decoration decoration
Stories

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

Groklaw Gear

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


Contact PJ

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


User Functions

Username:

Password:

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

No Legal Advice

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

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Wednesday, April 28 2010 @ 08:24 AM EDT

SCO has filed its "renewed" motion for judgment "as a matter of law", with its supporting memorandum. They ask the judge to rule over the heads of the jury and decide that the jury "simply got it wrong" when it ruled that SCO didn't get the copyrights in 1995 from Novell. In the alternative, they'd like a new trial.

See, this is the problem with loaning money to SCO. They don't ever want this dance to end. The rest of the world gets it. SCO lost, by judge (Dale Kimball) and now by jury. They'd like this to be over. And us, the musicians, so to speak, at the dance? We're tired and we want SCO to stop already so we can pack up and go home and get some sleep. And no, this isn't normal, stretching a case that was hopeless from day one into what looks to become a more than decade-long event.

And can you imagine the international outcry if the judge were to grant a request like this?

Here they are:

04/27/2010 - 871 - MOTION for Judgment as a Matter of Law filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 04/27/2010)

04/27/2010 - 872 - MEMORANDUM in Support re 871 MOTION for Judgment as a Matter of Law filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 04/27/2010)

SCO told the world that it wanted its day in court. When Judge Kimball ruled against SCO on summary judgment and then after a bench trial of the remaining issues, it howled to the Court of Appeals that it wanted a jury trial instead. It got it. The jury told SCO the same thing Judge Kimball told them: they don't own the copyrights they've been trying to bully the Linux world with since 2003. The market tells them the same thing. Now they want a new judge to overrule the jury, or they want a new jury and a do over.

SCO has now lost in every courtroom it has entered, except bankruptcy court which we've learned is tilted all a debtor's way. But everywhere else, it's been lose, lose. So what is the real point of this litigation? Seriously. Who would take it this far, and to what end? I'm starting to wonder if it's at least in part an effort to avoid sanctions, to make the case look at least plausible. After all, companies have spent millions in defending against what have turned out to be false claims of infringement of copyrights that SCO never even owned. That is the kind of thing that keeps lawyers up at night.

Or maybe it's as simple as the memorandum of law implies: SCO wants the copyrights because it can't sue without them. And it wants to sue some more. For some evidence contradicting some of SCO's arguments, see the previous article, if you are new.

And as if SCO were not annoying enough, Microsoft just announced it believes Android violates its patents, and they don't want others to "free ride" on Microsoft's innovations. Interesting timing. Right after SCO's attack on Linux failed at trial, here comes Microsoft with another way to attack Linux.

Puh lease. If you put Google and Microsoft side by side and asked anyone in any town in any country on planet earth which company is the most innovative, who do you think would win? Patents, software patents, in our view are about blocking innovation by attacking new companies who actually do innovate, for the benefit of old and sluggish monopolies who would rather not. Remember how long it took for Microsoft to update anything in IE, and only did so when Mozilla came along? And Android is Linux. Microsoft hates Linux. Unless it can be made into a cash cow for Microsoft, I suppose. That was SCO's dream too. Still is, I gather.

Dear U.S. Supreme Court,

Please can you stop the patent madness? In re Bilski gives you the opportunity.

Forces are using IP laws to try to destroy Linux, and it's a better mousetrap. Isn't the public to be allowed to choose a better mousetrap when one comes along?

Is the purpose of IP law to enable established companies to sue into smithereens anyone new who comes along and tries to offer the public a better mousetrap? Because, sadly, that is what is currently happening.

The transcripts from the SCO v. Novell trial are now beginning to work their long, long way through the process of making them public eventually. There is a transcript for each day of trial, and they all say pretty much the same thing, so I'll just show you one. The full list will be on the Novell Timeline page:

04/19/2010 - 854 - **RESTRICTED DOCUMENT** NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of March 8, 2010-Jury Trial-Jury Selection before Judge Ted Stewart, re 567 Notice of Appeal,. Court Reporter/Transcriber Patti Walker, CSR, RPR, CP, Telephone number (801)364-5440.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

The rest just say "jury trial before Judge Ted Stewart". We'll get them all as soon as they let us.

Here's the Memorandum in Support:

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

Brent O. Hatch (5715)
[email]
Mark F. James (5295)
[email]
HATCH, JAMES & DODGE, PC
[address]
[phone]
[fax]

Stuart Singer (admitted pro hac vice)
[email]
Sashi Bach Boruchow (admitted pro hac vice)
[email]
BOIES SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

David Boies (admitted pro hac vice)
[email]
Robert Silver (admitted pro hac vice)
[email]
Edward Normand (admitted pro hac vice)
[email]
BOIES SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for Plaintiff, The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC., by and through the
Chapter 11 Trustee in Bankruptcy, Edward N.
Cahn,
Plaintiff/Counterclaim-Defendant,

vs.

NOVELL, INC., a Delaware corporation,
Defendant/Counterclaim-Plaintiff.

SCO'S MEMORANDUM IN SUPPORT
OF ITS RENEWED MOTION FOR
JUDGMENT AS A MATTER OF LAW
OR, IN THE ALTERNATIVE, FOR A
NEW TRIAL

Civil No. 2:04 CV-00139

Judge Ted Stewart

1

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii
PRELIMINARY STATEMENT 1
ARGUMENT 3
  I. SCO IS ENTITLED TO JUDGMENT AS A MATTER OF LAW 3
  A. SCO Acquired the Copyrights Required to Exercise SCO's Ownership
Rights in the UNIX and UnixWare Technologies It Acquired
4
  B. The Copyrights Are Required for SCO to Exercise Its Ownership Rights in
The UNIX and UnixWare Technologies It Acquired
9
  II. IN THE ALTERNATIVE, SCO IS ENTITLED TO A NEW TRIAL 14
  A. SCO Acquired the UNIX and UnixWare Copyrights 15
  1. The Intent of the Negotiators and Principals Regarding the APA 15
  2. The Parties' Course of Performance 22
  B. The Copyrights Are Required for SCO to Exercise Its Ownership
Rights in the UNIX and UnixWare Technologies It Acquired
24
CONCLUSION 25

2

TABLE OF AUTHORITIES

Cases

Allied Chem. Corp. v. Daiflon, Inc.,
449 U.S. 33 (1980)..........................................................14

Black v. Heib's Enters., Inc.,
805 F.2d 360 (10th Cir. 1986)..............................................14, 15

Brown v. McGraw-Edison Co.,
736 F.2d 609 (10th Cir. 1984)..................................................14

Caruolo v. John Crane, Inc.,
226 F.3d 46 (2d Cir. 2000)....................................................15

Children's Broadcasting Corp. v. Walt Disney Co.,
357 F.3d 860 (8th Cir. 2004)..................................................14

Davis v. Blige,
505 F.3d 90 (2d Cir. 2007)......................................................9

Flying J Inc. v. Comdata Network, Inc.,
405 F.3d 821 (10th Cir. 2005)..................................................18

Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 415 (1996)..........................................................14

Giles v. Rhodes,
171 F. Supp. 2d 220 (S.D.N.Y. 2001).............................................15

ITOFCA, Inc. v. Megatrans Logistics, Inc.,
322 F.3d 928 (7th Cir. 2003)....................................................5

J.I. Case Credit Corp. v. Crites,
851 F.2d 309 (10th Cir. 1988)..................................................4

Relational Design & Tech., Inc. v. Brock,
No. 91-2452-EEO, 1993 WL 191323 (D. Kan. May 25, 1993).........................5

Shaw v. AAA Eng'g & Drafting,
213 F.3d 519 (10th Cir. 2000)..................................................3

Shugrue v. Cont'l Airlines, Inc.,
977 F. Supp. 280 (S.D.N.Y. 1997)................................................5

3

Siemens Med. Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc.,
615 F. Supp. 2d 884 (N.D. Iowa 2009)...........................................15

Silvers v. Sony Pictures Entmt., Inc.,
402 F.3d 881 (9th Cir. 2005)................................................9, 13

Tanberg v. Sholtis,
401 F.3d 1151 (10th Cir. 2005)................................................15

The SCO Group, Inc. v. Novell, Inc.,
578 F.3d 1201 (10th Cir. 2009).............................................passim

Traicoff v. Digital Media, Inc.,
439 F. Supp. 2d 872 (S.D. Ind. 2006).............................................10

Vanmeveren v. Whirlpool Corp.,
65 Fed. Appx. 698 (10th Cir. 2003)..............................................3

Wagner v. Live Nat'l Motor Sports, Inc.,
586 F.3d 1237 (10th Cir. 2009)..................................................3

Other Authorities

1 Copyright Throughout the World § 19:29 (2009)....................................10

1 The Law of Copyright § 4:44 (2009).............................................10

17 U.S.C.A. § 101.............................................................10

3 Patry on Copyright § 7:2 (2010)................................................10

Copyrights and Copywrongs: The Rise of Intellectual Property and
How It Threatens Creativity
, 3 J. High Tech. L. 1 (2003)............................10

Fed. R. Civ. P. 50(a)(1)...........................................................3

Fed. R. Civ. P. 50(b)...........................................................14

Fed. R. Civ. P. 59(a)...........................................................14

Restatement (Second) of Contracts § 201(2)........................................18

4

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc. ("SCO"), respectfully submits this Renewed Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial.1

PRELIMINARY STATEMENT

The jury verdict in this case is the type for which Rule 50(b) and Rule 59 exist. The jury simply got it wrong: The verdict cannot be reconciled with the overwhelming evidence or the Court's clear instructions regarding the controlling law. The jury answered "no" to the single question: "Did the amended Asset Purchase Agreement transfer the UNIX and UnixWare copyrights from Novell to SCO?" We do not know whether the verdict resulted from misapprehension of the jury instructions, confusion about the meaning of prior judicial decisions that Novell read into the record for the ostensible purpose of challenging SCO's damages theory, Novell's persistent efforts to focus the jury on the old language of the Asset Purchase Agreement ("APA") which was replaced by a binding amendment, or other factors.

Whatever the explanation for the verdict, the evidence demonstrated that ownership of the UNIX and UnixWare copyrights is required for SCO to exercise the complete ownership rights in the UNIX and UnixWare technologies (including the source code) it acquired under the APA, and that the amended APA provides that such copyrights were transferred. That record compels judgment as a matter of law for SCO under Rule 50(b). At a minimum, the verdict is clearly against the substantial weight of the evidence, necessitating a new trial under Rule 59.

5

Amendment No. 2, together with the APA, means that SCO acquired the copyrights "required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." The Tenth Circuit's opinion supports that reading, and at trial the chief negotiator and sole drafter of the Amendment for Novell admitted it. There is no reasonable interpretation of Amendment No. 2 to the contrary. For a variety of reasons, it stretches reason beyond the breaking point to characterize the Amendment as merely "affirming" that SCO had received some sort of "license" under the APA. In the hundreds of pages of agreements, press releases, SEC filings, letters, and other contemporaneous documentation, there is not one word of a license from Novell to SCO for use of the UNIX and UnixWare copyrights.

The evidence further demonstrated beyond any reasonable dispute that the UNIX and UnixWare copyrights were required for SCO to exercise its full ownership rights with respect to the UNIX and UnixWare technologies. The evidence in SCO's favor on this obvious point is overwhelming. The UNIX and early UnixWare technology lies at the heart of SCO's subsequent versions of UnixWare, including the current version of UnixWare. Without copyright ownership SCO cannot assert rights or bring suit to protect that technology against misuse by third parties, and without the ability to protect the technology, SCO cannot maintain its UNIX business or exercise the full ownership rights to exploit, develop, and defend the core UNIX source code. While SCO could physically continue to sell its UnixWare and OpenServer products without copyright ownership, SCO could not fully maintain its UnixWare business without the ability to enforce the copyrights in the core UNIX technology.

In addition, SCO indisputably acquired "[a]ll of Seller's claims arising after the Closing Date against any parties relating to any right, property or asset included in the Business." (APA Schedule 1.1(a), Item II.) SCO thus acquired, among other claims, all of the claims, which

6

Novell otherwise would have, relating to the use or misuse of the UNIX and UnixWare source code — including all copyright claims concerning that source code. The law requires that SCO own the UNIX and UnixWare copyrights to prosecute such claims.

At a minimum, the verdict is clearly against the weight of the evidence. While there was some evidence by Novell witnesses to the contrary, the significantly more substantial and more persuasive evidence was that in the sale of a software business and source code, the parties did not agree that the seller could withhold the copyrights reflecting ownership of that source code. The business negotiators agreed that the parties intended for SCO to acquire the copyrights, and the course of performance after the APA was signed confirms that intent. An exclusion of the copyrights in the original APA nevertheless resulted, from either a mistake (negotiators who understood the exclusion to refer solely to Novell's NetWare copyrights) or a last-minute, overzealous decision between Novell's general counsel and its outside counsel (who admitted that they never asked the business negotiators whether any such exclusion was part of the deal). Regardless, Amendment No. 2 replaced the exclusion, and it did not merely preserve a status quo in which SCO had acquired some sort of "license."

ARGUMENT

I. SCO IS ENTITLED TO JUDGMENT AS A MATTER OF LAW

Rule 50 requires that the verdict be set aside if there was not a "legally sufficient evidentiary basis" for a "reasonable jury" to have reached that verdict. Fed. R. Civ. P. 50(a)(1). Rule 50 is satisfied where the "evidence points but one way," Wagner v. Live Nat'l Motor Sports, Inc., 586 F.3d 1237, 1244 (10th Cir. 2009), or "the evidence so overwhelmingly favors the moving party as to permit no other rational conclusion," Shaw v. AAA Eng'g & Drafting, 213 F.3d 519, 529 (10th Cir. 2000); see, e.g., Vanmeveren v. Whirlpool Corp., 65 Fed. Appx. 698, 700-01 (10th Cir. 2003); J.I. Case Credit Corp. v. Crites, 851 F.2d 309, 311-16 (10th Cir.

7

1988). At the close of all the evidence, SCO moved for judgment on its claim to copyright ownership under Rule 50(a) on the grounds that ownership of the copyrights was required for SCO to exercise its rights in connection with its acquisition of the UNIX and UnixWare technologies, and now renews the motion under Rule 50(b) because the verdict cannot be squared with the overwhelming evidence and the law.2

A. SCO Acquired the Copyrights Required to Exercise SCO's Ownership
Rights in the UNIX and UnixWare Technologies It Acquired.

The only reasonable interpretation of Amendment No. 2 — an interpretation that Novell's own negotiator of the Amendment adopted at trial — is that SCO acquired all copyrights "required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies."

SCO acquired the "Business" of developing, licensing, and supporting UNIX and UnixWare software products, including the sale of both source and binary code licenses. (Ex. 1 (APA), Recital A.) The APA effectuated that asset transfer by specifying a schedule of transferred assets, Schedule 1.1(a) (the Assets Schedule), and a schedule of excluded assets, Schedule 1.1(b) (the Excluded Assets Schedule). (Id. § 1.1(a).)

The Assets Schedule covers copyrights by providing for the transfer of "All rights of ownership" in, among other things, the source code for all then-extant versions of UNIX and UnixWare. While the language of the Excluded Asset Schedule originally excluded all

8

copyrights from the transferred assets, that language was replaced by Amendment No. 2. Item I of Schedule 1.1(a) identifies the full scope of the transferred assets as consisting of:

All rights and ownership of UNIX and UnixWare, including but not limited to all versions of UNIX and UnixWare and all copies of UNIX and UnixWare (including revisions and updates in process), and all technical, design, development, installation, operation and maintenance information concerning UNIX and UnixWare, including source code, source documentation, source listings and annotations, appropriate engineering notebooks, test data and test results, as well as all reference manuals and support materials normally distributed by Seller to end-users and potential end-users in connection with the distribution of UNIX and UnixWare, such assets to include without limitation the following:
Item I then proceeds to identify by name or reference all UNIX and UnixWare source code products and binary products.

As the Tenth Circuit recognized in its decision remanding the case for trial, the specific, catch-all phrase "All rights and ownership of UNIX and UnixWare" includes the copyrights of UNIX and UnixWare — the core intellectual property on which the UNIX and UnixWare licensing business depends. The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1213-14 (10th Cir. 2009). A transfer of "all right, title and interest to computer programs and software can only mean the transfer of the copyrights as well as the actual computer program or disks." Shugrue v. Cont'l Airlines, Inc., 977 F. Supp. 280, 286 (S.D.N.Y. 1997) (emphasis added); see also ITOFCA, Inc. v. Megatrans Logistics, Inc., 322 F.3d 928, 931 (7th Cir. 2003) (transfer of "all assets" to a business includes copyrights); Relational Design & Tech., Inc. v. Brock, No. 91-2452-EEO, 1993 WL 191323, at *6 (D. Kan. May 25, 1993) (transfer of "all rights" in a program includes copyrights). In addition, the "without limitation" language makes clear that the list of Items that follow in the Assets Schedule is non-exhaustive. Where copyrights are one of the "rights and ownership" of UNIX and UnixWare covered by Item I of Schedule 1.1(a), such copyrights need not have been expressly included under the intellectual property subheading in

9

Item V of the Schedule. When Novell and SCO agreed to remove the language excluding copyrights from the APA by executing Amendment No. 2, the effect was that copyrights were included under "rights and ownership" in the Assets Schedule, as the Tenth Circuit indicated. SCO, 578 F.3d at 1213-14 ("[A]ny change to the set of Excluded Assets in Schedule 1.1(b) necessarily implicated those copyrights actually transferred under Schedule 1.1(a).").

The inclusion of copyrights in the sale of the source code is logical. Indeed, it is difficult to comprehend that a party would or could transfer "all rights and ownership of" source code while retaining the copyrights. In a licensing arrangement, the licensor does not transfer all rights and ownership of the source code. Here, where Novell sold "all" ownership, it logically follows that the copyright ownership would be included in the sale. This common-sense proposition is reflected in the testimony of numerous witnesses, addressed below, who spoke to what they saw as the obvious inclusion of copyrights in the sale of the UNIX and UnixWare source code. Indeed, the only alternative interpretation that Novell offered at trial — that Amendment No. 2 "affirms" that SCO obtained a "license" to copyrighted material that SCO requires — finds no support in the plain language. As the Tenth Circuit observed: "Whatever the Amendment means, it refers to the ownership of copyrights, not to licenses." SCO, 578 F.3d at 1216 (emphasis added).

With respect to the extrinsic evidence, moreover, Novell's own chief witness for and negotiator of Amendment No. 2 ultimately acknowledged that copyrights that are required for SCO to exercise its rights in the UNIX and UnixWare technologies it had acquired were transferred, not licensed, to SCO. Alison Amadia confirmed on cross-examination that "if there are copyrights that are required for SCO to exercise its rights, like the UNIX and UnixWare

10

trademarks, they were transferred." (2177:15-18 (emphasis added).)3 Ms. Amadia's testimony is consistent with Novell's official position, as expressed in a press released dated June 6, 2003, that the ownership of required copyrights "did transfer" to SCO under the amended APA. (Ex. 97 (emphasis added).)4

Meanwhile, SCO's negotiator and general counsel Steve Sabbath testified that "the intent was clearly to me that all the copyrights for the UNIX and UnixWare were to be transferred to Santa Cruz Operation" and that the Excluded Asset Schedule was intended to exclude the Netware copyrights. (900:23-901:9.) Mr. Sabbath further testified that SCO "bought the UNIX business from Novell, all copyrights pertaining to that business came with the product. Amendment Number 2 was meant to confirm that." (911:6-14.) Even Ms. Amadia acknowledged that Mr. Sabbath told her that the copyrights had been excluded as a result of a "typographical error in the original APA" that required correction. (2184:25-2185:1.)5

11

The testimony of the only other Novell witness on Amendment No. 2, James Tolonen, cannot support a contrary result. Mr. Tolonen did not participate in the drafting or negotiation of the language, and while Mr. Tolonen expressed the view that he did not intend Amendment No. 2 to transfer copyrights, that absolutist view cannot be squared with the plain language of the Amendment. Nor can it be reconciled with what the Tenth Circuit stated:

Although Amendment No. 2 did not purport to amend Schedule 1.1(a), this does not mean that the balance of assets transferred to SCO remained unchanged. The transaction was structured such that SCO would acquire "all of Seller's right, title and interest in and to the assets . . . identified on Schedule 1.1(a)," but that "the Assets to be so purchased not include those assets (the 'Excluded Assets') set forth on Schedule 1.1(b)." Schedule 1.1(a), in turn, provided that SCO would receive "[a]ll rights and ownership of UNIX and UnixWare . . . including all source code," a broad set of assets limited only by Schedule 1.1(b). As a result, any change to the set of Excluded Assets in Schedule 1.1(b) necessarily implicated those copyrights actually transferred under Schedule 1.1(a).
* * *
Whatever the Amendment means, it refers to the ownership of copyrights, not to licenses.
SCO, 578 F.3d at 1213-14, 1216 (emphasis added).

Novell further argued that Amendment No. 2 must not concern any transfer of copyrights because the Amendment is merely a "promise to sell," because it did not have a separate Bill of Sale, or because the Amendment was "effective" as of the date of the APA. Those arguments could not reasonably or properly support the verdict. The Tenth Circuit's opinion rejects these arguments, holding that the parties did not need to execute a separate bill of sale to satisfy Section 204(a) of the Copyright Act, SCO, 578 F.3d at 1213-14, and dismissing the idea that the date of Amendment No. 2 deprives it of its obvious role in modifying the assets being transferred through the APA. Id. By the end of trial Novell sought to refashion these contentions as

12

"contract" arguments, but they are no more tenable as such. There is no requirement in the law for a separate bill of sale to make effective an amendment to schedules of assets being transferred. See id.

Under Novell's interpretation, in short, the relevant language of Amendment No. 2 serves no substantive purpose at all. It is unreasonable as a matter of law for the Court to permit the jury to interpret Amendment No. 2 in a way that gives it no meaning beyond the terms of the unamended APA.

B. The Copyrights Are Required for SCO to Exercise Its Ownership Rights in
The UNIX and UnixWare Technologies It Acquired.

In remanding for trial, the Tenth Circuit pointed to the importance of copyright ownership for SCO to protect the value of the assets it had acquired under the APA:

SCO indisputably acquired certain assets under the APA. SCO's claim, as we understand it, is that copyrights are necessary to protect the value of the assets themselves, and are therefore necessary to prosecute seller's claims "relating to any . . . asset" included in the Business. Novell has not explained, for instance, what recourse SCO had under Novell's theory of the transaction if a third party had copied and attempted to resell the core UNIX assets Santa Cruz received in the deal.
SCO, 578 F.3d at 1218 n.4. Now, after trial, there is still no cogent explanation from Novell as to how SCO could protect its property against third parties that "copied and attempted to resell the core UNIX assets Santa Cruz received in the deal." Id. That failure renders the jury verdict on copyright ownership unsustainable.

If SCO does not own the copyrights, it cannot enforce them in court. Davis v. Blige, 505 F.3d 90, 98 (2d Cir. 2007) (owner of a copyright has the exclusive right to bring suit to enforce the copyrights); Silvers v. Sony Pictures Entmt., Inc., 402 F.3d 881, 885 (9th Cir. 2005) (copyright owner cannot transfer its accrued copyright infringement claims without also transferring the copyrights); 1 Copyright Throughout the World § 19:29 (2009); Copyrights and

13

Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, 3 J. High Tech. L. 1 (2003); 3 Patry on Copyright § 7:2 (2010) (explaining that "copyright is not just a bundle of rights; it is also the ability to enforce those rights"); accord Jury Instruction No. 34A.6 More importantly, whatever the particular "license" theory Novell means to support, it offered no argument that it gives SCO the right to bring claims to enforce the copyrights, and there would be no support in the law for that argument.

In addition, the substantial, unrefuted testimony is that SCO required the ability to enforce the copyrights in order to exercise its ownership rights in the specific UNIX and UnixWare technologies listed in the Assets Schedule and acquired through the APA, the touchstone under Amendment No. 2. Given the technological reality of UnixWare's development and ancestry, without copyright ownership, SCO does not have the right to enforce in court the copyrights at issue in the UNIX and UnixWare technology, and thus to protect the core technology in UnixWare. The evidence included the unequivocal testimony of witnesses who have been involved in the various aspects of the UNIX and UnixWare business, including former Novell and current SCO UNIX Contracts Manager William Broderick (666:9-21; 667:16- 668:6); Santa Cruz General Counsel Steven Sabbath (913:1-15; 914:17-915:5); former SCO CEO Darl McBride (997:11-23); former Novell and current SCO UNIX Product Manager & OEM Relations Manager John Maciaszek (1686:25-1687:24); and former Santa Cruz Manager of Law and Corporate Affairs Kimberlee Madsen (780:23-24; 802:23-803:1; 865:16-21; 866:18- 21; 875:7-14; 884:21-885:21). There is no support in the evidence that a software company that

14

owns and licenses source code need not protect that underlying source code and intellectual property as part of its business.7

As a technological matter, the evidence was undisputed that the UNIX and early UnixWare technology lies at the heart of SCO's current version of UnixWare. The source code of the versions of UnixWare that SCO acquired in 1995 (and built its business around licensing in the ensuing years) consists almost entirely of prior "UNIX" source code (1732:1-11 (Nagle), 1781:21-26 (Nagle)), and the current version of UnixWare that SCO sells still consists in significant part of that "UNIX" source code (1784:20-22 (Nagle)). UnixWare was a "version of UNIX is — [that] was essentially rebranded and some cosmetic and a few minor features added to it to create UnixWare 2.0. UnixWare 2.0 is almost entirely UNIX System V release 4.2." (1732:1-11 (Nagle).) Thus, "90, 95 percent" of UnixWare was older UNIX code that existed prior to the APA. (1782:6 (Nagle).) UnixWare is not simply a separate, stand-alone version or block of UNIX that can be detached from the UNIX code and run on its own; it is the latest release of UNIX. Neither the early version of UnixWare nor the latest version of UnixWare would work if the "UNIX" source code were removed. (1784:7-22 (Nagle).) All of this testimony went unrebutted.

In addition to requiring copyright ownership to protect the intellectual property contained within UNIX and UnixWare, SCO also requires the copyrights to facilitate certain types of source code licensing, which was an indisputable portion of the UNIX and UnixWare business

15

SCO acquired. Such source code licensing was historically part of the UNIX and UnixWare business; SCO's business included entering into new source code licenses, as contemplated by the APA; and the copyrights were needed for such licensing to occur, as there was nothing in the APA which granted a license for such activity. (2543:21-2544:3 (Frankenberg); 241:19-242:3 (Thompson); 666:9-21 (Broderick); 667:16-668:6 (Broderick); 503:9-11 (Michels); 504:6-7 (Michels); 442:15-443:6 (Wilt); 912:21-913:6 (Sabbath); 914:17-915:5 (Sabbath).)

The record contains many examples of the need for SCO's copyright ownership. After the parties executed Amendment No. 2, for example, SCO took the position in a formal petition against Microsoft Corporation in the European Union that SCO had acquired the UNIX copyrights and was the UNIX copyright holder. (Ex. 127 §§ 3.4, 4.9.) Copyright ownership was part and parcel of SCO's petition, and there can be no reasonable question that bringing the petition was part of SCO's pursuit and maintenance of its UNIX-based business.8 The same is true for the settlement agreement that resolved the dispute. (Ex. 199, Recital B.)

Even if SCO could physically continue to sell certain of its UnixWare and OpenServer products without copyright ownership, as Mr. McBride suggested, Amendment No. 2 requires Novell to transfer the UNIX and UnixWare copyrights if they are required for SCO to exercise any of its ownership rights in connection with the UNIX and UnixWare business it acquired.9

16

Novell presented no evidence that SCO's acquisition of the UNIX and UnixWare business was limited to creating a merged product, or limited to the business of selling binary versions of UNIX, a business that Santa Cruz could already operate as a UNIX licensee prior to the APA. While it is true that Novell retained the right to receive certain royalties and reserved certain rights to protect that royalty stream, this does not transform the APA into a licensing arrangement whereby SCO could develop and market only UnixWare and serve as an agent to collect royalties. Even with respect to such royalties, moreover, the APA is clear that legal title to the royalties transferred to SCO. (Ex. 1 (APA) § 1.2(b).)

In addition, among the "rights and ownership" in UNIX and UnixWare that SCO acquired are all of Novell's claims relating to the UNIX and UnixWare source code. Item II of the Assets Schedule identifies "All of Seller's claims arising after the Closing Date against any parties relating to any right, property or asset included in the Business" as having transferred to SCO. SCO thus acquired all of the claims, which Novell otherwise would have, relating to the use or misuse of the UNIX and UnixWare source code. (See id. Schedule 1.1(a), Items I.A-D, II, IV.) Ownership of the copyrights is required to prosecute such claims.10 A copyright owner cannot transfer its copyright claims without also transferring the copyrights. Silvers v. Sony Pictures Entmt., Inc., 402 F.3d 881, 885 (9th Cir. 2005).

17

Novell presented no evidence at trial from which a reasonable jury could reach a contrary conclusion.11 Novell presented no evidence at all that in order to bring copyright claims relating to the UNIX and UnixWare source code, SCO's ownership of the copyrights somehow was not "required."

II. IN THE ALTERNATIVE, SCO IS ENTITLED TO A NEW TRIAL

A party's Rule 50(b) motion may include "an alternative or joint request for a new trial under Rule 59." Fed. R. Civ. P. 50(b). The decision whether to grant a new trial under the Rule lies within the broad discretion of the trial judge. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433 (1996) (the authority of trial judges to grant new trials "is large"). Indeed, as the Supreme Court has explained, the authority to grant new trials "is confided almost entirely to the exercise of discretion on the part of the trial court." Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). Accordingly, decisions to grant a new trial have been deemed "virtually unassailable on appeal." Children's Broadcasting Corp. v. Walt Disney Co., 357 F.3d 860, 867 (8th Cir. 2004).

SCO moves, in the alternative, for a new trial on the lower, Rule 59 standard that the verdict was against the weight of the evidence presented at trial. A district court may grant a new trial "for any reason for which a new trial has theretofore been granted in an action at law in federal court," Fed. R. Civ. P. 59(a), including specifically "on the grounds that the jury verdict is against the weight of the evidence." Black v. Heib's Enters., Inc., 805 F.2d 360, 363 (10th Cir. 1986); Brown v. McGraw-Edison Co., 736 F.2d 609, 616 (10th Cir. 1984). "The inquiry

18

focuses on whether the verdict is clearly, decidedly or overwhelmingly against the weight of the evidence." Black, 804 F. 2d at 362.

A district court therefore may weigh evidence and consider the credibility of witnesses when exercising its broad discretion to determine whether a new trial is warranted. Tanberg v. Sholtis, 401 F.3d 1151, 1160 (10th Cir. 2005); see, e.g., Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d Cir. 2000) ("Unlike a motion for judgment as a matter of law, a motion for a new trial may be granted even if there is substantial evidence to support the jury's verdict."); Giles v. Rhodes, 171 F. Supp. 2d 220, 229 at n.5 (S.D.N.Y. 2001) (trial judge may consider "credibility and the weight of the evidence"). In addition, after a long and complicated trial such as this, a trial judge should be especially vigilant in examining the verdict. See, e.g., Siemens Med. Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc., 615 F. Supp. 2d 884, 899 (N.D. Iowa 2009).

A. SCO Acquired the UNIX and UnixWare Copyrights.

SCO's request for a new trial incorporates not only all of the points set forth in Section I above, but also the overwhelming weight of the evidence, summarized below, that a transfer of copyrights was intended.

1. The Intent of the Negotiators and Principals Regarding the APA.

A total of ten witnesses — including multiple witnesses from each of the SCO and Novell sides of the transaction — testified to their intent and understanding that Novell had sold and Santa Cruz had acquired the UNIX and UnixWare copyrights under the APA:

  • Novell President and CEO Robert Frankenberg. Mr. Frankenberg testified that it was the intent at the beginning of the transaction, throughout the transaction, and when the transaction closed, to sell the copyrights in UNIX and UnixWare and to exclude the NetWare copyrights because Novell was retaining the Netware business. (176:9- 177:3; 2558:17-2559:7.) He also testified that no other member of his board of directors had the authority to negotiate a deal apart from what the executives had

    19

    negotiated across the table from SCO. (178:4-11.) And he testified that Messrs. Tolonen, Bradford, and Braham had no authority to decide whether copyrights would be part of the deal, as the deal had already been negotiated with SCO before those individuals even began their involvement in the process of documenting the deal. (2541:18-2542:4.)

  • Novell Senior Vice President Duff Thompson. Mr. Thompson testified that Novell told SCO that it was selling all of the UNIX and UnixWare business "lock, stock and barrel, the whole thing" including the copyrights. (230:15-231:13.) He further testified that he never asked the attorneys documenting the deal from Novell's end to change the deal so that the UNIX and UnixWare copyrights would be retained. (233:1-15.)

  • Novell Senior Director and Chief Negotiator Ed Chatlos. Mr. Chatlos testified that he participated in the face-to-face negotiations with SCO, including weekly travel from New Jersey to California for three months. (351:2-7.) He testified that "the deal with SCO was to include the copyrights" for UNIX and UnixWare and to exclude the copyrights for the Netware business that Novell was not selling, and that he understood Schedule 1.1(b)'s original exclusion of copyrights to be referring to the NetWare copyrights. (352:5-17; 359:20-362:3.) He further testified that holding back the UNIX and UnixWare copyrights would have been inconsistent with the directives he was given by Mr. Thompson and the directives and authority given to the lawyers documenting the deal. (354:16-355:5.) Mr. Chatlos also testified that the deal he negotiated included the UNIX and UnixWare copyrights and that changing the deal to exclude the copyrights "would have been unethical." (354:16-355:5.)

  • Novell Vice President of Strategic Relations Ty Mattingly. Mr. Mattingly testified that during the months of negotiations that he attended, no one from Novell ever suggested that Novell was retaining the UNIX and UnixWare copyrights and that the copyrights the parties intended to withhold were the Netware copyrights for the Netware business that Novell was retaining. (677:5-13; 690:18-22.)

  • Novell In-House Counsel Burt Levine. Mr. Levine was involved in review of the very asset schedules that originally included language excluding copyrights. He testified that that language did not reflect Novell's intent and that, under the APA, SCO "obtained a full right, title and interest in ownership" in UNIX and UnixWare that "would automatically convey the copyright along with the rest of the business assets." (522:3-14.) Indeed, he characterized the idea that Novell would sell the business while withholding the copyrights as not being "ethical." (521:17-522:2.)

  • Santa Cruz President and CEO Alok Mohan. Mr. Mohan testified that the deal "absolutely" included the UNIX copyrights as part of the business that SCO was acquiring. (461:19-462:9.) Like Novell's own witnesses, he testified that SCO's understanding was that it was acquiring the business "lock, stock, and barrel." (464:4-19.) He testified that no one from Novell ever said to him prior to the execution of the APA that Novell intended to retain any UNIX or UnixWare copyrights. (467:24-468:6.)

    20

  • Santa Cruz Vice President of Business Development Jim Wilt. Mr. Wilt testified that it was his "intent on behalf of SCO to acquire, through the APA, Novell's entire UNIX and UnixWare business, including the UNIX and UnixWare source code and all associated copyrights" and that he believed that Novell's intent was to sell those assets and rights as well. (445:21-446:5.) He testified that if Novell had ever said that it was retaining the UNIX and UnixWare copyrights that would have been "extremely remarkable and probably would have ended the negotiations." (443:7- 19.)

  • Santa Cruz Assistant Negotiator Kimberlee Madsen. Ms. Madsen testified that it was SCO's intent to acquire the UNIX and UnixWare copyrights as part of the business and that it was her understanding and belief after the transaction was completed that SCO had acquired those copyrights. (783:3-784:4; 788:24-789:5; 814:24;815:3.) She also testified that Mr. Seabrook's report to the SCO board of directors never suggested that Novell had retained any UNIX or UnixWare copyrights. (788:5- 8;788:20-23.) She further testified that no one from Novell had ever said that Novell would retain any UNIX or UnixWare copyrights. (783:3-784:4.) She further testified that during the 1996 dispute with Novell concerning its conduct with respect to IBM, Novell never asserted that it had retained ownership of the UNIX and UnixWare copyrights. (802:3-7.)

  • SCO General Counsel Steve Sabbath. Mr. Sabbath testified that "the intent was clearly to me that all the copyrights for UNIX and UnixWare were to be transferred to Santa Cruz Operation" and that the Excluded Assets Schedule was intended to exclude the Netware copyrights. (900:23-901:9.) He further testified that when SCO "bought the UNIX business from Novell, all copyrights pertaining to that business came with the product. Amendment Number 2 was meant to confirm that." (911:6- 14.)

  • Santa Cruz Founder and Vice President Doug Michels. Mr. Michels testified that "of course" SCO bought the UNIX and UnixWare copyrights and that, had any of his executives suggested otherwise, he would have "laughed them out of [his] office." (501:1-18.)

Novell continued to argue through trial that much of the foregoing testimony was irrelevant and inadmissible, but that is contrary to the Tenth Circuit's decision, SCO, 578 F.3d at 1210-18, and this Court's rulings on motions in limine. (Order on Defendant's Motions in Limine 12 to 19, Docket No. 717.)

To be sure, Novell presented pieces of evidence at trial to support its version of events, but that evidence cannot overcome the overwhelming evidence in SCO's favor.

21

The Existence of Amendment No. 2. Novell presented testimony regarding the intent of Tor Braham and highly equivocal testimony from David Bradford that the original exclusion of copyrights in the APA was intentional. The problem with that position — even putting aside the evidence that they lacked the authority to exclude the copyrights — is simply that the language of Amendment No. 2 indisputably replaced, as a matter of law, the old language in the Excluded Assets Schedule of the APA. SCO, 578 F.3d at 1210-11. The new language controls this Court's interpretation of the deal. Id. If Braham and Bradford's testimony had truly reflected the intent of the parties to the APA, Amendment No. 2 would not exist.

The Forthright Negotiator Rule. As noted above, Ms. Amadia conceded on cross- examination that Novell "transferred" to SCO — not licensed — "copyrights that are required for SCO to exercise its rights" in connection with its acquisition of the UNIX and UnixWare business. (2178:11-18; 2176:13-21; 2148:18-23; 2177:25-2178:3.)

Even if the Court were to focus solely on Ms. Amadia's initial testimony that she intended that Amendment No. 2 would only affirm that there was some sort of license (testimony that she recanted at trial), that view must be rejected because of "the forthright negotiator rule" of contract interpretation, which the Tenth Circuit has explained:

Where the parties assign different meaning to a term, it is interpreted in accordance with the meaning attached by one of them if at the time the agreement was made . . . (a) that party did not know of any different meaning attached by the other, and the other knew the meaning attached by the first party; or (b) that party had no reason to know of any different meaning attached by the other, and the other had reason to know the meaning attached by the first party.
Flying J Inc. v. Comdata Network, Inc., 405 F.3d 821, 837 (10th Cir. 2005) (citing Restatement (Second) of Contracts § 201(2)). Under this rule, Amendment No. 2 must be interpreted in accordance with the meaning attached by SCO (Mr. Sabbath), since Ms. Amadia knew or at least

22

"had reason to know" that Mr. Sabbath intended the Amendment to confirm that the UNIX and UnixWare copyrights were transferred to SCO. Indeed, Ms. Amadia admitted that she understood that Mr. Sabbath's understanding was that "the purpose of the Amendment was to clarify that the UNIX and UnixWare copyrights had transferred,." (2169:17-2179:1.)12 Rather than refuse to make any change to the language of the APA or propose language expressly affirming the grant of a license, Ms. Amadia drafted language that removed the copyright exclusion. She claimed to have done so in order to avoid a confrontation with Mr. Sabbath. But this is exactly what the "forthright negotiator" rule addresses, and Novell should therefore be bound to the interpretation that Mr. Sabbath held that Amendment No. 2 fixed the "clerical error" (2140:2-3; 2184:25-2185:1; 2140:20) that had existed in the APA, and confirmed the transfer of the copyrights.13

Meeting of the Novell Board of Directors. Notwithstanding Novell's heavy focus on the Novell board of directors, their action did not constitute negotiations of the agreement between the parties. Of course, the language at issue in the board's resolution excluding copyrights (taken directly from the old language in the APA) was replaced by Amendment No. 2. Moreover, the only term sheet provided to the directors did not even make the directors aware of the fact that copyrights were being retained — while identifying other assets (like patents) that

23

were being retained. (Ex. 754; 678:3-681:18 (Mattingly); 2450:6-2451:1 (Bradford); 2470:10- 2471:1 (Bradford).)14 The minutes of the meeting of the Santa Cruz board did not reflect that there was any actual discussion of any retention of copyrights. (Ex. 29; 784:23-788:23 (Madsen).) Mr. Frankenberg further testified that if an exclusion of the UNIX copyrights had been discussed at the Novell meeting, he would have remembered that because the exclusion would be "ludicrous" and that was not the intent of the deal. (2543:12-2544:6.) There is no legal requirement that the Novell board subsequently approve the terms of Amendment No. 2, duly signed by a Novell officer, in order for that Amendment to be binding on the parties.

Novell's Outside Counsel. Similarly, even taking the testimony in isolation from Amendment No. 2, the evidence that Tor Braham, David Bradford, or James Tolonen intended in the fall of 1995 to retain the copyrights for Novell is insufficient. Mr. Frankenberg testified not only that he never intended to retain the UNIX or UnixWare copyrights for Novell (2558:17- 2559:2), but also that to the extent anyone below him had determined to retain the UNIX and UnixWare copyrights for Novell, however well intentioned that decision may or may not have been, no such person had the authority to do so. (2559:3-7.) The stated purpose for excluding the copyrights—protecting Novell's royalty rights—makes no sense because Novell had already "bulletproofed" those rights in Section 1.2(b) of the APA, and there was no explanation that copyright ownership was needed to enhance that protection. (2404:17-2406:16 (Braham).) Moreover, it does not appear that Novell ever expressly drew SCO's attention to the copyright exclusion language that had been added in the schedule of excluded assets, which would explain why there was no forcible "pushback" from SCO on the point. Mr. Braham testified that he

24

could recall a discussion about "the entire schedule of excluded assets," but that he did not actually know that he and any Brobeck lawyer ever discussed that exclusion. (2403:6-25.) While he "thought the other side was talking about the copyright exclusion," he did not recall the Brobeck attorney "mentioning that specifically." (2428:23-2429:4.)15 The absence of any direct negotiations over the copyright exclusion language in the original APA, coupled with the subsequent replacement of that language a year later in Amendment No. 2 and the testimony of ten witnesses on both sides of the transaction, requires finding that the verdict was against the weight of the evidence.

2. The TLA Reflects That Copyrights Transferred.

Novell's assertion (at 5 of its Proposed Findings of Fact and Conclusions of Law) that the Technology License Agreement ("TLA") "did not grant Novell a license to any of the Excluded Assets because Novell retained them" begs the question. The TLA's grant of a license back to the technology at the time of the APA would have been unnecessary had Novell retained the copyrights and simply granted SCO a license to use the technology.

The plain, undisputed terms of the TLA give Novell a license-back to use the "Licensed Technology," and the "Licensed Technology" includes the then-existing and prior versions of UNIX and UnixWare source code. (Ex. 162 (TLA) § II.A; Ex. 1 (APA) § 1.6, Schedule 1.1(a) Item I.) The TLA thus gives Novell a license-back to use the UNIX and UnixWare source code

25

in Novell's own products, subject to certain limitations. (Ex. 162 (TLA) § II.) If Novell had retained the UNIX and UnixWare copyrights, it would not have needed any license-back to use the UNIX and UnixWare source code in Novell's own products. (See 107:23-108:1 (Frankenberg); 847:4-7 (Madsen).) Indeed, the evidence showed that Novell itself thinks that it is reasonable to read the TLA as inconsistent with a reading of the APA under which the UNIX and UnixWare copyrights were retained. (1965:4-1966:4 (LaSala).) The TLA also identified SCO as the "owner" of the Licensed Technology. (Ex. 162 (TLA) § III.)

Novell has suggested that the license-back was necessary because it would permit Novell to use in its products the technology in the "Merged Product" that SCO was to develop after the execution of the APA. But the TLA gives Novell a license-back to much more than just the source code in the Merged Product; it gives Novell such a license for the existing UNIX and UnixWare source code itself. (Ex. 1 (APA) § 1.6, Schedule 1.1(a) Item I; Ex. 162 (TLA) § II.A.) Where the APA refers to the TLA and vice versa and the two agreements are obviously related agreements (Ex. 1 (APA) § 1.6; Ex. 162 (TLA) § I), it would be unreasonable to read the amended APA in a manner that renders it inconsistent with the unambiguous terms of the TLA.

3. The Parties' Course of Performance.

In addition to the foregoing, a wealth of extrinsic evidence of the parties' course of performance prior to any litigation further demonstrated that SCO had acquired the UNIX and UnixWare copyrights. That course of performance is further compelling grounds for concluding that the parties intended for SCO to acquire the UNIX and UnixWare copyrights. The undisputed evidence at trial reflected the following facts of the parties' (and even third parties') "practical construction" of the amended APA:

  • At Novell's direction, Novell's own engineers placed SCO copyright notices on source code for the existing versions of UnixWare — versions on which SCO had done

    26

    no work at all. (1727:19-25 (Nagle); 1733:9-25 (Nagle); Ex. 655; 1704:18-1705:7 (Maciaszek); 1723:14-20 (Maciaszek).) Novell also replaced the "Novell" copyright notice on the CD for the current version of the UnixWare product with a "Santa Cruz" copyright notice. (1725:1-1728:21 (Nagle); 1723:9-1736:17 (Nagle); Ex. 35.) Because SCO had done no additional work on UnixWare at the time Novell added the SCO copyright notices, these actions can only be understood as consistent with a change in ownership of the then-existing copyrights to UnixWare.

  • The participants in the transition of the UNIX and UnixWare business from Novell to SCO — individuals who had not participated in the negotiations — understood SCO to have acquired the UNIX and UnixWare copyrights, including because no one ever suggested otherwise. (547:11-16 (Broderick); 1671:22-1672:18 (Maciaszek); 1676:17-20 (Maciaszek).) Novell presented no evidence that any such participants believed that Novell continued to own any such copyrights.16

  • In sorting through the materials in its former offices to determine what to keep and what not to keep, moreover, Novell turned over to SCO the copyright registration certificates for UNIX and instructed its transition team to retain only materials pertaining to the businesses it was retaining, Netware and Tuxedo. (610:5-612:4 (Broderick).)

  • In early 1996, Novell sent thousands of letters explaining that it had transferred to SCO Novell's "existing ownership interest in UNIX System-based offerings and related products," specifically identifying such products as including "All Releases of UNIX System V and prior Releases of the UNIX System" and "All UnixWare Releases up to and including UnixWare Release 2 (encompassing updates and upgrades to these releases as well." (586:4-15 (Broderick); Ex. 580.) In one such letter, which was co-signed by Novell and SCO, Novell further explained that "Novell's right as licensor under such agreements have been assigned to the Santa Cruz Operation" and that "the ownership of the UNIX operating system has been transferred from Novell, Inc. to the Santa Cruz Operation." (Ex. 751; 1682:23- 1684:10 (Maciaszek); 1684:24-1685:7 (Maciaszek).)17

    27

  • In concert with these letters, Novell representatives visited OEM licensees, including in Europe, to reiterate the statements in those letters and personally inform the licensees that "SCO had acquired all ownership rights in the business," without "any limitation ever." (1678:4-16 (Maciaszek); 1680:22-1681:22 (Maciaszek); 1684:4-17 (Maciaszek).)

  • Novell, SCO, and IBM engaged in a protracted dispute and negotiation throughout 1996 regarding the scope of Novell's rights under the APA. SCO's evidence showed that Novell never contended that it owned the copyrights during that dispute, and Novell presented no evidence to the contrary. (802:3-7 (Madsen).)

  • During the dispute among the three corporations in 1996, even IBM took the position that SCO could protect itself through its ownership of the UNIX copyrights, asserting that "SCO is protected by copyright." (Ex. 123.). SCO's evidence showed that Novell never contended otherwise, and Novell presented no evidence to the contrary. (802:3-13 (Madsen).)

  • Just months after Amendment No. 2 was signed, SCO, through the law firm that had represented SCO in connection with the Novell/SCO APA, took the position in formal litigation against Microsoft Corporation in the European Union that SCO had acquired the UNIX copyrights and was the UNIX copyright holder. (807:3-811:20 (Madsen); Ex. 127 §§ 3.4, 4.9.) Novell presented no evidence to call into question the nature of SCO's assertions in that filing.

  • In resolving the foregoing dispute, SCO entered into a settlement agreement with Microsoft in which SCO again stated that it had acquired the UNIX copyrights and was the UNIX copyright holder. (811:21-813:24 (Madsen).) The document states: "SCO has acquired AT&T's ownership of the copyright in the UNIX System V Operating System Program." (Ex. 199 Recital B.) Novell again presented no evidence to call into question the nature of SCO's assertion in that settlement.

All of this evidence is particularly relevant here because the parties' course of performance is the "best evidence" of the parties' contractual intent. SCO, 578 F.3d at 1217.

B. The Copyrights Are Required for SCO to Exercise Its Ownership
Rights in the UNIX and UnixWare Technologies It Acquired.

There was a surfeit of specific testimony, such as set forth above, concerning SCO's need of the copyrights to run its UnixWare business. Mr. Frankenberg called it "ludicrous to think about selling software without selling the copyrights. If you don't have the copyrights, you don't have the ability to freely use what you bought." (2543:21-2544:3.) Similarly, Mr. Thompson testified that "[i]t is hard for me to imagine any instance in which we are selling them the entire

28

business, to go forward with this business in the future, without giving them the underlying intellectual property rights that they needed to do so." (241:19-242:3.) In a case where witnesses from both sides of the deal, with involvement in various aspects of the UNIX business, specifically testified that SCO required the UNIX and UnixWare copyrights to run its business and protect the intellectual property at the heart of that business, a jury verdict to the contrary simply cannot stand.18

CONCLUSION

SCO respectfully submits, for the reasons stated above, that the Court should grant SCO's motion for judgment as a matter of law or, in the alternative, grant SCO a new trial.

DATED this 27th day of April, 2010.

By: /s/ Brent O. Hatch
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Edward Normand

Counsel for The SCO Group, Inc.

29

CERTIFICATE OF SERVICE

I, Brent O. Hatch, hereby certify that on this 27th day of April, 2010, a true and correct copy of the foregoing SCO'S MEMORANDUM IN SUPPORT OF ITS RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, FOR A NEW TRIAL was filed with the court and served via electronic mail to the following recipients:

Sterling A. Brennan
David R. Wright
Kirk R. Harris
Cara J. Baldwin
WORKMAN | NYDEGGER
[address]

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

Michael A. Jacobs
Eric M. Aker
Grant L. Kim
MORRISON & FOERSTER
[address]

Counsel for Defendant and Counterclaim-Plaintiff Novell, Inc.

By: /s/ Brent O. Hatch
Brent O. Hatch
HATCH, JAMES & DODGE, P.C.
[address]
[phone]
[fax]

30

1 These motions and SCO's Proposed Findings on its claim for specific performance all relate to the ownership of the UNIX and UnixWare copyrights. SCO believes the appropriate order of consideration is for the Court first to decide the Rule 50(b) motion which, if granted, would set aside the jury determination on ownership of the copyrights as a matter of law; if that were not granted, to consider SCO's alternative motion for a new trial under Rule 59; and if neither of these post-trial motions were granted, to determine SCO's claim for specific performance to receive transfer of the UNIX and UnixWare copyrights at this time.
2 On March 26, 2010, the day the jury received the case, the Court denied SCO's Rule 50(a) motion as "moot." While that would have been true of a motion directed to Novell's slander of title claim, SCO's Rule 50(a) motion was directed to SCO's claim relating to copyright ownership (the sole question on which the jury returned a verdict). The motion may now be renewed under Rule 50(b). If granted, the motion would then require a new trial limited to whether slander of title occurred and whether (and to what extent) SCO suffered damages.
3 Indeed, to give Amendment No. 2 a contrary interpretation the jury would had to have ignored the evidence — as to which there is no contrary evidence — that the Amendment confirmed the transfer of the UNIX and UnixWare trademarks by referring to them as ones "required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." (2176:5-24 (Amadia); 2177:25-218:18 (Amadia).) Where Amendment No. 2 changes the APA to make no distinction between trademarks and copyrights, and where Novell admitted that the trademarks referenced in Amendment No. 2 were not being licensed, but were in fact transferred, no reasonable juror could conclude that the same language used to describe the copyrights could mean something different.
4 Novell subsequently tried to change its position and argued that Amendment No. 2 gave SCO the right to acquire copyrights if it could demonstrate that such copyrights were required. (Ex. 105.) That revised position is one basis for SCO's alternative claim for specific performance.
5 Ms. Amadia's testimony about what Mr. Sabbath told her at the time is consistent with Mr. Sabbath's deposition testimony as opposed to the IBM declaration that Mr. Sabbath stated did not accurately reflect his testimony. (927:14-25 (Sabbath); 928:19-929:2 (Sabbath)), and that is not affirmative evidence in any event.
6 Novell's former General Counsel took the position that SCO acquired only an "implied license," and Novell chose not to assert any contrary theory. (1975:14-22.) Ms. Amadia, for example, acknowledged that with an implied license, SCO cannot enforce the UNIX and UnixWare copyrights in court. (2157:8-12.)
7 SCO's need to bring copyright enforcement actions does not turn on the existence of the SCOsource program whose demise Novell focused on at trial. Mr. Tibbitts explained that if SCO "could not protect" the "core intellectual property" in UnixWare, then "this venerable UNIX business that has been around for many years that many customers around the world are using would simply die off, and we have got to have that intellectual property to protect those crown jewels." (1845:21-1846:1.)
8 While the petition against Microsoft is clear course of performance evidence that SCO had acquired the copyrights, the petition is also probative evidence that SCO required ownership of the copyrights to exercise its rights in connection with its UNIX and UnixWare business.
9 Mr. Tibbitts testified about a proposed deal, in connection with SCO's Chapter 11 reorganization proceedings, where SCO would have sold certain aspects of the UNIX product business, but kept other aspects, including IP licensing rights and SCO's legal claims based on the unauthorized use of the UNIX and UnixWare technologies. (1850:20-1851:18.) Because the law requires ownership of the UNIX and UnixWare copyrights in order to pursue the claims SCO would have kept, the proposed deal contemplated that the copyrights would remain with SCO until it completed prosecuting those claims. That deal was thus consistent with the reading of Amendment No. 2 that SCO, as the party who indisputably acquired those claims under the APA, required ownership of the UNIX and UnixWare copyrights.
10 Novell's suggestion in its Proposed Findings of Facts and Conclusions of Law (at 35) that there are no such "claims" is flatly wrong. The evidence at trial, for example, showed claims SCO pursued post-closing against Microsoft (807:3-811:20 (Madsen); Ex. 127 §§ 3.4, 4.9; Ex. 199 Recital B), expressly referring to ownership of copyrights. The copyright claims relating to alleged Linux infringement are another obvious example.
11 To the contrary, Novell's former General Counsel Mr. LaSala admitted both generally that "the agreements speak to what copyrights SCO requires in order to exercise its rights under the agreement" and specifically that "SCO has the rights to bring claims to protect its business." (1976:25-1977:7.)
12 Ms. Amadia's testimony is therefore consistent with Mr. Sabbath's testimony that the parties understood that copyrights were to transfer and that a declaration provided to IBM's counsel, to the extent it was inconsistent, did not accurately reflect his testimony. (927:14-25 (Sabbath); 928:19-929:2 (Sabbath).)
13 There is no evidence that Mr. Sabbath believed the final language of Amendment No. 2 had a meaning different than the language he had initially proposed. Indeed, the Tenth Circuit specifically acknowledged, citing Mr. Sabbath's testimony, that the SCO could have found "the final language equally sufficient for its purposes, given its insistence that all the UNIX copyrights were required for it to exercise its rights under the deal." SCO, 578 F.3d at 1216.
14 David Bradford's testimony was completely equivocal. He did not recall the issue until reviewing documents and then reviewed only an incomplete set of documents, not containing Amendment No. 2. (2434:24-2435:15; 2438:5-16; 2441:7-10; 2444:12-21; 2446:22-2447:12; 2461:12-24.)
15 The evidence thus does not support Novell's argument that SCO's attorneys understood the copyrights to have been excluded from the deal. There is no evidence that the issue was ever discussed in the meeting of Santa Cruz's board of directors, and there is no evidence that the outside attorneys for SCO ever discussed that particular exclusion with Novell's outside attorneys. (2428:23-2429:4 (Braham).) One of Novell's witnesses did take the position that SCO "had Brobeck, Phleger as their voice" in the negotiations of the APA (2358:13-21 (Braham)), and the evidence showed that the Brobeck law firm put its name to the SCO filing from early 1997 in which SCO expressly represented that it had acquired the UNIX copyrights and was the UNIX copyright owner. (Ex. 127 §§ 3.4, 4.9, signature block.)
16 In fact the only testimony regarding the transition meetings reflected that Novell representatives told SCO that Novell had sold UNIX and that the copyright notices had to be changed. (548:10-17 (Broderick); 1704:18-1705:7 (Maciaszek); 1723:14-1728:21 (Nagle); 1732:12-1737:13 (Nagle); 1775:15-1776:16 (Nagle).) There was no evidence that Novell ever told anyone in these meetings that Novell was retaining any UNIX or UnixWare copyrights.
17 Novell argued at trial that these letters did not need to tell customers about Novell's claimed copyright exclusion, but the evidence showed otherwise. In addition to the plain fact that Novell's assertion of ownership transfer would have been inaccurate if Novell had retained the copyrights, such an exclusion would have been relevant to customers. Mr. Maciaszek testified, for example, that among the "things a customer does need to know" is "who can enforce the copyrights in the contracts" that SCO now owned. (1710:8-22.)
18 See, e.g., Broderick (666:9-21; 667:16-668:6) (SCO "would be out of business" if it couldn't protect its software "through copyrights"); Michels (502:24-503:14) (copyrights "so essential" to a software business they are "like breathing oxygen"); Wilt (442:15-443:6) (copyrights "such a fundamental part of an asset purchase that if you didn't have copyrights and such go along with it, there was no asset purchase"); Madsen (780:23-24; 802:23-803:1; 865:16- 21; 866:18-21; 875:7-14; 884:21-885:21) (SCO "required all" the UNIX and UnixWare copyrights; copyrights "essential" to "protect and enforce [SCO's] intellectual property rights" in UNIX); Sabbath (913:1-15; 914:17-915:5) ("you would need all the copyrights and binaries and source code"); McBride (997:11-23) (ownership of the UNIX copyrights "absolutely" "required for SCO's business"); Maciaszek (1687:16-24) ("the copyrights are required to operate SCO's business"); Tibbitts (1844:25-1845:18) ("copyrights are critical for us to run the business that was purchased from Novell in '95, both the SCOsource business and the right to protect that core UNIX intellectual property").

  


SCO Files Motion for Judgment As a Matter of Law, or For a New Trial | 631 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: Kanth on Wednesday, April 28 2010 @ 08:39 AM EDT
If any.

[ Reply to This | # ]

Off Topic Here.
Authored by: Kanth on Wednesday, April 28 2010 @ 08:40 AM EDT
;)

[ Reply to This | # ]

News Picks Here
Authored by: Kanth on Wednesday, April 28 2010 @ 08:41 AM EDT
:0

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law
Authored by: eric76 on Wednesday, April 28 2010 @ 08:53 AM EDT
I still think they are asking for all UNIX copyrights, not just those owned by
Novell.

If they were to be awarded "ALL" UNIX copyrights, wouldn't anyone
owning a copyright to their own work in UNIX have to file a lawsuit against SCO
to preserve their ownership? I would bet that SCO is figuring, probably quite
correctly, that most developers won't be able to afford the court fight and so
SCO would end up with nearly all UNIX copyrights.

It is quite clear, as demonstrated in their lawsuit against IBM, that they want
to control ALL UNIX code whether or not they own the copyrights.

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law
Authored by: ThrPilgrim on Wednesday, April 28 2010 @ 09:00 AM EDT
Does this put the breaks on deciding if SCO should get the copyrights now?

---
Beware of him who would deny you access to information for in his heart he
considers himself your master.

[ Reply to This | # ]

Novell's reply
Authored by: Anonymous on Wednesday, April 28 2010 @ 09:04 AM EDT
Novell's reply would be a lot of fun to write. In a "reality" world,
it would be short - "SCO's request was previously answered, by Hon. Judge
Dale Kimball. Judge Kimball has answered that as a matter of law, there is no
material fact in question that the copyrights did not transfer. We agree
totally, and support SCO's motion to reinstate Judge Kimball's decision."

Unfortunately, a court of law has little to do with reality.

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: turambar386 on Wednesday, April 28 2010 @ 09:07 AM EDT
We can only hope that Stewart will rule as quickly and concisely as he did on
Novell's Rule 50(a) motions:

"[SCO's] arguments in this Motion essentially ask the Court to determine
credibility, weigh the evidence, and draw inferences in favor of it, as the
moving party. As set forth above, this is not appropriate in considering a Rule
50 Motion."

[ Reply to This | # ]

This isn't going to fly.
Authored by: Vic on Wednesday, April 28 2010 @ 09:08 AM EDT
The only reason anything went before Judge Stewart is that the Court of Appeals
thought that copyright ownership was a matter to be decided by a jury, not a
judge.

If Judge Stewart were to ignore the jury's verdict and grant SCO's request, that
would be a direct challenge to the CoA; I can't see them taking that lying down.
Such a ruling would be overturned in short order.

But really - what has SCO got to lose by this filing? If they're going to get
sanctioned later, this isn't going to make much difference. On the other hand,
if they don't get awarded the copyrights, they have no future. The cost/benefit
consideration is pretty easy...

Vic.


---
http://solectronics.co.uk
Solving problems with Free Software

[ Reply to This | # ]

Trademarks???
Authored by: Steve Martin on Wednesday, April 28 2010 @ 09:10 AM EDT

Looks like The SCO Group is now making a grab for the trademarks as well as the copyrights.

From page 10 of the PDF:

With respect to the extrinsic evidence, moreover, Novell's own chief witness for and negotiator of Amendment No. 2 ultimately acknowledged that copyrights that are required for SCO to exercise its rights in the UNIX and UnixWare technologies it had acquired were transferred, not licensed, to SCO. Alison Amadia confirmed on cross-examination that "if there are copyrights that are required for SCO to exercise its rights, like the UNIX and UnixWare trademarks, they were transferred."

(emphasis in the original PDF) Further, from footnote 3:

Indeed, to give Amendment No. 2 a contrary interpretation the jury would had to have ignored the evidence — as to which there is no contrary evidence — that the Amendment confirmed the transfer of the UNIX and UnixWare trademarks by referring to them as ones "required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." (2176:5-24 (Amadia); 2177:25-218:18 (Amadia).) Where Amendment No. 2 changes the APA to make no distinction between trademarks and copyrights, and where Novell admitted that the trademarks referenced in Amendment No. 2 were not being licensed, but were in fact transferred, no reasonable juror could conclude that the same language used to describe the copyrights could mean something different.

Now I seem to remember a document signed and filed by The SCO Group in another court seeming to contradict this. Hmm.... Oh, yeah, I remember now:

Gray has alleged conspiracy and RICO causes of action, among other things, against the Debtors in connection with the District Court Litigation. Even if Gray is right that the Debtors own the trademarks, which is not SCO's position, it logically follows that the Debtors may have a claim against Gray for infringement of the trademarks.

There was also this pesky ol' Confirmation Agreement [PDF] between Novell, X/Open, and — gasp — Santa Cruz Operation, in which SCO (the real SCO) agreed that the "UNIX" trademark was properly and legally transferred to X/Open and that this explicitly would not be considered by Santa Cruz as a breach on Novell's part of the APA.

And now they have the gall to claim that the APA transferred trademarks to Santa Cruz and that SCO Group now owns them. Right.

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

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: Anonymous on Wednesday, April 28 2010 @ 09:14 AM EDT
This really is pretty bold. What Kimball gave them was a judgement as a matter
of law, because that's what a summary judgement is, and that is how he ruled on
the copyright transfer. SCO argued in appeal that this was improper, that
there were questions of fact that a jury should hear, and so they got their jury
trial. Now they want to change their minds again, and argue that the jury
findings should be ignored. Pure theater!

[ Reply to This | # ]

Rules 50 and 59
Authored by: Tolerance on Wednesday, April 28 2010 @ 09:15 AM EDT
SCO's memo in support cites Federal Rules of Civil Procedure 50 and 59. The
notes at Cornell's listing of the rules cite lots of cases where this came up -
but most are old, like before 1960. See
<http://www.law.cornell.edu/rules/frcp/ACRule50.htm>

I'm guessing there must have been some truly shocking decisions in the dim past.

---
Grumpy old man

[ Reply to This | # ]

A little disappointed
Authored by: Anonymous on Wednesday, April 28 2010 @ 09:17 AM EDT
I'm honestly still a little concerned about the "specific performance"
claims, but I'm disappointed in SCO here. This document isn't up to the usual
standard's of creativity, and mostly rehashes the Proposed Findings document.

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law
Authored by: Anonymous on Wednesday, April 28 2010 @ 09:40 AM EDT
SCO lost when the copyrights were decided by Judge Kimball as a matter of law.
The appeals court ruled that a jury should decide. The jury decided against SCO.
Judge Stewart demonstrated his intent to respect the letter of the appeals court
ruling. It would be both surprising and suspect to see SCO prevail on this
motion.

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: jmc on Wednesday, April 28 2010 @ 09:40 AM EDT
Hang on just let me get this right:

SCO appeals because they say that it's wrong to have a judge decide the
copyright ownership, a jury should. They get what they want from the CoA.

Now they want to say that a jury shouldn't have decided the question and a judge
should???? And they seriously expect anyone to listen???

[ Reply to This | # ]

SCO Contradicts Their Own Witness's Statements *AND* SEC Filings
Authored by: Anonymous on Wednesday, April 28 2010 @ 09:53 AM EDT
How can SCO reconcile this:
"Whatever the explanation for the verdict, the evidence demonstrated that
ownership of the UNIX and UnixWare copyrights is required for SCO to exercise
the complete ownership rights in the UNIX and UnixWare technologies (including
the source code) it acquired under the APA, and that the amended APA provides
that such copyrights were transferred. That record compels judgment as a matter
of law for SCO under Rule 50(b). At a minimum, the verdict is clearly against
the substantial weight of the evidence, necessitating a new trial under Rule
59."

With the fact that Darl McBride, on the stand, said they didn't need the
copyrights to run their UNIX business?

OR

The fact that their SEC filings said the same thing?

Haven't they just perjured themselves between this filing and their SEC filings
after the prior loss?

[ Reply to This | # ]

To summarise
Authored by: Anonymous on Wednesday, April 28 2010 @ 09:56 AM EDT
"Your Honor, we would have won and should have won, except that Novell
argued against us and prejudiced the jury".


[ Reply to This | # ]

  • You forgot to add - Authored by: Anonymous on Wednesday, April 28 2010 @ 01:09 PM EDT
SCO's Modest Request
Authored by: DaveJakeman on Wednesday, April 28 2010 @ 10:13 AM EDT
SCO is entitled to all Stilton cheese ever produced, the Brooklyn bridge, sunny
Tuesdays, the moon and associated tides, what might have been yesterday,
Cadillacs, three wishes, what ought to be tomorrow -- and other things nice --
all as a matter of law.


Please sign ..........................

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: darrellb on Wednesday, April 28 2010 @ 10:18 AM EDT
SCO is simply trying every alternative, which I don't think is a mistake.
Parties never know what will resonate with the courts.

That being said, I rather doubt that the Court will grant the motion. The
standard that applies to overruling a jury decision is quite high. For one
thing, if I understand the rule correctly, the Court court must consider the
evidence in the best light for the non-moving party.

---
darrellB

[ Reply to This | # ]

Well you have to give them a mark for sheer gall anyway.
Authored by: RPN on Wednesday, April 28 2010 @ 10:29 AM EDT
I'm getting tired of yet another bit of blatant idiocy so I haven't read this
yet. Besides it's mid afternoon here and I'm supposed to be working.

They got a jury trial from the CoA on a very narrow focus. That it seems to me
pretty much rules out Stewart/CoA granting a summary judgment given that would
in effect reverse the CoA judgment.

The jury unanimously and quickly returned a verdict. I can't see Judge Stewart
or the CoA overturning a prompt and clear jury verdict in the circumstances to
award a retrial. It is after all the trial that SCO asked for itself. The CoA in
particular as they've been fooled with and because the record shows Stewart bent
over backwards, arguably way to far, to ensure SCO got its wishes with the jury
trial.

They let either option go forward and the district court and CoA open themselves
to this bouncing back and forth between them forever. I rather doubt they want
that. I imagine they also open themselves sooner or later to Novell going over
their heads and risking them ending up with 'egg on their faces' if they don't
stop this now with a judgment they've mishandled events from the Supreme Court.
But pray it doesn't come to that. Seven years of this nonsense is more than
enough.

Richard.

[ Reply to This | # ]

You gotta be kidding me ....
Authored by: snakebitehurts on Wednesday, April 28 2010 @ 10:29 AM EDT
"An exclusion of the copyrights in the original APA nevertheless resulted,
from either a mistake (negotiators who understood the exclusion to refer solely
to Novell's NetWare copyrights) or a last-minute, overzealous decision between
Novell's general counsel and its outside counsel"

Best laugh I've had all day! :)

They forgot to add "we are going to stamp our feet and hold our breath
until we turn blue unless we get what we want"

MikeD

[ Reply to This | # ]

Jury got it wrong?
Authored by: Just_Bri_Thanks on Wednesday, April 28 2010 @ 10:31 AM EDT
If the jury was presented a yes or no question, and the answer
could not possibly have been no, why did SCO demand a jury?

---
Bri. Just Bri. Thank you.
(With a long i sound.)
Without qualification, certification,
exception, or (hopefully) bias.

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: JamesK on Wednesday, April 28 2010 @ 10:37 AM EDT
{
For a New Trial
}

Wow!!! What a surprise!!!

</sarcasm>


---
IANALAIDPOOTV

(I am not a lawyer and I don't play one on TV)

[ Reply to This | # ]

It is unfortunate that Novell agreed to execute amendment 2 to the sale to Santa Cruz
Authored by: jheisey on Wednesday, April 28 2010 @ 10:45 AM EDT
This whole SCO lawsuit circus probably would have been avoided if Novell had
never executed amendment 2 to the Santa Cruz sale. SCO would have been better
off, and probably not be in bankruptcy today, and millions of dollars not wasted
in legal bills by many companies. Such a pity.

[ Reply to This | # ]

OUCH
Authored by: mtew on Wednesday, April 28 2010 @ 11:08 AM EDT
This has gone beyond ridiculous. I've tried to understand where these people are
comming from and succeeded to some extent up until now. How Cahn can justify
this and still claim to be socially responsible for his actions is beyond me. He
may have been a good judge at one time, but he has squandered the respect that
that provided him.

---
MTEW

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: Anonymous on Wednesday, April 28 2010 @ 11:36 AM EDT
Why does SCO get argue both ways?

How can they both be asking for a Judgment as a matter of Law and alternatively
ask things to be decided in a new jury trial. In any sane world they would have
to make a choice about if this is matter for a jury or for a judge.

[ Reply to This | # ]

The Energizer Bunny of Litigants
Authored by: The Mad Hatter r on Wednesday, April 28 2010 @ 11:48 AM EDT

They just keep suing, and suing, and suing...


---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

The evidence in SCO's favor on this obvious point is overwhelming.
Authored by: Ian Al on Wednesday, April 28 2010 @ 11:52 AM EDT
What SCO say,
The jury simply got it wrong: The verdict cannot be reconciled with the overwhelming evidence or the Court's clear instructions regarding the controlling law. The jury answered "no" to the single question: "Did the amended Asset Purchase Agreement transfer the UNIX and UnixWare copyrights from Novell to SCO?
What the Court of Appeals said,
We recognize that Novell has powerful arguments to support its version of the transaction, and that, as the district court suggested, there may be reasons to discount the credibility, relevance, or persuasiveness of the extrinsic evidence that SCO presents.
So, Judge Kimball was wrong as a point of law, the Court of Appeal was wrong on the points of argument and the jury was simply wrong in the face of the overwhelming evidence.

I find myself, underwhelmed by SCOG's arguments.

---
Regards
Ian Al

I sentence you to seven years, or more with good behaviour.

[ Reply to This | # ]

irony
Authored by: nola on Wednesday, April 28 2010 @ 11:57 AM EDT
Oh, the irony. Was it not SCO that appealed in order to get a jury trial??

[ Reply to This | # ]

  • irony - Authored by: Anonymous on Wednesday, April 28 2010 @ 12:35 PM EDT
Is SCOg burning bridges with the few individuals willing to give them a chance?
Authored by: Anonymous on Wednesday, April 28 2010 @ 12:08 PM EDT

Considering what the 10th Circuit Court of Appeals wrote, SCOGs statement is incredible:

Amendment No. 2, together with the APA, means that SCO acquired the copyrights "required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." The Tenth Circuit's opinion supports that reading
From what I recall... the 10th Circuit agreed there was abiguity, not that the copyrights transferred. They explicitly mentioned that Novell had strong arguments regards the copyrights not transferring. My understanding is that they were not taking a stance - at that time - with regards ownership of the copyrights.

I can't see how such a statement is going to help SCOGs case if they ever end up back in front of the 10th Circuit. Perhaps SCOG feels brave because the Judge who wrote that decision retired.

RAS

[ Reply to This | # ]

What else can they do?
Authored by: Anonymous on Wednesday, April 28 2010 @ 12:11 PM EDT
SCO used up (long ago) any credibility they might have had in the marketplace.
I don't think they can possibly survive as a company that sells a product. Who
would buy from a vendor that has (and wants to continue) sued its customers.
The only business model within reach is becoming an IP troll and suing anyone
and everyone. They had to file this motion. They haven't cared what people
thought of them for years now. Winning in court is the only thing that could
keep SCO alive, so they have to try. They may not even expect to win, but
there's nothing else they could do but sit in a corner and cry.

[ Reply to This | # ]

Same old same old...
Authored by: wvhillbilly on Wednesday, April 28 2010 @ 12:21 PM EDT
Sigh.

Same old tired non sequitur arguments, same old half truths, same old convenient
omissions, same old spin, dance, twisting words and deception attempts as
always. When is it ever going to end? How many times does a plaintiff get to
re-litigate the same issues after judgment has gone against him, even twice? I
thought the doctrine of Res Judicata was in place to stop this sort of
nonsense.

IMO Judge Stewart would have to be totally nuts to grant this.

Either that or the fix really is in.

---
"It is written." always trumps, "Um, ah, well, I thought..."

[ Reply to This | # ]

SCO missed a trick
Authored by: Anonymous on Wednesday, April 28 2010 @ 12:25 PM EDT
/sarcasm/

"We should be granted a re-trial as this was obviously biased. Every
motion we asked for was granted, everything Novell asked for was denied,
we were allowed to take up 80% of the court time on our witnesses and
on cross examination, preventing Novell from even getting to mention
most of their evidence. Even those fair minded fellows over at Groklaw
recongised the bias against Novell.

How could a jury sitting through this not feel that the Judge was trying to
influence which way they should decide, any good jury member would
rightly stand up to such inappropriate action. How could they possiby be
expected to decide against the clearly disadvantaged underdog.

A fairly run case would therefore have resulted in a decision in SCO's
favour"

Tony

[ Reply to This | # ]

How long...
Authored by: JamesK on Wednesday, April 28 2010 @ 12:43 PM EDT
Before SCO claims TCP/IP is a derivative work of their "IP" and starts
suing everyone who uses the Internet? ;-)

---
IANALAIDPOOTV

(I am not a lawyer and I don't play one on TV)

[ Reply to This | # ]

Morbid Curiosity
Authored by: Anonymous on Wednesday, April 28 2010 @ 12:55 PM EDT
We're tired and we want SCO to stop already so we can pack up and go home and get some sleep.
There goes PJ speaking for everyone else, again! Any of the readers can go home and do something else. No one is holding a gun to anyone's head. In most cases, if anyone is still paying attention to this mess, it's because they want to.

Maybe it's morbid curiosity. How many court battles can SCO manage to loose? Who knows? It might be interesting to find out.

All of this SCO stuff is taking on the characteristics of a horror movie. The monster won't die! The severed head keeps biting! People pay to watch stuff like that.

I feel sorry for Novell and IBM, but on the other hand, there would be advantages if both cases are completed. When SCO looses, it sets precedence, and actually strengthens open source. FUD is being disproven. The court cases provide a valuable teaching aid about law. It's not fair that Novell and IBM have to pay for all of that, but nothing about SCOsource was fair.

I really don't care about this latest filing, though. It's apparently just SCO trying to get Judge Stewart to throw out the jury verdict. (I'm not bothering to read it.) It was inevitable that SCO would file it, though. BSF can't say that they tried everything until they try doing everything, no matter how little chance of success something had. In the end, no one will be able to say that SCO was right, but it lost because BSF didn't try hard enough.

[ Reply to This | # ]

Where ya gonna hang your hat today?
Authored by: cpeterson on Wednesday, April 28 2010 @ 12:57 PM EDT
All of this evidence is particularly relevant here because the parties' course of performance is the "best evidence" of the parties' contractual intent. SCO, 578 F.3d at 1217.

I seem to remember when the APA clearly and plainly transferred all copyrights.

Then, later, the APA didn't, but Amendment 2 did. Clearly.

Sometime after that, Amendment 2 wasn't quite so clear. Then, the "best evidence" became the extrinsic hearsay parol evidence of those whose dreams were at risk.

Now, that parol evidence just isn't the thing at all - we need to look at "course of performance".

Somebody may realize soon that oldSCO "performed" just fine without the copyrights, and there is good evidence up to and including one D. McBride that the business didn't require them.

So - I predict that the next shining beercan beacon of truth will be "trend of litigation." Followed, of course, by "positive welfare of plaintiff (and counsel)."

[ Reply to This | # ]

2010 Nobel Prize for Lying has just been announced, the winner is...
Authored by: lsmft on Wednesday, April 28 2010 @ 01:08 PM EDT
SCO. In lieu of the cash award of 10 million Swedish kronor SCO has asked to be
awarded the copyrights to UNIX.

[ Reply to This | # ]

Isn't this a redundant (and thus circular) statement?
Authored by: DMF on Wednesday, April 28 2010 @ 01:13 PM EDT
B. The Copyrights Are Required for SCO to Exercise Its Ownership Rights in The UNIX and UnixWare Technologies It Acquired
If SCO didn't originally acquire the copyrights, then they never owned said technologies. Amendment 2 does not change that - it does not confer ownership. In re: copyrights, it speaks only of existing rights.

As was testified in court, what SCO got was a license.

[ Reply to This | # ]

Timeline ?
Authored by: Anonymous on Wednesday, April 28 2010 @ 01:19 PM EDT
What would be the timeline for this motion? I gather Novell will file some kind
of response. How much time do they get for that? And after that what happens,
and (by) when?

[ Reply to This | # ]

  • Timeline ? - Authored by: Anonymous on Thursday, April 29 2010 @ 09:43 AM EDT
I must admit: SCOG impressed me on one point...
Authored by: Anonymous on Wednesday, April 28 2010 @ 01:20 PM EDT

They only mention Linux once, in a footnote:

... relating to alleged Linux infringement...
That impressed me because:
  1. SCOG has used every opportunity it could to claim Linux infringes Unix.
  2. I think this is the first time SCOG ever used the word alleged rather than "making a statement of fact".
Considering SCOGs history, it is rather impressive they only mention it once and actually use the word alleged to indicate it's an unproven claim.

RAS

[ Reply to This | # ]

Dancing the FUD game - SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: Anonymous on Wednesday, April 28 2010 @ 01:25 PM EDT
"They don't ever want this dance to end."

Maybe they are simply desperate and are grabbing any straws they can. In which
case they will appeal the judge's denial of a new trial or deciding it as a
matter of law. (They already had it decided as a matter of law, and it was
SCOGs appeal that turned it into a jury trial.) How likely is it that a judge
will go against the appellate court that said it should be decided by trial?
Does SCOG have knowledge of some sort that would change things that we don't
know about?

And why is everything redacted? What is the purpose of keeping it out of the
public, except to stretch out the FUD machine? Or is it afraid something could
be used at the IBM trial?

And by the way, if Novell prevails on it's ability to waive SCO's claims,
exactly how does this play out in the IBM trial. Does SCOG continue as if
nothing happened, and IBM plays the waiver card, among other things? Wouldn't
that be an issue of law? What, SCO appeals that decision? (They have unlimited
legal resources as long as the current litigation as of the time Boise signed
the agreement don't they?)

Even if they were to stop the litigation with IBM immediately, they still have
the IBM counter claims don't they? Would IBM not be a little ticked off?

I know, you don't run a business based on "feelings". But in
addition, there are some very real threats IBM would like to permanently bury,
as well as Redhat.

[ Reply to This | # ]

If the jury got it wrong, ...
Authored by: Anonymous on Wednesday, April 28 2010 @ 01:33 PM EDT
the SCO lawyers were not good enough to make their point clear to them. That's
not enough for another shot.


cb

[ Reply to This | # ]

Jury Competence
Authored by: arch_dude on Wednesday, April 28 2010 @ 02:06 PM EDT
Rule 50 is used when the Judge is convinced the jury has clearly reached the
wrong conclusion.

Rule 59 is use when the Judge thinks the jury is incompetent.

But every report we heard from the trial indicates that the jury appeared to be
very competent and that the judge thought that the jury was competent. Also, the
judge was very clearly aware that jurors are citizens who deserve respect and
who are performing a civic duty at some cost to themselves.

Based on this, I do not think that the Judge will reverse the jury's decision,
and he is even less likely to require a new jury trial with a new 3-week burden
on another dozen citizens.

[ Reply to This | # ]

Just a rehash
Authored by: Anonymous on Wednesday, April 28 2010 @ 02:32 PM EDT
It seems to me that most of the "points" SCO is trying to make here
are a rehash of what they said in their Proposed Findings of Fact and
Conclusions of Law (or whatever it was called).

And we've seen this kind of behavior before, in the IBM case. SCO files
multiple motions with different titles, but all saying essentially the same
thing. I see two possible explanations:

1. Laziness. They can't bother to come up with new stuff.

2. Gaming the judge. The idea here is that the judge will be more likely to
believe the absurd if he has to read it three different times. While that may
work a few times, I think it's much more likely to annoy a judge that they keep
filing the same bilge with different names.

MSS2

[ Reply to This | # ]

  • Just a rehash - Authored by: Christian on Wednesday, April 28 2010 @ 05:40 PM EDT
    • Just a rehash - Authored by: PJ on Thursday, April 29 2010 @ 01:24 PM EDT
      • Just a rehash - Authored by: Anonymous on Thursday, April 29 2010 @ 02:14 PM EDT
      • Sanctioned? - Authored by: Anonymous on Friday, April 30 2010 @ 03:30 AM EDT
  • Just a rehash - Authored by: Anonymous on Wednesday, April 28 2010 @ 06:56 PM EDT
Microsoft has plenty of reasons to go after Google besides Linux
Authored by: argel on Wednesday, April 28 2010 @ 03:10 PM EDT
PJ, that article makes it sound more like Microsoft is attacking Android because
of the Smartphone OS wars and less to do with Linux (at best it's probably icing
on the cake). MS is in the process of releasing Windows Mobil 7, a significant
rewrite of past versions that will be missing several features of past versions.
The upcoming iPhone OS 4, with multi-tasking for third-party apps, will just
make Windows Mobile 7 look even less attractive. Couple that with the
up-and-coming new star -- Android -- and it's no surprise Microsoft is going on
the offensive with its patent portfolio. Just like Apple going after HTC.
Basically, a big patent war is starting up in the smart phone sector. And lets
face it, both Apple and Microsoft would love to see Android take a huge hit,
both for multiple reasons. It's just as likely that the timing of this
announcement was a coincidence.

[ Reply to This | # ]

Interesting Legal Question: Do the previous decisions have to be ignored?
Authored by: Anonymous on Wednesday, April 28 2010 @ 03:15 PM EDT
I thought of an interesting, to me, anyway, legal question related to this filing. Would it be a mistake for Judge Stewart to consider anything Judge Kimball or the Court of Appeals already said about this case while ruling on this latest motion by SCO?
I really don't know why I wrote this summary paragraph (Are the lawyers rubbing off on me?), but I did. Read it or ignore it as you wish.

Judge Kimball's decision and the CoA review of it was based on the evidence presented to Judge Kimball. Judge Kimball granted summary judgment that the copyrights did not transfer. The CoA said that there were strong arguments in Novell's favor, but not quite strong enough for a summary judgment, so the question was remanded for a jury trial. The jury agreed that the copyrights didn't transfer. Now SCO wants Judge Stewart to decide that the jury decision was "unreasonable as a matter of law" and overrule it or grant a new trial.
At first glance, this would be trivial. Given what Judge Kimball and the CoA said, there is no way that the jury decision was unreasonable. I doubt that Judge Stewart can consider that, though. The issue is that Judge Kimball's decision and the CoA review of it was based on the evidence presented to Judge Kimball. A different set of evidence was presented to the jury. (There was a lot of overlap, but some differences.) The jury was supposed to base its decision on the evidence presented to it and nothing else. I would be concerned that if Judge Stewart takes anything Judge Kimball or the CoA said into account when considering SCO's motion, he might hand SCO grounds for appeal. I think it would be cleaner if he makes it clear that he found the jury's decision reasonable based on the evidence presented to them and nothing else.

The issues in the "Proposed Findings" filings seem to be a different matter. Both Novell and SCO seem to be picking and choosing from both sets of evidence and quote both Judge Kimball and the CoA. I scanned through the latest motion, though, and didn't anything referenced, other than evidence that was before the jury or references from completely different trials.

IANAL, so I don't really know. I don't see how Judge Stewart can decide the jury's decision was unreasonable whether or not he ignores the previous trial, but I'm curious anyway. Does anyone have more insight into this?

[ Reply to This | # ]

Ouch! SCOXQ.PK price is going up
Authored by: Anonymous on Wednesday, April 28 2010 @ 03:18 PM EDT
ouch

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: Anonymous on Wednesday, April 28 2010 @ 03:22 PM EDT
The most amazing trial concerning the concepts of software patents and
open source software is going on in front of a jury in Marshall, TX.

[ Reply to This | # ]

Who wants this to continue?
Authored by: Anonymous on Wednesday, April 28 2010 @ 03:23 PM EDT
Carrying on from the discussion under the previous story, after
all the history, evidence, he said - she said, I am tending to believe
that there are two possible explanations:
A lone nutter in a position of power within SCO or BSF or both; or
a super secret, supra-governmental organisation (NWO?) funded from
drugs and blood diamonds.

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: electron on Wednesday, April 28 2010 @ 03:42 PM EDT
> And as if SCO were not annoying enough, Microsoft just
> announced it believes Android violates its patents, and
> they don't want others to "free ride" on Microsoft's
> innovations. Interesting timing. Right after SCO's attack
> on Linux failed at trial, here comes Microsoft with
> another way to attack Linux.

So its a good thing that "software patents" here in New Zealand are in
the process of being thrown out. :)

The majority of voices here (ie virtually everyone other than those which
represent large multi-national corporations such as Microsoft) want patent law
reform to rule out software being patented.

It has already been through the Select Committee which recently reported back to
the House of Representatives with a favorable view on this.




---
Electron

"A life? Sounds great! Do you know where I could download one?"

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: darrellb on Wednesday, April 28 2010 @ 04:13 PM EDT

SCO's preliminary statement says

. . . the evidence demonstrated that ownership of the UNIX and UnixWare copyrights is required for SCO to exercise the complete ownership rights in the UNIX and UnixWare technologies (including the source code) it acquired under the APA, and that the amended APA provides that such copyrights were transferred.

The jury verdict tells me something very different

. . . the evidence demonstrated that ownership of the UNIX and UnixWare copyrights is not required for SCO to exercise the complete ownership rights in the UNIX and UnixWare technologies (including the source code) it acquired under the APA, and that the amended APA provides that such copyrights were not transferred.

---
darrellB

[ Reply to This | # ]

Outrageous insolence; effrontery; unbelievable gall; See: SCO
Authored by: SilverWave on Wednesday, April 28 2010 @ 04:26 PM EDT
You keep paying we keep tap dancing.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

not overzealous lawyers
Authored by: Anonymous on Wednesday, April 28 2010 @ 04:45 PM EDT
SCO claims, "An exclusion of the copyrights in the original APA
nevertheless resulted, from either a mistake (negotiators who understood the
exclusion to refer solely to Novell's NetWare copyrights) or a last-minute,
overzealous decision between Novell's general counsel and its outside
counsel"

Negotiators would be overzealous if they started with their orders and pushed
them further. If, as SCO claims, they were told to transfer the copyrights but
did not do so, they would instead be doing the exact opposite of their orders.

That would not be zealousness, it would be rank insubordination. And they would
have to be absolutely mad to try it because 1) it would likely get them fired,
and who would hire someone who in their previous job had done the exact opposite
of what management had ordered? 2) they would be extremely unlikely to get away
with it because the oldSCO negotiators would be sure to notice.

SCO would have us believe that all three of Novell's negotiators lost their
minds and decided to commit career suicide. How likely is that?

As to a mistake, how is it possible that the negotiators on both sides
misunderstood what was excluded, when it was stated so clearly?

[ Reply to This | # ]

LOL - SCO wants.... But I No Longer Care.
Authored by: SilverWave on Wednesday, April 28 2010 @ 04:48 PM EDT
Yeah yeah...

Whatever.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

"So what is the real point of this litigation?"
Authored by: Yossarian on Wednesday, April 28 2010 @ 05:45 PM EDT
SCO tells Novell & IBM, loud and clear, something like: "even
if you will win in the court room, in every round, you will
never see a penny from us. So just settle, and be reasonable.
You will still get nothing, but at least you will stop paying
your very expensive lawyers."

It worked with AZ, so SCO is going to try again. IBM will
probably not settle, too much bad blood. But Novell is not
that rich and it may settle.

[ Reply to This | # ]

Meeting of the minds for amendment 2
Authored by: Anonymous on Wednesday, April 28 2010 @ 05:54 PM EDT
If they meant different things then obviously amendment 2 is void and without
effect. It reverts back to the contract as amended by amendment 1. There was
no board approval to transfer copyrights so any amendment doing so was contrary
to the understanding of the corporation.

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: Gringo on Wednesday, April 28 2010 @ 06:47 PM EDT

Whatever the explanation for the verdict, the evidence demonstrated that ownership of the UNIX and UnixWare copyrights is required for SCO to exercise the complete ownership rights in the UNIX and UnixWare technologies (including the source code) it acquired under the APA, and that the amended APA provides that such copyrights were transferred.
...
Amendment No. 2, together with the APA, means that SCO acquired the copyrights "required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies."

This has been said over and over, but I am still stunned every time I see SCO stumbling right over that word "acquisition" as if it wasn't there. SCO wants us to see that phrase without that word, like so...

Amendment No. 2, together with the APA, means that SCO acquired the copyrights "required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies."

More than that SCO would actually prefer us all to see their revisionist rendering of the phrase, where they move the word "acquisition" to a new location further on in the phrase and morph it to "acquired"...

Amendment No. 2, together with the APA, means the copyrights "required for SCO to exercise its rights with respect to the UNIX and UnixWare technologies ... that SCO aquired.

You see how they always shift it around like that in the end? However, as much as they try to revise history, the acquisition took place a long time ago. The deal was consummated with respect to Amendment 2, and it did not include that transfer of copyrights. Amendment 2 is now irrelevant - dead as a parrot in a Monty Python skit.

[ Reply to This | # ]

Next verse...
Authored by: hardmath on Wednesday, April 28 2010 @ 07:25 PM EDT
Next verse, same as the first.

Only worse.

I promise that if by Halloween this year, newSCO is still harping on about how
they must have gotten the copyrights because There Could Be No Other Explanation
for Amendment 2, then I'll be forced to put up a YouTube video ridiculing them.

Premise: Get SNL alum Adam Sandler to reprise his recurring character with
"I'm Crazy SCOpyright Man... please, gimme all your SCOpyrights!!"

--hm


---
"It is difficult to get a man to understand something, when his salary depends
upon his not understanding it!" -- Upton Sinclair

[ Reply to This | # ]

Does law address "reasonableness" in the way SCO wants it to?
Authored by: Gringo on Wednesday, April 28 2010 @ 08:57 PM EDT

Under Novell's interpretation, in short, the relevant language of Amendment No. 2 serves no substantive purpose at all. It is unreasonable as a matter of law for the Court to permit the jury to interpret Amendment No. 2 in a way that gives it no meaning beyond the terms of the unamended APA.

Here SCO argues that a clause in a contract - in this case, Amendment No. 2 - must be assumed to be meaningful "as a matter of law". It would be "unreasonable as a matter of law for the Court to permit the jury to interpret Amendment No. 2 in a way that gives it no meaning"

Who says? By what authority? I beg to differ - there can be many clauses in a contract that are meaningless, and that is not an uncommon occurrence. Such clauses are included for many reasons, beyond simply poor writing. I know this from personal experience. Once a lawyer wrote a contract for me and included a meaningless clause under a category in his boiler plate that required some entry, but we didn't want to go there - at least, that is how he explained it to me. Better a meaningless clause than than to leave it blank, he said.

In fact, I agree with SCO that Amendment No. 2 is meaningless, because it speaks of something that was consummated at the time of the original deal, with the original SCO, and is no longer relevant now that the technologies it speaks of were acquired - and nobody is arguing that they weren't acquired.

[ Reply to This | # ]

An effort to avoid sanctions? Puleeze!
Authored by: vb on Wednesday, April 28 2010 @ 10:07 PM EDT

Let's take a show of hands - does anyone here seriously believe that SCO will
ever receive sanctions?

And I don't mean the kind of sanction where SCO tries some outrageous legal
tactic and their "sanction" is having it not granted. I mean
-PUNISHMENT- for their abundance of bad behavior:

-ignoring court orders
-ignoring court deadlines
-introducing evidence long after a deadline in an unrelated motion
-surprise evidence
-surprise witness
-legal arguments that look like the product of recreational drug usage

[ Reply to This | # ]

Thanks for the Concern for our Well Being
Authored by: AH1 on Wednesday, April 28 2010 @ 11:50 PM EDT
Dear SCO,
I really do appreciate your heartfelt concern regarding the well being for all
of us who have who have followed this case for so long on Groklaw. I know you
have our best interests at heart and are concerned abut what will happen to all
of us should this case come to a conclusion. I understand that this is the only
reason why you have chosen to ask for a new trial, or if that does not work,
that the judge reverse the jury verdict. You know that if either is granted
then the "theater in the courts" will continue and all of us who
follow Groklaw will no longer have to fear for what we are going to do with our
lives. While I understand your concerns, I would like to reassure you that, if
you quit, we will find a way to carry on with our lives.
Thanks for your concern, but it is time for you to move on.

[ Reply to This | # ]

Was this a big strategic mistake?
Authored by: FreeChief on Wednesday, April 28 2010 @ 11:53 PM EDT
The judge has not yet ruled on "Specific performance". There was some chance that he might give the copyrights to SCO because the contract says they can have them if they are needed for <verbose bogosity>.

But now SCO is going to make him read this steaming pile of obviously mendacious nonsense before he rules on that. Might they be pushing their luck past the breaking point?

I think the judge might soon have his fill of it. This may have the effect of opening his eyes. He may think "They have had three chances and lost every time. This outrageous request makes it clear that they will not stop until they are crushed like bugs."

Most people who were raised on this planet learned sometime around the age of six that when you ask your mommy for a cookie, while she is thinking about it is not good time to ask for a pony too.

 — Programmer in Chief

[ Reply to This | # ]

Book Publishing Analogy
Authored by: sproggit on Thursday, April 29 2010 @ 01:33 AM EDT
To this layman, SCO's arguments appear both specious and contrived. Perhaps my
bias (as a FOSS user, supporter and code-contributor) makes me too subjective,
but I am unable to get past the "book publishing analogy".

Someone writes a book. The copyright is indisputably theirs. They take the
manuscript to a book publishing company, who produces and sells copies. Acting
as an agent of the author, the publisher also collects monies for the copies
sold, and pays that money back to the author.

The publisher does not need, and the author does not relinquish, title to the
copyright of the body of work that constitutes the book. Even if that work is a
compendium, or a reference book containing synopses or analysis of other works,
the publishing company does not require copyrights to operate their business.

The parallels between SCO's business model and the above illustration are very
clear. It's also clear that book authors are not required to hand over their
copyrights to publishers in order to permit the publisher to produce the books.
Even if SCO were the equivalent of an author-publisher (as they would be in my
example) they still do not need copyrights to the original works. In examples
closer to home, how many people have seen a copyright notice on a piece of
software that reads,

"Copyright (C) Company A.
Some portions Copyright (C) Company B."

I think this is quite common in the software industry, and is yet another
example that shows that copyrights *do not* need to transfer when part of a
business changes hands.

Finally, and I just can't imagine how SCO can argue themselves out from under
this: if SCO bought the entire business, as they would have us believe, then why
did they have to remit 95% of the existing revenue back to Novell? If they
purchased "all right, title and interest", then surely the
"interest" would have included income from the existing client base?
If they bought "everything" then there would not have been the need
for the words "excluded assets" in the APA, would there? If they had
intended to buy everything, then their diligent lawyers would have advised them,
at the time of the transaction, that the APA did not constitute a copyright
conveyance in the eyes of the law and would have advised them to ask for the
same, right? If the Amendment 2 was an instrument of conveyance, as SCO would so
surely love it to be, then it would have been worded with something like,

"This amendment has been created as a record of the conveyance of the
UNIX(R) copyrights from Novell, Inc, to Caldera International...."

or something similar, would it not?

Yet knowing these things, and with the benefit of PJs helpful explanation of the
relative points of law so that we can understand, we still see SCO, now under
the guidance of retired Judge Edward Cahn, continue to try these deceitful
arguments.


Frankly, I am appalled at the tone and content of this latest SCO motion. Not
only is the implied indignation offensive to me (for, surely, if any one party
has behaved in an offensive manner in this case, it has been SCO), but in terms
of content and argument this submission is nothing short of another blatant
attempt to rewrite the facts of the and re-try the arguments of the case in yet
another "last-gasp" attempt to stave off the inevitable.

I hope (and actually I feel reasonably sure) that Judge Stewart realises that
the world is watching and treats this latest wiht the contempt it deserves.



Another point of note for the Groklaw regulars. Have you notices changes to the
quality and workmanship coming from BSF since the Trustee was appointed? Just
look at the number of citations offered with this latest submission.

Do you suppose, is it possible, that SCO have been receiving a - dare I say it -
sub-standard service from their lawyers up until now? Could it be that the
Trustee, Edward Cahn (a former Judge himself) has noticed this and is driving
this improvement in work? Or maybe it's just my imagination.

[ Reply to This | # ]

The real point of the litigation? Have you forgotten?
Authored by: Anonymous on Thursday, April 29 2010 @ 01:49 AM EDT

So what is the real point of this litigation?

I'm astonished you feel the question is worth asking. Is Groklaw still being written by the same person who started it?

Microsoft and Sun paid for the litigation spree, six or seven years ago. They wanted Linux to be mired in legal problems. They got what they paid for.

Since then, Sun "saw the light" and became more of a supporter of free software than an opponent (seven years is a long time), even before it was taken over by Oracle. But Microsoft is still getting great value from its $10 million.

The real puzzle for me in all this is Cahn's role. Why is he still squandering SCO's assets to pursue this litigation? Does he have some connection to SCO's old management team, or to Microsoft, that we don't know about? Or is it just a matter of personal pride to bankruptcy lawyers to destroy all the assets of a bankrupt company so that creditors never get anything?

[ Reply to This | # ]

international outcry
Authored by: IMANAL_TOO on Thursday, April 29 2010 @ 03:29 AM EDT
PJ asked "And can you imagine the international outcry if the judge were to
grant a request like this?"

In fact I think I can, and we have heard it in the word processor file format
discussion, and we have seen what happens in the Swiss tribunal - sadly very
little will happen.

What could the international society do? This is a US Court, with a US Judge,
judging on US copyright rules.

Please, what should the international community do to stop this, or, if it comes
through, what are the possible legal actions? I don't know enough to even start
thinking about it.



.

---
______
IMANAL


.

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: Anonymous on Thursday, April 29 2010 @ 03:59 AM EDT
dhclient wlan0

[ Reply to This | # ]

Unclear writing in Amendment 2 is the root of the dispute
Authored by: Anonymous on Thursday, April 29 2010 @ 07:40 AM EDT
I think I finally see it. In Amendment 2 to the APA there is the phrase:
"required for SCO to exercise its rights with respect to the
acquisition of UNIX and UnixWare technologies."

The grammar is ambiguous about the tense to apply to "the
acquisition." The SCO Group reads this as past tense to be "the PRIOR
acquisition of UNIX and Unixware technologies," an believes it forced a
transfer.

Novelle reads the phrase as "the FUTURE acquisition of UNIX and Unixware
technologies." Novelle actually believed the SCO was trying to run a
software company, and realized that it might become advantageous IN THE FUTURE
for SCO to have an ability to cross license CODE to acquire additional
technologies to enhance the utility of Unixware.

SCO just could not get the jury to believe that Novelle had unknowingly given
them the windfall gift of copyrights worth hundreds of millions of dollars.
They still believe that everyone disagreeing cannot see the plainly missing
words that make that phrase retroactive.

I must concede that my High School English teacher might have had a point when
she made me rewrite to get rid of passive voice and infinitive phrases. Clear
writing could have avoided this court battle -- but the negotiators probably
would have never been able to get an Amendment 2 written.

[ Reply to This | # ]

SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
Authored by: Anonymous on Thursday, April 29 2010 @ 09:06 AM EDT
"They don't ever want this dance to end. The rest of the
world gets it."

I for one do not get it.

I have been here since I was on dial up and Groklaw was on
radio-weblogs.com. Years I have forgotten how many but PJ
and I exchanged email in her 3 or 4 month. That is a while
back.

The assumption here is that this is a legal case. It is
not.

Law here is being used as a means to advance some agenda
which is not money either but having the money would be
nice so that is included too.

Microsoft may or may not be supplying money for this to
attack Linux but it they are definitely not sponsoring this
if one thinks of sponsoring as being the prime mover as the
whole thing sounds more like a modern day legal version of
the Hatfield and McCoy feud.

So, this raises the question of what is really going on?

I am certain there are people at SCO, Novel, IBM, and
Microsoft who know but there is at least one who is
completely clueless and that is me. I simply do not get it.

[ Reply to This | # ]

"The Copyrights Are Required for SCO to Exercise Its Ownership Rights in the UNIX and UnixWare T
Authored by: johnE on Thursday, April 29 2010 @ 09:39 AM EDT
The Copyrights Are Required for SCO to Exercise Its Ownership Rights in the UNIX and UnixWare Technologies It Acquired.

This may be true. However, APA Amendment No. 2 amends the Schedule of Excluded Assets in Schedule 1.1(b) to exclude "All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the [APA] required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." [emphasis added]

Another blatant attempt to selectively quote a portion of the amendment, resulting in a contradictory position.

Or "I can still see, pull some more wool over my eyes", thinking that wool grows on Cattleback[s].

[ Reply to This | # ]

Perhaps this is a stupid question
Authored by: Anonymous on Thursday, April 29 2010 @ 09:54 AM EDT
Okay, maybe I am naive but if the predecessor company to SCO - the one that
"bought UNIX" didn't read the contract before signing it to make sure
that everything they thought was supposed to be in there was in fact in there --
then whose fault is that?

[ Reply to This | # ]

Only afraid of if judge is bribed/threatened
Authored by: peope on Thursday, April 29 2010 @ 10:06 PM EDT
My *only* concern about this whole mess is that the judge is bought.

Soon to find out.

[ Reply to This | # ]

    A system thet lets a hopeless-from-day-one case ...
    Authored by: Anonymous on Friday, April 30 2010 @ 03:18 AM EDT
    ... come so fare is a system to fear.

    It doesn't matter if SCO gets a new trial or if they get the jury decision overthrown. Already at this point the system has proven that it is an entire joke. Year after year those with the friends with deep pockets and a few friends in politics showed us who's boss.

    If you don't have friends with deep pockets and don't have friends in politics you'd better watch out.

    And don't get me started on bankruptcy court.

    [ Reply to This | # ]

    Where is Novell's response?
    Authored by: GriffMG on Friday, April 30 2010 @ 03:37 PM EDT
    They must have been expecting this, so I'm surprised not to be reading a point
    by point annihilation of everything tSCOg has written already!



    ---
    Keep B-) ing

    [ Reply to This | # ]

    SCO Files Motion for Judgment As a Matter of Law, or For a New Trial
    Authored by: Anonymous on Saturday, May 01 2010 @ 04:14 AM EDT
    SCO sucks, all rights should remain at novell, they know what they are doing and have done an amazing job in the past.
    I have no doubt that they are the best.
    --
    youtube mp3

    [ Reply to This | # ]

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

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