. ( See, e.g., Order at 9-10 ("There is enough ambiguity in the language of Amendment No. 2 that . . . it is questionable whether [it] was meant to convey the required copyrights or whether the parties contemplated a separate writing to actually transfer the copyrights after the 'required' copyrights were identified.").) While ambiguity was enough to survive a motion to dismiss on falsity, it is not enough to ground a claim that Novell acted with malice in asserting its rights.

7 The APA is an integrated agreement governed by California law. (APA § § 9.5 & 9.8.) Under the California parol evidence rule, extrinsic evidence is inadmissible to contradict the written terms of the agreement. Cal. Civ. Proc. Code § 1856 (parol evidence inadmissible to contradict written contract). Though such evidence may be "offered to prove a meaning to which the language of the instrument is reasonably susceptible," here there is no way to interpret "[a]ll copyrights" in the Excluded Assets schedule as "only Netware copyrights," as SCO urges. (Opp. at 10; Pacific Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co., 69 Cal. 2d 33, 37 (1968) (emphasis added).)

8SCO's suggestion that "objectively baseless" is simply another way of saying "false" is incorrect. (Opp. at 35 n.19.) See, e.g., Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60 n.5 (1993) (cautioning that ultimately unsuccessful claims -- i.e., claims that are proven false -- are not automatically objectively baseless).

9 Golan and Globetrotter are, moreover, part of the same line of cases SCO cited for the principle that its motion to dismiss in the Red Hat case should be granted. See Melaugh Decl. Ex. G at 20-21 (citing Mikown Gaming Corp. v. Acros Gaming, Inc. , 165 F.3d 891 (Fed. Cir. 1988)); Golan, 310 F.3d at 1370-71 (citing same).

10 Novell perhaps has a better claim. After all, as shown above, before SCO sued IBM, SCO called Novell to ask for a transfer of the UNIX copyrights. Novell refused, but SCO nevertheless went on to claim that it owns those copyrights. Novell repeatedly advised SCO of its position that SCO did not have the rights it claimed, but SCO persisted in asserting such rights to all who would listen, even falsely claiming that Novell had acknowledged the superiority of SCO's rights.

11 SCO cites these cases to defeat an argument that reliance upon the advice of counsel alone would permit Novell to prevail. (Opp. at 32 n. 17.) Novell never advanced this proposition.




CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this _8th_ day of November, 2004, I caused a true and correct copy of the foregoing REPLY IN SUPPORT OF NOVELL'S MOTION TO DISMISS AMENDED COMPLAINT to be served via first class mail, postage prepaid, to the following:

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

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

Robert Silver
BOISE, SCHILLER & FLEXNER LLP
[address]

__[signature]__


Exhibits/Attachments to this document have not been scanned.

Please see the case file.


  


1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights | 753 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights
Authored by: jamesw on Wednesday, November 10 2004 @ 04:45 AM EST
Presumably that's if the Judge decides to rule that Novell really does own the copyrights? I thought the state of play was still that Novell were asking for dismissal on the basis that ownership was unclear: that they merely had a legitimate reason to believe they owned the copyrights.

In which case, the Judge surely need only rule that Novell were acting reasonably when they claimed to own the copyrights, and need not reach the question of "well, whose are they?"

Or have I missed something?

[ Reply to This | # ]

transcribing
Authored by: PJ on Wednesday, November 10 2004 @ 04:47 AM EST
Just letting everyone know that I have transcribed all but the last 10 pages
already on this document. If anyone can help with the ending, that would be
fabulous.

[ Reply to This | # ]

  • Page 26 - Authored by: fcw on Wednesday, November 10 2004 @ 05:20 AM EST
  • Page 25 - Authored by: fcw on Wednesday, November 10 2004 @ 05:27 AM EST
    • Page 25 - Authored by: PJ on Wednesday, November 10 2004 @ 06:10 AM EST
      • Page 25 - Authored by: fcw on Wednesday, November 10 2004 @ 06:18 AM EST
Judicial Efficiency
Authored by: Anonymous on Wednesday, November 10 2004 @ 04:51 AM EST
Judges can now rule:
1 SCO has no UNIX Sys V related copyrights

2 Even if IBM had shipped Sys V code into Linux, IBM could not have infringed on
non-existing SCO copyrights by putting code SCO did not own into Linux (CC10?)

3 SCO was wrong to alledge Red Hat from selling code stolen from SCO's Sys V as
SCO did not have any

4 Autozone is in the clear as they did not use SCO's libraries, and SCO has no
other code

Could go fast, doesn't it.

Rob

[ Reply to This | # ]

Broken link
Authored by: eriktorbjorn on Wednesday, November 10 2004 @ 04:56 AM EST
The link to Ed Chatlos' declaration is broken. At the time of writing it points
to http://www.groklaw.net/www.groklaw.net/article.php?story=20041025193611422
which should probably be
http://www.groklaw.net/article.php?story=20041025193611422 instead.

Just a minor case of the hiccups, I guess.

[ Reply to This | # ]

My God !!!!
Authored by: HawkEye on Wednesday, November 10 2004 @ 04:58 AM EST
Don't tell me the end is actually in sight ?!?!?!

Ok well it may still be a way off yet but it definately looks like a glimmer of
very bright light in the distance, or is that just a train approaching (SCO :) )

---
Regards

Neil

[ Reply to This | # ]

SCO will play catch up, as usual
Authored by: belzecue on Wednesday, November 10 2004 @ 05:04 AM EST
In customary "Where's ours?" fashion, expect McBride to suddenly
produce his own corporate-kit documentation from the day after the APA signing,
showing that the board of oldSCO held a big party to celebrate its purchase of
Unix in its entirety.

[ Reply to This | # ]

Novell suggest that they have a better claim
Authored by: proto on Wednesday, November 10 2004 @ 05:29 AM EST
Haha, the best part is that Novell suggest that if anyone is to win a slander of
title lawsuit, it is Novell not SCO.

[ Reply to This | # ]

So...!!
Authored by: Nick_UK on Wednesday, November 10 2004 @ 05:38 AM EST
Perry Mason would be PROUD!

Nick :D

[ Reply to This | # ]

" Something extraordinary has happened."
Authored by: Anonymous on Wednesday, November 10 2004 @ 05:44 AM EST
Why is this extraordinary? Could someone hit me with a clue stick?

[ Reply to This | # ]

Summary
Authored by: sjgibbs on Wednesday, November 10 2004 @ 06:15 AM EST
- New Evidence
- SCO are toast
- The End

PJ, why so wordy today?
</sarcasm>

[ Reply to This | # ]

  • Summary - Authored by: Anonymous on Thursday, November 11 2004 @ 10:17 AM EST
Minutes--This is how long it should take...
Authored by: icebarron on Wednesday, November 10 2004 @ 06:30 AM EST
The game of dominoes does come to mind right now...Thanks PJ and friends...You
guys are the best...

Peace

Dan

[ Reply to This | # ]

SCO will drop the case
Authored by: Anonymous on Wednesday, November 10 2004 @ 06:48 AM EST
It's their only realistic option. Remember, this is a Slander of Title action,
not a contract or copyright case, and SCO can't allow it to become one of the
latter under the auspices of a judge who is now up to speed with their
shennanigans. Unless they do actually have the damning evidence that they keep
hinting about (and who still believes that?), then they're just going to hurt
their chances in a seperate contract case over the rights transfer. There's now
a real danger that they will receive a summary judgement on the Slander of Title
that strongly implies that Novell own the rights.

The best thing that they can do is to drop it, say that it was the wrong type of
case to bring (which it was, except that it gave them two bites at the cherry),
blame one of the lawyers who isn't actively working on it, and launch a fresh
contract case at State level, hopefully (for them) under a new judge who isn't
familiar with their tactics.

Then we begin the whole charade again, with fresh new batch of "Oooh, just
you wait until you see the evidence that we didn't have a chance to present in
the Slander of Title case" innuendo. I can't wait. </sarcasm>

[ Reply to This | # ]

Not dead yet?
Authored by: Jude on Wednesday, November 10 2004 @ 06:49 AM EST
ISTR that SCO's recent motions have tried arguing that the copyright exclusion
in the original APA wasn't meant to apply to the Unix copyrights, and that it
only applied to other (non-Unix) copyrights Novell had. I think the Chatlos
declaration was meant to support this argument.

This new information seems to kill off SCO's attempt to claim they got the
copyrights in the original deal, but I don't see how it stops SCO's original
argument that amendment 2 gave them the copyrights.

[ Reply to This | # ]

1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights
Authored by: phrostie on Wednesday, November 10 2004 @ 07:02 AM EST
"a corporation is required to document every major move it makes and
typically such documentation is kept in its corporate kit. Normally, that is
also where you keep the company's bylaws, articles of incorporation, and annual
meetings minutes, as well as minutes of meetings held to approve corporate acts.
This documentation is to prove that the corporation is acting with the
appropriate approvals and also as a way of showing that the corporation, deemed
a person, so to speak under the law, actually is a separate entity that acts,
not as a way for the individuals in the company to avoid taxes and liability,
but as a legitimate corporate entity. When you go to court, it's not unusual for
a judge to tell a party to present its corporate kit, "

do we have a copy of TSG's?
might be fun to read thru their Kit.

---
=====
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 | # ]

Didn't PJ say ...
Authored by: Wol on Wednesday, November 10 2004 @ 07:31 AM EST
that Novell have invited the Judge to give a summary judgement?

Yes, I know Novell have filed for dismissal, but if I understand PJ correctly,
they have give Kimball a load of case law that says he is welcome to issue a
summary judgement that says copyrights weren't transferred.

As various people have gleefully pointed out, if he takes the hint, SCOG are
*s*u*n*k* !!!

Seems to me everybody's been jumping on the fact that if this case gets sunk it
will make life very hard on SCOG elsewhere, but they mostly seem to have missed
the fact that it could decide the copyrights issue once and for all, in which
case life won't be hard for SCOG - it'll be impossible :-)

Oh - and it won't affect CC10, because as IBM were crafty enough to make sure,
CC10 doesn't care who owns the copyrights. Expect them to keep pushing this
claim, because it strengthen's linux' (and therefore IBM's) hand immeasurably
against any other possible future pain-in-the-ass litigant.

Cheers,
Wol

[ Reply to This | # ]

How long have Novell been been sat on this?
Authored by: Brian S. on Wednesday, November 10 2004 @ 07:34 AM EST
Ha! Ha!

They must have been aware since last year when they first disputed SCOG's
claims to ownership. Apart from the actual contracts this must have almost one
of the first things they checked.

Brian S.

[ Reply to This | # ]

PJ, please clarify something
Authored by: Anonymous on Wednesday, November 10 2004 @ 07:52 AM EST
PJ, please clarify this for me if you can.

I believe that the contemporaneous documentary evidence
filed by Novell about what its Board of Directors thought
in 1995 would carry some, but not very much, weight in a
case, were this case about copyright ownership rather than
slander of title. The reason it would carry so little
weight is that the statement, although perhaps useful to
demonstrate what Novell's BOD thought in 1995 and why they
thought that, is still a self-serving statement by a party
that does not really prove ownership. The fact that it
was contemporaneous may add some credibility, but it is
still self-serving to some extent. After all, it is just
a statement by a party and is no more "evidence" of
ownership than is the party's statements in its pleadings.

On the other hand, since this is a slander of title case
and not a real copyright case, all Novell has to prove is
that it is not acting with malice. This issue seems to
require proof of Novell's "state of mind," so that
statements by the 1995 BOD would carry more weight towards
this issue than towards the issue of actual copyright
ownership. Is this true?

(I suppose that, theoretically, SCO might have some wiggle
room if they could show that the 1995 statements were made
with the intent of slandering title to the copyrights at a
later date. But that seems quite improbable.)

[ Reply to This | # ]

The finger points in the wrong direcion ...
Authored by: one_penguin on Wednesday, November 10 2004 @ 07:56 AM EST
For SCO now to claim that Novell perpetrated a knowing falsehood actually points the finger in the wrong direction. SCO asked for a transfer, Novell refused,, and then SCO asserted that it owns the copyrights anyway. It is thus more likely that SCO made a knowingly false claim than Novell. (pg 6)

No comment on my part, except the truth of this statement and the way it was worded brought a big smile to me. I hope it does the same for you.

[ Reply to This | # ]

Definition of "dispositive"?
Authored by: Anonymous on Wednesday, November 10 2004 @ 08:04 AM EST
I've heard this term used here before; the law.com dictionary (at left) doesn't

have a definition for it. Someone have a reference to where it's explained?
Thanks much!

[ Reply to This | # ]

1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights
Authored by: Steve Martin on Wednesday, November 10 2004 @ 08:13 AM EST

"SCO has initiated or is defending itself in at least six lawsuits before five judges four states and in two countries, ..."

Perhaps I just haven't had enough coffee yet this morning, but I'm drawing a blank; in which country besides the USA is TSG involved in a lawsuit? (Or does this perhaps refer to the injunction laid on them in a German court? If so, I thought that was done and over?)

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

[ Reply to This | # ]

II B 4: Source code ownership?
Authored by: markhb on Wednesday, November 10 2004 @ 08:14 AM EST
One item I saw in here concerns me. In section II B 4, while they discuss Novell retaining ownership of the UNIX copyrights while retaining a grant-back license to the things they did sell to Santa Cruz, they specifically mention "the UNIX source code" as something which was sold to Santa Cruz. Well, can anyone explain how the sale of source code, especially if the purchaser has authority to grant licenses to that source code, differs in any way from the sale of the copyright to the code? What else is there to sell, what else is there to own, other than the copyright? I can understand the sale of a physical copy possibly accompanied by a license to use and create derivative works, but that isn't the case here. This refers to "the UNIX source code" itself.

---
IANAL, but ITRYINGTOCHILLOUT... et SCO delenda est!

[ Reply to This | # ]

Exactly why does outside evidence give the judge the discretion to judge summarily?
Authored by: Hydra on Wednesday, November 10 2004 @ 08:49 AM EST

Novell says that by introducing evidence outside the complaint, such as the Ed Chatlos declaration, SCO is inviting the Court to convert the motion to dismiss into a summary judgment, which they say means the Court now has the option to decide the matter once and for all and with finality right now. They cite a case that says that introducing such outside evidence is "a tactical mistake".

Ok, I think I know what this means. I fail to understand / see the "why" of this part...

Please, can someone explain this? The mere fact itself that SCO introduced evidence from a '3rd party', someone without direct knowledge, is enough reason to warrant a change from dismissal to summary judgment? Is this an existing law rule? Or is there a sequence of logical reasoning behind this that leads to creating this new avenue for the Judge?

IADNAL, I am definately not a lawyer. But this whole S(C)Oap is still very interesting. Looks like SCO is about to get creamed! Justice is done for all the FUD smearing I'd say.

[ Reply to This | # ]

OT Here (a travesty I know with the news about Novell).
Authored by: Brian S. on Wednesday, November 10 2004 @ 09:03 AM EST

Brian S.

[ Reply to This | # ]

melvin dummar, perhaps? (n/t)
Authored by: Anonymous on Wednesday, November 10 2004 @ 09:29 AM EST
:

[ Reply to This | # ]

1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights
Authored by: Anonymous on Wednesday, November 10 2004 @ 09:40 AM EST
Ha, my first thought when I saw this morning's headline was, "Damn, that's a long meeting."

Come on, I couldn't have been the only one.

[ Reply to This | # ]

OT: Linux in Government: Stanislaus County Does Linux with a Best Practices Slant
Authored by: Anonymous on Wednesday, November 10 2004 @ 09:45 AM EST

Here is very good article in Linux journal:

http://www.linuxjournal.com/node/78 77

[ Reply to This | # ]

1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights
Authored by: Anonymous on Wednesday, November 10 2004 @ 09:47 AM EST
this is all very interesting and everything,
but the elephant in the room is:

where are Kimball and Wells? It's been
a **long** time since the Kimball took
the summary judgement motion under
advisement; and coming up to a month
since Wells' took the rather more straightforward
discovery issues under advisement.

Maybe I am just impatient, but I am not
sanguine about how the case is going.

[ Reply to This | # ]

The question nobody has asked - but needs asking
Authored by: Anonymous on Wednesday, November 10 2004 @ 09:51 AM EST
The question nobody has asked - but should be asked:

*** WHO WAS ON THE BOARD OF NOVELL IN SEPTEMBER 1995? ***

Who attended the board meeting, where Novell understood the APA meant that they
were retaining the UNIX copyrights?



If anybody knows, or has seen the exhibit, please reply

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Official "The SCO Group" Positions - Twenty-six days without an official post
Authored by: AllParadox on Wednesday, November 10 2004 @ 10:04 AM EST
Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group". Main posts must use the name and position of the
poster at "The SCO Group". Main posters must post in their official
capacity at "The SCO Group".

Sub-posts will also be allowed from non-"The SCO Group" employees or
attorneys. Sub-posts from persons not connected with "The SCO Group"
must be very polite, address other posters and the main poster with the
honorific "Mr." or "Mrs." or "Ms.", as
appropriate, use correct surnames, not call names or suggest or imply unethical
or illegal conduct by "The SCO Group" or its employees or attorneys.
This thread requires an extremely high standard of conduct and even slightly
marginal posts will be deleted.

P.J. says you must be on your very best behavior.

If you want to comment on this thread, please post under "O/T"

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

  • Unfair - Authored by: webster on Wednesday, November 10 2004 @ 04:19 PM EST
    • Unfair - Authored by: jaydee on Wednesday, November 10 2004 @ 06:28 PM EST
1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights
Authored by: Anonymous on Wednesday, November 10 2004 @ 10:07 AM EST
Hmm, I think SCO made a really big mistake registering those copyrights. From
title 17, chapter 5 http://www.copyright.gov/title17/92chap5.html#506

§ 506. Criminal offenses5

(c) Fraudulent Copyright Notice. — Any person who, with
fraudulent intent, places on any article a notice of
copyright or words of the same purport that such person
knows to be false, or who, with fraudulent intent,
publicly distributes or imports for public distribution
any article bearing such notice or words that such person
knows to be false, shall be fined not more than $2,500.

(d) Fraudulent Removal of Copyright Notice. — Any person
who, with fraudulent intent, removes or alters any notice
of copyright appearing on a copy of a copyrighted work
shall be fined not more than $2,500.

(e) False Representation. — Any person who knowingly makes
a false representation of a material fact in the
application for copyright registration provided for by
section 409, or in any written statement filed in
connection with the application, shall be fined not more
than $2,500.

My guess would be that they would argue "knowingly" and
"fraudulent intent", but it'd be fun to watch them squirm.

[ Reply to This | # ]

Corrections and Spelling Misteaks
Authored by: Stoneshop on Wednesday, November 10 2004 @ 10:07 AM EST
After the ARGUMENT heading, the subheading SCO HAS INVITED THE COURT TO CONVERT NOVELL'S MOTION... is not numbered, whereas the second subheading II. ON SUMMARY JUDGMENT, THE COURT ... is.

Just after the ARGUMENT heading, in the SCO cited materials list:
Additional documents that are citged - should be cited

Start of the fourth paragraph after the list in subsection II: Even Doese, the Utah case - should be Dowse

---
Rik
IANALJLMOY


[ Reply to This | # ]

The record is devoid of any meaningful response from SCO.
Authored by: Paul Shirley on Wednesday, November 10 2004 @ 10:26 AM EST
The record is devoid of any meaningful response from SCO.

Pretty much sums up SCOG, I hope to see this statement repeated in many future filings.

If I were Darl, right now I'd be checking if the fee cap agreement had been signed yet (given the disagreement between BSF and SCOG PR about this its possible) and preparing to sue for the quality of their work against SCOG before that's forbidden. If summary judgement happens this isn't so much a mistake as accidental suicide.

[ Reply to This | # ]

PJs Comment on Contract Behavior
Authored by: Anonymous on Wednesday, November 10 2004 @ 10:55 AM EST
I know a lont of people have tried to make this into a
non-issue, by saying that "just because the board didn't think they were
selling them doesn't mean they didn't".

PJ made a very salient point a couple of weeks ago, where she said "...it
isn't necessarily what is in the contract
that governs, but how the parties acted according to the
contract..." (summarized and butchered -- sorry PJ).


Well, how did Novell act to show that they still retained the copyrights? Well
I don't really think they have do
anything to show that they still retained them, in fact
you could argue that releasing IBM from its obligations
would show that they acted like they still retained the
copyrights -- they didn't have to do any legal wrangling to
make it look like they owned them.

SCO (or whomever they were called back then ;-) did NOT act
like they owned the copyright. The FIRST thing that I
would have done if I were to purchase the copyrights to
Sys V would be to do a global search and replace replacing
Novell with SCO. Did they do that at all? I don't think
so....

So I think PJ is right, the just has a substantial peg
to hang his hat on, I see this going the way of a line
of dominos now....and I don't think SCO will be able to
stop them once they start falling.

[ Reply to This | # ]

I love the fact...
Authored by: Anonymous on Wednesday, November 10 2004 @ 11:02 AM EST
...that Novell was able to quote SCO's own arguments (and even the particular
declaration cited) that SCO made when put in a similar position in the Red Hat
case. You can be sure they didn't find that text on Lexis or Westlaw. I suppose
they might have found it on PACER, but a more likely explanation is that the
efforts of a certain Pamela J. are now having substantial real-world (well,
courtroom-world anyway) impact.
PJ, thanks for helping to save the world.
---Nartreb

[ Reply to This | # ]

In the world of rational behavior...
Authored by: Groklaw Lurker on Wednesday, November 10 2004 @ 11:13 AM EST
In the world of rational behavior where I usually reside, SCO would decide, in
the face of overwhelming evidence, to throw in the towel and try to extricate
itself from this case with a negotiated settlement, likely including a payment
to Novell.

Alas, Darl McBride and SCO do not seem to reside in this world, given their
actions in this and other cases. Or, perhaps, having committed so much of their
cash to BSF, they no longer have sufficient cash reserves to buy their way out
of their foolish litigation and still pay Darl's inflated salary for the next
year or two.

Either way, this tomfoolery has gone on long enough. With this newest exhibit,
there can be no real issue of triable fact that is still in controversy here,
nothing to put before a jury. Given the precedents, a summary judgement is the
most practical solution available.

Personally, I think it is time we all fire off another letter or email to the
SEC and FTC requesting an investigation into SCO's corporate shenanigans. I, for
one, will be doing so again this week.

---
(GL) Groklaw Lurker
End the tyranny, abolish software patents.

[ Reply to This | # ]

OT: From Slashdot: MS Indemnifies Customers Against IP Threats
Authored by: Anonymous on Wednesday, November 10 2004 @ 11:32 AM EST
MS Indemnifies Customers Against IP Threats

[ Reply to This | # ]

Restatement (Second) of Torts
Authored by: rand on Wednesday, November 10 2004 @ 11:33 AM EST
A question for the groklawyers in attendance:

I noticed that the "Restatement (Second) of Torts" is a work
copyrighted by the American Law Intitute. It doesn't appear to be generally
available outside law libraries (but anyone, it seems, is free to buy a copy),
although it is cited in many, many cases.

How "normal" is it to base legal argument on works that are not in the
public domain, not actually laws, regulations, or decisions?

---
The wise man is not embarrassed or angered by lies, only disappointed. (IANAL
and so forth and so on)

[ Reply to This | # ]

Corp Kit - One for Show, and one to go for Microsoft?
Authored by: clark_kent on Wednesday, November 10 2004 @ 11:48 AM EST
"a corporation is required to document every major move it makes and
typically such documentation is kept in its corporate kit"

I would like to see Microsoft's corporate kit. You know, the one Steve Ballmer
keeps under the lid of his toilet tank in his corporate bathroom, not the one he
shows the public.

Oooh, am I passing judgment? For shame Doc!

[ Reply to This | # ]

The minutes are incorrect
Authored by: Anonymous on Wednesday, November 10 2004 @ 11:58 AM EST
Scrivener's error.

[ Reply to This | # ]

Isn't Ty Mattingly best friends with Ralph Yarro, plus
Authored by: Anonymous on Wednesday, November 10 2004 @ 12:04 PM EST
Isn't Ty Mattingly best friends with Ralph Yarro, plus he was/is EVP at "SBI and Company" (where Darl McBride was founder and CEO)...Ty "co-founded SBI in 1997".

Why don't they DEPOSE Ty Mattingly, who has direct contacts with both Yarro and McBride, and was at this 1995 BoD meeting??

[ Reply to This | # ]

Economy mode?
Authored by: Anonymous on Wednesday, November 10 2004 @ 12:04 PM EST
Is it possible that a dismissal or summary judgement in the Novell case would
mean that Novell proves that it acted without malice but the question of who
actually owns the copyrights is left undecided? If that is what will happen
then SCO would probably find it in their best interest to simply accept such a
judgement. That would cut down SCO's legal expenses and still leave SCO in the
position of being able to claim they own the copyrights in the AutoZone, IBM,
and Red Hat cases. SCO can also probably walk away from the DaimlerChrysler
case with no harm. Since the Red Hat case is stayed then SCO would end up only
having to fund the AutoZone and IBM cases.


------------------
Steve Stites

[ Reply to This | # ]

Which SCO??
Authored by: orgngrndr on Wednesday, November 10 2004 @ 12:56 PM EST
One thing to remember is that the agreement between Novell and SCO, was
promulgated under the "old" SCO, the Santa Cruz Operation. This is not
the same group of litigious pirates that lay claim to "The SCO Group"
which was/is essentially Caldera. The old SCO was an "honorable" group
that sold Unix on the x86 Platform and then got out when the writing on the wall
clearly indicated that this competition space would be eaten up by linux.

The agreement in Question is between Novell and the old SCO, a SCO with
litigious background. A friendly SCO in which Novell did not feel it had to
cross every "t" or dot every"i".

Remember Caldera bought SCO Unix with the intent of integrating Linux and Unix,
to service the installed SCO unix customer base and to transition this base to
Caldera Linux products

Caldera bought the Unix business from SCO, when it was dismembered into several
groups (Tarentella., etc).

Would not affidavits from the old SCO Corporate officers go along way to clear
up the intent of the ownership of the Unix Business? Are these assembled
anywhere, or are the conspicuously absent? Indeed if the Board of Directors of
Novell EXPLICITLY refrained from the transfer of copyrights to the ols SCO,
there must have been some discussion of these issues at both Novell and the SCO
group, and even in the minutes of both BOD's.

Where are the board minutes from the "old" SCO? AS they were acquired
by Caldera, the "SCO group" would be storing them.

This sounds like:

Caldera did not do adequate due diligence on their acquisition of the Old SCO
and all of it's pertinent intellectual properties. OR if they did, and they
found out they did not have a legitimate copyright claim to SYSV, they purposely
carried on a litigious campaign to hide the fact, hoping if they made enough
noise, made exagetrated claims, they would be "bought" just to cure a
nuisance.

OR

Caldera were led to believe through their <broad> interpretation of the
sales contract and agreements that they were entitled to the SYSV copyrights
under the sales agreement. They were not, however, privey to the original sales
agreement between the old SCO and Novell.

So the dispute is the intent of the contract/sales agreement. And as the intent
of transfer of copyrights was not clearly worded in the sales agreement,
Caldera's only game was to challenge that agreement. An Uphill climb. But
Caldera had no other choice. Through the outrageous claims made against Linux by
the new SCO group, The Caldera/SCO had to pursue a course of action that would
not expose them to sanctions throught the Lanham Act or the SEC.

The lawsuit is a "house of cards". SCO/Caldera only hope is that
through delay, intransigence and outright bellocosity, they may be able to make
it to a jury trial where the facts are often overlooked in favor of a better
tale.

It appears the "house of cards" may collapse far sooner than SCO
anticipated.

But the "wheels of justice", they say, "turn slowly". SCO
will ahve an opportunity for more delay in this case. But ultimatly they will
fail.

Without a "copyright transfer" from Novell, the minutes of the Novell
Board meeting with a clear intent of withholding copyright, and various
affidavits with those directly involved with the Caldera/SCO contract that the
sale did not include copyrights, It seems that Caldera bought a pig-in-a-poke
and are trying to recoup this oversight by doing a shotgun approach: sue
everybody and see who come out alive.

The libel of Transfer should have been a no brainer, for Novell and on the face
of it it looked like a case for simple dismissal on technicality.

But by SCO keepting this alive and getting a JUDGEMENT, not a dismissal, against
them. It would undermine the legal underpinnings on their other cases.

"Load GUN, Shoot foot!"

[ Reply to This | # ]

Will there be a hearing
Authored by: Anonymous on Wednesday, November 10 2004 @ 01:13 PM EST
Anyone know if there will be a hearing on this motion, or if it will be decided
directly?

I think we're all looking forward to having this issue decided.

[ Reply to This | # ]

It's a good thing SCO got a cap on legal fees,
Authored by: kawabago on Wednesday, November 10 2004 @ 01:25 PM EST
Because with no evidence to back up any of their claims, it because it will take
a lot of legal work to keep dreaming up new claims as each one is dismissed.

At what point will the SEC look at the proceedings and ask "Did the
directors of SCO deliberately build a false public impression about their
holdings?"

It would be nice to see Darl as cell-mates with Martha Stewart. Maybe she could
explain the meaning of "a good thing" to him.


---
constructive irrelevance.

[ Reply to This | # ]

SCOX BOD: R. Duff Thompson
Authored by: Anonymous on Wednesday, November 10 2004 @ 01:26 PM EST
One interesting aspect of the APA, that is confirmed by these minutes, is that
R. Duff Thompson became a director of Santa Cruz (presumably to protect Novell's
interests) as a condition of the APA. Mr Thompson has, since the transfer of
Santa Cruz's Unix assests to Caldera, been a member of the board of (the now
renamed) SCO Group.

One assumes that Mr Thompson was well aware of the terms of the agreement. This
allows us to conclude one of two things:

* TSCOG was well aware at the time it initiated their Slander of Title
complaint that Novell believed it still held the copyrights, or

* Mr Thompson has an extremely poor memory.

Actually, it would be VERY interesting to know the detailed conditions under
which Mr Thompson became a director of Santa Cruz, and whether he has any
special role today dating back to those conditions.

[ Reply to This | # ]

Prescience
Authored by: sacs on Wednesday, November 10 2004 @ 01:34 PM EST
Love the minutes of the meeting:

Various questions were then posed by the Directors concerning:.... the ongoing
viability of SCO.

Heh, I guess we know the answer to that one now :-)

[ Reply to This | # ]

Should Novell countersue SCO?
Authored by: Anonymous on Wednesday, November 10 2004 @ 01:45 PM EST
It would be really nice for Novell to counter sue newSCO and end this all.
Novell could file for slander of title (though it is dumb for copyright), fraud
on newSCO claiming the copyrights, Lanham against its SuSE products, move to
settle claims on copyright, and newSCO's general violations of the APA.

I have been trying to figure out why Novell hasn't agressively pursued any of
this. All along it has looked like they had better claims against newSCO's
behavior than the other way around. Maybe they can't be bothered or want less
newSCO FUD pointed at them.

Maybe it is a question of what needs to be resolved against newSCO while
protecting the ambiguity of what Novell actually bought from AT&T.

Or the plan is to sit and wait, IBM will crush SCO and possibly Canopy before
newSCO declares bankruptcy and all the snakes slither away with the loot. If
Novell starts their own litigation, newSCO may be forced to liquidate under
legal bills alone before anything is decided(I seriously wonder if the lawyers
are not the intended main beneficiaries of newSCO's business plan).

I would guess Novell isn't moving for the following reason. If a new Novell
suit succeeds, they would get in line behind IBM and likely see nothing as IBM
has more than enough counterclaims to swallow newSCO and much of Canopy in
compensation. If that is the case and Canopy pulls no tomfollery, IBM may get
whatever Unix rights newSCO does have in compensation and then it will be
between Novell and IBM to decide what exact rights exist. That keeps Novell's
head low, its ownership ambiguous, and I am sure IBM and Novell can quietly
agree on licensing.

It would be nice for the FOSS community to get this over with. With Novell
suing, newSCO would run out of money faster. newSCO is practically asking for
new suits by designing their legal agreement so they can't defend more than what
cases already exist. On some level that makes me worry more that the plan is to
run out of money before any suit is decided and then liquidate to some friendly
large software company that wants to acquire its IP.

This seems a little to much like a grand conspiracy, but newSCO's behavior is
nothing short of strange for a 'going concern'. After the share prices fell,
they stopped touting the suits as their major focus. Yet it seems to only be
paying lip service as a software company, or else they would stop the suits and
apologize to their customers.
They executives have many times said or authorized actions obviously detrimental
to the company/share holders, the suits, and their customers yet no significant
change in management or even a discussion. They are paying through the nose for
legal representation that seems quite inadequate for even a set of simple
favorable cases. These cases are incredibly delicate against strong legal
opponents, yet there are many examples of weak research, poor understanding of
applicable law, and lack of comprehension of the issues in specific filings.
Ignoring some obvious nepotism that share holders should be concerned with, the
fact they are not seeking a second legal opinion alone is fishy enough given
current performance. I would hardly be surprised if there wasn't a liquidation
plan in place that allows a clean get away for individuals while giving all the
legal battles to someone else.

Whether or not there is a stock scam or a conspiracy to siphon legal funds, the
SEC should be rather harsh on them just for the appearance. newSCO is not
behaving like a corporation. On a positive note (for antiSCO people), this
behavior and the concentration of ownership should make it easy for IBM to
convince a judge to make this personal. :)

[ Reply to This | # ]

1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights
Authored by: geoff lane on Wednesday, November 10 2004 @ 01:52 PM EST
Wow!

But for a legal requirement that correct names be used, we could have had
"SCO v. SCO" and we would all be in Dickens country :-)

Still, don't expect an early end to the cases, the laywers haven't spent all the
money yet.


---

[ Reply to This | # ]

Not so fast, it's not the end game... At least I hope not.
Authored by: ctrawick on Wednesday, November 10 2004 @ 02:10 PM EST
Kimball strikes me as fair sort. Since this is Novell's reply memo, he's not
going to do anything rash like issue a summary judgement without giving SCO a
chance to brief. That would be candy to an appeals court and this mess would
land right back in Kimball's lap.

I'm sure he's just as eager to put SCO to bed as the rest of us, so here's how I
see him playing this:

Kimball can give Novell a choice, either dismiss the case or allow Novell to
move for SJ so that SCO can fully brief. If Novell takes the dismissal, then
it's up to SCO to patch its cases up and try again. If Novell goes for the SJ,
then either SCO can drop the case to save embarassment or Kimball can end it
once and for all without the return to sender.

That's the end game I'm waiting for. I'm not counting my dominos yet.

chris

[ Reply to This | # ]

"There ain't no Sanity Claus!"
Authored by: Anonymous on Wednesday, November 10 2004 @ 02:34 PM EST
If I'm not mistaken Corporations, for legal purposes, are treated as if they are
a human being. Yet if anybodys dotty old aunt did what SCO is doing their
realtives would have them taken in for a psyciatric evaluation, then have the
courts declare them insane and have a guardian take over their assets. It's too
bad SCO's stockholders can't do the same.

[ Reply to This | # ]

Yes! Last Post!
Authored by: Anonymous on Wednesday, November 10 2004 @ 02:38 PM EST
Sorry. I'm juvenile.

TSG := ToaStGuys

mtx

[ Reply to This | # ]

More Darl-bluster gets taken down.
Authored by: mobrien_12 on Wednesday, November 10 2004 @ 03:04 PM EST
"1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX
Copyrights."

Gee. How long ago was it that Darl was thundering that he was at Novell at the
time of the sale and could produce lots of his former coworkers to testify that
Novell sold the copyrights?

Looks like this will be yet another hatpin-of-truth for a Darl hot air balloon.

I look forward to reading the minutes.

[ Reply to This | # ]

Corporate Kit... Maybe ask for the Corporate Minutes?
Authored by: clark_kent on Wednesday, November 10 2004 @ 03:23 PM EST
I asked a VP friend of mine of a small company about the wording "corporate
kit." Here is what that person had to say about it ...

"I've never heard the term "corporate kit" other than the
official documents used to start a coporation legally. Any activities a
corporation participates in (publicly held one) that will significantly affect
profit are to be voted on and recorded in the corporate minutes which are
typically published annually. Corp. minutes can be requested from the state the
company's parent corporation is located in by contacting the corporation and
securities bureau of that state."

I think I am going to try that with a peticular company whose activities I would
love to track. And it is not SCO. Groklaw is doing a good job with that as it
is.

[ Reply to This | # ]

Perhaps, by converting to SJ, this is not fully briefed
Authored by: Anonymous on Wednesday, November 10 2004 @ 03:31 PM EST
As I read the rule Fed.R.Civ.P.12(b)(6) (at law.cornell.edu) it appears that SCO may be given an opportunity to respond to the minutes of the Board of Directors exhibit presented by Novell recently. The rule says that "... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

So, it would appear that SCO will have an opportunity to reply to this memorandum. It's only fair, really.

Thad Beier

[ Reply to This | # ]

1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights
Authored by: SkArcher on Wednesday, November 10 2004 @ 05:07 PM EST
In Professional Real Estate Investors, for example, the U.S. Supreme Court found that where a litigant is found to have "probable cause" to assert a claim, no antitrust liability can attach, and that a litigant's "motiviations in bringing suit [are] rendered irrelevant by the objective legal reasonableness of the litigation." Professional Real Estate Investors, 508 U.S. at 61, 65 (holding that no antitrust liability attaches if "an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome").

To hold otherwise would be to permit inquiry into subjective intent in every case and to promote efforts to apply liability, ex post, to any unsuccessful litigant. Novell submits that the Court, though declining to dispositively rule on the merits of Novell's rival claim, has essentially found that Novell has "probable cause" to assert such a claim and that that the same logic that led the Professional Real Estate Investors Court to cut off inquiry into subjective intent applies here.


Am I reading this right? Are Novell saying here, essentially, that they cannot be found to have commited slander of title because the ambiguity of Ammendment 2 gives them enough reasonable cause to presume ownership, and hence grounds for dismissal of the case upon the very grounds SCO claims ownership by?

---
Discussion channel: irc://irc.fdfnet.net/#groklaw

Disclaimer: irc.fdfnet.net/#groklaw is NOT affiliated with nor endorsed by www.groklaw.net or PJ.

[ Reply to This | # ]

what about the 1996-2000 kits?
Authored by: jig on Wednesday, November 10 2004 @ 07:34 PM EST

this is fine and dandy, but what about the corporate kit that was created after
the amendment? this kit just seems to say that novel keeps the copyrights as of
1995, but what about later?

i want to see the corporate kit of the year the amendment was signed.. it's not
like sco isn't going to ask for it anyway.

[ Reply to This | # ]

Groklaw quoted at PC Pro.
Authored by: Brian S. on Wednesday, November 10 2004 @ 09:20 PM EST
http://www.pcpro.co.uk/news/65610/novell-backs-up-unix-claims-against-sco.html

Novell Backs Up Unix Claims Against SCO

Brian S.

[ Reply to This | # ]

1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights
Authored by: Anonymous on Wednesday, November 10 2004 @ 09:36 PM EST
The minutes really drive the last nail in SCO's coffin. I wonder why Novell
didn't submit them earlier?

[ Reply to This | # ]

Lamlaw fingers the real thugs
Authored by: belzecue on Thursday, November 11 2004 @ 01:24 AM EST
Lewis A. Mettler, Esq. (Lamlaw) points out the real villains -- the 'enablers', if you will:

"There is no basis for an action of Slander. This brief pretty much illustrates that fact. A fact, by the way, that had to be known by SCO lawyers when they first considered the slander action. They did not have the evidence for slander then or now. Yet, they convinced SCO to part with huge legal fees to pursue a meaningless case bound to fail. These are the kinds of lawyers that give the profession a bad name. And it is based upon false or misleading legal advice that only gets the client into real trouble."

[ Reply to This | # ]

OT : M$ says 'IE is just as secure as any other Browser'
Authored by: Greebo on Thursday, November 11 2004 @ 02:41 AM EST
I just found this story over on Zdnet.

It's the clearest reason yet why M$ will lose Market Share to Firefox. They just don't get it. For example....

At a security round-table discussion in Sydney on Thursday, Microsoft's security and management product manager, Ben English, told attendees that IE undergoes "rigorous code reviews" and is no less secure than any other browser.

Really. So that would explain why the DOHS recommended people not to use IE ?

Microsoft’s English reiterated that features such as tabbed browsing were not important to IE users.

"I don’t believe it is a true statement that IE doesn’t have the features that our customers want. We take user feedback very seriously. If you have that feedback then you should feed it back to us because we will feed it to the product team," said English.

So M$ don't feel at all threatened by IE? That would be why they reconsti tuted the IE development team then?

Face it. IE is a Dinosaur that was illegally bundled and heavily tied into the OS, and now there is an alternative more and more people will switch.

Greebo

---
PJ has permission to use my posts for commercial use.

[ Reply to This | # ]

This case should be finished in 6 weeks - no excuses for the judge / legal system
Authored by: Anonymous on Thursday, November 11 2004 @ 03:11 AM EST
Hi,

The evidence in this case is overwhelming. You could not ask for a more
watertight case.

SCO will get one last chance to reply to the new evidence Novell has produced. I
guess they will get 30 days.

After the 30 days is up they will have nothing.

They can't argue against the basic fact they sent a letter to Novell asking
Novell to transfer the copyrights.

Because they sent that letter the case is beyond doubt. If anything Novell owns
the copyrights BASED ON SCO'S OWN ACTIONS.

Remember all that is required is a lack of malice - this easily 200% passes that
test.

The judge should rule on the Summary Judgement without any delays.

This would have to rank as one of the most one sided cases ever presented to the
courts. If this takes longer than 6 weeks (not finished by Christmas) the US
legal system has hit new lows.






[ Reply to This | # ]

  • by letter ?? - Authored by: Anonymous on Friday, November 12 2004 @ 07:17 AM EST
OT : MSN Search Beta Launched.
Authored by: Greebo on Thursday, November 11 2004 @ 04:59 AM EST
Well, the BBC have this story (with a lovely picture of Ballmer!) about MSN's new Search Engine Beta.

They claim they are....

In a statement Microsoft said its search engine returned results from five billion web pages. At the time of writing, Google was only indexing 4,285,199,774 web pages.

Fine. OK. Slightly more pages than Google, but what about the quality of the search? So i tried a little test, and this is what i found.

Linux - Yahoo=84,600,000; M$N=98,680,560; Google=203,000,000
Microsoft - M$N=86,265,334; Yahoo=121,000,000; Google=204,000,000
SCO - M$N=2,955,544; Yahoo=4,050,000; Google =4,110,000
IBM - Yahoo=35,800,000; M$N=36,859,714; Google=70,600,000
Austria - M$N=2 (not a typo!); Yahoo=35,800,000; Google =70,600,000
Bush Foreign Policy - M$N=4,415,254; Yahoo=5,420,000; Google=7,900,000

These results are for Web search results only, not Images, or News.

So my basic conclusion. M$N might reference more pages than Google, but the M$N search Engine doesn't seem to be as good as Googles. It clearly at the bottom of the pile.

I also found the Engine to be slow. It took 12 seconds to return the 2 web results about Austria.

Anyway, you just know M$ will link Passport customer to their searches, and then sell that information to third party marketing firms, so who's going to trust them?

Greebo

---
PJ has permission to use my posts for commercial use.

[ Reply to This | # ]

Sale was about binaries
Authored by: Anonymous on Thursday, November 11 2004 @ 05:43 AM EST
Besides the statement that Novell was to retain the UNIX copyrights in the sale
to Santa Cruz the minutes of the directors meeting also states in the beginning
that it is about "Novell's sale of its UNIXWare binary business to
SCO"

[ Reply to This | # ]

OT Indemnify against this M$.
Authored by: kinrite on Thursday, November 11 2004 @ 06:00 AM EST
Microsoft should pay to correct the damage that worms, viruses, and trojans do to their customers. Link

---
"You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time." Abraham Lincoln 1809-1865

[ Reply to This | # ]

Shows Only the Understanding on One-Side
Authored by: Anonymous on Thursday, November 11 2004 @ 06:09 AM EST
This might be helpful, but it only shows the how the
agreement was understood from the side of Novell.

SCO has made a lot of stupid arguments about many things
but there case against Novell in terms of copyrights seems
not such a long-shot as their other claims.

The APA does not expressly say that copyrights were not
included in the sale. A judge could easily come to the
conclusion that the sale of the "business" implies the
copyrights, among other things.

Darl McBride says he was a party to these negotiations and
understood that it did include the copyrights.

So these "minutes" help to counter-balance his personal
testimony, but it's certainly not an ace in the game.

Sadly... Of all the lawsuits, this is the one that appears
the weakest, in my opinion. SCO could possibly gain a
little traction here. Clearly, if they do, they won't go
much further.

Matthew

[ Reply to This | # ]

1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights
Authored by: leguirerj on Thursday, November 11 2004 @ 07:28 AM EST
Too bad SCOINFO.COM didn't go live. It would be interesting to see if they would
have posted these minutes on their web site. I wonder how they would have spun
this.

[ Reply to This | # ]

Question for the legal minded amoung us.....
Authored by: NastyGuns on Thursday, November 11 2004 @ 07:47 AM EST

I've got a speculative question for the legal minds here. Remember, from the first dismissal, Judge Kimball insinuated in his judgment that he'd probably have granted Novell an SJ that the APA did not constitute a 204 writing as required. Now, with this motion, you apparently have SCOG presenting that very option before him.

So with that in mind, what are the chances that Judge Kimball will issue an SJ? I know it's hard to speculate, but I'd still like to hear some opinions that take the previous ruling into account with the options that this motion presents to Judge Kimball.

---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back, please keep me here." Unknown.

[ Reply to This | # ]

Can SCO reply
Authored by: codswallop on Thursday, November 11 2004 @ 11:21 AM EST
Discussion of this has gotten spread through so many threads, that it's hard to follow. I'm afraid I'm to blame for some of the resulting confusion. This is a summary of what seem to be reasonable conclusions.

1) Based on SCO's introduction of material outside the initial pleadings, the court can convert the motion for dismissal to one for summary judgement. This assumes that this is the correct characterization of SCO's filing.

2) No notice need be given to SCO. Arnold v. Air Midwest says

(2) We reject Mr. Arnold's argument that the district court acted improperly in converting defendants' motion to dismiss to a motion for summary judgment. Notice to the parties is required to prevent unfair surprise when a judge converts a 12(b)(6) motion into a Rule 56 motion. Nichols v. United States, 796 F.2d 361, 364 (10th Cir. 1986). But "when a party submits material beyond the pleadings in support of or opposing a motion to dismiss, the prior action on the part of the part[y] puts [him] on notice that the judge may treat the motion as a Rule 56 motion." Wheeler v. Main Hurdman, 825 F.2d 257, 260 (10th Cir.), cert. denied, 484 U.S. 986 (1987). Because Mr. Arnold submitted material beyond the pleadings in opposition to defendants' motion, he is scarcely in a position to claim unfair surprise or inequity.

3) A possible difference from the cited cases is that Novell, itself, submitted new material in it's reply. This is in the declaration of Kelly Carlton. It could be argued that this entitles SCO to a reply, at least to the new material

4) In practice the court has the discretion to allow SCO to answer one way or another and is likely to do so. As Marbux posted:

So SCO doesn't need the court's permission to file more affidavits before the hearing. Under a strict construction of the Rules, SCO would have to get court permission before filing further briefs. However, I doubt if the judge would throw out a motion and memo under Rule 56(f) on grounds it should have been filed with the opposition to the summary judgment motion, particularly if the judge is inclined to rule in Novell's favor, since that would arguably give SCO grounds for appeal.

In enforcing the rules, federal judges normally give parties a fair amount of latitude, except for a few rules, such as the deadline for filing notice of an appeal. But there's an old ruling that is often repeated to the effect that those who disregard the Rules of Procedure do so at their own risk. Judges are rarely reversed for enforcing an established rule of procedure.

Some districts are more strict than others. For example, Nevada federal district court is pretty much a stickler on many rules that are rarely enforced in other districts. The clerk's office there has been instructed by the judges to return without filing any supplemental brief that arrives without a motion to allow it. On the other hand, the U.S. Attorney's office in Oregon routinely files supplemental briefs just before or at hearings without any motion to allow them. I don't know how the Utah federal court falls out on that scale. There's also a difference with different judges. Some judges won't throw out supplemental briefs even if they're filed without a motion to allow them. Some will.

Most federal judges will accept short letters to the court listing, without discussion, additional authorities bearing on pending issues. The Ninth Circuit even explicitly provides in its rules for such letters, requiring that they be filed at least five days before hearing.

In some ways, an order striking a brief from the record is futile if accompanied by a motion to allow it, particularly if it raises only legal (as opposed to factual) arguments, because once filed they actually remain a part of the record and the order striking them can be appealed. So the court of appeals will see such briefs anyway.

My guess is that if SCO files more affidavits before the hearing -- which it has a right to do -- the judge would allow a SCO motion for a further briefing so both SCO and Novell have some warning in advance of the hearing about what issues SCO believes the new affidavits raise.

5) SCO have a way to reply as of right. Marbux:
Without obtaining the court's permission, SCO has a right to file two more briefs on the Novell summary judgment issues by filing its own cross-motion for summary judgment on the same issues, a memo supporting SCO's motion, and a reply to Novell's opposition
6) Given the caution he has shown to date in avoiding grounds for appeal, Judge Kimball is likely to give SCO an opportunity to argue against the conversion to summary judgement if he is inclined to make it.

7) SCO will have a cow about this latest move by Novell.

Thanks to all the contributors to the threads.

---
IANAL This is not a legal opinion.
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity.

[ Reply to This | # ]

Summary Judgement vs. Dismissal with Prejudice
Authored by: mitphd on Thursday, November 11 2004 @ 01:25 PM EST
I'm wondering if anyone can clear up a question for me: how do the practical
consequences of a summary judgement differ from the consequences of a dismissal
with prejudice?

As I understand it, the count has discretion to throw out all of the extra
material submitted so far, both from SCO and Novell, and decide this matter as a
motion to dismiss. Atlernatively, it can accept the extra material, perhaps
invite both sides to submit additional material, and decide this as a summary
judgement motion. Why would the court do this? What additional good does a
summary judgement accomplish to justify the (potential) additional procedural
burdens?

[ Reply to This | # ]

What amendment 2 meant by copyrights
Authored by: GLJason on Thursday, November 11 2004 @ 03:49 PM EST
SCO would have people believe that the exclusion of copyrights in the APA was a scrivner's error, an accident. The board minutes clearly show this to be incorrect. SCO would then have us believe that a year later, they received the copyrights (or at least the promise to assign them) in amendment #2, and they paid NO money for this.

I believe that it MAY have been a scrivner's error and Amendment 2 DID fix it, but not the way SCO thinks. SCO was buying the business of licensing UNIX and of creating a derivative work (UnixWare) and selling it. In order to carry out those tasks, they needed to be able to use some copyrights in the Unix SYSV code, particularly they needed to be able to copy the code and create derivative works.

Here's where I think the difference in SCO's interpretation is. SCO says they need to OWN the EXCLUSIVE copyrights on Unix. That is not the case. They merely need Novell's permission to copy Unix for licensees and to create derivative works. That was pretty clear from the APA. I think it was a scrivner's error though because Novell and Santa Cruz EXCLUDED all copyrights, meaning that the APA could have been read to not allow Santa Cruz to create the merged product or to copy Unix as a normal corse of the licensing business.

That is absurd because the rest of the APA is about Santa Cruz being able to do these things. Amendment #2 fixed this buy making it clear that Santa Cruz can indeed make copies of Unix and create the merged product. That is all they need to conduct their business, they don't need to own the exclusive copyrights. Any act of licensing is in reality the owner of exclusive copyrights allowing someone else to use certain copyrights. In Amendment 2, Novell was just clarifyingn that they are indeed giving Santa Cruz the right to copy Unix as part of maintaining the licensing business and the right to create the Merged Product, a derivative work.

[ Reply to This | # ]

1995 Minutes of Novell's BD of Directors Says Novell Would Retain UNIX Copyrights
Authored by: blacklight on Thursday, November 11 2004 @ 03:49 PM EST
I have refrained from commenting until today on Novell's filing, because I
wanted to read it more than twice, however, I have other things to do and I need
to get back to them, so here it is: (1) I believe that the backlicensing issue
was Novell's greatest vulnerability. Thus, I am quite pleased with Novell's
forthright and coherent discussion of back licensing, and this discussion puts
the issue to rest so far as I am concerned; (2) I disagree that the intent of
the parties is ever unimportant or irrelevant when it comes to analyzing the
terms of their contract - the intent of the parties is presumed to be accurately
reflected in the terms the contract that they freely negotiated absent
misrepresentation by any of the parties. The fact that the Ed Chatlos
declaration is at odds with the terms of the APA is not Novell's problem but
both Chatlos' and SCOG's problem. and so far, I have yet to hear a reasonable,
satisfactory and documented account from either of these two as to why the terms
of the APA should not be interpreted in any other way than as specified in its
plain text.

[ Reply to This | # ]

OT -- Why hasn't SCO moved for a preliminary injunction?
Authored by: marbux on Thursday, November 11 2004 @ 04:41 PM EST
Let's sketch the process so folks can understand now the likely reasons why SCO has not filed a motion in the Novell case for a preliminary injunction to minimize continuing harm.

SCO's amended complaint, in addition to seeking damages, asks for an injunction requiring Novell to transfer the copyrights at issue to SCO and to refrain from making further public claims that Novell is the owner of the copyrights. A party that has pleaded a right to permanent injunctive relief is entitled under the Rules to move at any time for a preliminary injunction.

From the facts alleged in the amended complaint, the basis for SCO's requested injunction appears to be a request for specific performance of the contract purportedly requiring conveyance of title to the copyrights to SCO. Thus, the contract and Copyright Act section 104 "writing" issues are placed at issue by SCO's claim for injunctive relief.

Indeed, because the need for injunctive relief to prevent Novell from making future public claims of ownership necessarily depends in part on a claim that Novell has slandered SCO's title and will continue to do so unless restrained, the slander of title issue is implicit as well in the claim for injunctive relief. In short, virtually all the issues of the SCO damages case other than the amount of damages will necessarily be determined in resolving the claim for injunctive relief.

Entitlement to injunctive relief is a claim sounding in equity principles that is decided by the court, not by a jury. Unless SCO drops the claim for injunctive relief before trial, both the jury and Judge Kimball will be required to rule on the contract and "writing" issues and on the slander of title issues. The jury will decide SCO's entitlement to damages. The judge will decide SCO's entitlement to an injunction.

When claims for damages and injunctive relief involve overlapping claims and/or defenses, as a matter of judicial efficiency and to avoid inconsistency, judges normally concurrently take testimony and other evidence relevant to both injunctive and damages issues during the jury trial. Because inconsistent decisions by judge and jury would tend to undermine public confidence that justice has been served, the court normally takes "guidance" from the jury's verdict and special findings, if any, in deciding whether rights have been violated for purposes of deciding entitlement to injunctive relief. If the claim for injunctive relief involves some evidence that is irrelevant to the issues to be decided by the jury -- such as evidence relevant only to the likelihood that the challenged conduct will recurr unless restrained -- a judge will normally hear that evidence outside the presence of the jury in order to avoid unnecessary juror confusion.

However, the court is not required to proceed in that fashion. It is within the judge's discretion, for example, to bifurcate the case and hold a trial just on the injunctive issues and then convene a jury trial later, or vice versa. Notwithstanding that the Judge could proceed that way, he is unlikely to do so even if Novell asks him to, because judges generally don't like to bifurcate jury and judge issues when an argument lurks that they might thereby deprive a party of its constitutional right to trial by jury.

(If all of this seems bewildering, you are not alone. Most lawyers share your mystification, although hopefully to a lesser degree. Although in theory the old distinction between equity and "law" courts has been abolished and we now have a "unified" federal court system that supposedly ignores the old "forms of action," in actual practice much of the procedure of the old divisions remains. It used to be that requests for injunctions could be filed only in "equity" courts, while damages could only be sought in the "law" courts. Equity courts decided cases without a jury. Law courts ordinarily relied on juries to determine facts. The old distinction persists to control whether a judge or a jury will decide a particular type of claim. I've oversimplified quite a bit in this explanation, so please don't quote this paragraph as persuasive legal authority. :-)

Now let's look at a hypothetical situation. Let's assume that SCO files a motion for preliminary injunction to mitigate the continuing harm supposedly being caused by Novell's alleged slander of title. What then lies within Judge Kimball's discretion?

(2) Consolidation of Hearing with Trial on Merits.

Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action [lawsuit] on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.

Fed. R. Civ. P. 65(a)(2) (italics added). So plaintiffs who move for preliminary injunctions are placed on notice by the applicable rule of procedure that when they file their motion, they may learn the hard way that the judge isn't inclined to hold one trial for a preliminary injunction, then later hold a duplicative trial going over the same evidence and law a second time while ruling on a permanent injunction. Moreover, judges have discretion to consolidate trial and decision not only on both preliminary and final injunctions, but also on jury issues limited only by the requirement that they preserve any right to a jury trial that the plaintiff may have.

One method by which a judge may permissibly "save to the parties any rights they may have to trial by jury" is to set a dramatically accelerated and abbreviated discovery schedule and convene the jury trial and trial on permanent injunction concurrently with its hearing on the preliminary injunction. Another is to set an expedited briefing schedule to determine the relevant extent of the parties' rights to a jury trial, and bifurcate only those issues subject to such rights, then proceed with the consolidated preliminary and permanent injunction hearings.

Moreover, even if trial on the merits is not consolidated, either a denial or grant of a preliminary injunction is immediately appealable and such appeals can bar relitigation of legal issues determined by the court of appeals. Under the doctrine of "law of the case" once an appeals court has ruled on legal issues, even if the case is remanded to the lower court for further proceedings, such as whether to issue a permanent injunction or for a jury trial on damages, those legal findings are not subject to reconsideration by either the district court, or for that matter by the court of appeals itself in a subsequent appeal of the court's ruling on the permanent injunction or the jury's verdict on damages.

So the Rules' message to folks who are considering asking for a preliminary injunction is two-fold: Are you ready for life in the fast lane? And are you ready to live with the consequences? --Particularly if you've requested a prior restraint on speech in the form of an order requiring the defendant to refrain from making public claims of copyright ownership? Prior restraints on speech raise serious constitutional issues creating severe impediments. In other words, SCO's lawyers could find themselves in the Supreme Court on a footrace basis.

All the while, parties suffering continuing injuries do so under a general legal obligation to mitigate such harm by all feasible means, including by seeking preliminary injunctions. SCO's failure to seek such an injunction will probably translate into evidence admissible at trial in support of a Novell affirmative defense that SCO failed its duty to mitigate any harm and any potential damages awarded should therefore be reduced.

Lawyers who are experienced in prosecuting injunction claims often move for a preliminary injunction immediately after filing suit and request that the court combine its hearing on the preliminary injunction with trial on the merits, seizing the advantage of forcing the defense to race to catch up, forcing an immediate trial on all issues. There is no constitutional right to a leisurely trip down Discovery Lane. David Boies knows this game. During the closing days of the 2000 election he was a leading contender in the race through the Florida trial courts, court of appeals, Florida Supreme Court, and the U.S. Supreme Court -- twice -- in less than 40 days.

Isn't it curious that SCO's lawyers haven't employed such tactics in the Novell case? It almost makes one suspect that SCO doesn't regard the amount of damages it is suffering as ruinous. Moreover, Judge Kimball has previously indicated that he believes Novell's position is the likely winner at trial on the ownership of copyright issues, so it's at least conceivable that SCO's lawyers merely believe they must thoroughly prepare in order to have a good chance of winning at trial.

I suspect that SCO's legal team has weighed considerations such as those I discuss above, and decided that the magnitude of the risks outweigh any likely benefits of moving anytime soon for a preliminary injunction. Or might it be that SCO actually doesn't care about the harm it allegedly is suffering, but has filed its Novell lawsuit for unstated reasons? Perhaps time will tell.

[ Reply to This | # ]

What about rule 12(g)
Authored by: codswallop on Friday, November 12 2004 @ 12:04 AM EST
SCO spent some time on this in their motion and Novell didn't answer their
arguments. While I don't know who has the right of this, it seems dangerous to
me to just ignore SCO's arguments.

It would be nice to have seen a case saying that amended claims permit a new
defense or a supported argument saying that Novell raised the issue sufficiently
in the earlier case to be able to expand on it massively now.

---
IANAL This is not a legal opinion.
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity.

[ Reply to This | # ]

Results of some research
Authored by: codswallop on Friday, November 12 2004 @ 03:22 AM EST
I found this article on summary judgement:

summary judgement article

I learned a few things:

1) Any issues not raised in the motion for summary judgement, won't be considered. I have no idea what this means in this case, because I'm not sure who would be the movant. Novell made the motion to dismiss, but SCO did the conversion. Where should the issues have been raised, and were they?

2)Summary judgement is hard to get. Any material fact is a tough standard. It doesn't have to be a good fact or a clear fact, because the facts ae construed in ffavor of the respondant. It has to be a fact, material, and admissible evidence.

3) Malice. Novell can only win this if the court agrees that there is an objective standard for belief in one's claims. There is in some cases, but we don't have the Timpanogos case to see what they're arguing about. The trickier point is whether Novell have met this standard and whether this is a question of fact or law. It would be ironic for Novell to win the objective standards dispute and lose on meeting it. This argument about malice bypasses the isssue of privilege

Privilege is more of a long shot, because the extent of publication is likely a matter of fact.

4) Title. If meeting the writing requirement is a matter of law, Novell has a shot here. The tricky bit is that as I understand it, the writing has to be clear enough to the parties to have been a guide to them at the time. This could also be a matter of fact. It probably isn't enough that it isn't clear to us, now. On the plus side for Novell, the language of the APA itself can be used to refute some of SCO's contentions, and since the APA is an integrated contract, there are restrictions on Parol evidence. This is also a bit tricky, as, if I recall, there are also parol evidence rules about interpreting copyright assignments, and they may not be the same as those for a contract. I think Quatermass found a reference for this a few months ago.

---
IANAL This is not a legal opinion.
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity.

[ Reply to This | # ]

SCOG request for copyrights
Authored by: jabest on Friday, November 12 2004 @ 04:36 PM EST
Maybe I've missed it. Has Novell at any time posted the correspondance from
SCOG requesting the copyrights to Unix?

If I remember correctly, Novell had stated that SCOG contacted them twice with
requests for Novell to transfer the copyrights to Unix to SCOG. Wouldn't Novell
attaching those memo's to their filing for summary judgement go a long way to
resolving this issue.

Jeff B.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )