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

Gear

Groklaw Gear

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


You won't find me on Facebook


Donate

Donate Paypal


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
Declaration of Kenneth Brakebill (re Novell's PSJ Motion on 4th Claim) as text and Exhibits
Saturday, December 02 2006 @ 05:06 PM EST

Here we go. The Declaration of Kenneth Brakebill [PDF] in support of Novell's Motion for Partial Summary Judgment on its Fourth Claim for Relief, listing all the exhibits and what they are, as text. Hopefully this will help us to keep them straight.

I've put links to the exhibits in the text of the document, which is obviously a change from the original filing, so be aware of that. It seemed worthwhile to make it easier to figure it all out. From that standpoint, you'll find the following exhibits online or as text on Groklaw, and I think you'll find it a lot easier than opening the PDFs and trying to work from them, since they are bunched up together in attachments, but remember that only the PDFs themselves are for sure what was filed. I am providing the text mainly for convenience and to help us to parse out what is new by noticing what isn't in text already on our Contracts page (some are sealed, and some we have only as PDFs). You can choose for yourself which way you'd like to view the exhibits.

I noticed a number of comments on the last article asking why Novell didn't do this long ago. If you carefully read the list of exhibits, you'll find several described as "as produced by SCO in this litigation". That means that Novell didn't have those documents until SCO produced them in the discovery process, which didn't begin in true earnest until various Novell motions were decided. So that's your answer. Remember, in a court of law, you have to actually prove everything, if you wish to win. That, of course, is precisely SCO's difficulty.

Here are the exhibits that we already have as text or are available from the SEC's website [update: go here for the exhibits as filed, as this list was only intended as a list to use until we had the exhibits uploaded; it matters in that the APA as filed by Novell is complete, and the one we had already, here linked, is not]:

  • Exhibit 1, the Asset Purchase Agreement between Novell and Santa Cruz.

  • Exhibit 3 as text, Amendment 1 to the APA.

  • Exhibt 4, Amendment 2 to the APA.

  • Exhibit 5, IBM Software Agreement (SOFT-00015). [NOTE: the Exhibit PDF attached to Brakebill's Declaration has the supplements 1-3 and the Schedule for UNIX System V, Release 2.0 vs.1 and UNIX System V, Release 2.0 vs.1 International.]

  • Exhibit 6, IBM Sublicensing Agreement.

  • Exhibit 8, Feb. 1, 1985 IBM Side Letter.

  • Exhibit 9, the April 1986 Supplement to the IBM Software Agreement. [Note that this exhibit seems to have gone walkabout, as it's not listed on the Pacer list. It likely means it was attached to some sealed exhibits.]

  • Exhibt 13, Amendment X.

  • Exhibit 23, the SCO Annual Report, Form 10-K, for the year ended 2003.

  • Exhibit 24 Letter from SCO to Novell, May 12, 2003.

  • Exhibit 27 Letter from Novell to SCO June 9, 2003.

  • Exhibit 28 Letter from SCO to Novell June 11, 2003.

  • Exhibit 30 letter from Novell to SCO, June 12, 2003.

  • Exhibit 312nd Letter from Novell to SCO dated June 12, 2003.

  • Exhibit 33 Letter from Novell to SCO, October 7, 2003.

  • Exhibit 34 Letter from Novell to SCO, October 9, 2003.

  • Exhibit 35 Letter from Novell to SCO, October 10, 2003.

  • Exhibit 36 Letter from Novell to SCO, October 13, 2003.

  • Exhibit 42 Caldera Annual Report, Form 10-K, for the year ended 2002.

I've also marked the sealed exhibits, so you don't waste time hunting for them. I'm working faster than usual, because there are so many filings recently, so if you find errors, please let me know so I can perfect it. I'll have the Memorandum in Support for you next. If anyone is feeling ambitious, and would like to separate out the exhibits so they are individually available, I'm happy to put them up.

*****************************

MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (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 Novell, Inc.

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC., a Delaware corporation,
Plaintiff and Counterclaim-
Defendant
vs.
NOVELL, INC., a Delaware corporation,
Defendant and Counterclaim-
Plaintiff.

DECLARATION OF KENNETH W.
BRAKEBILL IN SUPPORT OF
NOVELL'S MOTION FOR PARTIAL
SUMMARY JUDGMENT ON ITS
FOURTH CLAIM FOR RELIEF

[REDACTED pursuant to the August 2,
2006 Stipulated Protective Order]

Case No. 2:04CV00139

Judge Dale A. Kimball

I, Kenneth W. Brakebill, declare as follows:

1. I am an attorney duly licensed to practice law in the State of California and a partner at the law firm of Morrison & Foerster LLP, counsel of record for Defendant and Counterclaim- Plaintiff Novell, Inc. ("Novell") in this action. I was admitted to practice before this Court pro hac vice by this Court's Order of June 7, 2005. I submit this declaration in support of Novell's Motion for Partial Summary Judgment on its Fourth Claim for Relief. The statements made herein are based on my personal knowledge.

2. As discussed below, some of the exhibits attached hereto include information that may be subject to the August 2, 2006 Stipulated Protective Order. Accordingly, the complete version of this declaration, which includes full and unredacted copies of all exhibits, is being filed under seal. A public version of this declaration, which deletes or redacts confidential documents and information, is also being submitted.

3. Attached as Exhibit 1 [Part 2] is a true and correct copy of the Asset Purchase Agreement ("APA"), dated September 19, 1995, which SCO attached as part of Exhibit A to its Complaint, filed January 20, 2004. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 097.

4. Attached as Exhibit 2 is a true and correct copy of the Operating Agreement, stated as effective September 19, 1995, as produced by Novell in this litigation at BATES Nos. NOV10141 to NOV10162. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 022.

5. Attached as Exhibit 3 is a true and correct copy of Amendment No. 1 to the APA, dated December 6, 1995, which SCO attached as part of Exhibit A to its Complaint, filed January 20, 2004.

2

6. Attached as Exhibit 4 is a true and correct copy of Amendment No. 2 to the APA, dated October 16, 1996, which SCO attached as part of Exhibit A to its Complaint, filed January 20, 2004.

7. Attached as Exhibit 5 is a true and correct copy of the IBM Software Agreement (SOFT-00015), dated February 1, 1985, as produced by SCO in this litigation at BATES Nos. SCON0019909 to SCON0019928. This exhibit includes Supplements 1-3 to the IBM Software Agreement, as well as the Schedule for UNIX System V, Release 2.0 Version 1 and UNIX System V, Release 2.0 Version 1, International Edition. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 020.

8. Attached as Exhibit 6 is a true and correct copy of the IBM Sublicensing Agreement (SUB-00015A), dated February 1, 1985, as produced by SCO in this litigation at BATES Nos. SCON0019930 to SCON0019938. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 009.

9. Attached as Exhibit 7 is a true and correct copy of the IBM Substitution Agreement, dated February 1, 1985, as produced by SCO in this litigation at BATES No. SCON0019940. For ease in referencing this document as a citation, this exhibit has been Bates stamped with a new page number 001.

10. Attached as Exhibit 8 is a true and correct copy of the IBM Side Letter, dated February 1, 1985, as produced by SCO in this litigation at BATES Nos. SCON0019942 to SCON0019952. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 011.

11. Attached as Exhibit 9 is a true and correct copy of Supplement No. 36 to the IBM Software Agreement, dated April 21, 1986, as produced by SCO in this litigation at BATES Nos.

3

SCO1153002 to SCO1153007. This exhibit is being filed under seal pursuant to the August 2, 2006 Stipulated Protective Order. The public version of this declaration does not include this document. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 006.

12. Attached as Exhibit 10 is a true and correct copy of Supplement No. 47 to the IBM Software Agreement, dated February 15, 1988, as produced by SCO in this litigation at BATES Nos. SCO1234295 to SCO1234314. This exhibit is being filed under seal pursuant to the August 2, 2006 Stipulated Protective Order. The public version of this declaration does not include this document. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 019.

13. Attached as Exhibit 11 is a true and correct copy of Supplement No. 140 to the IBM Software Agreement, dated December 6, 1988, as produced by SCO in this litigation at BATES Nos. SCO1152813 to SCO1152845. This exhibit is being filed under seal pursuant to the August 2, 2006 Stipulated Protective Order. The public version of this declaration does not include this document. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 033.

14. Attached as Exhibit 12 is a true and correct copy of Supplement No. 170 to the IBM Software Agreement, dated January 25, 1989, as produced by SCO in this litigation at BATES Nos. SCON0000672 to SCON0000715. For ease in referencirg this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 044.

15. Attached as Exhibit 13 is a true and correct copy of Amendment No. X to the APA, executed by SCO, Novell, and IBM on October 16 and 17, 1996, as produced by SCO in this litigation at BATES Nos. SCON0000657 to SCON0000665. For ease in referencing this

4

document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 009.

16. Attached as Exhibit 14 is a true and correct copy of the Revenue to Cash and Cash & Other Offsets Reports for November, 1996, as produced by Novell in this litigation at BATES Nos. NOV9958 to NOV9960.

17. Attached as Exhibit 15 is a true and correct copy of the Sequent Software Agreement (SOFT-000321), dated April 18, 1985, as produced by SCO in this litigation at BATES Nos. SCON0019954 to SCON0019959. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 006.

18. Attached as Exhibit 16 is a true and correct copy of Supplement No. 2 to the Sequent Software Agreement, dated January 28, 1986, as produced by SCO in this litigation at BATES Nos. SCO0984259 to SCO0984265. This exhibit is being filed under seal pursuant to the August 2, 2006 Stipulated Protective Order. The public version of this declaration does not include this document. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 007.

19. Attached as Exhibit 17 is a true and correct copy of the Sequent Sublicensing Agreement (SUB-000321A), dated January 28, 1986, as produced by SCO in this litigation at BATES Nos. SCON0019961 to SCON0019969. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 009.

20. Attached as Exhibit 18 is a true and correct copy of Supplement No. 4 to the Sequent Software Agreement, dated February 13, 1986, as produced by SCO in this litigation at BATES Nos. SCO0984268 to SCO0984272. This exhibit is being filed under seal pursuant to the August 2, 2006 Stipulated Protective Order. The public version of this declaration does not

5

include this document. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 005.

21. Attached as Exhibit 19 is a true and correct copy of Supplement No. 6 to the Sequent Software Agreement, dated August 20, 1986, as produced by SCO in this litigation at BATES Nos. SCO1142022 to SCO1142030. This exhibit is being filed under seal pursuant to the August 2, 2006 Stipulated Protective Order. The public version of this declaration does not include this document. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 009.

22. Attached as Exhibit 20 is a true and correct copy of Supplement No. 9 to the Sequent Software Agreement, dated May 28, 1987, as produced by SCO in this litigation at BATES Nos. SCO1142031 to SCO1142034. This exhibit is being filed under seal pursuant to the August 2, 2006 Stipulated Protective Order. The public version of this declaration does not include this document. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 004.

23. Attached as Exhibit 21 is a true and correct copy of Supplement No. 15 to the Sequent Software Agreement, dated August 31, 1988, as produced by SCO in this litigation at BATES Nos. SCO1033461 to SCO1033465. This exhibit is being filed under seal pursuant to the August 2, 2006 Stipulated Protective Order. The public version of this declaration does not include this document. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 005.

24. Attached as Exhibit 22 is a true and correct copy of Supplement No. 31 to the Sequent Software Agreement, dated November 9, 1989, as produced by SCO in this litigation at BATES Nos. SCO0988502 to SCO0988515. This exhibit is being filed under seal pursuant to

6

the August 2, 2006 Stipulated Protective Order. The public version of this declaration does not include this document. For ease in referencing this document as a citation, this exhibit has been Bates stamped with new page numbers 001 through 014.

25. Attached as Exhibit 23 is a true and correct copy of the SCO Annual Report, Form 10-K, for the year ended 2003, as downloaded from http://www.shareholder.com/common/ edgar/1102542/1047469-04-2142/04-00.pdf

26. Attached as Exhibit 24 is a true and correct copy of the letter from SCO to Novell dated May 12, 2003, as produced by SCO in this litigation at BATES Nos. SCON0024112 to SCON0024113.

27. Attached as Exhibit 25 is a true and correct copy of the letter from SCO to IBM, dated March 6, 2003, as produced by SCO in this litigation at BATES Nos. SCON0000106 to SCON0000108.

28. Attached as Exhibit 26 is a true and correct copy of the letter from SCO to Sequent, dated May 29, 2003, as produced by SCO in this litigation at BATES Nos. SCON0011987 to SCON0011990.

29. Attached as Exhibit 27 is a true and correct copy of the letter from Novell to SCO, dated June 9, 2003, as produced by SCO in this litigation at BATES No. SCON0024125.

30. Attached as Exhibit 28 is a true and correct copy of the letter from SCO to Novell, dated June 11, 2003, as downloaded from http://www.novell.com/licensing/ indemnity/pdf/6_11_03_sco-n.pdf.

31. Attached as Exhibit 29 is a true and correct copy of pages 1, 203-04 and 268 from the SCO v. IBM Jack L. Messman deposition transcript, taken April 14, 2006.

7

32. Attached as Exhibit 30 is a true and correct copy of the first letter from Novell to SCO, dated June 12, 2003, as downloaded from http://www.novell.com/licensing/indemnity/pdf/6_12_03_n-sco.pdf.

33. Attached as Exhibit 31 is a true and correct copy of the second letter from Novell to SCO, dated June 12, 2003, as downloaded from http://www.novell.com/licensing/ indemnity/pdf/6_12_03_n-scoandibm.pdf.

34. Attached as Exhibit 32 is a true and correct copy of the SCO's June 16, 2003 Press Release, as produced by SCO in this litigation at BATES Nos. SCO1556043 to SCO1556044.

35. Attached as Exhibit 33 is a true and correct copy of the letter from Novell to SCO, dated October 7, 2003, as produced by SCO in this litigation at BATES Nos. SCON0024157 to SCON0024159.

36. Attached as Exhibit 34 is a true and correct copy of the letter from SCO to Novell, dated October 9, 2003, as downloaded from http://www.novell.com/licensing/indemnity/pdf/10_9_03_sco-n.pdf.

37. Attached as Exhibit 35 is a true and correct copy of the letter from Novell to SCO, dated October 10, 2003, as produced by SCO in this litigation at BATES Nos. SCON0024167 to SCON0024168.

38. Attached as Exhibit 36 is a true and correct copy of the letter from SCO to Novell, dated October 13, 2003, as downloaded from http://www.novell.com/licensing/ indemnity/pdf/10_13_03_sco-n.pdf.

39. Attached as Exhibit 37 is a true and correct copy of the letter from SCO to Sequent, dated August 11, 2003, as produced by SCO in this litigation at BATES No. SCON0011986.

8

40. Attached as Exhibit 38 is a true and correct copy of letter from IBM to SCO, dated August 14, 2003, as produced by SCO in this litigation at BATES Nos. SCO1328534 to SCO1328535.

41. Attached as Exhibit 39 is a true and correct copy of the letter from Novell to SCO, dated February 6, 2004, as downloaded from http://www.novell.com/licensing/ indemnity/pdf/2_6_04_n-sco.pdf.

42. Attached as Exhibit 40 is a true and correct copy of the letter from SCO's attorney, Brent Hatch, to Novell's litigation counsel, Tom Karrenberg, dated February 11, 2004. Our firm also received a copy of this letter as Novell's litigation counsel in this matter.

43. Attached as Exhibit 41 is a true and correct copy of the letter from Novell to SCO, dated February 11, 2004, as downloaded from http://www.novell.com/licensing/indemnity/pdf/2_11_04_n-sco.pdf.

44. Attached as Exhibit 42 [Part 2] is a true and correct copy of the Caldera Annual Report, Form 10-K, for the year ended 2002, as downloaded from http://www.shareholder.com/common/ edgar/1102542/1047469-03-3091/03-00.pdf.

45. Attached as Exhibit 43 is a true and correct copy of the Revenue to Cash, Misdirected Cash, and Cash & Other Offsets Reports for January, 1997, as produced by Novell in this litigation at BATES Nos. NOV7592 to NOV7595.

46. Attached as Exhibit 44 is a true and correct copy of the General Release of Claims Agreement between Novell and Santa Cruz, as produced by SCO in this litigation at BATES Nos. SCO1579207 to SCO1579211. This exhibit is being filed under seal pursuant to the August 2, 2006 Stipulated Protective Order. The public version of this declaration does not include this document.

9

47. Attached as Exhibit 45 is a true and correct copy of pages 1, 100-05, 202-03 and 211 from the SCO v. IBM Edward S. Chatlos deposition transcript, taken February 15, 2006.

I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct.

Executed on this 1st day of December, 2006 in San Francisco, California.

[signature]

Kenneth W. Brakebill

10

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 1st day of December, 2006, I caused a true and correct copy of the DECLARATION OF KENNETH W. BRAKEBILL IN SUPPORT OF NOVELL'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS FOURTH CLAIM FOR RELIEF [REDACTED pursuant to the August 2, 2006 Stipulated Protective Order] to be served to the following:

Via CM/ECF.

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

Via E-mail:

Stuart H. Singer
BOlES, SCHILLER & FLEXNER LLP
[address]

Edward J. Normand
BOlES, S CHILLER & FLEXNER LLP
[address]

/s/ Heather M Sneddon

11


  


Declaration of Kenneth Brakebill (re Novell's PSJ Motion on 4th Claim) as text and Exhibits | 197 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please ...
Authored by: jbb on Saturday, December 02 2006 @ 05:18 PM EST
... all in one place.

---
You just can't win with DRM.

[ Reply to This | # ]

OT Here
Authored by: Droopy on Saturday, December 02 2006 @ 05:19 PM EST
Make your links clicky, use HTML mode if necessary, etc, etc, etc.

And preview!

[ Reply to This | # ]

Corrections here please - w/ a reference in the title, OK?
Authored by: tce on Saturday, December 02 2006 @ 05:19 PM EST
So they can be fixed

[ Reply to This | # ]

  • Chatlos document - Authored by: Anonymous on Tuesday, December 05 2006 @ 10:34 AM EST
in a court of law
Authored by: Anonymous on Saturday, December 02 2006 @ 05:22 PM EST
"Remember, in a court of law, you have to actually prove everything, if you
wish to win."

As in opposed to a jury trial, where you might win by wooing the jury member
with your acting talent? Like what SCO is (was) hoping for?

[ Reply to This | # ]

Not to gloat............. BUT....
Authored by: gjleger on Saturday, December 02 2006 @ 05:31 PM EST
Na Na Na Na Na Naaaaaaaaaaaaaaaaa !

We told you so !!!!!

Sorry.... just needed to get that off my chest.

Poor SCO.... they are just...... dead.

[ Reply to This | # ]

Article request
Authored by: aburgoyne on Saturday, December 02 2006 @ 05:42 PM EST
I have only been half-way following events here, enough to know that SCO is
pretty much doomed. I was hoping that someone who has been following things
closely could summarize the current state of all the cases, how they relate and
what the likely outcomes will be: basically a current high level snapshot of
what is going on. I think that it would make a valuable front page article at a
time when things are really moving at a fast pace.

[ Reply to This | # ]

Phew!
Authored by: DaveJakeman on Saturday, December 02 2006 @ 06:11 PM EST
That's a whole lot of projectiles going SCO's way. It doesn't quite measure up
to IBM's Greatest Hits, but it certainly gives SCO something else to worry
about.

---
I would rather stand corrected than sit confused.
---
Should one hear an accusation, try it on the accuser.

[ Reply to This | # ]

I wonder...
Authored by: DaveJakeman on Saturday, December 02 2006 @ 06:17 PM EST
Now that Novell seem to be getting what they want by way of production from SCO,
I wonder whether they have any more PSJ motions in the pipeline?

---
I would rather stand corrected than sit confused.
---
Should one hear an accusation, try it on the accuser.

[ Reply to This | # ]

  • I wonder... - Authored by: PJ on Saturday, December 02 2006 @ 06:19 PM EST
Can someone help Me to Understand
Authored by: DBLR on Saturday, December 02 2006 @ 06:51 PM EST

What I don’t understand is why some of these exhibits are being filed under seal
like the IBM Software Agreement Supplements 36,47,140 also the Sequent Software
Agreements.

---

"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is
a well-armed lamb contesting the vote."
Benjamin Franklin.

[ Reply to This | # ]

"as produced by SCO in this litigation"
Authored by: Khym Chanur on Saturday, December 02 2006 @ 07:45 PM EST

I noticed a number of comments on the last article asking why Novell didn't do this long ago. If you carefully read the list of exhibits, you'll find several described as "as produced by SCO in this litigation". That means that Novell didn't have those documents until SCO produced them in the discovery process, which didn't begin in true earnest until various Novell motions were decided.

But why were they needed for the PSJ on Novell having the contractual right to waive certain things on SCO's behalf? All they needed for that was the contract itself, right?

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

[ Reply to This | # ]

Busy Weekend
Authored by: The Mad Hatter r on Saturday, December 02 2006 @ 07:50 PM EST


Lots of reading <GRIN>. Thanks PJ!



---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

SCO's PSJ defense
Authored by: Crayola on Saturday, December 02 2006 @ 09:11 PM EST
Exhibit 28 seems to have SCO's likely answer to Novell's most recent PSJ:

  • SCO got all the rights of enforcement along with all the code
  • The section Novell quotes doesn't apply to IBM since they did a buyout
  • Novell can't expand IBM's rights under the license

    Novell's answer:

    Second, your letter effectively reads out of the Asset Purchase Agreement the rights Novell retained under Section 4.16, particularly Secion 4.16(b). All of the assignments of rights referenced in your letter (including the rights to UNIX and UNIXWare, related source code and software agreements, and claims) were made as part of the same document that provided Novell with the rights in Section 4.16. Those rights were and are critical to protecting the interests that Novell retained as part of the Asset Purchase Agreement (including its interests in royalty payments and the contractual commitments Novell made in return for royalty payments). In fact, the agreement provides Novell with the broad right to act in its "sole discretion" in protecting its interests. Yet you act as if Section 4.16(b) does not exist.

    Third, you completely misread the effect of Amendment No. 2 on Section 4.16. The introductory language you quoted in your letter makes it clear that the provisions that follow relate only to a "potential transaction with an SVRX licensee which concerns a buyout." None of the provisions that follow has any impact on other SVRX licenses, including (as is pertinent to the IBM transaction) buyout transactions that had already been completed. This is reinforced by the language providing that the terms you cite relate to how such a potential buyout transaction "shall be managed."

    Finally, and perhaps most importabtly, as of the date of Amendment No. 2, when the IBM buyout had been completed, the parties were looking at Section 4.16(b) and did nothing to cut back on its general applicability. In fact, I read Amendment No. 2 as reinforcing the ongoing applicability of Section 4.16(b) to SVRX licences (including the post-buyout IBM license), because the parties had a clear and conscious opportunity to, but did not, alter the applicability of Section 4.16(b), including the right of Novell to direct SCO to take action as to those licenses.

    Darl, I don't think this is even a close call. You and I both understand the Asset Purchase Agreement deal: SCO acquired certain assets from Novell but acquired those assets subject to certain rights of Novell. You can't have one without the other.

    All this from correspondence over three years old, and I don't think much has changed.

    [ Reply to This | # ]

  • You have to actually prove everything...
    Authored by: cmc on Saturday, December 02 2006 @ 11:14 PM EST
    "Remember, in a court of law, you have to actually prove everything, if you
    wish to win. That, of course, is precisely SCO's difficulty."

    Not to nitpick, but that's not really true. In a perfect world it would be, but
    not in reality. In fact, you don't have to prove anything at all. You merely
    need to convince (or confuse) the decision-maker(s) (judge or members of a jury)
    enough. This works for both plaintiffs and defendants for both civil and
    criminal trials. We all know that there have been innocent people sent to jail;
    if they were innocent, then their guilt could not possibly have been proven.
    Similarly, there have been guilty people who were allowed to go free despite an
    abundance of evidence (cough cough, OJ, cough cough).

    [ Reply to This | # ]

    you mean "naiive"
    Authored by: Anonymous on Sunday, December 03 2006 @ 05:31 AM EST
    or, more correctly, na&239;ve

    [ Reply to This | # ]

    Ah, now I see how SCO is wiggling
    Authored by: GLJason on Monday, December 04 2006 @ 03:52 PM EST
    First they tried to get Novell to go along with them in the IBM suit and Linux licensing scheme, Novell has said as much. When Novell refused, their hopes were pretty much dashed, as was the plan Darl had been working on since coming on board. They had already put a lot of work into it and it may have been too late to back down, at least if they wanted the hefty bonuses and stock options from the deal with Microsoft they were working on and with Baystar that Microsoft was helping with.

    So, what to do? Well, since Novell won't help, they had to make some far out claims:

    1. We own the copyrights (even though they were excluded from the APA)
    2. Novell has no rights to the licensing money from Microsoft, SUN, and "SCO IP For Linux" licenses
    3. Novell can't amend or waive rights under SVRX licenses
    4. IBM's contract can be terminated on a whim with no attempt to cure the breach

    1. The copyrights didn't transfer, or SCO wouldn't have had to ask for Novell's aid in the first place. Santa Cruz bought the rights to create and market the "Merged Product", basically the right to combine the new version UnixWare that Novell had been working on and their own OpenServer product and to market it. The APA forbids them from entering into new UNIX licenses, makes them administer existing UNIX licenses for a 5% fee and pass the rest on to Novell.

    2. Unless their new offerings are UnixWare-based and contain no SVRX code, that isn't the case.

    Section 4.16(b) gives Novell the clear and unambiguous right to do just that. Words like "sole discretion", "any rights" and "any manner or respect" aren't bandied about in contracts. They are powerful words with only one meaning. "sole discretion" means that SCO has NO SAY WHATSOEVER in it.

    Another powerful word in contracts is "irrevocable", as was used in Amendment X to IBM's contract with AT&T. There is no other interpretation except "cannot be revoked". Yet SCO went ahead and revoked the license. That is simply stunning to me.

    This all comes down to Darl getting hired and his theory that "Contracts are what you use against people you have business relationships with." In actuality, contracts are what you enter into with others in order to benefit both sides. It all comes down to this theory. They've build their whole legal strategy (and therefore their post-2002 business) on reinterpreting existing contracts to better suit them. That is outrageous.

    I don't know how they think they can get around IBM's "irrevocable" clause, but here they are trying to redefine the term "SVRX License" in the APA after ten years. I think the judge should have handled this by having a sidebar with the lawyers at the first hearing and asking SCO's lawyers two questions. 1) "What do you think irrevocable means?" and 2) "What do you think "sole discretion" means?". Having to squirm that badly just in trying to answer those questions might make them just want to attempt to get their client to drop the case (or at least the contract claims) ASAP. That would be like being naked in debate class and having the assignment to debate that the sky is green.

    [ 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 )