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Declaration of Tor Braham - the lawyer for Novell who drafted the APA - Updated re: Vultus
Saturday, April 21 2007 @ 10:00 PM EDT

I don't want you to have to wait for the text of Tor Braham's declaration [PDF]. This Declaration is attached to Novell's Motion for Summary Judgment on SCO's 1st Claim for Slander of Title and 3rd Claim for Specific Performance [PDF] which you'll find explained, along with all the exhibits that go with this Declaration here.

And what exhibits! These attorneys and former attorneys for Novell are positive magpies. Not only did former in-house counsel Allison Amadia keep a copy of Santa Cruz lawyer Steve Sabbath's first draft of Amendment 2 to the APA dating back to 1996, but now we find that Tor Braham, Novell's outside counsel who drafted the APA, has kept his own first draft of it, red lined and all, from 1995. Braham was the principal drafter of the APA, and he explains a lot of things we've wondered about for a long time.

That's lawyers for you. They figure out what is the worst case scenario possible, and then they act to prevent it. But this is still quite impressive, as we watch him pull out original documents from ten years and more ago. I doubt very much that SCO expected anything like this. [Update: We have it now as text, thanks to Groklaw's The Cornishman.]

So. Where, pray tell, is Steve Sabbath's declaration? I don't see it on SCO's list of folks swearing up and down with their hands on the Bible, so to speak, that there was supposed to be a copyright conveyance. Sabbath did give a declaration supposedly intended to be for both the IBM case and Novell in 2004, but I've yet to see it used by SCO in Novell. In IBM, he claimed the following:

In October 1996, Novell and Santa Cruz executed Amendment No. 2 to the APA. I was involved the discussions leading up to Amendment No. 2, and I signed Amendment No. 2 on behalf of Santa Cruz. Amendment No. 2 arose as a result of a dispute between Novell and SCO concerning Novell's attempt to execute, on Santa Cruz's behalf, a royalty buy-out with IBM. That dispute was ultimately resolved through an amendment to IBM's SVRX license that was jointly executed by Santa Cruz, Novell, and IBM. Amendment No. 2, however, was intended to confirm, among other things, the parties' intent that SCO would obtain ownership of the UNIX copyrights under the APA and that Novell had received no rights with respect to UNIX source code under the APA.

He wrote that in November 2004, but no sign of him recently in Novell. He also gave a declaration [PDF] in 2003, in which he essentially said that Novell retained significant rights, but he didn't know if SCO had ever asked for the copyrights after Amendment 2 was signed or if Novell had ever signed an instrument of conveyance, and for that matter he couldn't remember doing any due diligence on what copyrights Novell held, so he's now testified on both sides, sort of, and on no side. Let's see which memory proves more accurate.

Novell takes no chances. It doesn't rely on human memories alone, or mortal agendas, but instead it presents the original documents and drafts of documents, thanks to these legal packrats.

Part of what Braham tells us is a new piece about why Novell was so interested in keeping the copyrights -- it worried that Santa Cruz might go bankrupt. That explains some of the language, such as that which made Novell the equitable owner of the SVRX royalties under the Bankruptcy Code, so it could continue to receive them no matter what happened to SCO. They sent a draft of that language to SCO, and as it happens, Braham still has a copy of that transmittal, which he offers as an exhibit. SCO accepted the draft language, he says.

And Novell drafted language putting "all right, title and interest to the SVRX Royalties, less the 5% fee" on to the Excluded Asset list. And he pulls out that transmittal also, as yet another exhibit.

He also tells us that four Novell people on the team reviewed and approved the Excluded Assets list with copyrights listed, and they sent it to SCO on September 18, 1995, and yup, he still has that too. Exhibit 4, redlined Schedules and all. And here, although other parts of the Schedule were redlined, the copyrights section was not, showing that no one had a problem with it and that it must have first shown up in an earlier draft, indicating approval by SCO.

And he tells us too that SCO's odd division of binary rights and revenues and source code rights and revenues isn't what the drafters intended. "We did not limit SVRX License to a subset of SVRX license agreements relating only to binary rights and royalties under those agreements."

Did anyone ever really believe that SCO story?

He also tells us that the Technology License Agreement had the purpose you thought it did -- it gave Novell the right to use any SCO enhancements or innovations. After all, that was the whole idea, for SCO to create a derivative product. Of course, SCO would own any copyrights on new code it would create, so Novell would need a license to use it. Braham not only remembers the TLA, he and the Novell team invented the phrase, and yes, he has a draft showing Novell's insertion of the phrase for the first time as sent to SCO.

"Indeed," he adds, "we drafted the contract to state 'all SVRX Licenses' and that term was intended to encompass licenses governing source and binary rights and revenues." All means all, as Novell keeps explaining.

It was Braham who actually drafted the language about Novell retaining the "sole discretion" to direct SCO to take certain actions under SVRX Licenses, and he added language to emphasize the "unqualified nature of this sole discretion" by tucking in the phrase "to the extent so directed in any manner or respect by Seller" as well as the language that Novell could act alone, if SCO failed to take any such action as directed by Novell.

Braham adds to the other testimony by Allison Amadia by confirming that the APA was not supposed to transfer the copyrights or the patents. In a very early draft, they were included, but after SCO lacked the cash for the full deal, he had them removed. And yes, he has a copy of that early draft handy. Another exhibit.

What in the world can SCO say to all this, but echo the words of Emily Lattella, "Never mind"?

One thing is now crystal clear. There will be no more "he said, she said", with managers of departments trotted out to present unsupported opinions and memories. That phase is over. If SCO has any writings to refute these exhibits, it had better produce them this exact minute. Oh, and about SCO's witnesses, they've got some work to do there, particularly because Braham tells us that the APA was drafted over a period of two weeks, and to his knowledge "Duff Thompson was not involved in negotiating or drafting the APA contract language." Neither was Ty Mattingly, 1 he says. Ed Chatlos, Braham tells the court, was "a business person" and not a lawyer drafting legal language of the APA. David Bradford was the guy who gave Braham instructions and to whom he reported, not Ed Chatlos. And Bradford is siding with Braham's view in yet another Novell declaration. Bradford was at the Novell board meeting and he remembers and confirms the accuracy of the board minutes that said Novell would retain the copyrights.

Further, Braham has never heard of Bill Broderick and as far as he knows, he wasn't involved in the APA negotiations or drafting either. As for Alok Mohan, then CEO at SCO, or Doug Michels, he says he had no interaction with either of them in the APA negotiations and drafting.

Ditto Bob Frankenburg. He was Novell's CEO, but Braham has no memory of him being involved in the APA whatsoever. Ditto Burt Levine. Levine provided some comments to the Novell team, but he wasn't a partipant in the APA negotiations with SCO. Braham never interacted with Jim Wilt either that he can recall. And poor Ms. Madsen. While he remembers her as being a member of Santa Cruz's in-house legal department, he doesn't recall any specific interaction with her in drafting or negotiating any of the contract's provisions.

Yes. He said it. He's either calling them all liars or at best mistaken. Or conceivably they interacted with others, less central to the task than Braham. Probably the first, I sense. How else can the judge read this? Braham was the drafter of this contract. And he says he never saw these SCO's "witnesses", listed proudly by SCO attorney Brent Hatch at the hearing in SCO v. IBM in March, despite them all swearing up and down on penalty of perjury that they were involved and knew the intent of the APA and/or Amendment 2. (That was the hearing on two motions, SCO's Motion for Summary Judgment on SCO's Third Cause of Action For Breach of Contract [PDF] and IBM's Motion for Summary Judgment on SCO's Contract Claims [PDF]. No ruling yet on that.) For more of SCO's story, you can reread SCO's Reply Memorandum In Support of its Cross Motion for Partial Summary Judgment on Novell's Fourth Counterclaim, if you wish. You can find the declarations by these upstanding souls here in the list of SCO exhibits.

Oh, and by the way, despite Braham being the principal drafter of the APA, no one from SCO has asked him for his views of the APA, he says. That is a little dig. Remember SCO made such a fuss about their witnesses not being interviewed?

This declaration is smoking. What will SCO do now? Put a PI on him? Dig up some dirt and feed it to the media to undermine his credibility? Subpoena him? Assign trolls to attack his good name and reputation all over the Internet?

Or is that sort of thing just for li'l ole me?

They'd best do something. This declaration is so powerful, I think it has the capacity to sink SCO's slander of title claim against Novell for good, if the judge reads it the way you just did and affords it the same credibility you do. And why wouldn't he?

The man was there. Demonstrably, provably there. And he has the exhibits to prove it. I don't think SCO was expecting that, or SCO's "witnesses" either. Who keeps documents that long?

Novell lawyers do, that's who. What an amazing bunch they are, too. I'm so, so impressed. And it must be enjoyable to write up a declaration like this, knowing you have eleven -- count them, eleven -- exhibits at your fingertips, each of which sends another SCO declaration into the meat grinder. I can just see the paralegal's face as he or she was tap-tappity-tapping away on it. Fun, fun, fun from beginning to end.

And whoever found this guy deserves a bonus. For real.

Let me refine that thought: whoever found this guy *and* thought to ask him if he happened to still have any documentary proof deserves a bonus.


So you have all the exhibits handy:

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

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 Defendant Counterclaim-Plaintiff 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 TOR BRAHAM

Case No. 2:04CV00139

Judge Dale A. Kimball

I Tor Braham, declare as follows:

1. The statements made in this Declaration are based on my personal knowledge. In connection with this Declaration, I have also reviewed documents contemporaneous to the transaction I discuss. I have attached several of them as Exhibits to this Declaration.

2. I have an undergraduate degree from Columbia University and a JD degree from New York University. I was admitted as an attorney in California in 1983. I practiced law as a corporate transaction attorney from 1984 through 1997 at the law firm of Wilson, Sonsini, Goodrich & Rosati ("Wilson Sonsini" or "Wilson") in Palo Alto, California. I became a partner at Wilson Sonsini in 1989. During my time there, I worked on dozens of complex corporate transactions, including mergers, acquisitions and asset sales, involving high technology companies.

3. At the end of 1997, I left Wilson Sonsini and became an investment banker. In December 1997, I joined UBS Securities as the Global Head of Technology Mergers & Acquisitions. In March 2000, I became a Managing Director at Credit Suisse First Boston. In February 2004, I joined Deutsche Bank, where I am now Head of Technology Mergers & Acquisitions.

4. In 1995 Wilson Sonsini was Novell's regular outside counsel. In the late summer we were retained by Novell to negotiate and draft an agreement with Santa Cruz Operation, Inc. relating to Novell's UNIX System V ("SVRX") and UnixWare operating system business. UnixWare was Novell's derivative work based on UNIX System V. I was already familiar with Novell's business. I had represented Novell in its purchase of UNIX-related assets from USL in 1993. Novell paid over $300 million for these assets.

5. I led, oversaw and actively managed the Wilson Sonsini team that negotiated the Novell-Santa Cruz deal. That team also included Aaron Alter and Shannon Whisenant, with whom I communicated regularly. I was the primary representative of Novell in negotiating the legal terms of the contract between Novell and Santa Cruz, called the Asset Purchase Agreement

1

("APA"). I also was the primary drafter of the APA text. I negotiated the terms of the APA directly with Santa Cruz's representatives on the deal, Brobeck, Phleger & Harrison ("Brobeck"), through a series of meetings and exchanges of contract drafts. Like Wilson Sonsini, Brobeck was a large law firm experienced in complex technology transactions.

6. The negotiation and drafting of the APA occurred in the first part of September 1995, leading up to the APA's execution on September 19, 1995. As Novell's lead negotiator of the contract, I was given the responsibility of putting together the necessary agreements and contractual provisions to protect Novell's interests. I received this direction directly from David Bradford (Novell's Senior Vice-President and General Counsel), with whom I communicated during the drafting and negotiation process. The Wilson team and I worked to achieve Novell's goals as transmitted to us through Mr. Bradford. As I describe below, the Wilson team worked to implement Novell's business directive to protect its interests in executing a contract with Santa Cruz, including Novell' interests relating to SVRX revenues and buy-outs, and future development of an enhanced version of UnixWare.

7. The APA was not a straight up asset purchase. The contract took on a more complex form due to various issues that arose in the course of negotiations. For example, Santa Cruz did not have the cash to buy both the UNIX assets that Novell had purchased from USL in 1993 plus Novell's UnixWare business. SCO's financial health also raised serious concerns about Santa Cruz's viability as a company. Further, once the form of consideration for the deal became Santa Cruz stock, it became necessary to structure the deal so that Novell would receive less than 20% of Santa Cruz stock. This structuring enabled Santa Cruz to complete the deal more quickly without the delay of seeking shareholder approval. However, the value of the Santa Cruz stock that Novell received — or approximately 16.7% — was approximately $50 million, or far less than the $300 million that Novell paid to USL in 1993 and far less than what Novell believed the USL assets were worth. With these issues in mind, we negotiated specific

2

provisions in the contract whereby Novell's business and legal interests were protected through contractual mechanisms.

8. The APA was primarily a forward-looking deal. The common goal of both Novell and Santa Cruz was for Santa Cruz to take Novell's UnixWare operating system, to enhance and innovate it, and to proliferate it as a low-cost UNIX competitor to Microsoft's Windows NT product for use on personal computers. To that end, the parties specifically contemplated that Santa Cruz would develop a product called, in the APA, the "Merged Product" to run on computers powered by 32-bit Intel x86 chips. Novell, on the other hand, would focus its business on its networking operating system, called NetWare, as well as related products, including NetWare Directory Services. It was not in Novell's interest to have a homogeneous operating system environment in the PC world dominated by Microsoft. Novell would benefit from a heterogeneous computing environment that included Santa Cruz's successful proliferation of an enhanced UnixWare or Merged Product.

9. As to SVRX, the intent was that Santa Cruz would act as Novell's agent. The Wilson team and I drafted the APA provisions that memorialized the agency relationship. This drafting is reflected in contemporaneous documents that still exist. Exhibit 1, for example, is a true and correct copy of my marked-up redline of Wilson's early draft of the APA containing Section 4.16. In this early draft of 4.16, as well as the final APA, we defined SVRX License to include any agreements relating to a series of UNIX System V software products that we listed in Item VI of Schedule 1.1(a). (See Exhibit 1 at NOV 42711; See Exhibit 2 at 31.) We did not limit SVRX License to a subset of SVRX license agreements relating only to the binary rights and royalties under those agreements. Indeed, we drafted the contract to state "all SVRX Licenses" and that term was intended to encompass licenses governing source and binary rights and revenues. (Id.)

10. One agency obligation we included in the contract — and to which Santa Cruz agreed — was that Santa Cruz would collect and pass through all SVRX Royalties to Novell,

3

subject to a 5% administrative fee. In Section 4.16(a), the Wilson team and I defined SVRX Royalties to be "all royalties, fees and other amounts due under all SVRX Licenses." (See Exhibit 2 at 31.) We did not limit this revenue stream to a subset of "all royalties, fees and other amounts" such as binary royalties or sums being paid be existing SVRX customers. Further, because we were concerned about Santa Cruz's viability and what could happen to these revenues if Santa Cruz went bankrupt, at my direction we proposed contract language to Santa Cruz whereby Novell would remain the equitable owner of the SVRX Royalties under the Bankruptcy Code:

Seller and Buyer further acknowledge and agree that Seller is retaining all rights to the SVRX Royalties notwithstanding the transfer of the SVRX licenses to Buyer pursuant hereto, and that Buyer only as [sic] legal title and not an equitable interest in such royalties within the meaning of Section 541(d) of the Bankruptcy Code.

(See Exhibit 3 at NOV 41922.) In case Santa Cruz declared bankruptcy, the SVRX Royalties would be protected from the bankruptcy estate and Novell would continue to receive them. Attached hereto as Exhibit 3 is a true and correct copy of Wilson's transmittal to Santa Cruz of the aforementioned proposed language. Santa Cruz agreed to our proposed language.

11. We also proposed that "all right, title and interest to the SVRx Royalties, less the 5% fee for administering the collection thereof pursuant to Section 4.16 hereof" would be an Excluded Asset under APA. (See Exhibit 4 at NOV 40413.) Attached hereto as Exhibit 4 is a true and correct copy of Wilson's transmittal to Santa Cruz in which we proposed this exclusion language. Santa Cruz agreed to our proposal.

12. I drafted Section 4.16(b) of the APA to confirm Novell's control over SVRX Licenses. Although Santa Cruz remained Novell's agent to administer the SVRX licensing arrangement, Novell retained the "sole discretion" to direct Santa Cruz to take certain actions under SVRX Licenses. I emphasized the unqualified nature of this sole discretion right by adding the phrase "to the extent so directed in any manner or respect by Seller." (See Exhibit 1

4

at NOV 42711.) I drafted additional language in Section 4.16(b) providing that Novell was authorized to act on Santa Cruz's behalf when Santa Cruz so refused:

In the event that Buyer shall fail to take any such action concerning the SVRX Licenses as required herein, Seller shall be authorized, and is hereby granted, the rights to take any action on its own behalf.

(See Exhibit 5, a true and correct copy of my edits to Section 4.16 in an APA draft, at NOV 42765.) Santa Cruz accepted our proposed language.

13. The language in Section 4.16(b) was broadly worded and intentionally so. It was meant to make clear that Novell could take whatever action it wanted to protect its ongoing interests in SVRX. For example, Novell could enter into "buy outs" of its SVRX license agreements, similar to the buy out agreement Novell executed with Sun Microsystems in 1994. Novell could also grant Hewlett Packard ("HP") SVRX source rights in connection with HP's contemplated development of a UNIX operating system for Intel 64-bit chips, should Santa Cruz so refuse. There was no intent to limit Novell's authority under Section 4.16(b) to protecting a binary royalty stream.

14. During the negotiations, David Bradford indicated to me that Novell was unwilling to transfer intellectual property rights in UNIX and UnixWare, including patents and copyrights. The Wilson team and I implemented this retention of rights to protect Novell's interest in the significant revenue stream that Novell would be retaining from SVRX Licenses. Novell was receiving an annual SVRX revenue stream of approximately $50 million. Novell's copyright ownership, in particular, would permit Novell to continue to have rights to this revenue, should Santa Cruz go bankrupt; the rights to the revenue would follow the copyrights to Novell. Novell's ownership of the copyrights also would aid in Novell's negotiation of buy-outs of SVRX Licenses and in Novell's interest in the development of UNIX on 64-bit Intel processors, for example by Hewlett Packard.

15. The Wilson team thus revised an early draft of a Schedule of Assets that had included patents, copyrights and trademarks. (Attached hereto as Exhibit 6 is a true and correct

5

copy of an early draft of the APA from the Wilson Sonsini files that we revised.) We drafted a new schedule of assets to be included in the asset transfer, as well as a schedule of assets to be excluded from the transfer. Attached hereto as Exhibit 7 is a true and correct copy of these new Schedules from my Wilson Sonsini files. Both schedules specifically addressed how intellectual property rights in UNIX and UnixWare would be treated in the deal. Patents and copyrights were not included as assets; instead patents and copyrights were specifically excluded. Only certain UNIX and UnixWare trademarks were identified as included assists [sic].

16. To my knowledge and based on my review of the Wilson Sonsini files, during the APA negotiations at least four representatives of Novell reviewed and approved the Excluded Assets provision that excluded copyrights from the asset transfer:

  1. David Bradford reviewed and approved the exclusion.

  2. I reviewed and approved Schedules 1.1(a) and 1.1(b), including the copyright exclusion.

  3. Aaron Alter reviewed and approved Schedules 1.1(a) and 1.1(b). In fact, Aaron specifically edited their Intellectual Property provisions, confirming that only certain UNIX and UnixWare trademarks would be transferred to Santa Cruz and leaving the copyright exclusion intact. Attached hereto as Exhibit 8 is a true and correct copy of Aaron's marked-up Schedule 1.1(a) and 1.1(b) from my Wilson Sonsini files. Aaron also marked up a term sheet contained in the Wilson Sonsini files, a true and correct copy of which I attach hereto as Exhibit 9. Notably, next to a Section entitled "C. Intellectual Property" — which was followed by a line item with the phrase "Copyrights, trademarks...", Aaron made the handwritten annotation "already excluded." (See Exhibit 9 at NOV 39798.)

  4. Burt Levine of Novell also reviewed and edited the Intellectual Property provisions in Schedules 1.1(a) and 1.1(b). He too left the copyright exclusion intact. Attached hereto as Exhibit 10 is a true and correct copy of Burt's marked-up Schedule 1.1(a) and 1.1(b) from the Wilson Sonsini files.

6

17. During the negotiations, the Wilson team and I transmitted drafts of Schedule 1.1(a) and Schedule 1.1(b), containing the exclusion of copyrights, to Santa Cruz representatives. I attach Exhibit 4 to this Declaration as an example; we sent it to Santa Cruz's counsel on September 18, 1995. The Schedules attached to Exhibit 4 were redlined to show changes to drafts we had previously given to Santa Cruz. The draft of Schedule 1.1(b) in Exhibit 4, which excluded "[a]ll copyrights and trademarks, except for the trademarks UNIX and UnixWare," did not contain any redlining — thereby indicating that the exclusion of "all copyrights" had already appeared in a previously exchanged draft with Santa Cruz. (See Exhibit 4 at NOV 40413.) The draft of Schedule 1.1(a) in Exhibit 4 identified just one type of "Intellectual Property" to be included in the transfer: "Trademarks UNIX and UnixWare as and to the extent held by Seller (excluding any compensation Seller receives with respect of the license granted to X/Open regarding the UNIX trademark)." (Id. at Nov 40410.) The redlining indicates that the previously exchanged draft had referred to "Trademarks UNIX and UnixWare as held by Seller" as the sole included IP Asset; it did not refer to "copyrights" or "patents." (Id.)

18. In its final form, the APA included a Schedule 1.1(a) list of Assets. This schedule specifically identified the "Intellectual Property" to be included in the transferred assets; it only identified certain UNIX and UnixWare trademarks. (See Exhibit 2 at 059-060.) The APA also contained an "Excluded Assets" list in Schedule 1.1(b). (Id. at 061-062.) This list specifically called out that certain "Intellectual Property" was excluded from the asset transfer. In particular, the Schedule excluded "[a]ll copyrights and trademarks, except for the trademarks UNIX and UnixWare" and "all patents." (Id. at 062.)

19. The exclusion of copyrights and patents from the asset transfer is also confirmed through a provision I drafted in Section 1.1(a) of the APA. That section provides that Santa Cruz's purchase of "all of Seller's right, title and interest in and to the assets and properties of Seller relating to the Business ... identified on Schedule 1.1(a)" was subject to a specific set of exclusions:

7

Notwithstanding the foregoing, the Assets to be so purchased shall not include those assets (the "Excluded Assets") set forth on Schedule 1.1(b).
(Id. at 009.) As indicated in this provision, Schedule 1.1(b) was intended to operate as an explicit carve-out of any rights otherwise listed in Schedule 1.1(a).

20. Although the APA did not transfer copyright ownership to Santa Cruz, Santa Cruz received other rights and interests in UNIX and UnixWare copyrighted code that were not carved out through the operation of Schedule 1.1(b) and Section 1.1(a). Santa Cruz received possession of the source code and its programs. Santa Cruz also received the right to make derivative works — to develop an enhanced UnixWare product and a new Merged Product. Santa Cruz thus received a license to copy and use the Novell's copyrighted code in this endeavor, as needed to implement the activities contemplated by the APA.

21. Because it was contemplated that Santa Cruz would be making improvements in SVRX and UnixWare code, Novell wanted a provision in the APA addressing its right to use any Santa Cruz enhancements or innovations in the future. Santa Cruz agreed and the resulting provision was Section 1.6 of the APA. (See Exhibit 2 at 012.) Section 1.6 required the parties to execute a license agreement at the Closing that would govern Novell's future rights to use Licensed Technology. Such a license agreement was executed at the Closing (called the Technology License Agreement, or TLA).

22. I am familiar with the term Licensed Technology as it is used in the APA and the TLA. In fact, it is a term that the Wilson team and I added to Section 1.6 during the drafting process. Attached hereto as Exhibit 11 is a true and correct copy of an APA draft that we sent to Santa Cruz showing our insertion of the term Licensed Technology into Section 1.6. (See Exhibit 11 at NOV 39972-399973.)

23. Licensed Technology was intended primarily to include Santa Cruz improvements in code, i.e., the derivative works that Santa Cruz was to develop. Although Novell retained the copyrights in the original code, Santa Cruz would own the copyrights in any code that it newly

8

wrote and Novell would need a license to such code. Licensed Technology also was meant to encompass other technology in UNIX and UnixWare, including trade secrets, software know-how, methods and concepts and documentation. Because these latter items were not excluded from the assets transferred to Santa Cruz, Novell needed a license to use such technology.

24. I understand that various individuals have offered personal opinions concerning the meaning of the contractual provisions I have discussed in this Declaration. In reviewing their testimony, I think it is important to understand that the contractual terms of the APA were negotiated in an approximate two-week period, and that the task of drafting was primarily a legal one: from our perspective, how to protect Novell's interest given the complexity of the transaction and Novell's continuing interest in UNIX.

  1. To my knowledge, Duff Thompson was not involved in negotiating or drafting the APA contract language.

  2. To my knowledge, Ty Mattingly was not involved in negotiating or drafting the APA contract language.

  3. Ed Chatlos was a business person for Novell involved in the deal. I understand that he may have been involved in negotiating the basic deal structure, before the drafting phase. However, to my knowledge, Mr. Chatlos was not a Novell executive, nor was he the Novell business person directing the drafting of the contract. To my knowledge, Mr. Chatlos did not draft the APA. I reported to and received instructions from David Bradford, and not from Mr. Chatlos.

  4. I have never heard of Bill Broderick. To my knowledge, he was not involved in the APA negotiations and drafting.

  5. I do not know Alok Mohan. I understand he was Santa Cruz's CEO at the time of the APA. I had no interaction with him in the APA negotiations and drafting.

    2

  6. Bob Frankenberg was Novell's CEO at the time of the APA. To my knowledge, he was not involved in the negotiation or drafting of the contract language of the APA.

  7. I have no recollection of any interaction with Burt Levine in the APA negotiations. To my knowledge, he did not participate in the APA negotiations with Santa Cruz — although, as I discussed above, Mr. Levine provided the Wilson team with his comments and edits on Schedules 1.1(a) and 1.1(b), which we transmitted to Santa Cruz's representatives.

  8. To my knowledge, I had no interactions with Doug Michels in the negotiation and drafting of the APA contract language. I am not aware that he had any involvement in this.

  9. To my knowledge, I did not conduct any APA negotiations with Jim Wilt. I am not aware that he had any involvement in these negotiations or the drafting of the APA contract language.

  10. I am aware that Kim Madsen was a member of Santa Cruz's in-house legal department at the time of the APA. I do not recall any specific interactions with her in drafting or negotiating any of the contractual provisions I have discussed in this Declaration.

2

25. Since the completion of the Novell-Santa Cruz transaction, no one from SCO has asked me for my views of the APA.

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

Executed on the 19th day of April, 2007 in San Francisco, California.

[signed]
Tor Braham

2

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 20th day of April, 2007, 1 caused a true and correct copy of the foregoing DECLARATION OF TOR BRAHAM to be served to the following:

Via CM/ECF:

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

Stuart H. Singer
William T. Dzurilla
Sashi Bach Boruchow
BOIES, SCHILLER & FLEXNER LLP
[address]

David Boies
Edward J. Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Devan V. Padmanabhan
John J. Brogan
DORSEY & WHITNEY, LLP
[address]

Via U.S. Mail, postage prepaid:

Stephen N. Zack
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Heather M Sneddon


1Update: That would be the Ty Mattingly of Vultus fame, I was recently reminded - more on Vultus here, here, , here, here, here, here, here, here, here, here, here, and here. Vultus technology is what is now found in Me Inc, I understand, despite Vultus having been written off by SCO after it acquired it in July of 2003. I believe you'll find that Scott Lemon has a Vultus connection as well. The prerss release regarding the SCO acquisition of Vultus said that what it acquired were "the assets, engineering personnel, and technology of Vultus, Inc., including the WebFace Solution Suite" -- which is how Lemon became for a time a SCO employee. Here he is writing just last week about how strong SCO's Memorandum in Support of its Motion for Partial Summary Judgment on its First, Second, and Fifth Causes of Action and for Summary Judgment on Novell’s First Counterclaim looks to him:

Wow!

In this filing, there is testimony from a whole list of Novell executives - who actually negotiated the deal with SCO - who all testify that they *did* sell the Copyrights to SCO. When I read through this, I can only sit here thinking about what the current Novell management team was thinking … and what they will ever be able to pull out to refute this evidence.

In addition, this filing contains testimony by a reporter who states that Chris Stone told her he was going to announce that Novell never sold the Copyrights with full intention to damage the SCO stock price, and impact shareholders. Amazing if this is true … to think that an executive would do this and believe that he could get away with it.

Although all of the press wants people to believe this is all over … it seems that there is still a lot of life left in the SCO lawsuits.

Then again, maybe not. Anyway, he knows now what Novell was able to pull out to refute the SCO filing.


  


Declaration of Tor Braham - the lawyer for Novell who drafted the APA - Updated re: Vultus | 352 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: feldegast on Saturday, April 21 2007 @ 10:15 PM EDT
If any

---
IANAL
My posts are ©2004-2007 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Declaration of Tor Braham - the lawyer for Novell who drafted the APA
Authored by: Mark Nelson on Saturday, April 21 2007 @ 10:23 PM EDT
You mean you didn't find him for Novel PJ? It would be so funny if when asked
who sent him to the court by the judge he replied PJ of Groklaw.net did don't
you think? :lol: :lol: :PJ:

---
http://www.getfirefox.com

[ Reply to This | # ]

Declaration of Tor Braham - the lawyer for Novell who drafted the APA
Authored by: Anonymous on Saturday, April 21 2007 @ 10:32 PM EDT
WOW. Holy cow Batman. BAM! POW! BIFF! SCO fall down. Go Boom.

[ Reply to This | # ]

OT Here
Authored by: WhiteFang on Saturday, April 21 2007 @ 10:40 PM EDT
Clickies if you got 'em!

---
"SCO's response to IBM's statement of undisputed facts is largely a frolic and
detour into the irrelevant, ... "IBM's (Redacted) RM in Support of its SJ on
CC10

[ Reply to This | # ]

Declaration of Tor Braham - Effects on the IBM Case
Authored by: entre on Saturday, April 21 2007 @ 10:48 PM EDT
So what is left of SCO v. IBM now with this new information from the Novell
attorneys? It looks to me as the only issues left are the counter suits?
Anyone..

[ Reply to This | # ]

Isn't there another declaration by Sabbath out there?
Authored by: Anonymous on Saturday, April 21 2007 @ 10:49 PM EDT
I recall reading another declaration by Sabbath which was much lengthier than
the one linked above, and also much less friendly to TSG's position.

[ Reply to This | # ]

Declaration of Tor Braham - the lawyer for Novell who drafted the APA
Authored by: Anonymous on Saturday, April 21 2007 @ 10:58 PM EDT
It's interesting that the popular Groklaw view of the contract and ammendment #2
has been based on the plain language all this time. And when you start to find
out about the whys of the contract it turns out the popular Groklaw view wasn't
very accurate.

I find that interesting because I would have thought that if PJ were infact and
insider as SCO claims, PJ would have 'understood' the contract more accurately
and thusly the popular Groklaw view would as a result, been different and not
natural compared to how the view was based only on outsider information as it
was.

It's the little things like this that gives you credibility thats hard to fake.



[ Reply to This | # ]

Boom! Boom! Out Go The Lights!
Authored by: TheBlueSkyRanger on Saturday, April 21 2007 @ 11:01 PM EDT
Hey, everybody!

Ouch! This hurts me just reading it. Imagine what SCO and BSF must be feeling
when they started thumbing through this.

In a way, I'm not entirely surprised. I'm trying to remember the timeline of
events, because this reminds me a little of last year's "Running
Scared". I think it was around this time that M$ became self-aware and
realized they had the keys to the candy store. It was around 1996 that they
stabbed IBM over OS/2, right? Novell and IBM have been pals for a long time.
Either way, I'm under the impression that normal document retention is 7 years.
During that time, M$ became what it is. I have no doubt that anyone keeping
records would see these at the 7 year mark and go, "Nah, this can still
come in handy." We all keep things thinking we might need them some day
(my junk drawer is a testimonial to that. Do I really need that tile knife with
the point broken off?), and it always is a thrill to find out we had them when
we needed them.

Another theory: if document retention is only seven years, that means that the
documents would be ready to be tossed right about the time SCO started it's run
into the jet engine. Realizing these documents could switch the jet engine on,
they might have thought to keep them handy.

I recall SCO saying that, before they filed the lawsuit, they had a meeting with
IBM. They laid out their ideas, and IBM didn't take them seriously. I wonder
if it's because IBM thought they were full of it, or they called their pals at
Novell and made sure they were in the right.

I also even less surprised that no one was really that upset over SCO insisting
on all this evidence. They had the highest ranking trumps in their hands, and
just sat back and waited.

Poor SCO is looking more like Daffy Duck. In that infamous trilogy of Chuck
Jones masterpieces, where Daffy is continually getting Elmer Fudd to blast him,
keep a close eye on he and Bugs Bunny's movements. Daffy is practically lunging
for the gun barrel and blinded by rage. Bugs judiciously using just his
fingertips and a calm voice. Bugs knows that all he has to do is keep his head
together and Daffy will cause his own demise. SCO brought this lawsuit,
expecting it to blast their opponents to smithereens, and now the barrel is
right in front of their eyes.

I'm wondering if this how this will affect the PSJ's. After all, this one piece
alone pretty much kneecaps most of SCO's claims against IBM. Is this over
already? (Well, okay, not already, it's been years, but you don't expect the
axe to fall faster than gravity, you know.)

Dobre utka,
The Blue Sky Ranger

"Ha! You fool! I have caught you in a logical conundrum and now must mock
you for your idiocy!"
--Rat
"Pearls Before Swine"

[ Reply to This | # ]

Declaration of Tor Braham - the lawyer for Novell who drafted the APA
Authored by: Anonymous on Saturday, April 21 2007 @ 11:09 PM EDT
KA-POW SCO, off you go !

[ Reply to This | # ]

Santa Cruz vs SCO
Authored by: Anonymous on Saturday, April 21 2007 @ 11:21 PM EDT
PJ,

Your commentary would read better if it didn't continually refer to Santa Cruz
as both "Santa Cruz" and "SCO" (just as SCOX are now
attempting to do):

"it worried that Santa Cruz might go bankrupt. That explains some of the
language, such as that which made Novell the equitable owner of the SVRX
Royalties under the Bankruptcy Code, so it could continue to receive them no
matter what happened to SCO. They sent a draft of that language to SCO"

[ Reply to This | # ]

SCO v. IBM ladder theory
Authored by: Maciarc on Sunday, April 22 2007 @ 12:38 AM EDT
It seems to me that the TLA portion of the APA (which SCO so desperately want people to think means they got copyrights) shoots holes in SCO's ladder theory. Beginning on the bottom of page 8 of this declaration:
23. Licensed Technology was intended primarily to include Santa Cruz improvements in code, i.e., the derivative works that Santa Cruz was to develop. Although Novell retained copyrights in the original code, Santa Cruz would own the copyrights in any code that it newly wrote and Novell would need a license to such code.
I hope IBM gets a copy of this for inclusion in their case.

---
For corrections to this post, click on one of the many child posts...

[ Reply to This | # ]

Declaration of Tor Braham - paragraph 23
Authored by: Totosplatz on Sunday, April 22 2007 @ 12:47 AM EDT

One of my favorite passages in in paragraph 23, as follows:

Although Novell retained the copyrights in the original code, Santa Cruz would own the copyrights in any code that it newly wrote and Novell would need a license to such code.

That pretty much summarizes how these licensing agreements were being carried out, and utterly lacks any of the mystifying derivatives theory proposed by tSCOG.

---
All the best to one and all.

[ Reply to This | # ]

Declaration of Tor Braham - the lawyer for Novell who drafted the APA
Authored by: wvhillbilly on Sunday, April 22 2007 @ 01:27 AM EDT
Said the Novell spider to the SCO fly

Come on in. I'd love to have you for dinner!

---
What goes around comes around, and the longer it goes the bigger it grows.

[ Reply to This | # ]

Now we know why David Boies has entered the case!
Authored by: Anonymous on Sunday, April 22 2007 @ 01:36 AM EDT
He's been selected to say "Nevermind.".

[ Reply to This | # ]

Was that the loudest Doh! out of Linden?
Authored by: kawabago on Sunday, April 22 2007 @ 02:32 AM EDT
I figured right from the start this suit would hurt SCO more than help it but I
never thought they would be rounded up, set on fire and stomped. It will
probably be quite amusing to see how they respond. Does anyone know how to
artificially age documents? That is about the only way SCO can respond to this,
competing documentation that tells a different story!

[ Reply to This | # ]

Steve Sabbath
Authored by: Anonymous on Sunday, April 22 2007 @ 04:47 AM EDT
So SCOX was looking for a saviour in Steve Sabbath.....

Instead, they got Black Sabbath.

[ Reply to This | # ]

The Santa Cruz Operation could NOT affordthe copyrights.
Authored by: SilverWave on Sunday, April 22 2007 @ 04:51 AM EDT
Well that says it all doesn't it :)

This just completely sinks their case - gotta love it.

heh heh

---
Ubuntu is like a breath of fresh air.
Free yourself
Year1 Use foss apps as replacements ff tb ooo
Year2 Ubuntu dual boot
Ubuntu user as of 181206

[ Reply to This | # ]

How much did scog pay these ppl?
Authored by: SilverWave on Sunday, April 22 2007 @ 04:56 AM EDT
"Yes. He said it. He's either calling them all liars or at best
mistaken..."

Is there any info about how much scog paid these ppl for their declarations?



---
Ubuntu is like a breath of fresh air.
Free yourself
Year1 Use foss apps as replacements ff tb ooo
Year2 Ubuntu dual boot
Ubuntu user as of 181206

[ Reply to This | # ]

All this add up to what? Why did Santa Cruz Operations take this deal? Why, Why, Why?
Authored by: Anonymous on Sunday, April 22 2007 @ 05:17 AM EDT
Copyrights is ownership.

Maybe, just maybe, since the Tarantalla project at Santa Cruz Operation was
announced almost as soon as the ink was dry on the agreements (that allowed
oldSCO to do their "derived thing") that, Tranantella all along was
one of their main interests in the Novell deal.

Here was Citrix going great guns in the Wintel word with their thin client stuff
(and Unix had nothing to match this). BUT, to sell a thin client product that
RAN on the major Unix products of the day, or which Santa Cruz Operations was
NOT a major player, to have a Tarantella be able to run freely, without having
to pay royalties, then Santa Cruz Operation needed this deal with NOVELL
(maybe).

Why? Because it gave them a direct right to use and produce a product called
Tarantella, that was protected by a right gained from Novell to the original
UNIX tree trunk (if after USL vs BSDI settlement it even existed). This right
then meant that Santa Cruz Operation would not have to crawl on their begging
knees to IBM or SUN or HP to gain rights from them to be able to sell a
Tarantella that would just work with all the IBM, SUN and HP, etc UNIX versions
as an add on which is exactly what Citrix was to Microsoft NT etc (and/ or
rather the problem for Citrix was that Citrix was beholden on a short leash to
Microsoft's desires.... something that it would have been wise for Santa Cruze
Operation to avoid regarding having their Tarantell product run on top of IBM,
SUN, or HP etc UNIX boxes...

It would hve been very expensive for Santa Cruz Operation to gain permission for
Tarantella to run on IBM, SUN, or HP boxes if they went to each HUGE company on
their knees and begged for permission (that might not even be something that
IBM, SUN or HP would even give them). What if IBM, SUN and HP said NO... you
can not run Tarantella on our boxes. ouch.

So - by going to Novell for permission to do a derived work from the main mother
tree... they were effectively going by short cut, up the elevator that bypassed
all the crevases in the ice fields, to the top of the UNIX licensing mountain
for this permission... and they got it, what they need from Novell, and nothing
more. THEY WERE HAPPY WITH THIS DEAL AND THIS LOGIC EXPLAINS WHY. 5 percnet
royalties is not the reason for the deal... TARANTELLA as a product that would
launch Santa Cruz Operation into the WALL STREET SPOT LIGHT (just like Citrix)
was exactly what they had to be thinking!

When the smoke on the Novell deal cleard Tarantell could be born. But, they
didn ot own UNIX as a result, because they didn't need it. THAT is why they
never backed out of the deal where they did not get ownership of UNIX.
However, they did get what they wanted. AND that was to be able to freely do a
Tarantella on UNIX prouduct AND sell it as an add-on to IBM, SUN, and HP etc
boxes WITHOUT HAVING TO PAY IBM, SUN or HP etc a red penny.

They NEEDED to do this Novell deal, for 5 percent royalties, for the right to do
Tarantella freely.

This motive to keep all the rank and file folks at oldSCO in the dark on
Tarantella during the Novell deal had it's reason as well (because the idea of
Tarantella would have to be a secret inside the company, as people talk and IBM,
SUN or HP would have loved to do their own Tarantella/Citrix like thin client
too...). SO stealth was needed. So - most likely there is no record of the
top secret Tarantella idea at all at oldSCO during the timeframe of the Novell
deal.

Does anyone else have any other input? I would love to hear any other reason
why Santa Cruz Operations needed the Novell deal to operate as a UNIX company.
THEY ALREADY HAD THE LICENSE TO DO THAT. GOT it now? Anyone, with a wild
theory as to why oldSCO would do this deal for only 5 percent of royalties...
they did not sell hardware, they only did software, and so how would you be
able to throw out the logic of this arguement that the reason for the Novell
deal was to pave the way for a clean income path free of hassles from IBM, SUN
or HP etc... for Tarantella, a Citrix like thin client that would run on any
UNIX. Anyone?

[ Reply to This | # ]

Declaration of Tor Braham - the lawyer for Novell who drafted the APA
Authored by: fstanchina on Sunday, April 22 2007 @ 05:25 AM EDT

...knowing you have eleven -- count them, eleven -- exhibits at your fingertips...

Ah, that was fun. I ran out of fingertips trying to count them. :)

[ Reply to This | # ]

Unfortunately for Novell
Authored by: cricketjeff on Sunday, April 22 2007 @ 06:23 AM EDT
All of this will be stricken, under the rules of the "Silly American
Lawsuits Association of America (SALAA)". I quote from rule
12789.A.one.iv.z/2-3b "no witness actually present at the events he (or she
or it) is giving evidence about can be admitted. Contemporaneous documents are
only admissable if irrelevant and unambiguous wording is strongly
discouraged."
Furthermore the preamble to the sports governing body makes clear that:-
"evidence of senior personnel actually involved in policy making must at
all times be subordinated to the evidence of junior staff who overheard rumours
around the watercooler some time after the actual events."
In addition to all of the above all motions must be filed under overlength and
overblown and inaccurate titles.
It should also be possible to add that the filer of these purported facts may be
a lifelong member of the communist party and the Klu Klux Klan, and may also be
a muslim scientologist of the worst sort, does not believe in gun ownership and
has never shot a neighbours dog.

[ Reply to This | # ]

I'm not totally convinced
Authored by: devil's advocate on Sunday, April 22 2007 @ 07:53 AM EDT

Devastating though this testimony is to SCO I am less convinced by Braham's declarations about people at SCO who were involved in the negotiations of the contract language. Braham describes in some detail the process of exchanging drafts with red lining that he received from SCO's lawyers. It may have been that SCO's people, from whom they have obtained declarations, were involved in the discussions on their side, without involving him directly, and therefore their testimonies are not wholly to be disregarded. But they need to be fitted in with this testimony from Braham and read in the right light - i.e. as largely irrelevant although not false per se. Taking all this together I don't see how the judge can now allow SCO's case to proceed. It is clearly dead in the water and should be dismissed.

[ Reply to This | # ]

Declaration of Tor Braham - the lawyer for Novell who drafted the APA
Authored by: JamesK on Sunday, April 22 2007 @ 08:55 AM EDT
So, when does SCO start claiming he misread his own memories? ;-)

---
Junk is stuff you throw away. Stuff is junk you keep.

[ Reply to This | # ]

Didn't Novell initially claim ignorance of the Amendment 2?
Authored by: Anonymous on Sunday, April 22 2007 @ 09:02 AM EDT
I vaguely recall that when SCO first produced the APA amendment 2, Novell
acted surprised - like they didn't have a copy of this amendment readily
available in their files. Some people even wondered if amendment 2 was a SCO
fabrication.
Now, Novell seems to know every last detail about amendment 2. Were they
baiting SCO before??? Or did they just not dig deep enough into the details
until they were sued???

[ Reply to This | # ]

SCO's new theory
Authored by: DMF on Sunday, April 22 2007 @ 09:43 AM EDT
Since SCO's old theory is now a crater in the legal landscape, here's the first
draft of their new legal theory:

Novell conveyed the rights to the Unix business, except for the Excluded Assets.
The Excluded Assets do not list the right to sue on Novell's behalf. The APA
does not reserve to Novell the right to sue. SCO is suing on Novell's behalf
and there's nothing Novell can do about it. (The novel bit - frankly a bit of a
stretch - is that they are suing Novell on Novell's behalf, too.)

Expect this theory to enter via the upcoming expert reports.

That is all.

[ Reply to This | # ]

An Echo in Utah
Authored by: fudnutz on Sunday, April 22 2007 @ 10:25 AM EDT
A Rant of ExSCOriating pain

Oh, --- Look what she put up today! She'll probably leave it there for three
days! We have got to stop her! She spins it only one way and no one dares say
anything else. This is nothing new. Yet she treats it like a smoking gun. No
one is buying. It steals our equity. We got no help on the way. It's killing
us. Shut down her site! Shut down her host! Shut her mouth! Sue them. Why
can't we sue them? She is slander and libelling us three times a day. She
wallows in personal attacks. She nukes comments out of the party line.
"Magpies...red lined copies...legal packrats." It's prejudice. Who
can compete with that? Serve the blasted supboena! Depose her a few days. Put
some ants in her red panties... Let's drive her back in the cave! She chops up
Sabbath's declaration... Who made her the judge and jury? What right has she
to pronounce on credibility and prejudge. With her explianing who is reading
the bleeping documents? They are supposed to be dull! She has taken things too
far!

[ Reply to This | # ]

Monterey then would have been so Taranantella would have worked on that too? Why not?
Authored by: Anonymous on Sunday, April 22 2007 @ 11:44 AM EDT
Hey the arrangement with IBM with Monterey everyone wonders why IBM got such a
good agreement to work with them?

If you were Santa Cruz Operation who was thinking Tarantella, wouldn't you want
to make sure that Tarantella was Monterey friendly too?

Hey? Why not?

Tarantella was one heck of a product. Take a look at the chickens that were
sold off... Caldera got the Unix BUSINESS and the offices, the staff and the
world-wide channel locations etc (too launch LINUX sales from)... then Santa
Cruz Operation was renamed Tarantella (the same name as their product)...
nothing happened I guess, who knows? But, anyway SUN was interested enough in
Tarantella to buy them?

Ask SUN why Sun bought Tarantella? Anyone know?

[ Reply to This | # ]

    Declaration of Tor Braham - the lawyer for Novell who drafted the APA
    Authored by: heretic on Sunday, April 22 2007 @ 12:13 PM EDT
    With this declaration and the other by Allison Amadia it looks quite clear that
    the copyrights in question belong to Novell. Doesn't that make criminals out the
    tSCOg? They tried to register these same copyrights as their own a while back,
    and in my mind that would be the same as theft.

    [ Reply to This | # ]

    Declaration of Tor Braham - the lawyer for Novell who drafted the APA
    Authored by: jazzyjoe on Sunday, April 22 2007 @ 12:17 PM EDT
    What I don't understand is:
    This lawsuit has been going on for a couple of years now. The true meaning of
    the APA (and amendments) has been in question almost as long. Did figuring out
    that you need a declaration from the man who drafted the whole thing really need
    to take this long?

    [ Reply to This | # ]

    Text version on the way
    Authored by: The Cornishman on Sunday, April 22 2007 @ 12:25 PM EDT
    PJ wrote:
    I don't want you to have to wait for the text of Tor Braham's declaration
    I've sent in a retype of the text, but not marked it up as HTML yet. My executive summary of the content: "Sure, Santa Cruz got lock, stock and barrel. Except for the lock and the stock, of course, and we made sure that Novell kept control of the barrel."

    ---
    (c) assigned to PJ

    [ Reply to This | # ]

    Declaration of Tor Braham - the lawyer for Novell who drafted the APA
    Authored by: Steve Martin on Sunday, April 22 2007 @ 12:35 PM EDT

    Wow.

    Looking back to last year, Novell asking for the production of

    all documents concerning the Declaration of Jim Wilt, executed November 23, 2004 and filed in the IBM Litigation, including but not limited to, the declaration and any drafts thereof; all communications between SCO and Mr. Wilt concerning this declaration and any drafts thereof; any depositions by Mr. Wilt in the IBM Litigation, and accompanying exhibits or other documents used in these depositions; all statements and communications by Mr. Wilt concerning the APA; and Mr. Wilt's files concerning the APA
    shines in a new light.

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

    [ Reply to This | # ]

    As far as he knows...
    Authored by: The Cornishman on Sunday, April 22 2007 @ 12:39 PM EDT
    Braham has never heard of Bill Broderick and as far as he knows, he wasn't involved in the APA negotiations or drafting either.
    What he actually says, in this and other instances is "To my knowledge [he] was not involved ...". I read this as stronger than 'AFAIK'. I read it to mean "I know that X was not involved". After all, in a two-week negotiation, with drafts going backwards and forwards, someone in Braham's position would KNOW who was having significant input.

    I still want to know why a deal of this magnitude had to be done in two weeks flat, and kept off the Santa Cruz shareholder's radar.

    ---
    (c) assigned to PJ

    [ Reply to This | # ]

    BS&F big boo boo
    Authored by: Anonymous on Sunday, April 22 2007 @ 03:08 PM EDT
    This makes it pretty clear that suing Novell was a huge mistake. Perhaps
    this might have come out in IBM, though the fact it hasnt raises some
    doubt.

    It also makes me think the TSCOG binary license smoke is really to try
    to fend off Novell claims on M$ and Sun payments.

    Mr. Brahams retention of the exhibits may be due to simply not getting
    around to purging his file system. I like to think he figured out in 2003
    that they might be useful. It made my day, and I hope ruined TSCOGs.

    [ Reply to This | # ]

    Document Retention Strategy
    Authored by: The Mad Hatter r on Sunday, April 22 2007 @ 04:06 PM EDT

    After reading this I think I need to drastically modify my document retention
    strategy. I've been in the habit of deleting drafts, and never turning on change
    tracking, in future I will keep all drafts, and make sure that change tracking
    is enabled at all times.


    ---
    Wayne

    http://urbanterrorist.blogspot.com/

    [ Reply to This | # ]

    Declaration of Tor Braham - the lawyer for Novell who drafted the APA
    Authored by: Anonymous on Sunday, April 22 2007 @ 07:06 PM EDT
    This is just a gorgeous thing to read. Thank you PJ. This will kill SCOs
    attempts, utterly. They are gone. Sunk. SCO is looking remarkably like the
    Bismark - going down with a fight, but in a useless battle. And hopefully, all
    hands on deck as well.

    Now - I want to see all of those on SCO's side who were 'witneses' under perjury
    of oath legally punished. All of them. I want to see SCO bankrupted. I want
    to see Boise etc all hauled over hot coals for their handling of this case. And
    most of all, I want to see Darl and Co. go to jail for a very very very very
    very very very very very very very very (do you think that's enough very's?)
    time.

    Of course, the reason why Novell has fought so hard for these copyrights is so
    that it can sell them to Microsoft (it's pretty obvious to my eyes that they
    intend to do this).

    Dave

    [ Reply to This | # ]

    Declaration from the Horse's Mouth
    Authored by: webster on Sunday, April 22 2007 @ 07:18 PM EDT
    ..
    1. Braham's declaration reeks of credibility: "...personal
    knowledge...documents contemporaneous...corporate transaction
    attorney...represented Novell in purchase of UNIX...led ... team.......primary
    representative of Novell...primary drafter of APA text..." Simply
    overwhelming. SCO will need Santa Cruz's lawyers, Brobeck, to counter him. No
    more from the twisted musings from uninformed sidelings.

    2. The deal was shaped by Santa Cruz lack of cash, and the need for less than
    20% stock to avoid the bothersome need of shareholder approval. Santa Cruz was
    to be Novell's agent for SVRX. The deal was meant to protect Novell's interest
    in case of Santa Cruz bankruptcy. Novell was worried about Santa Cruz
    viability. He certainly "clears up" SCO's serpentine explanations.
    Who threw these copyright theories into a federal lawsuit, which appear to
    contradict the words on paper, without diligently checking with the drafters?
    This would appear to be a frivolous waste of time. Except that SCO started off
    only with a peculiar Slander of Title claim. The Judge could and should have
    dismissed it but didn't. So now SCO has fallen through the outhouse floor with
    its mouth open.

    3. He comments on the roster of SCO declarants further trashing the SCO
    interpretation. He is the horse's mouth. This is just the sort of thing that
    will impress the trier of fact, the judge. What's worse for SCO is that Braham
    helps to eliminate the need to have any witnesses at all to interpret the
    contract. It stands as Braham wrote it. Its meaning is clear and unambiguous.
    No need to twist and contradict it and show a consistent succession of
    "alternate interpretation." Compared to Braham SCO has no one that
    can do so.

    4. This will make for another awkward hearing for SCO. Kimball may make some
    pre-emptive rulings and obviate the hearing on this. Innovative arguments will
    not carry that day.

    ---
    webster

    [ Reply to This | # ]

    How doth the little crocodile
    Authored by: mexaly on Sunday, April 22 2007 @ 07:46 PM EDT
    TSG was warned by Novell to go away.

    Wow.

    To be Novell, knowing you have everything it takes to make crystal clear the
    letter and intent of the contract, and _more_.

    Waiting for the right time to spring.

    Nay, not waiting. Novell surely has done their best to repel TSG every step of
    the way.

    Now, the spectacular blow.

    What will The Honorable Judge say? Will there be more than a dispassionate
    application of legal procedure?

    ---
    My thanks go out to PJ and the legal experts that make Groklaw great.

    [ Reply to This | # ]

    What now?
    Authored by: frankz on Sunday, April 22 2007 @ 07:53 PM EDT
    What now?
    How long does the judge have to rule on motions, or how long should it take?
    Will there be a hearing on the motions, or what?

    [ Reply to This | # ]

    • What now? - Authored by: PJ on Sunday, April 22 2007 @ 08:10 PM EDT
      • Narrow - Authored by: Anonymous on Monday, April 23 2007 @ 02:14 PM EDT
    This all just whets my curiosity enormously to see Braham's opposite's declaration.
    Authored by: Anonymous on Sunday, April 22 2007 @ 08:08 PM EDT
    Do you think SCO has that hidden and ready to go?

    BUT ... If SCO had something helpful I'm sure we would have seen it by now,

    [ Reply to This | # ]

    SUMMARY - tSCOg to IBM "Please please forgive us, we made a mistake" (whimper)
    Authored by: dmarker on Sunday, April 22 2007 @ 09:34 PM EDT

    The evidence is damning that tSCOg went into the tSCOg vs IBM suit knowing they
    didn't have title to the copyrights.

    Damning!.

    DSM

    [ Reply to This | # ]

    Why is this necessary at all?
    Authored by: Walter Dnes on Sunday, April 22 2007 @ 10:37 PM EDT
    What is the point of contract law anyways? The APA contract and amendments are
    perfectly understandable *AND* have an "integration clause" so
    "intention" is irrelavant. For "judicial economy" the judge
    should have interpreted the plain language of the contract, and thrown out
    SCOX/Caldera's case for lack of standing.

    I'm not a lawyer or an American (let alone an American lawyer), but I am totally
    mystified at why the contract wasn't interpreted first. It's a matter of law
    that the judge can rule on. How would this travesty have gone over in an
    appeals court if SCOX/Caldera appealed? What grounds would they have had?

    The SCOX lawsuit sets an ugly precedent. If you were a foreign corporation,
    would you sign a contract in the USA knowing that in a future lawsuit, the other
    side can dispute the plain language of the contract and claim that black is
    white and up is down and tie you up in the courts for several years?

    [ Reply to This | # ]

    Declaration of Tor Braham - the lawyer for Novell who drafted the APA
    Authored by: Hop on Monday, April 23 2007 @ 08:59 AM EDT
    I like the Novell legal team. They may call the IBM lawyers "the
    nazgul" for good reason, but you might as well call the Novell lawyers
    "the surgeons." SCO probably understood what they were going against
    when they took on IBM, but I don't think they had a clue about the sharp legal
    group at Novell.

    [ Reply to This | # ]

    Declaration of Tor Braham - the lawyer for Novell who drafted the APA
    Authored by: AceBtibucket on Monday, April 23 2007 @ 09:04 AM EDT
    "All your copyrights are belong to us"

    "hahahaha"

    Or, perhaps a chorus or two of:

    "The flowers that bloom in the Spring, TraLa!"

    [ Reply to This | # ]

    I predict SCO will spin this as...
    Authored by: Anonymous on Monday, April 23 2007 @ 10:04 AM EDT
    Notice the term "method and concepts" in:

    "Licensed Technology also was meant to encompass other technology in UNIX and UnixWare, including trade secrets, software know-how, methods and concepts and documentation. Because these latter items were not excluded from the assets transferred to Santa Cruz, Novell needed a license to use such technology."

    I predict that SCO will spin this in IBM as "see we told you we owned all method and concepts. Thats why we are not all about copyrights but methods and concepts."

    [ Reply to This | # ]

    Does this leave much for the trail?
    Authored by: vb on Monday, April 23 2007 @ 10:49 AM EDT


    What is left for the trial? I think that Judge Kimball is going to have a hole
    in his September calendar after Novell v SCO PSJ and SJ is over (and
    over-cooked).

    [ Reply to This | # ]

    A quietly definitive slap at SCO's favorite whine
    Authored by: Anonymous on Monday, April 23 2007 @ 03:58 PM EDT
    End of paragraph 4: "Novell paid over $300 million for these assets."

    Yes, Darl? What were you saying about how you paid $150 million so you *must*
    have got the copyrights? Looks more like you bought the student version... no
    save capabilities and all source code output carries a Novell watermark...

    [ Reply to This | # ]

    Game Over?
    Authored by: Anonymous on Monday, April 23 2007 @ 05:53 PM EDT
    Does this signal game over for SCO vs Novell, and further doesn't it also mean
    Game Over for SCO vs IBM?

    If ALL the recent declarations and productions from Novel concerning the APA,
    especially the elements regarding copyright, royalties, continuing rights of
    Novell and the intent of those who actually negotiated/drafted/executed the
    contract are taken together I see the following.

    - Novell retains copyrights.
    - SCOs case(s) against Novell fail completely.
    - Novell may yet prevail in their actions against SCO, if they choose to
    continue

    In other words "SCO, your case is dismissed."

    Now, what is the impact here? Novell retained copyrights and has the right to
    prevent SCO from terminating IBM's license. Therefore Novell's letters to SCO
    informing them that they could not terminate the IBM and Sequent licenses
    suddenly land on SCO's case against IBM with the force of a A-Bomb.

    SCO has no case against IBM if the termination of IBMs licenses is nullified and
    SCO has no copyrights. What remains of the case is the Project Monterey
    elements, and that is effectively destroyed by the change in ownership that
    resulted in SCO(new, modern day SCO)

    I can't see how this results in any thing other than defeat for SCO. Only mere
    technicalities remain, the facts do not support SCO's case. Then again logic
    never supported their case either.

    What is left over is the counter actions by IBM and Novell. Those should be fun
    to watch.

    In the end though, what was this all about? Slowing down Linux while Vista
    lurched into the limelights? Gaming the system and share price? A hail Mary
    attempt to stop Linux?

    Ah well, Game over man, game over.

    [ Reply to This | # ]

    • Game Over? - Authored by: Anonymous on Thursday, April 26 2007 @ 01:28 PM EDT
    Boy, oh boy!
    Authored by: Anonymous on Wednesday, April 25 2007 @ 09:57 AM EDT

    I don't visit for a few days and when I do... this piece of news is the first thing I see. BAM! SCO's case take a series of jabs and uppercuts that it can't possibly recover from. This sure has made my day.

    --
    RT

    [ Reply to This | # ]

    The most important question now, IMHO
    Authored by: Anonymous on Thursday, April 26 2007 @ 01:23 PM EDT
    is,

    "when did Caldera (dba SCO) know of these declarations (was Novell required
    by any of Caldera's interrogatories to turn these over?)"

    which also leads the strategic thinker in me to ask

    "are the current Caldera motions, filed let's say in the last month - the
    ones supported by Frankenberg and Mattingly and others - meant to answer these
    declarations? "

    [ Reply to This | # ]

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