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| Novell Files Motion to Stay, Answer with Counterclaims etc. |
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Tuesday, April 11 2006 @ 03:14 PM EDT
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Novell has filed a Motion to Stay Claims Raising Issues Subject to Arbitration (here's the Redacted Memorandum in Support [PDF]), telling the court that SCO's copyright infringement claims and in fact four of its five claims have to be brought to arbitration, as per the UnitedLinux agreement, under the Federal Arbitration Act, which requires a stay of any claim raising issues subject to arbitration. Therefore, it asks the court to stay all proceedings on SCO's claims until that matter can be cared for. Novell has already filed a request for arbitration.
You see, under the UL agreement, the parties agreed, Novell explains, that they could all use each other's intellectual property under broad license, including the right to sublicense, and some more things that are redacted because the UL agreement requires confidentiality. What we can read is that Novell asserts that any SCO IP put into UL divested SCO of ownership as per the UL contract. Further the agreement stipulated that any Open Source code contributed to UL would remain under its Open Source license, and so I gather Novell is saying the GPL stands in SCO's way blocking it from being able to assert proprietary rights to modified versions of the Linux kernel. SCO could have saved us all a lot of trouble, don't you think, if it had read and understood the GPL before it started all this?
It has also filed a motion asking for a more definite statement [PDF] from SCO regarding what law SCO thinks is applicable to the unfair competition claims they have lodged. Novell has also filed a killer Answer to SCO's 2d Amended Complaint and Counterclaims [PDF], with the following affirmative defenses:
Privilege
Estoppel
Unclean hands
Laches
Comparative fault
Failure to mitigate
No causation
U.S. Const. Amend. I
Misuse of copyright
Fraud on the Copyright Office
Independent creation
Fair use
License (the UnitedLinux agreements, the TLA, and ye olde GPL)
Implied License
Waiver
Abandonment and forfeiture
Obligation to Arbitrate
I haven't read it all myself yet, so we'll do it together and I'll write more after I have a chance to read it carefully, but my initial reaction on a quick read-through is that SCO is probably wishing it never added some of the claims it did to their 2d Amended Complaint, because now they are faced with a number of issues that they didn't face before, like being accused of fraud on the Copyright Office and copyright misuse. If SCO had not added the copyright infringement claim to their original slander of title action, none of that would be on the table. Well, they're in hot soup now. Man, do not mess with Novell. I never worked for lawyers as good as these guys, and it's a plumb pleasin' pleasure to watch them work.
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 03:19 PM EDT |
| Wow - do I detect throwing the proverbial book ? [ Reply to This | # ]
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| Authored by: GuyllFyre on Tuesday, April 11 2006 @ 03:22 PM EDT |
| Corrections, if required. [ Reply to This | # ]
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| Authored by: GuyllFyre on Tuesday, April 11 2006 @ 03:23 PM EDT |
| Our always fun off-topic here. [ Reply to This | # ]
|
- When does SuSE 10.1 ship? - Authored by: seanlynch on Tuesday, April 11 2006 @ 03:32 PM EDT
- Microsoft writes "Computer Spyware Protection Act" for Oklahoma - Authored by: nadams on Tuesday, April 11 2006 @ 04:03 PM EDT
- SCO stock way up today - Authored by: jto on Tuesday, April 11 2006 @ 06:33 PM EDT
- Aw, And I Already Spent My Tax Return - Authored by: TheBlueSkyRanger on Tuesday, April 11 2006 @ 07:16 PM EDT
- Rampant innumeracy - Authored by: Anonymous on Tuesday, April 11 2006 @ 07:48 PM EDT
- Amazon files for patent on collecting taxes - Authored by: Anonymous on Tuesday, April 11 2006 @ 08:19 PM EDT
- Regarding law.com story in news picks - Authored by: Anonymous on Tuesday, April 11 2006 @ 09:22 PM EDT
- What Bill and Melinda Gates wants you and Oprah Winfrey to know - Authored by: Anonymous on Tuesday, April 11 2006 @ 10:41 PM EDT
- An amusing comment from Fourmilab - Authored by: Anonymous on Tuesday, April 11 2006 @ 11:54 PM EDT
- Another pro se litigant - Authored by: Anonymous on Wednesday, April 12 2006 @ 02:06 AM EDT
- ROTFL! - Authored by: Jadeclaw on Wednesday, April 12 2006 @ 04:30 AM EDT
- Rob Enderle defends his journalistic integrity - Authored by: stan ackroyd on Wednesday, April 12 2006 @ 03:29 AM EDT
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 03:34 PM EDT |
Ha! SCO was in hot soup the moment IBM decided not to buy them out.
Nevertheless, the suit dragged on for 3 years after that. And it will continue
for another year, if the shcedule doesn't slip again.
If you want to see some good lawyering, look at SCO lawyers. Their claims
borderline on ludicrous, and yet they consistenly manage to dodge bullets. 3
years and counting...[ Reply to This | # ]
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- Right on! - Authored by: Anonymous on Tuesday, April 11 2006 @ 04:10 PM EDT
- Good? - Authored by: LarryVance on Tuesday, April 11 2006 @ 06:14 PM EDT
- Great Lawyers - Authored by: AllParadox on Wednesday, April 12 2006 @ 12:08 AM EDT
- Great Lawyering???? - Authored by: Anonymous on Wednesday, April 12 2006 @ 12:30 AM EDT
- Hot soup? - Authored by: Anonymous on Wednesday, April 12 2006 @ 03:33 AM EDT
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| Authored by: rsteinmetz70112 on Tuesday, April 11 2006 @ 03:36 PM EDT |
Arbitration may in fact move this along much faster than the IBM case. I am not
familiar with the International Chamber of Commerce but I have participated in a
number of American Arbitration Association proceedings, they can move pretty
quickly.
This could create a serious problem for SCOG.
Rulings by an Arbitrator are generally enforcable, but I'm not sure they can
apply to other cases.
This is really interesting development, unfortunately most of the arbitration
will probably be confidential.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
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| Authored by: lordshipmayhem on Tuesday, April 11 2006 @ 03:40 PM EDT |
That's quite the shopping list of affirmative defences: "Here, Your Honor,
take your pick..."
In this corner, Novell's legal team, also known as the U.S. Navy's Fifth Fleet.
In the shiny yellow rowboat in THAT corner, er, SCOX.
I do wonder what took Novell so long: did they deliberately wait until SCOX's
discovery in the IBM case was over, to ensure against any SCOX
"gotcha" legalistic sleight-of-hand?[ Reply to This | # ]
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| Authored by: tangomike on Tuesday, April 11 2006 @ 03:40 PM EDT |
when at first we practice to deceive" - Shakespeare, Twelfth Night.
Nice to see this still holds true.
How long ago did Novell buy SUSE?
---
Deja moo - I've heard that bull before.
[ Reply to This | # ]
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| Authored by: AllParadox on Tuesday, April 11 2006 @ 03:42 PM EDT |
U.S. courts like to rely on arbitration to solve problems. Arbitration is
usually comes up because it is required by a contract term, and our courts
enforce the term.
It is very hard to get around contract terms requiring arbitration. They are
easy to write, and are favored by the courts.
Arbitration can proceed several ways. A common procedure, used by the AAA
(American Arbitration Association), is for the AAA to submit a panel of three
arbitrators, and each party is allowed to strike one arbitrator. The remaining
arbitrator decides the case, and effectively has the power of a judge, often
including the power to hold someone in contempt.
Arbitrations are usually expedited. There are no jury trials in arbitration.
The arbitrator is usually an experienced trial attorney, and I have known
several. The arbitrator is sort-of bound by rules of fair play. Arbitration
rules of procedure are informal.
Arbitration is done privately, and the public is usually excluded. I have never
heard of an arbitration being performed publicly.
There is no appeal from an arbitrator's judgment. I do not know if proof of
active fraud would be enough to set aside an arbitration award.
So there you have it: expedited private hearing, no jury, no appeal.
I personally have a lot of problems with them because of the loss of
constitutional rights, usually imposed by an over-reaching party to the
contract. If you want to sell stock on the stock market, you will sign a
contract with an arbitration clause. It is not optional.
As long as it is not me, or my family, it is great. This will be resolved
fairly quickly: SWAG of six to nine months.
---
PJ deletes insult posts, not differences of opinion.
AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.[ Reply to This | # ]
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| Authored by: Yossarian on Tuesday, April 11 2006 @ 03:43 PM EDT |
>SCO could have saved us all a lot of trouble,
>don't you think, if it had read and understood
>the GPL before it started all this?
SCO could save *itself* a lot of troubles had it thought
first and acted later.
E.g. had SCO just posted all its proof of copying from UNIX
to Linux on one of the Linux mailing lists then it could get
*free* analysis of its claims from the free software
community. If it had a case then Linus would remove the
"bad parts" and SCO could make $$$ selling licenses to
Linux users who would want to stay with what they had.
(If SCO did not have a case then it could just pull the
knife out of our collective back and say "Gee, I had no
idea that it could cause some itch.") [ Reply to This | # ]
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- Novell Files Motion to Stay, Answer with Counterclaims etc. - Authored by: Nick_UK on Tuesday, April 11 2006 @ 04:56 PM EDT
- Novell Files Motion to Stay, Answer with Counterclaims etc. - Authored by: Anonymous on Tuesday, April 11 2006 @ 05:02 PM EDT
- Novell Files Motion to Stay, Answer with Counterclaims etc. - Authored by: Anonymous on Tuesday, April 11 2006 @ 06:45 PM EDT
- Yeah, but that would take brains, honesty, and competent lawyers - Authored by: Anonymous on Tuesday, April 11 2006 @ 09:57 PM EDT
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| Authored by: ChasF on Tuesday, April 11 2006 @ 03:49 PM EDT |
I've just tried out some new software and it's taken 5 minutes for me to
convert the 8 page document to HTML 4.0. The generated HTML is quite complex
because it replicates the page format exactly.
I have two
questions:
- Since I haven't prepared documents for Groklaw before,
are there some guidelines for what the site supports?
- Do you want both
documents converted?
Thanks, Charles. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 04:07 PM EDT |
<extreme sarcasm>
I'm talking about IBM and Novell. IBM thinks it can get out from under all of
our charges because we weren't specific enough in our complaint. But they KNOW
what code they illegally put in Linux.
Likewise, Novell KNOWS what "applicable unfair-competition laws" it
broke by claiming it still owned UNIX and UnixWare.
</extreme sarcasm>
Come on SCO, we (and I wish the courts too) are getting sick of these vague
things you are charging. I would say put up or shut up, but I know all you will
do in the end is shut up....and I just can't wait.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 04:15 PM EDT |
I still do not get this, I see it is brought up again by Novell.
Isn't the only way SCOG could have mitigated its damages was to come out and say
exactly (with specificity ;-) what the code was that had been illegally cloned
into Linux?
If I say that you stole something from me, and you are now getting
"value" out of it, and I am not can I sue you without saying exactly
what you took?
I completely understand the argument "if we said what it was, it would be
removed". But didn't they fail to think that removal of this code at that
time (back in 2003, IF IBM had done this) would not negate any claims that they
would have on lost business, etc?
Did they really think they were just going to allowed this code to remain so
that they could annually charge a licensing fee? Can they really be that dumb?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 04:34 PM EDT |
Okay... maybe I'm just confused, but... do I actually understand this right? It
looks here like if Novell gets their motion:- SCO's claims against
Novell will be stayed
- Novell's counterclaims against SCO will
proceed as if nothing had happened
So basically all parts of the case that
SCO wants to proceed stop, and the parts that SCO doesn't want, get to go
forward? Wow. SCO has really painted themselves into a corner here.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 04:37 PM EDT |
Wasn't there a motion some six months ago asking for a large pile of money be
set aside as some sort of trust for novell, in case sco ran out of cash? Is that
and other motions affected by this arbitration?
In general, it seems I'm missing something - why arbitration now after two years
since the slander of title charge from sco?
[ Reply to This | # ]
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| Authored by: Bill The Cat on Tuesday, April 11 2006 @ 04:41 PM EDT |
I see in the Answer to SCO's 2d Amended Complaint and Counterclaims that Novell
again asks the court: "Novell seeks an order from this Court imposing a
constructive trust on revenues received by SCO from its new SVRX Licenses with
Sun and Microsoft and from its Intellectual Property Licenses with Linux end
users and Unix vendors"
How many requests does it take for the court to do this and why has the court
been quiet about their previous request?
---
Bill Catz[ Reply to This | # ]
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| Authored by: PeteS on Tuesday, April 11 2006 @ 05:14 PM EDT |
| is that we have recently enjoyed with the latest IBM responses. Indeed, it is
clear from the filings that Novell and IBM have been co-operating.
I rather
liked this:
43. Novell admits that Section 1.6 of the APA
contains the text quoted by the Second Amended Complaint, in addition to
other language not quoted by SCO
(Italics mine)
I would
note that the business world does take note of these filings (although one might
be excused for disbelieving based on the average mainstream press) and the tone
won't exactly help SCOX.
On another note, the SCOX stock was being pumped
(indeed, painted) heartily earler today, quite probably because they knew this
was coming.
PeteS ---
Artificial Intelligence is no match for
Natural Stupidity [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 05:41 PM EDT |
I just read through the Novell filing and my goodness, those affirmative
defenses read like a laundry list. It seemed odd to me, that in a document
wherein every single other detail was specified and explained to the nth degree,
the affirmative defense section would essentially just be a list of legal
principles with no indication of how or why they apply or what relevance they
have to the case of Novell and SCO.
Is the justification for under what facts and law the doctrines of Comparative
fault, Laches, the U.S. Constitution, etc, present in some other filing which is
past or yet to come? When does Novell explain themselves there, or do they not
have to do that until trial? I was looking forward to that bit, it looked like
entertaining reading.[ Reply to This | # ]
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| Authored by: Hop on Tuesday, April 11 2006 @ 05:46 PM EDT |
| I'm pretty sure Novell has been planning this for a long time. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 05:52 PM EDT |
How could defense in a civil suit involve the First Amendment? It places limits
on what Congress can do. Is Novell perhaps claiming that SCO is applying a law
whose effect is limited by the First Amendment? If so, would the court have to
(perhaps partially) invalidate the law in order to accept this defense?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 06:56 PM EDT |
What has United Linux got to do with SCO's copyright claims ?
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 07:29 PM EDT |
A few months back it seemed that maybe Novell wanted to deprive IBM of the
satisfaction of gutting SCO, by just closing them down over their failure to pay
due royalties (Novell's motion to attach SCO's earnings).
Looks like they've decided that would be too quick a death.
The phrase "You hold them down while we stick it to 'em" may possibly
have come up in chats between IBM and Novell's lawyers?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 09:10 PM EDT |
Caldera bought Unix assets from Santa Cruz Operation in May 2001. United Linux
was formed in May 2002. So when Caldera/SCO entered the contract they had owned
the Santa Cruz assets for a year. That's long enough that they had time to
understand the nature of those assets. They can't claim that anyone slipped
anything over on them.
I'm a little unclear on how this settles the slander of title issue. It seems
to settle the issue of Unix code being in Linux. Any copyrighted Unix code that
might be in Linux is now licensed to be there. OK but that doesn't settle the
ownership of the copyrights of any Unix code that isn't in Linux.
Might this moot IBM's counterclaim 10? Does it mean that counterclaim 10 would
be automatically granted?
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 10:24 PM EDT |
Is Arbitration (in Switzerland???) covered by SCO's legal fee cap?
Anybody know?
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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| Authored by: iraskygazer on Tuesday, April 11 2006 @ 11:14 PM EDT |
It seems that Novel has pulled out the big hammer and is driving the last nail
into the lid of SCO's coffin (oh I meant case ;-)[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 11 2006 @ 11:41 PM EDT |
IANAL
1. Why did Novell wait until now to do this? My own first guess is they waited
out fo deference to IBM who would like to establish once and for all that Linux
code is clean. Perhaps IBM may have wished to see some discovery deadline
expire first. Fearing perhaps that the issue may have become mooted if Novell
moved too soon.
2. Can SCO also ask for arbitration of Novell's counterclaims? Would it offer
SCO exec's a chance to avoid criminal liability.
3. Who gets the carcass of SCO? It may have much to do with the pursuit of
criminal liability. Either IBM or Novell could use it against SCO execs or
Microsoft.
[ Reply to This | # ]
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| Authored by: sk43 on Tuesday, April 11 2006 @ 11:45 PM EDT |
In case it might help, here is a side-by-side (arranged
vertically) comparison of SCO's claims of
copyright violations in Linux as presented in different communications
and venues over the past few years:
-----------------------
SCO Forum, Aug 2003
Literal copying
[SGI contributed code from Sys V]
Obfuscation
[LBL Berkeley Packet Filter code]
Derivative Works
NUMA
RCU
JFS
XFS
Schedulers
Linux PPC 32- and 64- bit support
Enterprise Volume Management System
Non-literal Transfers
Per CPU counters
-------------------------------------
"Letter to Unix Users," Dec 2003
errno.h
signal.h
stat.h
ctype.h
ctype.c
ioctl.h
ioctls.h
ipc.h
acct.h
a.out.h
ecoff.h
bsderrno.h
solerrno.h
--------------------------------------
AutoZone lawsuit, Mar 2004
System V static shared libraries
System V dynamic shared libraries
System V inter-process communication mechanisms including semaphores,
message queues, and shared memory
Enhanced reliable signal processing
System V file system switch interface
Virtual file system capabilities
Process scheduling classes, including real time support
Asynchronous input/output
File system quotas
Support for LightweightProcesses (kernel threads)
User level threads; and loadable kernel modules
---------------------------------------
Novell lawsuit, Dec 2005
Read/Copy/Update" algorithm
NUMA Aware Locks
Distributed lock manager
Reference counters
Asynchronous I/O
Kmalloc data structure
Console subsystem
IRQs
Shared memory locking
Semaphores
Virtual memory
IPC's
Load balancing
PIDs
Numerous kernel internals and APIs
ELF
STREAMS
Dynamic linking
Kernel pre-emption
Memory mapping
ESR
Buffer structures
Process blocking
Numerous header files
----------------------------------
[For the sake of clarity, I omit SCO's apocryphal "Exhibit G",
a.k.a. IBM-157-28-G.pdf]
---------------------------------
One cannot help but notice a singular lack of "economy of scale" -
i.e.,every iteration is so different from the last
that one can hardly, if at all, match them up. No wonder
SCO has burned through it pile of PIPE-generated cash so fast.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 12 2006 @ 04:36 AM EDT |
Does "Computer Spyware protection Act" means, that Computer Spyware
will be legalised and protected by law?[ Reply to This | # ]
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- Yes! N/T - Authored by: Winter on Wednesday, April 12 2006 @ 04:57 AM EDT
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| Authored by: Anonymous on Wednesday, April 12 2006 @ 01:25 PM EDT |
I guess you've worked for some pretty cruddy lawyers, because I thought that the
counter-claims were made "shotgun" style. I mean, geez...I am
surprised that they didn't throw in the affirmative defense of latches![ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 12 2006 @ 02:06 PM EDT |
IANAL, but something tells me that Novell accusing TSG of Fraud against the
Copyright Office is going to be a whole new side show in this legal circus.
Obviously a lot will depend on the way that this evolves, but instinct suggests
to me that if this Court were to find in favour of Novell for the 10th
Affirmative Defense - Fraud against the Copyright Office, then surely the said
Copyright Office would have a legal obligation to investigate the findings of
this Court? Should that happen, the TSG [which one presumes might be the
Directors of the Company] would be charged with Fraud...
PJ, when you described these as "killer" affirmative defenses, you
most certainly were not joking, were you?
- - -
Slightly different topic now - with a question. There are quite a few comments
now appearing in this thread that observe that Novell and IBM "might be
collaborating" - I'm carefully choosing my own description here - on their
respective legal actions. Obviously there is nothing improper about that - each
party holds information relevant to the case being contested by the other, so
one presumes that a Court would not penalise either for that unless there were
good reason for it. What I'm interested in, however, is how this might
materially affect strategy.
This recent activity by Novell has also encouraged PJ to write that she
believe's we're witnessing truly remarkable legal work. We've also seen [think
the GPL/Copyright pincer movement] outstanding work from C, S & M in their
defense of IBM. I wonder if any of the more legally-experienced would be able to
explain in more detail the way that these two companies could usefully cooperate
to build a strategy to effectively contain TSGs nonsense?
Obviously, it seems to me that if TSG can be goaded into making a statement in
one case that can be used in the other, then this will be "used against
them in a court of law". But if there is one thing I've learned from both
IBM and Novell, it is that they are way more subtle than that!
So, we've had some good discussion and speculation on where lots of this is
going, but would anyone care to "imagine" a joint IBM/Novell legal
strategy meeting???[ Reply to This | # ]
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| Authored by: DaveJakeman on Thursday, April 13 2006 @ 06:48 AM EDT |
From the Memorandum in Support:
'SCO's copyright infringement claim is wholly dependent on the results of the
arbitration in three critical respects. First, SCO's copyright claim requires
SCO to prove that it owns the copyrights at issue. However, SuSE has asserted
in the arbitration that SCO does not own these copytights because the
UnitedLinux contracts transferred any such copyrights from SCO to UnitedLinux
LLC.'
Novell is saying that the UnitedLinux contract automatically transfered the Unix
copyrights, whether owned by SCO or whether owned by Novell, to UnitedLinux LLC.
So, even if SCO owned the UNIX copyrights, SCO no longer own the UNIX
copyrights (as far as technology that was transferred to UnitedLinux goes).
Tough cookies. One question remains: what UNIX technology was transferred to
UnitedLinux and what proportion of the UNIX copyrights would that transfer?
'Second, SuSE has asserted in the arbitration that the UnitedLinux contracts
confer a broad, royalty-free license on SuSE to use any intellectual property
rights of SCO in the UnitedLinux technology, including the right to sublicense
such technology to others.'
My take: SuSE may do anything it wants in UnitedLinux with SCO's IP, including
(for example), releasing it under the GPL.
"Third, SuSE has asserted in the arbitration that the UnitedLinux contracts
obligate SCO to comply with any open source licenses, including the
"General Public License" that requires modified versions of the Linux
"kernel" to be made freely available to the public. SCO's
infringement claim appears to be directed against technology included in the
UnitedLinux kernel. Thus, if the Arbitral Tribunal agrees that the UnitedLinux
contracts requires SCO to make the Linux kernel freely available, this would
require dismissal of SCO's infingement claim."
Pretty well speaks for itself.
So, after obtaining the required result in arbitration, the dominoes start to
tumble. First, the rest of SCO's claim against Novell, rippling outwards to SCO
vs IBM and beyond. Hold onto your seats.
---
SCO: hunting for snarks in an ocean of sharks
---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.[ Reply to This | # ]
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| Authored by: Wesley_Parish on Thursday, April 13 2006 @ 07:18 AM EDT |
of ARDDA - the Association of Recreational Drano
Drinkers of America.
Is there any other explanation for such plainly
suicidal business
behaviour? ---
finagement: The Vampire's veins and Pacific torturers
stretching back through his own season. Well, cutting like a child on one of
these states of view, I duck [ Reply to This | # ]
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| Authored by: GLJason on Friday, April 14 2006 @ 08:05 AM EDT |
SCOX claims to be the sole owner of Unix Copyrights, yet the sections from the
APA clearly restrain some of those copyrights. For instance, if you are the
owner of a copyright you may grant any of those rights to another entity.
Novell clearly has sayso over SCOX's rights in this regard.
...
[SCO] shall not, and shall have no right to, enter into new SVRX Licenses
exceptin the situation specified in (i) of the preceding sentence... ((i)as may
be incidentally involved through its rights to sell and license UnixWare
software or the Merged Product).
When taken in this light,
the meaning of Amendment 2 to the APA (which SCO tries to claim caused a
transfer of all copyrights) becomes clear:
All copyrights and
trademarks, except for the copyrights and trademarks owned by Novell as of the
date of the Agreement required for SCO to exercise its rights with respect to
the acquisition of UNIX and UnixWare technologies.
...
Novell is still specifically excluding "All copyrights
and trademarks", except the ones SCO needs to exercise the specific
rights granted to it in the agreement. What rights were those? The rights to
develop the "Merged Product", or UnixWare. That is all that SCO bought, the
right to create and market UnixWare. I think the problem is that SCO is
misreading the term "copyright". Copyright isn't like a trademark or patent.
Copyrights are
multiple. You don't just 'own' the 'copyright' on a work, copyrights are sets
of exclusive rights granted to the creator. The creator can sell or transfer
any or all.
Now ask yourself what "copyrights" would SCO need that
required specification in amendment 2 here? Think about it, they are buying the
right to create and market UnixWare, which contains UNIX SVRx code. Without
amendment #2, SCO couldn't have even loaded UnixWare on a single computer
because Novell was denying them those "copyrights" in the excluded assets. By
amendment 2, they were only clarifying that SCO could indeed develop the merged
product and could copy and use the code from Unix SVRx that is included. Also
they would need to be able to make copies of CDs and such to hand out to the
existing Novell SVRx licensees since they would be administering those licenses.
Indeed, those are the only copyrights "required for SCO to exercise its
rights with respect to the acquisition of UNIX and UnixWare technologies". They
certainly don't need all the exclusive rights, just the right to copy and
create derivative works, and a nonexclusive one at that. [ Reply to This | # ]
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