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Novell Files for Rehearing En Banc! - Petition as text
Tuesday, September 08 2009 @ 09:02 PM EDT

Novell has filed a petition with the U.S. Court of Appeals for the Tenth Circuit asking for a rehearing en banc of the ruling in the appeal of SCO v. Novell:

09/08/2009 - Open Document [9690867] Petition for rehearing en banc filed by Novell, Inc.. Original and 18 copies. Served on 09/08/2009. Manner of Service: email.

En banc means not just three judges, but all the appeals court judges. The filing is 78 pages, and we can read it together.

Oops. One of the judges will be missing. He just retired.

The paramount issue is copyright transfers and what is required:

This case raises a question of exceptional importance regarding the interpretation of the Copyright Act: Does Section 204(a) require a writing that specifies the subject matter and essential terms of the copyright transfer with reasonable certainty, as held by courts in the Ninth Circuit and supported by the decisions of other federal and state courts?

The opinion of the Panel in this case, designated for publication, holds that a writing is sufficient if it merely shows an intent to transfer some copyrights, even if the identity of the copyrights is unclear. On that basis, the Panel reversed summary judgment for Defendant Novell and remanded for trial to determine which copyrights, if any, were transferred. The Panel decision, which will become the law of this Circuit if not revised on rehearing, would require a trial whenever a party can show some evidence of intent to transfer copyright ownership, even though, as here, there is no basis in the alleged instrument of transfer to determine with reasonable certainty which, if any, copyrights were to be transferred.

This Court should grant this petition to consider whether the Panel Opinion properly interprets Section 204(a) in light of Congress' declared purpose of enhancing predictability and certainty of copyright ownership, or whether this Circuit should instead join other courts in holding that Section 204(a) requires a written instrument of conveyance or memorandum of transfer that specifies the subject matter and essential terms of the transfer with reasonable certainty. The Panel Opinion is contrary to the legislative intent and the weight of authority, and errs in reversing summary judgment for Novell and remanding for trial even under the Panel's interpretation of Section 204(a).

Here it is as text:

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

Appeal No. 08-4217

_____________________________

IN THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_____________________________

THE SCO GROUP, INC.,

Plaintiff-Appellant,

NOVELL, INC.,

Defendant-Appellee.

___________________________

On Appeal from the United States District Court
for the District of Utah
The Honorable Dale A. Kimball, Judge Presiding
(Case No. 2:04-CV-00139-DAK)

___________________________

APPELLEE NOVELL, INC.'S PETITION FOR REHEARING
AND REHEARING EN BANC

______________________________

ANDERSON & KARRENBERG
Thomas R. Karrenberg
Heather M. Sneddon
[address, phone, fax]

MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
Grant L. Kim
David E. Melaugh
[address, phone, fax]

Attorneys for Defendant-Appellee NOVELL, INC.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................... ii

INTRODUCTION .........................1

BACKGROUND FACTS AND PROCEDURAL HISTORY ................. 2

ARGUMENT ............................. 7

I. THIS CASE PRESENTS AN ISSUE OF EXCEPTIONAL
IMPORTANCE REGARDING THE REQUIREMENTS OF
FEDERAL LAW FOR TRANSFER OF COPYRIGHTS .....................7

II. APPLYING THE INTERPRETATION OF SECTION 204(a) OF
THE COPYRIGHT ACT THAT COMPORTS WITH
CONGRESSIONAL PURPOSE AND LEADING CASE LAW,
THE DISTRICT COURT CORRECTLY HELD AS A MATTER
OF LAW THAT THERE WAS NO VALID TRANSFER OF
COPYRIGHTS .................................. 13

III. EVEN UNDER THE PANEL'S INTERPRETATION OF
SECTION 204(a) OF THE COPYRIGHT ACT, THERE IS NO
TRIABLE ISSUE REGARDING TRANSFER OF

COPYRIGHTS................................ 14

CONCLUSION .............................. 15

CERTIFICATE OF SERVICE ..................... 17

CERTIFICATE OF DIGITAL SUBMISSION .................... 19

i

TABLE OF AUTHORITIES

Page(s)

CASES

American Plastic Equip., Inc. v. Toytrackerz, LLC,
No. 07-2253, 2009 U.S. Dist. LEXIS 27787 (D. Kan. Mar. 31,2009).......... 10

Community for Creative Non-Violence v. Reid,
490 U.S. 730 (1989) ........................... 1, 8

Conwell v. Gray Loon Outdoor Mktg. Group,
906 N.E.2d 805 (Ind. 2009)..................... 11

Effects Assocs. Inc. v. Cohen,
908 F.2d 555 (9th Cir. 1990)................... 8, 9

Foraste v. Brown Univ.,
290 F. Supp. 2d 234 (D.R.I. 2003) ..................10, 14

Konigsberg Int'l v. Rice,
16 F.3d 355 (9th Cir. 1994)........................ 8, 9, 10, 13

Lyrick Studios, Inc. v. Big Idea Prods., Inc.,
420 F.3d 388 (5th Cir. 2005) reversed ................... 9

Morgan v. Hawthorne,
No. 04-1809, 2009 U.S. Dist. LEXIS 31456 (W.D. Pa. Apr. 14, 2009)....... 11

Pamfiloff v. Giant Records, Inc.,
794 F. Supp. 933 (N.D. Cal. 1992) ........................9, 10, 13

Radio Television Espanola S.A. v. New World Entm't,
183 F.3d 922 (9th Cir. 1999) ........................ 8, 9

Saenger Org., Inc. v. Nationwide Ins. Lic. Assocs., Inc.,
864 F. Supp. 246 (D. Mass. 1994) ........................ 10

ii

STATUTES

17 U.S.C.

§ 204 .................... 9

§ 204(a).................. passim

§ 302(a) .................12

§ 302(c)................ 13

OTHER AUTHORITIES

H.R. Rep. No. 94-1476 (1976)........................ 1, 8

Jay Dratler & Stephen McJohn, Intellectual Property Law: Commercial
Creative and Industrial Property
§ 6.03 (2009) ..............12

Nimmer on Copyright,
§ 10.03 ..........................8, 12

iii

INTRODUCTION

Congress revised the Copyright Act in 1976 with the "paramount goal" of "enhancing predictability and certainty of copyright ownership." Community for Creative Non-Violence v. Reid, 490 U.S. 730, 749 (1989), citing H.R. Rep. No. 94-1476 (1976). Section 204(a), as revised in 1976, provides that: "A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance or a note or memorandum of transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent." 17 U.S.C. §204(a).

Section 204(a) promotes "predictability and certainty" by requiring that any transfer of copyright ownership be specified in a document that will survive long after the memories have faded and witnesses have become unavailable. Written documentation is crucial because copyrights are intangible property rights that survive for 70 years after the death of the original author. Clear identification of the property transferred is important not only to the immediate parties and their successors, but also to third parties, including copyright mortgagees and other secured lenders, who must know what specific work lies at the root of a particular chain of title.

This case raises a question of exceptional importance regarding the interpretation of the Copyright Act: Does Section 204(a) require a writing that specifies the subject matter and essential terms of the copyright transfer with reasonable certainty, as held by courts in the Ninth Circuit and supported by the decisions of other federal and state courts?

1

The opinion of the Panel in this case, designated for publication, holds that a writing is sufficient if it merely shows an intent to transfer some copyrights, even if the identity of the copyrights is unclear. On that basis, the Panel reversed summary judgment for Defendant Novell and remanded for trial to determine which copyrights, if any, were transferred. The Panel decision, which will become the law of this Circuit if not revised on rehearing, would require a trial whenever a party can show some evidence of intent to transfer copyright ownership, even though, as here, there is no basis in the alleged instrument of transfer to determine with reasonable certainty which, if any, copyrights were to be transferred.

This Court should grant this petition to consider whether the Panel Opinion properly interprets Section 204(a) in light of Congress' declared purpose of enhancing predictability and certainty of copyright ownership, or whether this Circuit should instead join other courts in holding that Section 204(a) requires a written instrument of conveyance or memorandum of transfer that specifies the subject matter and essential terms of the transfer with reasonable certainty. The Panel Opinion is contrary to the legislative intent and the weight of authority, and errs in reversing summary judgment for Novell and remanding for trial even under the Panel's interpretation of Section 204(a).

BACKGROUND FACTS AND PROCEDURAL HISTORY

This case concerns a 1995 Asset Purchase Agreement (the "APA") between Defendant Novell and The Santa Cruz Operation, Inc. ("Santa Cruz"), the predecessor-in-interest to Plaintiff SCO Group, Inc. ("SCO"). In the APA, Novell

2

agreed to sell to Santa Cruz certain assets related to the UNIX System V operating system but retained significant related assets. (Panel Op. at 3-4; 11985-96.)1

When SCO acquired Santa Cruz in 2001, SCO announced that it would use its UNIX assets to promote the Linux operating system. (06658, 06650.) But two years later, in 2003, SCO sued IBM and sent threatening letters to Novell and hundreds of other Linux users, claiming that Linux infringed SCO's alleged UNIX copyrights. (05808-12, 00871-72, 01908-09, 06955.) When Novell replied that it had retained ownership of the Unix copyrights, SCO brought this action against Novell for "slandering" SCO's alleged title in the copyrights. (Panel Op. at 7.)

The district court granted summary judgment for Novell on the basis, among others, that Novell had retained ownership of the copyrights. The court found that (1) the plain language of the APA as executed in September of 1995 excluded "all copyrights" from the assets to be transferred at the Closing; (2) the Bill of Sale, which implemented the APA by transferring assets in December 1995, therefore did not transfer copyrights; and (3) "Amendment No. 2" to the APA, executed in October 1996, also did not transfer the copyrights. (12033, 12041-42, 12081-82.)

The district court held that Amendment No. 2 did not transfer the UNIX copyrights for three separate reasons; (1) it did not meet the Copyright Act requirements for transferring copyright ownership; (2) no admissible extrinsic evidence showed that Amendment No. 2 was intended to transfer copyright

3

ownership; and (3) SCO presented no evidence that Santa Cruz required copyright ownership to exercise its rights with respect to the UNIX technology. (12041-44.)

The Panel agreed with the district court that the APA as executed in 1995 did not transfer the copyrights at issue. (Panel Op. at 14 ("If we were to interpret the contract based initially only on the APA itself -- without regard to Amendment No. 2 -- we agree that its language unambiguously excludes the transfer of copyrights").) The Panel held, however, that "the APA, as revised by Amendment No. 2, satisfied the Copyright Act's writing requirement." (Id. at 24.) At the same time, the Panel concluded that Amendment No. 2 was ambiguous, and remanded for tiral to resolve based on extrinsic evidence which copyrights, if any, were transferred by Amendment No. 2. (Id. at 25-35.)

As the Panel noted, the original APA, executed in September of 1995, "unambiguously" excluded the transfer of copyrights, by listing "all copyrights" in an attached schedule of "excluded assets." (Id. at 14-15; 00264-65, 00318.) At the Closing on December 6, 1995, the parties signed an Amendment No. 1, which modified the included and excluded asset schedules, but left intact the exclusion of "all copyrights." (00361-63.) On the same date, Novell executed a "Bill of Sale" that transferred the "Assets" as defined in the APA and Amendment No. 1, and thus excluded "all copyrights." (05602.)

The first draft of Amendment No. 2, proposed by Santa Cruz in 2006, would have removed copyrights that pertain to "UNIX and UnixWare" from the "excluded Asset" Schedule 1.1(b) and would have stated that these copyrights

4

were "acquired hereunder" by Santa Cruz. It would have amended Schedule 1.1(b) to exclude:
All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of this Amendment, which pertain to the UNIX and UnixWare technologies and which SCO has acquired hereunder....
(006070 (emphasis added); 06064 ¶8.) Novell rejected this proposal, stating that Novell would confirm Santa Cruz's right to use Novell's copyrighted UNIX and UnixWare products, but "was not going to transfer ownership of any copyrights to Santa Cruz through Amendment No. 2." (06064 ¶10.)

The final, executed Amendment No. 2 deleted any reference to "UNIX and UnixWare" copyrights that Santa Cruz "has acquired." (06065 ¶11.) Instead, the final Amendment No. 2 revised the Excluded Asset Schedule 1.1(b), "[a]s of the 16th day of October 1996," to include:

All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of the UNIX and UnixWare technologies.
(00374.) Amendment No. 2 did not specify which copyrights, if any, were "required" for SCO to exercise its rights. It also did not call for a bill of sale, and Novell did not execute a bill of sale on signing Amendment No. 2 or thereafter. (06066 ¶17.)

In holding that Amendment No. 2 did not meet the Copyright Act requirements for transferring copyright ownership, the district court found, first of all, that "Amendment No 2 does not include any provision that purports to transfer ownership of copyrights." (12041.) The court noted that Amendment No. 2 did

5

not add copyrights to the schedule of included assets, was not accompanied by a bill of sale transferring assets, and did not purport to amend the December 1995 Bill of Sale. (Id.) The court also noted that Amendment No. 2 stated that it amended the APA "[a]s of the 16th day of October, 1996," and thus "did not retroactively cause the Bill of Sale to transfer copyrights that were expressly excluded from transfer by the APA and Amendment No. 1." (Id.)

Secondly, the district court held that Amendment No. 2 did not have the specificity necessary to meet the Copyright Act's requirements for a written conveyance of copyright ownership:

Also, significantly, Amendment No. 2 did not identify which copyrights, if any, were "required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." The written instrument required by Section 204 should contain sufficient information "to serve as a guidepost for the parties to resolve their disputes." Konigsberg Int'l [v. Rice,] 16 F.3d [355, 357 (9th Cir. 1994)]. Amendment No. 2 does not meet these standards.
(Id.)

On appeal, the Panel acknowledged that "some courts" "have found that a writing is insufficient to transfer copyrights unless (1) it reasonably identifies the subject matter of the agreement, (2) is sufficient to indicate that the parties have come to an agreement, and (3) states with reasonable certainty the essential terms of the agreement." (Panel Op. at 19 (citing Pamfiloff v. Giant Records, Inc., 794 F. Supp. 933, 936 (N.D. Cal. 1992).)

However, in holding that the APA as amended by Amendment No. 2 satisfied the Copyright Act's writing requirement, the Panel rejected this authority,

6

concluding that "Section 204's writing requirement is best understood as a means of ensuring that parties intend to transfer copyrights themselves, as opposed to other categories of rights." (Panel Op. at 20-21.) The Panel stated that "when it is clear that the parties contemplated that copyrights transfer, we do not think that a linguistic ambiguity concerning which particular copyrights transferred creates an insuperable barrier invalidating the transaction." (Id. at 21.) The Panel also "reject[ed] the significance that the district court attributed to the fact that Amendment No. 2 revised the APA '[a]s of the 16th day of October, 1996' as opposed to the date of the Bill of Sale," on the grounds that "the absence of a Bill of Sale" was not "fatal" because a "note or memorandum of the transfer" is sufficient under Section 204. (Id. at 23-24.)

The Panel acknowledged "the difficulties that follow when the resolution of ambiguous language in a ten-year-old contract is left to trial." (Id. at 26.) Nonetheless, it remanded for trial for a determination based on extrinsic evidence "whether at least some UNIX copyrights were required for [Santa Cruz] to exercise its rights under the [APA]," and therefore transferred by the APA as amended by Amendment No. 2 (Id. at 33.)

ARGUMENT

I. THIS CASE PRESENTS AN ISSUE OF EXXCEPTIONAL
IMPORTANCE REGARDING THE REQUIREMENTS OF
FEDERAL LAW FOR TRANSFER OF COPYRIGHTS

The Panel acknowledges that, in addressing an issue not previously resolved by this Circuit, it diverges from precedent in other circuits over the proper interpretation of the requirements of the Copyright Act for transfer of copyright

7

owndership. The consequences of that divergence are profound. It will mean that in this Circuit any writing that can be construed as evidencing that "the parties contemplated that copyrights transfer" (id. at 21) will meet the requirements of the Copyright Act. The writing need not specify what copyright(s) are being transferred or provide the essential terms of the transfer. A writing will be deemed a sufficient "instrument of conveyance" or "memorandum of the transfer" without these essential terms, which will then be decided -- as in this case -- through a trial where conflicting oral testimony and other extrinsic evidence in presented.

This result is contrary to Congress' "paramount goal" of "enhancing predictability and certainty of copyright ownership." Community for Creative Non-Violence, 490 U.S. at 749; see also H.R. Rep. No. 94-1476 (1976) at 124 ("a specific written conveyance would be required in order for a sale of any material object to carry with it a transfer of copyright"). It is also contrary to the well-considered conclusions of courts in other circuits that have required a higher degree of specificity in writings relied on for transfer of copyright ownership.

As noted by Nimmer on Copyright, which is cited and relied on by the Panel, "[t]he Ninth Circuit ... has made much of the law in this area." Nimmer on Copyright, §10.03. A series of Ninth Circuit cases has applied Section 204(a)'s requirement of a written instrument of conveyance or memorandum of transfer strictly in accord with the Congressional purpose of predictability and certainty. See Effects Assocs. Inc. v. Cohen, 908 F. 2d 555 (9th Cir. 1990); Konigsberg Int'l v. Rice, 16 F. 3d 355 (9th. Cir. 1994); Radio Television Espanola S.A. v. New World Entm't, 183 F.3d 922 (9th Cir. 1999).

8

As construed by those cases, Section 204(a) is a substantive prerequisite, not merely an evidentiary rule; a transfer of copyright is simply "not valid" without the required written instrument. Konigsberg Int'l, 16 F.3d at 357. To satisfy Section 204(a), the written instrument "doesn't have to be the Magna Charta; a one-line pro forma statement will do." Effects Assocs., 908 F. 2d at 557. But it must be specific enough to "force[] a party who wants to use the copyrighted work to negotiate with the creator to determine precisely what rights are being transferred." Konigsberg Int'l, 16 F.3d at 357 (emphasis added). The writing must be sufficiently "clear and definite" that the "property will be readily marketable." Id. It must contain sufficient information to "serve as a guidepost for the parties to resolve their disputes," such that the "parties need only look to the writing that sets out their respective rights." Id. (emphasis added).

As articulated by one case, applying these principles and looking to the statute of frauds by analogy, the written instrument required by Section 204 must "(1) reasonably identify the subject matter of the agreement, (2) be sufficient to indicate the parties have come to an agreement, and (3) state with reasonable certainty the essential terms of the agreement." Pamfiloff, 794 F. Supp. at 936-37.

The reasoning of these cases has also been followed outside of the Ninth Circuit in recent cases. For example, relying extensively on Effects Assocs., supra, Konigsberg, supra, and Radio Television Espanola, supra, the Fifth Circuit in Lyrick Studios, Inc. v. Big Idea Prods., Inc., 420 F.3d 388, 391-96 (5th Cir. 2005) reversed a jury verdict on the basis that the writings at issue were sufficient as a matter of law to meet the requirements of Section 204(a).

9

District courts in the First Circuit have also followed the reasoning of the leading Ninth Circuit cases. Relying on Konigsberg, Int'l, supra, and Pamfiloff, supra, the court in Foraste v. Brown Univ., 290 F. Supp. 2d 234, 239-40 (D.R.I. 2003) found no valid Section 204(a) transfer and granted summary judgment because the writings at issue showed "utter absence of precision regarding the rights to be transferred" and "no evidence of a ... 'meeting of the minds.'" See also Saenger Org., Inc. v. Nationwide Ins. Lic. Assocs., Inc., 864 F. Supp. 246, 250 (D. Mass. 1994) (citing Pamfiloff, supra, and approving a rigorous standard for Section 204(a) transfers).

Also citing the Ninth Circuit cases, a district court in the Eighth Circuit recently summarized the purposes of Section 204(a) as follows:

The writing requirement serves several purposes. First, it ensures that a copyright will not be inadvertently transferred. Second, it "forces a party who wants to use the copyrighted work to negotiate with the creator to determine precisely what rights are being transferred and at what price." Third, it provides a guide for resolving disputes; the parties can look to the writing to determine whether a use is improper. In these ways, the writing requirement "enhances predictability and certainty of copyright ownership -- 'Congress' paramount goal' when it revised the [Copyright] Act in 1976."
American Plastic Equip., Inc. v. Toytrackerz, LLC, No. 07-2253, 2009 U.S. Dist. LEXIS 27787, at *16-17 (D. Kan. Mar. 31, 2009). Applying those principles, the court found the writings offered by the plaintiff insufficient as a matter of law to meet the requirements of the Copyright Act and granted summary judgment to the defendant on the plaintiffs copyright infringement claims.

10

In a decision issued after briefing and argument was complete in this case, the Supreme Court of Indiana also followed the Ninth Circuit line of cases. See Conwell v. Gray Loon Outdoor Mktg. Group, 906 N.E.2d 805, 815-16 (Ind. 2009). Citing Pamfiloff, supra, the court held that "[a] signed contract making no reference to ownership and lacking essential terms is inadequate as a memorandum of transfer." Id. at 816. Affirming judgment as a matter of law, the court held that the language of an accepted written proposal asserted as the basis for transfer of copyright ownership did "not carry the weight and certainty required by the Copyright Act." Id.; see also Morgan v. Hawthorne, No. 04-1809, 2009 U.S. Dist. LEXIS 31456 (W.D. Pa. Apr. 14,2009) (citing Effects Assocs. and Radio Television Espanola, and emphasizing need for clarity in transfer document).

Relying primarily on authority from the Second and Seventh Circuits, the Panel in this case acknowledges but rejects the standard articulated in the Ninth Circuit line of cases and followed elsewhere. The panel opinion asserts that "it is hardly clear that imposing strict requirements of clarity in order to effect a copyright transfer will always aid 'predictability and certainty of copyright ownership.'" (Panel Op. at 19.) It reasons that "[i]f every copyright transaction were vulnerable to challenge whenever a party is able to point out some ambiguity within the governing agreement, parties might be forced to engage in costly, protracted litigation to determine whether the transfer is valid, putting into doubt the proper holder of the copyright." (Id. at 19-20.)

But this case demonstrates the opposite. Applying the standard developed in the Ninth Circuit line of cases, the district court correctly held as a matter of law

11

that the APA, even as amended by Amendment No.2, did not have the required specificity to be a valid instrument of conveyance. It therefore was able to resolve the issue of copyright ownership on summary judgment. On the other hand, under the rule articulated by the panel decision, an ambiguous or incomplete writing that does not meet that standard can nonetheless raise a triable issue of fact -- as the Panel held here -- resulting in exactly the kind of "costly, protracted litigation to determine whether the transfer is valid" that the panel opinion purports to eschew.

The Panel also relies on Nimmer on Copyright for the proposition that ambiguities in copyright grants are common and presumably, therefore, are not grounds for finding them invalid. (Panel Op. at 19-20 (citing Nimmer, supra, at § 10.08).) But the same treatise notes that, in addition to "refer[ring] to the domain of copyright ownership," a writing to be valid under the Copyright Act "also must rise above vagueness to clue the reader into its desired intent." Nimmer, supra, at § 10.03; see also Jay Dratler & Stephen McJohn, Intellectual Property Law: Commercial Creative and Industrial Property § 6.03 (2009) ("writing must be sufficient to show the existence and principal terms of the transactions").

Before going down the route charted by the Panel, this Court should consider on rehearing the proper interpretation of the Copyright Act's transfer requirements in light of the important congressional purpose of promoting predictability and certainty in copyright ownership, and the weight of authority in other circuits. The Panel acknowledges the difficulties that will result from leaving for resolution at trial the interpretation of an alleged transfer agreement that was signed 13 years ago. (Panel Op. at 26.) That difficulty is inherent in copyright,

12

which is typically enforceable for a century or more.2

The principles of specificity adopted by courts in other circuits, but rejected by the Panel here, would avoid that difficulty and the uncertainty, lack of predictability, and protracted litigation that will otherwise result in this and similar cases.

II. APPLYING THE INTERPRETATION OF SECTION 204(a) OF THE
COPYRIGHT ACT THAT COMPORTS WITH CONGRESSIONAL
PURPOSE AND LEADING CASE LAW, THE DISTRICT COURT
CORRECTLY HELD AS A MATTER OF LAW THAT THERE WAS
NO VALID TRANSFER OF COPYRIGHTS

As tacitly acknowledged by the Panel, the APA as amended by Amendment No. 2 did not meet the specificity requirements articulated in the Ninth Circuit line of cases. In particular, Amendment No. 2's reference to copyrights "required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies" did not "reasonably identify the subject matter of the agreement," Pamfiloff, 794 F. Supp. at 936, or identify "precisely what rights [were] being transferred" such that the "parties need only look to the writing that sets out their respective rights." Konigsberg, 16 F.3d at 357.

The district court correctly held that the APA as amended by Amendment No. 2 failed to comply with Section 204(a) as a matter of law because Amendment No. 2's reference to "required" copyrights did not specify which copyrights, if any, were being transferred. Indeed, the Panel acknowledged that "[t]he parties each

13

argue for plausible, but diametrically opposed interpretations, of the word 'required,'" and that "Novell has powerful arguments to support its version of the transaction." (Panel Op. at 32,25.) As the district court found, Santa Cruz did not "require" transfer of the copyrights since"[t]he APA conferred an implied license on Santa Cruz to use Novell's copyrights as needed to implement the purposes of the APA." (12043.)

As was true of the writings at issue in Foraste, the APA as amended by Amendment No. 2 has an "utter absence of precision regarding the rights to be transferred" and "no evidence of a...'meeting of the minds.'" 290 F. Supp. 2d at 239-40. Therefore, under the principles in the leading Ninth Circuit cases and followed by other courts, Amendment No. 2 was not a sufficient writing to provide the certainty and predictability of ownership required by Section 204(a) of the Copyright Act.

III. EVEN UNDER THE PANEL'S INTERPRETATION OF SECTION
204(a) OF THE COPYRIGHT ACT, THERE IS NO TRIABLE ISSUE
REGARDING TRANSFER OF COPYRIGHTS

Even under the interpretation adopted by the Panel, a writing must make "clear that the parties contemplated that copyrights transfer" (Panel Op. at 21) in order to be a valid written instrument of conveyance or memorandum of transfer under Section 204(a). The panel decision errs in concluding that the APA as amended by Amendment No. 2 meets even that minimal standard.

As the district court found, "Amendment No. 2 does not include any provision that purports to transfer ownership of copyrights." (12041.) It does not state that copyrights "are hereby transferred," "have been transferred," or even

14

"will be transferred." Rather, it merely revises the "Intellectual Property" category of "Excluded Assets" under Schedule 1. 1(b). (Id.; 00374.)

The only document that effected a transfer of assets between the parties was the Bill of Sale, which was executed at the Closing on December 6, 1995. As the district court found, "Amendment No.2 was not accompanied by a separate 'Bill of Sale' transferring any assets" and did not "purport to retroactively change the scope of assets transferred by the Bill of Sale that was executed in connection with the APA in December 1995." (12041.) Indeed, Amendment No. 2 stated that it "amended" the APA only "[a]s of the 16th day of October, 1996," ten months after the December 1995 Bill of Sale. (Id.; 00374.)

The panel decision dismisses these omissions with the assertion that "[t]he Copyright Act does not require its writing requirement be fulfilled concurrently with the production of a Bill of Sale." (Panel Op. at 24.) This misses the point of the district court's holding. Amendment No. 2 makes no reference to transfer of copyrights and fails to amend the only transfer document executed by the parties, the December 1995 Bill of Sale. Therefore, there is no writing -- whether executed "concurrently" or later -- that makes "clear that the parties contemplated that copyrights transfer," as required by the panel opinion. (Panel Op. at 21.) Therefore, even under the interpretation of Section 204(a) adopted by the panel, the panel erred in reversing summary judgment for Novell and remanding for trial.

CONCLUSION

For all of the above reasons, the Court should grant Novell's petition for rehearing and set this case for rehearing en banc.

15

Respectfully submitted on this 8th day of September, 2009.

ANDERSON & KARRENBERG
Thomas R. Karrenberg
Heather M. Sneddon
[address, phone, fax]

MORRISON & FOERSTER LLP
George C. Harris
Grant L. Kim
David E. Melaugh
[address, phone, fax]

s/ Michael A. Jacobs

Attorneys for Defendant-Appellee
NOVELL, INC.


1Citations to five-digit numbers are to the Appendix for this appeal. "Panel Op." refers to the Panel Opinion in this case.

2Under the current version of the Copyright Act, the duration of copyright protection is the author's lifetime plus a term of 70 years. 17 U.S.C. § 302(a). For anonymous works, pseudonymous works, and works made for hire, copyright protection endures for a term of 95 years from first publication, or a term of 120 years from the year of its creation, whichever expires first. 17 U.S.C. § 302(c).

16

CERTIFICATE OF SERVICE

I, Michael A. Jacobs, certify that on this 8th day of September, 2009, a true and correct copy of the foregoing APPELLEE NOVELL, INC.'S PETITION FOR REHEARING AND REHEARING EN BANC was served via electronic mail to the following recipients:
David Boies
Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stuart Singer
BOIES, SCHILLER & FLEXNER LLP
[address]

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

17

Devan V. Padmanabhan
DORSEY & WHITNEY LLP
[address]
Counsel for Plaintiff-Appellant The SCO Group, Inc.

Dated: September 8, 2009

s/ Michael A. Jacobs
MORRISON & FOERSTER LLP
[address, phone, fax, email]

18

CERTIFICATE OF DIGITAL SUBMISSION

I, Michael A. Jacobs, certify that no privacy redactions were necessary for this filing. This APPELLEE NOVELL, INC.'S PETITION FOR REHEARING AND REHEARING EN BANC submitted in digital form is an exact copy of the written document filed with the Clerk. This digital submission has been scanned for viruses with the most recent version of a commercial virus-scanning program (using Symantec AntiVirus v.1 0.1.4.4, last updated April 4, 2009) and, according to the program, is free of viruses.

Dated: September 8, 2009

s/ Michael A. Jacobs
MORRISON & FOERSTER LLP
[address, phone, fax, email]

19

[page left blank]

20

[Ed: Pages 21-78, to the end of the document, in other words, consist of the Appeals Court ruling, which Groklaw has already transcribed as text.]

  


Novell Files for Rehearing En Banc! - Petition as text | 404 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: bugstomper on Tuesday, September 08 2009 @ 09:16 PM EDT
Put a one line summary of the correction in the title to make it most useful to
PJ

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Tuesday, September 08 2009 @ 09:18 PM EDT
Please stay off topic here, but feel free to add clicky goodness to your posts.

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Tuesday, September 08 2009 @ 09:20 PM EDT
Please place the title of the News Picks article you refer to in the title of
your post.

[ Reply to This | # ]

Novell Files for Rehearing En Banc!
Authored by: PJ on Tuesday, September 08 2009 @ 09:28 PM EDT
If anyone can do a quick OCR for me, I'd greatly appreciate it. 78 is a lot of
pages to try to do by hand.

[ Reply to This | # ]

How many?
Authored by: alansz on Tuesday, September 08 2009 @ 10:22 PM EDT
So, how many judges is the entire appeals court in that circuit, sitting en
banc?

[ Reply to This | # ]

Novell Files for Rehearing En Banc!
Authored by: Marc Mengel on Tuesday, September 08 2009 @ 10:25 PM EDT
So they're appealing the appeal?!? If this works, does this once again settle
the copyright ownership (barring the Supreme Court hearing it)?

[ Reply to This | # ]

Thank you Novell!
Authored by: grouch on Tuesday, September 08 2009 @ 10:39 PM EDT
That goofy ruling needs to be reexamined before it can launch a thousand SCOGger clones with non-specific almost transferred copyright claims.

---
-- grouch

GNU/Linux obeys you.

[ Reply to This | # ]

Does the new Chap 11 Trustee affect this?
Authored by: bugstomper on Tuesday, September 08 2009 @ 11:10 PM EDT
If this appeal is accepted by the en banc Court, will the fact that the Chap 11
Trustee is now in charge of SCO make a difference in what SCO's lawyers are
instructed to do and how Novell's appeal is opposed? Boise's fees for appeals
are supposed to be already paid for in advance, but might the Trustee conclude
that winning the appeal at this stage would only result in SCO wasting money on
the jury trial and it would be better for the creditors for SCO not to argue
this appeal further to make sure that they don't win it?

[ Reply to This | # ]

ABSOLUTELY BRILLIANT!
Authored by: jbb on Tuesday, September 08 2009 @ 11:58 PM EDT
O frabjous day! Callooh! Callay!

I think this was a gusty move by Novell, but they nailed it. They are absolutely, positively, 100% right:

... 204(a) ... 204(a) ... 204(a) ... 204(a) ...
[Disparaging remarks about the appeals court decision intentionally left deleted.]


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

[ Reply to This | # ]

Novell Files for Rehearing En Banc! Why not?
Authored by: webster on Wednesday, September 09 2009 @ 12:31 AM EDT
..
What an annoyance to find this after midnight!

It is really worthwhile. Judges don't like to be embarrassed. This issue is
simple. They don't want to risk being reversed by the Supremes.

The decision is a monument to unpredictability of copyright transfers.

Remember that at oral arguments even McConnell the writer of this decision
seemed to opine that the Federal statutory requirements for the transfer of
copyright had not been met.

He had to strain and base his decision on a foundation of exceptions.

The Court en banc will take a conservative route and probably act without oral
argument or further briefing.

It will be interesting to see if they direct SCO to respond.

Watch out! The issue is simple and easily reversible, or as easy as these
things get.

Clearly Novell has statutory and case Authority. But not tonight!

~webster~


.

[ Reply to This | # ]

I see a Jury receding into the distance
Authored by: The Mad Hatter r on Wednesday, September 09 2009 @ 12:49 AM EDT


Even if the Trustee was not in charge. This does raise some interesting
questions, since Novell's reason for asking for the En Banc hearing is not
trivial:

1) If the Trustee decides to pull out of the litigation, can Novell still win a
hearing?

2) If Novell doesn't win an En Banc hearing, does the ruling remanding the case
back to the original court for trial become precedent for the enter circuit?

Number 2 is what Novell appears to be saying has happened. Their lawyers have a
vested interest in their client's winning, and thanks to PJ's tutelage I've
learned to take what is said in a filing with a grain of salt (and MoFo does not
have a good reputation in certain circles). If they are correct, and this
changes how copyright ownership changes are litigated, it will have tremendous
repercussions.


---
Wayne

http://crankyoldnutcase.blogspot.com/

[ Reply to This | # ]

I'll see you and I'll raise you ....
Authored by: nsomos on Wednesday, September 09 2009 @ 12:56 AM EDT
It is good to see Morrison and Foerster argue persuasively
to get the first appeal overturned and hopefully Kimball
will be vindicated. The knock-on effects of requiring
jury determinations on all future ambiguous situations
where there could be any disagreement about copyright
transfer in this circuit, is an excellent reason why the
standard for transfer should be a clear and unambiguous
written document. It may take some time, and I understand
it is hard to be patient, but I am quite hopeful that the
Tenth Circuit will finally decide in Novell's favor.

With the chap 11 trustee in charge, it is unlikely
that any further appeal attempt will be made by SCOG.
Should Novell be successful, then nobody in their right
minds would ever want to take over the litigation, and
the trustee will surely want to settle in such a way
as to minimize expenses.

I still think there is some chance to rehabilitate SCOG
by auctioning off Java patent, FC stuff and ME inc, and
by reducing staff (especially management), sticking to
the 100% to Novell, 5% back licensing agent business,
and selling non-transferable source licenses for SCOG
products so some major customers can do ongoing
software maintenance themselves. There can also be
some ongoing support income, and assistance in porting
to Linux can also be sold as a service.

But one thing that will surely NOT fly, is ongoing
litigation.

[ Reply to This | # ]

Conflict among the circuits -- ripe for Supreme Court?
Authored by: Anonymous on Wednesday, September 09 2009 @ 01:05 AM EDT

If Novell loses again this time, it seems to me it would establish a conflict
among the circuits worthy of the Supreme Court's attention.

[ Reply to This | # ]

Didn't Kimball recuse himself because of this ruling?
Authored by: Anonymous on Wednesday, September 09 2009 @ 01:05 AM EDT
If the en banc review uphoolds Kimball's will he "unrecuse"
himself?

[ Reply to This | # ]

Novell Files for Rehearing En Banc!
Authored by: Anonymous on Wednesday, September 09 2009 @ 02:36 AM EDT

About Time!

I found the three panel ruling very disturbing. The patent law seems very clear.

Explicit not implicit.

In my darkest dreams, I was wonder if I were Emperor how long I'd let the three judges practice after such a foolish decision.

[ Reply to This | # ]

One point Novell have in their favour this time
Authored by: gdshaw on Wednesday, September 09 2009 @ 04:21 AM EDT

Previously Novell had to argue their case two ways in order to cover all bases:

  • Either the contract was unambiguous, in which case no copyrights were transferred,
  • or the contract was ambiguous, in which case it did not meet the statutory requirements for a copyright transfer.

Now that they have a ruling that it was ambiguous they can at least focus on a single, coherent line of reasoning (and the public policy implications of allowing the ruling to stand).

[ Reply to This | # ]

I'm shocked!
Authored by: Ian Al on Wednesday, September 09 2009 @ 04:33 AM EDT
Novell still get the rights to the money after the reversal on appeal and that
guarantees the death of SCOG. I suppose it leaves the opportunity for more
SCOG-like trolling if the jury thought that any copyrights did transfer, but
that is an extremely low odds outside chance and the chance of anything remotely
litigable (litigatible, litigiousifiable...) being sold to a troll by the
Trustee seems unlikely.

The only real reason for incurring the costs of the en banc hearing is to settle
the obviously disastrous precedent left by the appeal court for copyright
conveyance.

It seems that pragmatism would militate against the en banc hearing. The only
justification is settling an important legal issue with a strong case.

I did not think they would do it, but I am full of respect for their decision to
go ahead.

---
Regards
Ian Al

Linux: Viri can't hear you in free space.

[ Reply to This | # ]

will become the law of this Circuit if not revised
Authored by: IMANAL_TOO on Wednesday, September 09 2009 @ 04:38 AM EDT
The Panel decision, which will become the law of this Circuit if not revised on rehearing, would require a trial whenever a party can show some evidence of intent to transfer copyright ownership, even though, as here, there is no basis in the alleged instrument of transfer to determine with reasonable certainty which, if any, copyrights were to be transferred.


Bbbrrr. It is cold here.

That Circuit could become the Las Vegas of Courts. Gamble Circuit.


.

---
______
IMANAL


.

[ Reply to This | # ]

18 copies by Email?
Authored by: Anonymous on Wednesday, September 09 2009 @ 05:18 AM EDT
Original and 18 copies. Served on 09/08/2009. Manner of Service: email.

Did they really put 18 copies of the original inside of one Email? Or sent out 19 Emails to the court?

Because printing out multiple copies of one Email would be a violation of fair use?

I have my problems seeing how those 18 copies get there, and how they make sense.

Or do they imply that 18 copies may be made and sent out to parties?

[ Reply to This | # ]

Some Thoughts
Authored by: Steve Martin on Wednesday, September 09 2009 @ 06:04 AM EDT

I did a bit of reading after having read this filing, specifically in the 10th Circuit Appeals Court Rules. Here are some things I found.

Fed. R. App. P. 35 states that

"[t]he petition [for re-hearing en banc] must begin with a statement that either:

(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court's decisions; or

(B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue."
I'd say from my IANAL perspective that Novell's brief certainly addresses (B).

10th Circuit Local Rule 35.1(B):

Filing a petition for rehearing or for rehearing en banc is not required before filing a petition for certiorari in the United States Supreme Court.
So MoFo could have went straight to the Supreme Court with this. I'm guessing (and it's just a guess) that they thought they would have more success asking for rehearing en banc in the Tenth Circuit than they would have getting cert to the Supreme Court. I'm not so sure. They might have had more luck getting this overturned in the Supreme Court, since they clearly can demonstrate divergence in rulings between Circuits, more so probably than they could demonstrate divergence between this ruling and other Tenth Circuit rulings.

Tenth Circuit Local Rule 35.5:

A majority of the active judges who are not disqualified may order rehearing en banc. The en banc panel consists of this court's active judges who are not disqualified and any senior judge who was a member of the hearing panel, unless he or she elects not to sit.
In the Tenth Circuit, there are twenty judges (now that Judge McConnell is no longer listed). The only currently active senior judge that sat on the Panel was Judge Baldock. I don't know if he would elect to sit on the en banc review or not. I wonder if anyone who attended the appeal hearing could share some impressions of his presence on the Panel.

Rule 35.6:

The grant of rehearing en banc vacates the judgment, stays the mandate, and restores the case on the docket as a pending appeal. The panel decision is not vacated unless the court so orders.
I'm not really clear on the difference between "vacating the judgment" and "vacating the decision".

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

[ Reply to This | # ]

When All Is Said And Done
Authored by: sproggit on Wednesday, September 09 2009 @ 06:09 AM EDT
The single most amazing thing, from my perspective, is the quality and
completeness of the documentation that was drawn up to support a
multi-million-dollar asset transfer.

I am not going to speculate as to which party is reading this correctly [ for
once! ] but instead have to observe that, if I were paying a lawyer to write an
agreement for something I wanted to purchase for several millions of dollars,
I'd want to make sure that the agreement set out exactly what I was paying for.




OK, notwithstanding my earlier claim about not speculating, as I've followed
this case through, I think there are two key points which the Appeals Judges did
not assign adequate weight in their evaluation:

1. The testimony of Tor Braham. He was there, he drafted the agreement, and his
evidence, for me, explains all the subtleties and complexities of the agreement
extremely well.

2. The approaches by Darl McBride, to Novell, immediately prior to the launch of
their litigation strategy. If Darl McBride felt he needed Novell to formally
transfer *something* to SCO in order to enable their litigation attack on IBM to
take place, then it says to me that they *knew* they didn't have sufficient
ownership. Especially as they asked for it in the early rounds of engagement
with Novell.


Lessons to be learned?

Even if you hire a good lawyer or law firm, read the small print before you
sign. If you don't understand it, get them to rewrite it for you - that's what
they're paid for. If the document doesn't make complete, absolute, crystal-clear
plain English sense, get it re-written. A good lawyer should be able to clarify
a legal point until it is readily grasped by the lay-person.

[ Reply to This | # ]

Not even an intent is proven.
Authored by: darkonc on Wednesday, September 09 2009 @ 06:53 AM EDT
The amendment only consists of a conditional promise to transfer if certain conditions are met. Absent proof that
  1. the conditions have been met, and
  2. Novell has been notified of the fact that the conditions have been met,
the promise isn't triggered.

Even if the conditions are met and communicated, the contract (and proof) shouldn't classify as a transfer document... It would still require that Novell issue a separate transfer document -- the unwillingnes to do would then be a breach of contract issue, not a copyright issue. The result of the (successful) contract suit would then be a specific performance order (transfer the copyright) but the contract, itself, still doesn't call directly for a specific transfer.

IANAL, but that's my reading of it.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Car dealership analogy (again)
Authored by: msfisher on Wednesday, September 09 2009 @ 08:49 AM EDT
Yet again, we are back to just what Caldera/SCO became (as contrasted against
what they bought) when the APA, as amended, was put into effect.

It became the same thing as an auto dealer.

A car dealer doesn’t need trademark, patent or copyrights ownership to sell the
cars. The dealer makes a profit and so does the manufacturer.

The car dealer can offer after-market modifications (sound systems, pinstriping,
“all weather body and undercarriage sealant, GPS, etc.) without giving any of
that profit to the manufacturer.

The car dealer needs to have knowledge of and/or access to trademark, patent and
copyright material in order to market and maintain (i.e. repair) the product.

That is what SCO agreed to. Sell UNIX, getting 5% back from Novell. Do its own
UNIX programming and sell that without owing Novell anything. Market and
maintain the product.

Exactly like a car dealer. No copyright ownership needed. And, according to
the wording of the APA Amendment 2, none sold.

[ Reply to This | # ]

A non-lawyer businessman's reaction
Authored by: Anonymous on Wednesday, September 09 2009 @ 11:38 AM EDT

The whole point of putting agreements in writing is to avoid subsequent "he said this, no he said that" disputes. You sign an agreement, and that's it. If it doesn't say exactly what you thought it said, well, tough. That happens. But over the years, you come out ahead because you avoid a lot of lawsuits.

Then along came these bozos on the 10th Circuit appeals panel and tossed all that in the trash. Every businessman in the country - except law firms - will be hoping and praying that the en banc appeal will restore the law to what we all thought it was.

[ Reply to This | # ]

A message to the chapter 11 trustee
Authored by: jbb on Wednesday, September 09 2009 @ 12:09 PM EDT
Perhaps more than anything else, this is a very clear message to the chapter 11 trustee, Edward Cahn, whose prime task is to evaluate the value of SCO's litigation highjinks. This sad saga has been going on for over half a decade with plenty of overlength filings from BS&F trying to throw sand in the eyes of the judges. Yet the relatively simple matter of (not) enforcing 204(a) of the copyright code is the lynchpin upon which all of SCO's litigation dreams rely.

SCO's ex-management will have plenty of opportunity to bend the ear of Judge Cahn explaining how they have bought the best tap dancers in the world who can snow a jury as easily as they can snow a panel of judges. But Novell has now focused attention on one key point. They have provided Judge Cahn with an easy way to cut through the Gordian knot. Would it be in the best interest of the creditors to gamble everything on the chance that the full appeals court, the supreme court, and a jury will all choose to violate both the words and the spirit of section 204(a) of the copyright code? He does not have to make a legal decision of whether SCO has a chance of prevailing (which of course they do), he has to make a business decision of what their odds of prevailing are. Novell is sending him a short and simple signal that those odds are slim to none.


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

[ Reply to This | # ]

How long will this take?
Authored by: rsteinmetz70112 on Wednesday, September 09 2009 @ 12:26 PM EDT
I wonder what the normal/average/mean time frames are for this court ruling on
such motions, hearing en banc appeals and making decisions.

I know every case is different but it seem there ought to be some rules of thumb
or expsriance out there somewhere.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

BACKGROUND FACTS AND PARANORMAL HISTORY
Authored by: Anonymous on Wednesday, September 09 2009 @ 01:00 PM EDT
Is how I read it speed reading without my glasses




[ Reply to This | # ]

Novell would appeal an adverse result to SCOTUS
Authored by: Jim Olsen on Wednesday, September 09 2009 @ 02:11 PM EDT
This filing tells the SCO Trustee that he can't expect the appeal to yield a
definitive result that is favorable to SCO any time soon. The circuit court may
not grant a re-hearing, or it may grant it and the re-hearing may go in SCO's
favor, but in either case Novell would then appeal to the Supreme Court. Its
argument of conflict between circuits is clear signal in this regard.

Bottom line, it would be some little while before Boies got to bamboozle a
credulous jury into finding for SCO (pretty much their only hope left), if
indeed that ever happened. In the meantime, SCO's financial position grows
worse by the day. The Trustee is no babe in the woods, and I think he will take
the appropriate conclusions regarding continuation of the lawsuits.

[ Reply to This | # ]

Chris Sontag: "Contracts are what you use against parties you have relationships with."
Authored by: SpaceLifeForm on Wednesday, September 09 2009 @ 02:41 PM EDT
Link

"Copyrights and patents are protection against strangers. Contracts are what you use against parties you have relationships with," Sontag said. "They end up being far stronger than anything you do could do with a patent."

That was in May of 2003, and I'm sure he is finding out that it is true in spades.

Just not in the direction he envisioned.

Especially when there is an en banc review of the APA.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

What Next?
Authored by: rsteinmetz70112 on Wednesday, September 09 2009 @ 02:55 PM EDT
Does SCO get a shot?

Can they also appeal parts of the ruling they don't like?

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Procedures en banc - Or - Robes on the hook
Authored by: webster on Wednesday, September 09 2009 @ 04:04 PM EDT

1. Every judge has a copy of Novell's petition. Only one judge has to ask for a vote. Then they all have to vote. There won't be a scoreboard. Judges are a closed club accountable to no one except possibly higher up judges. It is easy for them to back one another, affirm everything, without comment, all the way up the line. Novell has to really scare them or at least appeal to their professional vanity. They will want to be on the winning side if it goes up to the Supremes. The law clerks are checking Novell's authority to see which way the winds blow. They may also be peeking at the decision and briefs. If one calls for a vote, they are all going to have to study it more and then vote.

2. SCO can not respond, overlength or otherwise, unless asked by the Court. FRAP 40(a)(3).

3. Most petitions are denied. Novell needs eleven votes. They are probably very collegial and will at least discuss it rather than railroad a significant minority. If they don't deny it, the Court can order anything at all:

(4) Action by the Court.

If a petition for panel rehearing is granted, the court may do any of the following:

(A) make a final disposition of the case without reargument;

(B) restore the case to the calendar for reargument or resubmission; or

(C) issue any other appropriate order.

FRAP 40(a)(4).

It should be fast.

~webster~

[ Reply to This | # ]

Wake up! It is En Banc time!
Authored by: Anonymous on Wednesday, September 09 2009 @ 05:29 PM EDT
Decision Reverses Earlier Rulings Saying Sleeping Lawyer Did Not Violate Defendant’s Right to a Fair Trial

Late Monday, the United States Court of Appeals for the Fifth Circuit ruled that defendant Calvin Burdine is entitled to a lawyer who not only shows up for trial, but who remains awake throughout the proceedings as well. This rare decision by the en banc court comes after multiple reviews by the courts stating that Burdine’s Sixth Amendment right to counsel had not been violated although his trial attorney, Joe Cannon, slept repeatedly during the capital murder trial. The state of Texas has 90 days to decide if they will appeal the decision to the U.S. Supreme Court.

“Finally, common has sense prevailed,” stated Robert McGlasson, Burdine’s lawyer in the appeals process. “The full court affirmed what we have said all along, namely, that a sleeping attorney is the same as no attorney, and that a death penalty trial conducted under these circumstances violates basic notions of fairness and decency,” added McGlasson.

In October 2000, a three-judge panel of the Fifth Circuit Court ruled 2-1 that the record purportedly did not show that Mr. Cannon slept through “crucial” parts of the trial and because Mr. Burdine did not, on his own accord, make a record of this sleeping, Calvin Burdine was not entitled to a retrial.




Who has slept this time? Our Darling's brother?




IMANAL_TOO (just didn't login)

[ Reply to This | # ]

Butch Cassidy and the Sundance Kid(s)...
Authored by: HockeyPuck on Wednesday, September 09 2009 @ 06:52 PM EDT
This reminds me of the movie "Butch Cassidy and the Sundance Kid",
when they are being chased by a posse. They try everything in book to shake
them, to no avail, and look back and say; "who are these guys?". I'm
talking about Novell's lawyers. SCO cries "victory" with the recent
ruling. But Novell responds "not so fast" fellas, we are not done here
yet".

Brilliant move, especially with SCO under "new management" in
bankruptcy. The court already ruled SCO owes Novell money. But money is not an
issue for Novell; that has gone bye-bye already and I think we can all agree on
that. All Novell is trying to do is keep their UNIX property (SCO is toast) and
bury SCO and anyone else regarding Linux (regarding IP). And just in case anyone
forgot; Novell sells Linux.

[ Reply to This | # ]

BANG! - Novell Files for Rehearing En Banc!
Authored by: Anonymous on Wednesday, September 09 2009 @ 10:40 PM EDT
Hit the nail on the head why don't they! That ought to be a bit of a shock to
SCO who thought they were headed back for a jury trial!

[ Reply to This | # ]

OK why doesnt novel sue SCO for infringment
Authored by: Anonymous on Thursday, September 10 2009 @ 03:32 AM EDT
like they are using there copyrights in ways without expressed written
permission , um like er a isn't that as the riaa say ILLEGAL ( i know its a
civil matter )

[ Reply to This | # ]

What are the chances for a hearing?
Authored by: peope on Thursday, September 10 2009 @ 12:28 PM EDT
What are the chances for a hearing en banc?

Is it always approved?
Is it very common for appeals to have requests for hearings en banc?

What are the odds generally like?
What are the odds in this specific case?

[ Reply to This | # ]

No MOG explanation yet?
Authored by: Anonymous on Thursday, September 10 2009 @ 01:18 PM EDT
No inside expose of that sore loser Novell's Hail Mary attempt to block the
Stunning Victory(tm) SCO scored when the appeal panel validated their ownership
of all code ever written and remanded the case back so SCO could have their day
in court?

No statement about how SCO, led by their fearless CEO<delete> Trustee
carrying a briefcase full of code<delete> subpoenas, will triumph over
those evil penguins.

[ Reply to This | # ]

Where is the Press?
Authored by: Anonymous on Thursday, September 10 2009 @ 02:44 PM EDT
OK normally after any announcement from the courts MOG and others are posting
what a great victory it is for SCO to get their name in the press again. Why
are they now quiet?

[ Reply to This | # ]

Judges worried about being "smacked down".
Authored by: rfrazier on Friday, September 11 2009 @ 10:11 AM EDT
I've read a couple of posts where the idea that Novell could appeal to the
Supreme Court, and the judges on the Appeal Circuit don't want to be
"smacked down" by a bad decision, provides some evidence that the
appeal will be heard en banc.

It occurs to me that sometimes judges, even Appeal Circuit judges, might want
some guidance given by the Supreme Court so that over the long term and over
jurisdictions there will be a consistency in ruling.

So, isn't one judge's "smack down" another judge's
"guidance"?

Best wishes,
Bob

[ Reply to This | # ]

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