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Here it is: SCO's Reply to Novell's Response to Motion for New Trial - Updated, as text
Friday, May 28 2010 @ 07:47 PM EDT

Here it is, SCO's Reply to Novell's Response to SCO's Motion for a new trial or for the judge to just give them the copyrights:

05/28/2010 - 875 - REPLY to Response to Motion re 874 MOTION for New Trial filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 05/28/2010)

I know some of you wondered if SCO had given up and faced reality and wasn't going to file. Hah! Nevah happen. The full title of the document is "SCO's Reply Memorandum in Support of Its Renewed Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial". Wow. It's like the good old days with SCOfolk. Here's why they say they need the copyrights:
Because ownership of the UNIX and UnixWare copyrights is required, at least, for SCO to enforce its rights against third-party infringers and to pursue enforcement of claims transferred to it under the APA, the jury's verdict cannot stand.
They want to sue the world some more, at least, and their argument has shifted a bit now to depending on the claims they say were transferred to them under the APA. Wait. Did they argue that at trial? It's true they fought for a jury trial, but "doing so does not surrender the protections provided by law for a case where the jury is confused or misled into an untenable decision." OMG. The jury was "confused" or "misled". Of all people to complain about *that*! They are so funny to me. I hope the judge has followed the cases enough over the years to understand why.

Here it is as text:

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

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 REPLY 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)

INTRODUCTION

SCO's Rule 50 motion is predicated on the plain language of the APA, as amended by Amendment No. 2, and as interpreted by the Tenth Circuit. The plain language of the APA, after Amendment No. 2, as well as the Court of Appeals's analysis of that language, makes clear that all copyrights that are required for SCO to exercise any of its purchased rights in the UNIX and UnixWare technologies acquired under the APA were transferred, and Ms. Amadia, Novell's drafter of the provision, after she admitted that she was assuming no copyrights were required, conceded as much on cross-examination. Because ownership of the UNIX and UnixWare copyrights is required, at least, for SCO to enforce its rights against third-party infringers and to pursue enforcement of claims transferred to it under the APA, the jury's verdict cannot stand.

Novell's defense of the verdict rests on a series of suppositions and non-issues. First, Novell contends that what SCO received in the APA was just a license to develop a new modified UnixWare product. This position cannot be squared with the facts that the APA is an asset purchase agreement, not a licensing agreement; the APA transfers "all rights and ownership" in the UNIX and UnixWare source code, which no license would do; and Novell offered UnixWare source code licenses to develop new modified UnixWare products for $375,000 — not the tens of millions of dollars Santa Cruz at minimum paid. (605:23-606:8 (Broderick); 598:4-8 (Broderick); 2018:6-8 (Tolonen); Ex. 133.) Second, Novell's position requires that SCO would have received a license to use UNIX and UnixWare copyrights, but there is no such license in the APA. Finally, Novell argues that it is sufficient that SCO could copyright its own modifications to the UNIX and UnixWare source code, ignoring that this would leave the underlying UNIX technology, on which such modifications are constructed, entirely unprotected. Because the amended APA transfers all copyrights that are required, and the UNIX and UnixWare copyrights are required, Rule 50 requires that judgment on copyright ownership be entered for SCO.

(2)

SCO's alternative motion for new trial under Rule 59 appropriately requires this Court to consider the jury's verdict against the extraordinary evidence that transfer of the UNIX and UnixWare copyrights was intended. This evidence includes testimony from Novell's own top executives and negotiators, not to mention indisputable evidence of how Novell remarked and relabeled UnixWare with SCO's copyright notice, informed customers that SCO now owned the technology, intentionally left its UNIX copyright registrations for SCO to keep, and never objected as SCO publicly claimed copyright ownership in subsequent press releases and other filings. Novell would have this Court believe that ten witnesses, five from Novell's side, most with no financial interest in the matter, have concocted the story that it was the intent of the transaction, as expressed in negotiations, that ownership of the whole UNIX and UnixWare business (excepting the existing royalty stream) be sold, and that this naturally included the UNIX and UnixWare copyrights.

It is true, as Novell says, that SCO fought for a jury trial. But doing so does not surrender the protections provided by law for a case where the jury is confused or misled into an untenable decision. We respectfully submit this is such a case.

ARGUMENT

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

SCO's Rule 50 motion is appropriately granted under the standard of Reeves v. Sanderson Plumbing Prods, Inc., where the Supreme Court stated that courts "should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." 530 U.S. 133, 150-51 (2000). The Court, of course, is also entitled — indeed required — to give controlling weight to the views of the Tenth Circuit expressed in the course of interpreting this very contract.

2 (3)

A. The Amended APA Transferred "Required" Copyrights to SCO.

The amended APA plainly provides for transfer of copyrights required for SCO to exercise its rights with respect to the UNIX and UnixWare technologies it acquired through the APA. The transfer of "all rights and ownership" in the UNIX and UnixWare source code — if there is no exclusion of copyrights — is plainly sufficient to transfer the copyrights under settled case law. (See SCO Opening Br. at 5.) As the Tenth Circuit observed, "when a party acquires 'all rights and ownership' in a set of items, as was the case here, courts have generally found such language sufficient to satisfy Section 204(a) in the absence of language excepting copyrights or other special circumstances." SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1213 (10th Cir. 2008). Thus, "any change to the set of Excluded Assets in Schedule 1.1(b) necessarily implicated those copyrights actually transferred under Schedule 1.1(a)." Id. This clear statement, as well as others the Tenth Circuit made, resolves the issue here. Id. at 1213-16. Novell's competing interpretation is that Amendment No. 2 simply affirmed in SCO a right to use the UNIX and UnixWare technology, i.e., a "license," without using the word. But this is precisely the interpretation of which the Court of Appeals said it was "skeptical" because "[w]hatever the Amendment means, it refers to ownership of copyrights not to licenses." Id. at 1216. The language of Amendment No. 2, the Tenth Circuit's analysis, and the testimony of Novell's own chief witness on the point are all contrary to Novell's position.1

While the Tenth Circuit, as Novell argues, took "no position on which party ultimately owns the UNIX copyrights or which copyrights were required for Santa Cruz to exercise its rights under the agreement," that does not mean the Tenth Circuit's views of the proper interpretation of the contract are to be disregarded. They are law of the case. (See Novell Mot. in Limine No. 9

3 (4)

(Docket No. 650) at 2.) Now that this Court has heard the evidence, the Court should consider the evidence in light of the Tenth Circuit's opinion and the views expressed therein.

Novell cites provisions that SCO would manage and remit to Novell older UNIX royalties, points to evidence that "the retention of copyrights was approved by the Novell Board,"2 and argues that Amendment No. 2 could not have been intended to transfer copyright ownership because "that would have been a material change that would have required separate Board approval." But none of these arguments creates a plausible alternative reading of the amended APA. Moreover, there is no question that Amendment No. 2 is a binding contract to which Novell is legally bound, irrespective of the views of certain Novell witnesses regarding the need for further approval.3 "Contract formation is governed by objective manifestations, not the subjective intent of any individual," and "subjective, undisclosed intent" is "immaterial to interpretation of contract." Coremetrics, Inc. v. Atomic Park.com, LLC, No. C-04-0222 EMC, 2005 WL 33100093, at *5 (N.D. Cal. Dec. 7, 2005); accord Navair, Inc. v. IFR Americas, Inc., 519 F.3d 1131, 1138 (10th Cir. 2008) (contracts formed "by what the parties communicate"); Williston on Contracts § 4:1 (2007) ("mutual assent is to be judged only by overt acts and words").

Novell also argues (at 9-10) that SCO "takes out of context" Ms. Amadia's concession that the amended APA transferred ownership of any required copyrights. A review of Ms. Amadia's testimony, however, shows that she clearly conceded the point under cross-examination that, if

4 (5)

copyrights were "required" by SCO contrary to what she was assuming in her direct testimony, the copyrights were transferred. First, she admitted that "whatever copyright rights Santa Cruz needed in order to exercise the rights it was given under the asset purchase agreement . . . they would have those rights." (2160:5-8). Then, in the context of testifying that both trademarks and copyrights4 were transferred under the same language of Amendment No 2, Ms. Amadia testified:

Q. So if there are copyrights that are required for SCO to exercise its rights, like the UNIX and UnixWare trademarks, they were transferred; correct?

A. Yeah.
(2177:25-2178:18) There is simply no contextual confusion — which is the only possible response Novell has to this clear, dispositive admission from its chief witness on the issue.

B. SCO Required UNIX and UnixWare Copyrights.

SCO showed that it plainly requires the copyrights to enforce its rights against third-party infringers and to pursue enforcement of claims transferred to it under the APA.

Novell does not and cannot dispute that SCO cannot enforce copyrights against infringers of the UNIX source code and related information, which Novell concedes SCO owns, without owning the copyrights (or holding an express exclusive license, a position even Novell does not espouse). SCO's ability to copyright subsequent modifications and enhancements does not provide a means to protect the underlying UNIX source code — code that Andrew Nagle (a long- time USL, Novell, and Santa Cruz employee) testified to, without contradiction, "is still there" in UnixWare today.5 (1784:1-22; see SCO Opening Br. at 11). Indeed, with no copyrights, SCO

5 (6)

would not even be able to protect the UnixWare product it received and commenced selling at the time of the closing. (1784:1-22.)

With respect to the transfer of legal claims — which would include copyright claims — in the APA, Novell protests (at 13-14) that SCO "made no showing" that "legal claims" were among the rights SCO acquired under the APA. But Item II of Schedule 1.1(a) clearly transfers "All of Seller's claims arising after the closing date against any parties relating to any right, property or asset included in the business." (Emphasis added.) Without contradiction, Mr. Thompson testified "that the enumerated assets Novell actually sold to Santa Cruz included legal claims that it would have against parties that were connected to the business." Under the case law, a copyright owner cannot transfer its copyright claims without also transferring the copyrights. Silvers v Sony Pictures Entm't., Inc., 402 F.3d 881, 885 (9th Cir. 2005).

Novell next argues (at 8-9) that Ms. Amadia and Mr. Tolonen "testified that the 'required for' language in Amendment No. 2 was not intended to transfer the UNIX copyrights." But even if (contrary to fact) that testimony could be squared with the plain language of the amended APA, Mr. Tolonen and Ms. Amadia were not testifying regarding the relevant question — whether the copyrights at issue are required — but rather declaring categorically that Amendment No. 2 accomplished nothing — even though Ms. Amadia admitted that the reason Amendment No. 2 was drafted in the first place was to, in Mr. Sabbath's words, "correct" a "clerical error" "regarding the ownership of the copyrights under the asset purchase agreement." (2107:2-18.)

Novell next argues (at 10-11) that Mr. McBride's statement that the copyrights were not required to run the UnixWare business proves that the copyrights are not required for SCO to exercise the rights it acquired under the APA. But Mr. McBride was clearly referring to only one part of SCO's business — its ability to sell UnixWare binary products directly to customers — as is

6 (7)

evident from (1) his comparison of UnixWare to OpenServer and the products of "HP, IBM and all other UNIX licensees," and (2) the distinction he draws between the UnixWare business and "the licensing side" of SCO's overall business. That SCO, like UNIX licensees, could continue to sell its UnixWare binary products without the copyrights does not mean that the copyrights were not required to exercise critical rights "on the licensing side" that SCO also acquired under the APA. Indeed, even selling binary products would be more tenuous if infringers could copy protected UNIX and UnixWare code with impunity.6

Mr. Tibbitts squarely testified that without the UNIX and UnixWare copyrights SCO "could not protect" its business and that "this venerable UNIX business that has been around for many years that many customers around the world are using would simply die off." (1844:25- 1846:1; 1850:11-14.) SCO's consideration of selling the UnixWare binary business while retaining the copyrights to pursue its intellectual property business is consistent with the legal and practical reality that copyrights are required to license and enforce the intellectual property. Moreover, Mr. Tibbitts testified that "the copyrights were potentially going to go with that business [through the proposed sale] when the [litigation] issues get cleared up." (1850:15-19.)

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

Alternatively, the verdict was clearly, decidedly, and overwhelmingly against the weight of the evidence that the parties intended for SCO to receive the copyrights, as part of the "all rights and ownership" to the software business it acquired in the APA. Novell suggests (at 15, n.10) that Evans v. Fogarty, 241 Fed. Appx. 542, 550 (10th Cir. 2007), modifies the "abuse of discretion" standard of review where a district court grants, as opposed to denies, a motion for a new trial. But the Tenth Circuit makes no such distinction. Henning v. Union Pacific, 530 F.3d 1206, 1217 (10th Cir. 2008) ("Like a district court's decision to deny a motion for a new trial, we review the

7 (8)

district court's decision to grant a new trial for an abuse of discretion.") Fogarty thus speaks to the thoroughness of a panel's review of the record, not to any distinct, less-deferential standard.

A. SCO Acquired the UNIX and UnixWare Copyrights.

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

Novell first argues (at 15-17) that "SCO mistakes quantity of testimony with quality of testimony." SCO respectfully suggests that when a litigant is able to present favorable testimony from an array of its adversary's most senior executives, including its then-CEO, and the lead business negotiators, it has provided both "quality" and "quantity" of proof. But in any event the following facts about SCO's ten key witnesses are derived from the record:

  • At the time of the APA, five worked for Novell and five for Santa Cruz.

  • There was no evidence that seven — Mr. Frankenberg, Mr. Levine, Mr. Mohan,7 Mr. Wilt, Mr. Michels, Ms. Madsen, and Mr. Sabbath — ever had any affiliation or interest in SCO. All seven offered testimony that was consistent within the entire group and also with the witnesses Novell challenged as having some potential interest in SCO.

  • Mr. Levine, who Novell notes marked up Schedule 1.1(b), testified that it was intended that copyrights transfer and suggested it would have been unethical for Novell to sell the business and yet withhold the copyrights in that manner. (521:7-522:14.)

Novell argues (at 16) that "none of these ten witnesses offered reliable testimony as to the intent, negotiation, or drafting of the relevant portion of Amendment No. 2," ignoring that Ms. Madsen and Mr. Sabbath both offered fully competent testimony concerning the intent of Amendment No. 2. (802:14-803:1 (Madsen); 865:3-866:1 (Madsen); 900:23-901:9 (Sabbath)). Novell next

8 (9)

selectively quotes (at 16-18) from the testimony of these ten witnesses purportedly to show that "their knowledge and credibility were suspect." But Novell is unable to explain, and so does not try, how ten disparate witnesses, each allegedly suffering from distinct failures of knowledge or credibility, collectively offered identical testimony of their shared intent.8

The Technology Licensing Agreement ("TLA") simply cannot be squared with Novell's position. No one disputes that the TLA licensed to Novell post-APA UNIX derivatives. In another effort to focus the analysis on a non-issue, Novell claims that this is all the TLA does. But the TLA also licensed back to Novell the pre-APA UNIX technologies that Novell sold to SCO in the same transaction. Those are technologies for which Novell would not have needed a license, much less accepted a restricted license as stated in the TLA, had it owned the copyrights at issue. Novell incongruously emphasizes (at 20) that its General Counsel testified that "the TLA gave a license-back to Novell to all assets conveyed to SCO." Yes, by definition, those assets were the existing pre-APA technologies, including all UNIX source code, not the derivatives of those technologies that SCO would subsequently develop.

B. The Course of Performance Confirmed that Copyrights Were Transferred.

Knowing that the Tenth Circuit deemed such evidence "the best evidence" of the parties' contractual intent, SCO, 578 F.3d at 1217, Novell strains to downplay the probative value of the overwhelming, one-sided "course of performance" evidence SCO presented at trial.

Novell argues (at 21) that "copyright notices were changed only on the then-current release of UnixWare that Santa Cruz was taking over, and not older UNIX and UnixWare releases." But

9 (10)

the fact that Novell changed the copyright notices on the "then-current release of UnixWare" is precisely the point. That release had been developed and was owned by Novell and was being transferred to SCO under the APA. (Ex. 1, Schedule 1.1(a), Item I (transferring UnixWare 2.1); 1722:19-1723-2 (Nagle).) No new code written by Santa Cruz was part of that product at that point. (1726:14-18 (Nagle); 1781:10-13 (Nagle).) Thus, it only made sense for Novell to change copyright notices on that release, which contained only Novell-developed code, if the pre-APA copyrights were also being transferred to SCO — which, of course, was the only testimony presented regarding the transition process.

Novell suggests (at 20) that it took no affirmative steps to turn its UNIX copyright registrations over to SCO but just left them behind in "the same physical location." That lack of effort to keep possession is instructive. Moreover, Mr. Broderick testified without rebuttal that Novell management affirmatively sorted its files to identify and turn over to SCO all the materials being transferred to SCO under the APA, while keeping materials that should not be transferred to SCO, which were related to Netware and other Novell technologies. (610:5-611:25.)

Novell claims (at 20) that the letters it sent to hundreds of UNIX licensees and partners "were not meant to give customers all details, but merely convey that customers needed to deal with Santa Cruz going forward." That may be true in part, but that does not detract from Novell's precise statements that it had transferred "its existing ownership interest in UNIX" and "the ownership of the UNIX operating system," including all existing and prior releases of UNIX and UnixWare. (Ex. 22; Ex. 751.) Not giving details is one thing; erroneously describing the transaction to partners is another. The letters speak for themselves about the intent of the APA.

10 (11)

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 28th day of May, 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.

11 (12)

CERTIFICATE OF SERVICE

I, Brent O. Hatch, hereby certify that on this 28th day of May, 2010, a true and correct copy of the foregoing SCO'S REPLY 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]

12 (13)

1 Ms. Amadia makes it clear that her view of Amendment No. 2 is based on her erroneous reading that the APA was a mere grant of rights for SCO to do certain things (2152:10-17; 2153:5-13; 2156:6-9), rather than the outright ownership transfer of the UNIX and UnixWare businesses that it indisputably is.
2 Novell suggests (at 6) that Mr. Frankenberg "confirmed and verified the accuracy" of the Novell Board minutes at the time of the Board meeting. But Mr. Frankenberg merely authenticated the Board minutes. (147:10-17.) In addition, he made clear that he "misread" the exclusion of copyrights reflected in the Board minutes as an exclusion of Netware copyrights, and thus the mistake was not "caught at the time in 1995 when the transaction was being signed." (102:19-103:6.)
3 Not only was Amendment No. 2 binding, as it was signed by a Novell officer, but the APA and related agreements were amended in material ways affecting Novell's rights, without evidence of Board approval, through Amendment No. 1 and the three-way amendment among Novell, SCO, and IBM known as Amendment X. (Ex. 1, Amendment No. 1; Ex. 165, Recitals.) Like those amendments, Amendment No. 2 was executed and became binding on Novell even without such Board approval.
4 While trademarks are expressly listed in Schedule 1.1(a), they are excluded by the excluded asset language unless that language — which applies equally to copyrights — allows for conveyance of ownership.
5 Mr. Nagle's testimony alone answers Novell's assertion that SCO presented no testimony as to what copyrights were required. UNIX and UnixWare are a continuous development process building new code on top of the original UNIX code. (1722:5-11; 1729:11-1730:1.) "The engine to UNIX is the kernel, it is the core of the operating system . . . . All of that technology, the basis for that technology, reaches back to the development of 4.2 MP that was done at UNIX System Laboratories. It was brought forward into UnixWare 2, it was brought forward into UnixWare 2.1, and it is still there." (1784:12-19.)
6 A party suffering infringement may sue to enjoin the infringing user, license the infringing use as SCO attempted with certain users through SCOSource licensing, or a combination of both.
7 Novell cites a memo from Mr. Mohan to argue that there were two businesses — the existing UNIX business and the UnixWare business — and that SCO acquired only the forward-looking UnixWare business. The APA, however, transferred all existing technology and versions of both UNIX and UnixWare without distinction, and Mr. Mohan drew no such distinction in his memo. (Ex. 1, Schedule 1.1(a), Item I; Ex. 163 at 1.) In fact, the memo states that SCO bought "the UNIX business from Novell" and attaches the Novell-SCO joint press release announcing that SCO was acquiring the "UNIX intellectual property." (110:22-112:13 (Frankenberg); Ex. 526; Ex. 163 at 1, 4.) Also, Mr. Mohan testified that when SCO bought the UNIX business from Novell, SCO got "the whole thing," including the copyrights. (459:2-6; 461:22-25; 462:1-9.)
8 The forthright negotiator rule also requires interpreting Amendment No. 2 in SCO's favor. According to Novell, the rule does not apply because "SCO has presented no evidence that Santa Cruz attached a different meaning to the relevant portion of Amendment No. 2 at the time the agreement was made." But Mr. Sabbath believed that Amendment No. 2 fixed "a clerical error" and confirmed the transfer of the copyrights. (2107:2-18 (Amadia); 911:6-14 (Sabbath).) Knowing that that was his understanding from the start of the negotiations, Ms. Amadia drafted the final language to avoid "what his reaction was going to be to a whole modification of his proposed language" (2174: 6-24), which is the less-than- forthright negotiating approach that the law disfavors.

  


Here it is: SCO's Reply to Novell's Response to Motion for New Trial - Updated, as text | 350 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Here it is: SCO's Reply to Novell's Response to Motion for New Trial
Authored by: Anonymous on Friday, May 28 2010 @ 07:53 PM EDT
WooHoo! been dying for my SCO fix!

[ Reply to This | # ]

Corrections
Authored by: bprice on Friday, May 28 2010 @ 08:12 PM EDT
Should any be needed

---
--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

News Picks Discussion
Authored by: bprice on Friday, May 28 2010 @ 08:13 PM EDT
Remember to make it easy for your readers.

---
--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

Off Topic
Authored by: bprice on Friday, May 28 2010 @ 08:13 PM EDT


---
--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

Everything COMES Here
Authored by: bprice on Friday, May 28 2010 @ 08:14 PM EDT


---
--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

Ocean Park new bill, #1124
Authored by: _Arthur on Friday, May 28 2010 @ 08:32 PM EDT
Ocean Park has presented a new bill to Ed, #1124

$52,189.60 (80% of $65,237.00), plus $60,000 Patent Transaction Fee

+$4,694.37 expenses

They spent $29,802.00 on Analysis, Preparation and Execution of Restructuring
Plan

[ Reply to This | # ]

What NewSCO wants is...
Authored by: electron on Friday, May 28 2010 @ 08:34 PM EDT
... Either for the pre APA copyrights to be simply taken off Novell and freely
handed over to NewSCO,

or

a THIRD trial due to the first two trials not handing them the answer they
wanted despite having taken up most of the time in the second trial attempting
to convince the jury that NewSCO deserved to be given the copyrights.

Has nobody at NewSCO figured out yet that if you're acting as someone's agent in
remitting fees to them, then they are merely an agent and not the owner of the
copyrights that are the basis for receiving the fees?

What if NewSCO stopped remitting Novell's money to them from the license
holders?

What recourse would Novell have against NewSCO if NewSCO said "we own the
copyrights. The fees received from license holders are therefore ours"?




---
Electron

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

[ Reply to This | # ]

What happened?
Authored by: Anonymous on Friday, May 28 2010 @ 08:39 PM EDT
It's only thirteen pages long! What's happened to SCO?

MSS2

[ Reply to This | # ]

A new low - Even for SCO (and thats saying a lot).
Authored by: SilverWave on Friday, May 28 2010 @ 08:46 PM EDT
You keep paying and SCO will keep 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 | # ]

If this was anyone else...
Authored by: The Mad Hatter r on Friday, May 28 2010 @ 08:51 PM EDT

They want to sue the world some more, at least, and their argument has shifted a bit now to depending on the claims they say were transferred to them under the APA. Wait. Did they argue that at trial? It's true they fought for a jury trial, but "doing so does not surrender the protections provided by law for a case where the jury is confused or misled into an untenable decision." OMG. The jury was "confused" or "misled". Of all people to complain about *that*! They are so funny to me. I hope the judge has followed to cases enough over the years to understand why.
If this was anyone else, their tenacity would be admirable. Of course if this was anyone else, they wouldn't be attempting such stupidity.

---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

Not much improvement at all
Authored by: Anonymous on Friday, May 28 2010 @ 08:53 PM EDT
SCO is still trying to say that they need the copyrights in order to defend the
copyrights. What a pathetic argument.

SCO is also arguing that they need the rights to defend the rest of what they
bought. I think that's not much better, but it's at least not a circular joke.

MSS2

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The Introduction is Fascinating
Authored by: The Mad Hatter r on Friday, May 28 2010 @ 08:56 PM EDT
SCO’s Rule 50 motion is predicated on the plain language of the APA, as amended by Amendment No. 2, and as interpreted by the Tenth Circuit. The plain language of the APA, after Amendment No. 2, as well as the Court of Appeals’s analysis of that language, makes clear that all copyrights that are required for SCO to exercise any of its purchased rights in the UNIX and UnixWare technologies acquired under the APA were transferred, and Ms. Amadia, Novell’s drafter of the provision, after she admitted that she was assuming no copyrights were required, conceded as much on cross-examination. Because ownership of the UNIX and UnixWare copyrights is required, at least, for SCO to enforce its rights against third-party infringers and to pursue enforcement of claims transferred to it under the APA, the jury’s verdict cannot stand.
They claim that without the copyrights that they can't enforce their rights against third party infringers. Curiously IBM, SUN, SGI, etc. didn't consider this an issue, or they would have wanted the copyrights themselves. I wonder how they will spin that (if this gets anywhere, I expect it to be denied).

---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

Oh joy ... only a dozen pages
Authored by: nsomos on Friday, May 28 2010 @ 08:56 PM EDT
Short enough that I could read some and scroll quickly
through the rest without retching or becoming tired.
I've not been able to say that about all of SCOGs other
new renewed overlength and overdone filings.

on page 6 section B ..
--------------------------
Novell does not and cannot dispute that SCO cannot
enforce copyrights against infringers of the UNIX
source code and related information, which Novell
concedes SCO owns, without owning the copyrights
(or holding an express exclusive license, a position
even Novell does not espouse).

SCO’s ability to copyright subsequent modifications
and enhancements does not provide a means to protect
the underlying UNIX source code – code that Andrew
Nagle (a long-time USL, Novell, and Santa Cruz employee)
testified to, without contradiction, “is still there”
in UnixWare today.
--------------------------

Classic misdirection. SCOG can't enforce copyrights
without owning copyrights, a tautology, and then
from this we are to conclude that SCOG must own the
copyrights they are trying to monetize. But these
are not the same copyrights. SCOG owns copyrights
in their original works and their derivatives works.
SCOG does not own the copyrights that Novell need
not and has not transferred.

If someone were to misuse SCOG original or derivative
works and SCOG could prove it, then yeah, they can
make that stick.

And then whining that they can't protect the underlying
source code. So what? It isn't theirs to begin with.

Reading their arguments hurts my head and makes me ill.
I sincerely hope that who run SCOG, Darl, Yarro, and
others all get what they deserve for their actions.

[ Reply to This | # ]

Would Novell be out of line...
Authored by: Anonymous on Friday, May 28 2010 @ 08:57 PM EDT
to point out to the judge that confusion, deception, outright lying, and libeling judges and juries have been the modus operandi of tSCOg practically from the beginning, and this filing is just one more example of such?

If not, then I suggest Novell have a filing before the court at 9:05 a.m. Tuesday morning, stating exactly that.

(For those not in the USA: Monday is a national holiday.)

[ Reply to This | # ]

But wait!?
Authored by: BitOBear on Friday, May 28 2010 @ 09:06 PM EDT
SCO, since they don't own the code, is not the party of the first nor second
part with regards to any possible infringement.

Their statement isn't even wrong.

I could go to the courts and say that Microsoft must transfer the copyrights to
Windows so that I can go after third party infringement claims against
unauthorized users of windows.

They throw the APA in there as if it justifies their status as the party of the
first part, but since it didn't transfer the copyrights the set of rights they
gained to this pursuit is the empty set. The nullity of that set has been
adjudged repeatedly.

Isn't it time to pierce the corporate veil and set in with the sanctions and the
collections against individuals yet?

[ Reply to This | # ]

While we wait for the SCOTUS brief in opposition
Authored by: Henning Makholm on Friday, May 28 2010 @ 09:12 PM EDT
Anyone want to try to guess what they'll tell the Supreme Court?
  • The petition should be denied as moot because Novell already got the relief they were asking for, on remand to the District Court.
  • Even if the case were not moot, it would not be appropriate for the Supreme Court because no circuit split exists.
  • Even if there were a circuit split, this case would not be an appropriate vehicle for deciding the question presented, because the question of whether the amended APA satisfies Novell's proposed standard is fact-intensive and disputed.
  • This case is not an appropriate vehicle for clarifying what is required of a 204(a) writing, because in this case the question of what the writing means is inextricably intertwined with state-law issues of contract construction.
  • This case is not an appropriate vehicle for clarifying whether extrinsic evidence can be used to prove the meaning of a 204(a) writing, because the legal issue of what the evidence needs to prove is in itself in dispute in this case.
  • This case would be a waste of time for the Supreme Court because the Court of Appeals did not err.
  • Even if the Court of Appeals did err, the error was harmless because the jury trial it ordered did not change the district court's original conclusions.
  • The case does not involve a constitutional question, so the Supreme Court does not have jurisdiction.
  • If Novell is allowed to prevail, our ongoing litigation to hold IBM responsible for their misdeeds would likely fail on a technicality, which is not in the interest of justice.
  • If certiorari is granted, it will lead to a prolonged climate of fear and uncertainty regarding the ownership of Unix and Linux, to the continued detriment of the economy.
  • The decision of the Appeals Court is the law of the case, and for the Supreme Court to overturn it would harm the respect for the finality of court decisions.
  • Because most of our evidence turns on state law for deciding the meaning of contracts, the case does not belong in federal court at all. It should be sent back to the state courts and start over there.
  • Alternatively, the circuit court's decision should be summarily vacated and returned to the circuit court with instructions to order the district court to enter judgment for us forthright.
  • It's not fair if we always lose.

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Here it is: SCO's Reply to Novell's Response to Motion for New Trial
Authored by: Steve Martin on Friday, May 28 2010 @ 09:24 PM EDT

I think we're into OMG territory here. On page 5 of the PDF, The SCO Group states

Novell cites provisions that SCO would manage and remit to Novell older UNIX royalties, points to evidence that “the retention of copyrights was approved by the Novell Board,”2 and argues that Amendment No. 2 could not have been intended to transfer copyright ownership because “that would have been a material change that would have required separate Board approval.” But none of these arguments creates a plausible alternative reading of the amended APA. Moreover, there is no question that Amendment No. 2 is a binding contract to which Novell is legally bound, irrespective of the views of certain Novell witnesses regarding the need for further approval.3 “Contract formation is governed by objective manifestations, not the subjective intent of any individual,” and “subjective, undisclosed intent” is “immaterial to interpretation of contract.” Coremetrics, Inc. v. Atomic Park.com, LLC, No. C-04-0222 EMC, 2005 WL 33100093, at *5 (N.D. Cal. Dec. 7, 2005); accord Navair, Inc. v. IFR Americas, Inc., 519 F.3d 1131, 1138 (10th Cir. 2008) (contracts formed “by what the parties communicate”); Williston on Contracts § 4:1 (2007) (“mutual assent is to be judged only by overt acts and words”).
So now the SCO Group, after arguing in trial that the intent of the parties was that the copyright should transfer regardless of the actual language of the contract, now argues that intent of the individuals is "immaterial" and that the language of the contract controls?!? Talk about shifting sands....

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

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Here it is: SCO's Reply to Novell's Response to Motion for New Trial
Authored by: Anonymous on Friday, May 28 2010 @ 10:12 PM EDT
Well, if the jury was confused then it must be the fault of whoever explained it
in so many words which was ......ooops!

Tufty

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Has anyone tried?...
Authored by: JamesK on Friday, May 28 2010 @ 10:38 PM EDT
killall -9 SCOX ;-)


---
IANALAIDPOOTV

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

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The Money Shot
Authored by: rsteinmetz70112 on Friday, May 28 2010 @ 10:42 PM EDT
SCO claims
Because the amended APA transfers all copyrights that are required, and the UNIX and UnixWare copyrights are required, Rule 50 requires that judgment on copyright ownership be entered for SCO.
This was (in)effectively argued at trial and the jury decided otherwise.

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

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

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Can anyone explain the timing?
Authored by: rsteinmetz70112 on Friday, May 28 2010 @ 10:55 PM EDT
It seems to me and others this reply was due days ago. Why is it only submitted
now?

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

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

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Once Novell is sold, what happens to the Supreme Court appeal?
Authored by: Anonymous on Friday, May 28 2010 @ 11:07 PM EDT

The court extended SCO's time to answer to August. Novell may
not exist by then. Is it too late for the new owner to withdraw
the appeal? Surely there is case law on this, where the appellant
company disappears during the appeal process?

[ Reply to This | # ]

What's the next step, and when can we expect it?
Authored by: Anonymous on Saturday, May 29 2010 @ 01:35 AM EDT

What's the next step? Does the judge hold a hearing on these motions, or does he just rule on them?

And when can we expect he will do one of these?

I hope the judge has followed the cases enough over the years to understand why.

He showed no sign of that during the trial, so I think it's unrealistic to expect it now.

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Here it is: SCO's Reply to Novell's Response to Motion for New Trial
Authored by: PeterMan on Saturday, May 29 2010 @ 04:48 AM EDT
Because ownership of the UNIX and UnixWare copyrights is required, at least, for SCO to enforce its rights against third-party infringers and to pursue enforcement of claims transferred to it under the APA, the jury's verdict cannot stand.
This is rich. Let us see. Those rights aren't ours so we need the rights transferred to us. Otherwise we won't be able to claim that others violated the rights, that are not ours, so we need them to be ours to claim that others did us harm. This is some Monty Python sketch, surely. This cannot be reality. Well, Mr Hatch. Your car is now mine. I need it so that I can sue the manufacturer. My respect for lawyers cannot sink any lower.

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Nice of SCO to protect Novell's IP
Authored by: Anonymous on Saturday, May 29 2010 @ 06:38 AM EDT
If the copyrights have not yet been transferred, Novell is surely free to
license what they own themselves to whoever they want? GPL would be
nice.

It does amuse me that people pretend this 30 year old software has
something of value in it...

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Catch-22
Authored by: Anonymous on Saturday, May 29 2010 @ 07:22 AM EDT
This is almost like catch-22. They need copyrights to sue people infringing
their copyrights. But luckily there's a simple way out of this.

No-one is infringing and no-one can infringe SCO's copyrights since they don't
have them, thus SCO doesn't need copyrights.

This is actually chicken and egg - problem to SCO!

In order to establish this sue-em-over-copyrights business, which would allow
them to get copyrights from the court, they would need those copyrights in the
first place.

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Just trying to distance themselves from lost arguments
Authored by: cpeterson on Saturday, May 29 2010 @ 10:57 AM EDT
You may remember, way back in the dark history of this case (well, actually,
mid-March), there was a trial. Part of the case was about slander of title - SCO
said that they were the owners of Unix, Novell said they weren't, SCO says
"wahhh, they owe us $uuku-bucks for contradicting us".

So it was determined that the way to decide who owns Unix was by deciding who
owned the copyrights. Therefore, the following construct appeared in the jury
instructions:

IF copyrights.transferred()==TRUE then
---mv ./copyrights /SCO
---IF title.slandered()==TRUE then
------award(damages.calculate())
---ENDIF
ENDIF

Built that way specifically because if the copyrights didn't transfer, then SCO
didn't own Unix, and there could not be any slander of title.

Now, SCO is saying that they already own Unix, and therefore require the
copyrights. However, if that were the case, the jury instructions would have
been:

IF copyrights.transferred()==TRUE then
---mv ./copyrights /SCO
ENDIF

IF title.slandered()==TRUE then
---award(damages.calculate())
ENDIF

That didn't happen. I think they'll have a hard time convincing Judge Stewart
that it did.

Of course, IANAL, but I think that as a means of responding to this, it might be
prime time for Novell to re-file their own slander-of-title claim. Complete with
a "to this very day" clause... :)

[ Reply to This | # ]

Chicken vs Egg
Authored by: Reven on Saturday, May 29 2010 @ 04:16 PM EDT
Ok, so SCO wants Novell to give it the copyrights so it can enforce the rights
it doesn't have unless SCO gets the copyrights?

SCO: Give me your money.
Novell: Why?
SCO: Because if you don't I'll sue you.
Bovell: On what grounds?
SCO: It's obvious that you are purposefully denying us the interest we could be
making by investing that money.
Novell: But...
SCO: And by denying us the money, you are tortiously interfering with our
business plan.
Novell: But it's our money.
SCO: See everyone how evil and greedy Novell is?

---
Ex Turbo Modestum

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Trouble ahead
Authored by: Anonymous on Sunday, May 30 2010 @ 05:42 AM EDT
"Because under the APA ownership of the Unix source code transferred to
Santa Cruz," ... the proper way for Novell to have the APA nevertheless
accomplish what Novell claims it accomplished was to include (and have SCO sign)
a covenant telling what SCO ought to do with "that code".
Instead of, for God knows what reason, slapping an imaginary
"express/implied license" on top through which SCO could use the
copyrights only to the extent necessary to develop "additional code".
As if therefore SCO's rights with respect to the acquisition of "that
code", or its business to run, became very limited and restricted.

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A Different Vector
Authored by: sproggit on Sunday, May 30 2010 @ 08:01 AM EDT
There's quite a wealth of analysis and commentary of this latest filing already
posted, so I won't bother trying to add to it here.

Instead, I want to view this motion from an entirely different perspective, that
of the Court-appointed Trustee, Judge Cahn.

Whatever else is happening aboard the Good Ship SCOtanic at the moment, it is
implicit that Judge Cahn, if not personally at the helm, is at least calling out
the orders. So this motion and all the work that went into it has been prepared
and produced under the directive of the Trustee.

We know - thanks to PJ's careful explanations and analysis - that Judge Cahn is
charged with acting in the best interests of the bankrupt company. Perhaps to a
lesser extent, one would expect that the judge must also act in the best
interests of the creditors as well. [ Which may generate an interesting side
issue, since Novell is a creditor and it would seem that to a certain extent,
the present case places Cahn's objectives in a moderate degree of conflict ].

This motion came out with Cahn's blessing.

It is evident from the motion that SCO is now beginning to concede that they do
not own the copyrights - the fact that they ask the Court to force Novell to
transfer them is evidence of that fact.

At what point, then, must Cahn acknowledge that this legal charade is over and
that he must return to his principle objective, that of reorganising and
refreshing the company so that it can exit Chapter 11 and return to it's
supposed business of writing software?

Am I the only one that has become totally suspicious of Cahn and his motives?

[ Reply to This | # ]

Here it is: SCO's Reply to Novell's Response to Motion for New Trial - Updated, as text
Authored by: Anonymous on Sunday, May 30 2010 @ 09:38 AM EDT
Again, As an appointed agent, you CAN prosecute copyright infringement despite
actually not being the owner of the same, if you have been given that right by
the owner, that is - Novell.

As Novell's appointed agents, SCO had this right, and this is also the direct
reason for the waiver writing in the APA, where Novell can direct SCO NOT to
take action, in relation to their copyrights if Novell see this being the proper
action.

Compare this to the attorney acting on your behalf to deal with a copyright
case. It's the attorney acting on your behalf, not you, in court, and the
attorney is not the owner, you are, but as your appointed agent, he or she has
the right to act on you behalf against a third party.

SCO has had this right all the time, and they do not need the copyrights for
this.

What has put some blocks in the way of SCO, is that Novell has told SCO to back
off, and stop their litigation of Novells rights against the world + dog, and
SCO has refused to listen.

This is the argument that they base their demand on, taht in order to be able to
continue litigation, despite Novell having said NO, they must own the copyrights
outright, as they no longer have the right to act on behalf of Novell as an
appointe agent for the copyrights.

So, SCO DID have those rights to litigate, they didn't have to OWN the
copyrights to enforce the rights against a third party, but they LOST those
rights when Novell said "NO!! You are nor going to litigate against our
customers!!" by using their contractual waiver rights.

The fact that SCO, just like a little kid, threw an epic fit and tantrum just
because mother Novell said he couldn't have any more of that litigaid, doesn't
make an iota of a difference, doesn't make SCO have any more rights, or
entitlements to such rights.

Being Novell's appointed agents, they didn't need to own the copyrights in the
first place to carry out a normal course of business, including enforcing
copyrights, and they have later failed to prove that they need them, for
anything other than to circumvent Novell's waiver rights, and to cause Novell
additional harm.

[ Reply to This | # ]

A disrespectful "respectfully"?
Authored by: IMANAL_TOO on Sunday, May 30 2010 @ 09:42 AM EDT
SCO wrote
"It is true, as Novell says, that SCO fought for a jury trial. But doing so does not surrender the protections provided by law for a case where the jury is confused or misled into an untenable decision. We respectfully submit this is such a case."

Are there cases where a "respectfully" can be interpreted as disrespectful? I respectfully submit we may have just witnessed such a case.



---
______
IMANAL


.

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Here we go again...
Authored by: proceng on Sunday, May 30 2010 @ 10:37 AM EDT
This position cannot be squared with the facts that the APA is an asset purchase agreement, not a licensing agreement
Uh, no. Certain assets were purchased (manuals, etc). However, the Asset Purchase Agreement contained sections specifying the assets to be transferred and the assets that would not transfer.
Finally, Novell argues that it is sufficient that SCO could copyright its own modifications to the UNIX and UnixWare source code, ignoring that this would leave the underlying UNIX technology, on which such modifications are constructed, entirely unprotected.
Correct me if I am wrong, but I do not recall any documentation that placed any part of the "underlying UNIX technology" that was owned by Novell at the time of the agreement in the public domain. It seems to me that strong protections remained, only in Novell's hands rather than newSCO's.
Novell would have this Court believe that ten witnesses, five from Novell's side, most with no financial interest in the matter, have concocted the story that it was the intent of the transaction, as expressed in negotiations, that ownership of the whole UNIX and UnixWare business (excepting the existing royalty stream) be sold, and that this naturally included the UNIX and UnixWare copyrights.
SCO's Rule 50 motion is appropriately granted under the standard of Reeves v. Sanderson Plumbing Prods, Inc., where the Supreme Court stated that courts "should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." 530 U.S. 133, 150-51 (2000).
No financial interest? Disinterested witnesses? Really?
Novell cites provisions that SCO would manage and remit to Novell older UNIX royalties, points to evidence that "the retention of copyrights was approved by the Novell Board," and argues that Amendment No. 2 could not have been intended to transfer copyright ownership because "that would have been a material change that would have required separate Board approval." But none of these arguments creates a plausible alternative reading of the amended APA.
Absent language in Amendment 2 declaring that it completely replaces the original APA, any section that is not modified or replaced remains part of the contract. Therefore, 1.1a (Included Assets), 1.1b (Excluded assets) and 4.16b remain in force.
Moreover, there is no question that Amendment No. 2 is a binding contract to which Novell is legally bound, irrespective of the views of certain Novell witnesses regarding the need for further approval.
Amendment 2 is a part of a binding contract, not the contract as a whole. Therefore (as noted above), the unmodified portions of the original APA (and the contents of Amendment 1) remain as part of the contract.
Novell next argues (at 10-11) that Mr. McBride's statement that the copyrights were not required to run the UnixWare business proves that the copyrights are not required for SCO to exercise the rights it acquired under the APA. But Mr. McBride was clearly referring to only one part of SCO's business — its ability to sell UnixWare binary products directly to customers — as is evident from (1) his comparison of UnixWare to OpenServer and the products of "HP, IBM and all other UNIX licensees," and (2) the distinction he draws between the UnixWare business and "the licensing side" of SCO's overall business. That SCO, like UNIX licensees, could continue to sell its UnixWare binary products without the copyrights does not mean that the copyrights were not required to exercise critical rights "on the licensing side" that SCO also acquired under the APA. Indeed, even selling binary products would be more tenuous if infringers could copy protected UNIX and UnixWare code with impunity.
That the "licensing side" of the business was that the company would act as agent for Novell in managing the licensing of UNIX tecnology (not selling it as a discrete, solely owned product) seems to have escaped Plaintiff and/or their legal counsel.
The Technology Licensing Agreement ("TLA") simply cannot be squared with Novell's position. No one disputes that the TLA licensed to Novell post-APA UNIX derivatives. In another effort to focus the analysis on a non-issue, Novell claims that this is all the TLA does. But the TLA also licensed back to Novell the pre-APA UNIX technologies that Novell sold to SCO in the same transaction. Those are technologies for which Novell would not have needed a license, much less accepted a restricted license as stated in the TLA, had it owned the copyrights at issue. Novell incongruously emphasizes (at 20) that its General Counsel testified that "the TLA gave a license-back to Novell to all assets conveyed to SCO." Yes, by definition, those assets were the existing pre-APA technologies, including all UNIX source code, not the derivatives of those technologies that SCO would subsequently develop.
Here, we have another example of The SCO Group's insistence on conflating UNIX (the base technology) with UnixWare (the x86 derivative that they purchased rights to). The TLA was expressly designed to allow Novell access to any technology that The Santa Cruz Operation (or it's successors) developed, not as a licensing vehicle for the underlying UNIX technology.
Novell suggests (at 20) that it took no affirmative steps to turn its UNIX copyright registrations over to SCO but just left them behind in "the same physical location." That lack of effort to keep possession is instructive. Moreover, Mr. Broderick testified without rebuttal that Novell management affirmatively sorted its files to identify and turn over to SCO all the materials being transferred to SCO under the APA, while keeping materials that should not be transferred to SCO, which were related to Netware and other Novell technologies. (610:5-611:25.)
Plaintiff would have the court believe that all that was necessary to prove ownership of the copyrights at question was physical possession of a document showing registration. The fact that they applied for registration at a later date should just be considered "procedural housekeeping" (in their mind), rather than an attempt to buttress their arguments. Given that Copyright Law of the United States of America - Copyright Ownership and Transfer
17 USC § 204. Execution of transfers of copyright ownership
(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
requires such affirmative steps (and has been shown as such everywhere except in the 10th CCOA) seems to be immaterial (in their mind).

---
And ye shall know the truth, and the truth shall make you free.
John 8:32(King James Version)

[ Reply to This | # ]

your justice system is sick
Authored by: Anonymous on Sunday, May 30 2010 @ 10:59 AM EDT
absolutely SAD and sick

that this scam of a company has been allowed to continue is beyond me even from
so called bankruptcy.

judge , and America KILL this off and look better chapter 7 and death

[ Reply to This | # ]

Koolade....
Authored by: Anonymous on Sunday, May 30 2010 @ 04:46 PM EDT
SCO: "Novell, have some koolade!"
Novell: "No thanks."

SCO: "Judge Wells, have some koolade!"
Judge Wells: "No thanks."

SCO: "Judge Kimbal, have some koolade!"
Judge Kimbal: "No thanks."

SCO: "Jury, have some koolade!"
Jury: "No thanks."

SCO: "Judge Stewart, have some koolade!"
And we await his response...



[ Reply to This | # ]

I think we are forgetting that SCO had 10 Witnesses
Authored by: Anonymous on Monday, May 31 2010 @ 01:26 AM EDT
Count 'em!


TEN!

[ Reply to This | # ]

SCO's arguments about intent vs. Novell's argument about intent
Authored by: Anonymous on Monday, May 31 2010 @ 07:31 AM EDT
Novell cites provisions that SCO would manage and remit to Novell older UNIX royalties, points to evidence that "the retention of copyrights was approved by the Novell Board,"2 and argues that Amendment No. 2 could not have been intended to transfer copyright ownership because "that would have been a material change that would have required separate Board approval." But none of these arguments creates a plausible alternative reading of the amended APA. Moreover, there is no question that Amendment No. 2 is a binding contract to which Novell is legally bound, irrespective of the views of certain Novell witnesses regarding the need for further approval.3 "Contract formation is governed by objective manifestations, not the subjective intent of any individual," and "subjective, undisclosed intent" is "immaterial to interpretation of contract."
SCO is arguing that Novell's witnesses testimony about the intent of the parties when executing Amendment 2 should not matter, while their entire argument up to this point was that their own witnesses testimony on intent of the original unamended APA must be the truth no matter what the wording of the original APA says.

[ Reply to This | # ]

Clear Language?
Authored by: Anonymous on Tuesday, June 01 2010 @ 04:40 AM EDT
Apologies if that has been brought up before (moving house has left chaos
everywhere here) but I'm sure that SCO argued that the language of the APA and
amendments was vague, which allowed it to go to court. If it is clear language
then isn't it required, as a matter of law that the judge rule that none of
SCO's witness' are valid and their evidence has to be discredited?
Also it comes out as very awkward trying to say that all their arguments before
were a load of rubbish and THIS is the real argument, getting very close to
either waste of court time or contempt of court!

[ Reply to This | # ]

It's time to sanction SCO
Authored by: iraskygazer on Tuesday, June 01 2010 @ 12:26 PM EDT
Is there not a single judge who can stop this pure gaming of the judicial
system?

[ Reply to This | # ]

Here it is: SCO's Reply to Novell's Response to Motion for New Trial - Updated, as text
Authored by: Anonymous on Tuesday, June 01 2010 @ 11:02 PM EDT
I don't think SCO is thinking clearly here. Let's pretend that SCO wins the next round and Novell is ordered to transfer the copyrights to SCO. Then SCO goes about attempting to sue for everything that is in UNIX. Can't Novell simply state that they allowed the code to be entered into UNIX, therefore, as the previous copyright holders, all that is protected from SCO suing. Further, since Novell is also a Linux supplier, couldn't the same argument be made; any UNIX code that might be similar to Linux could was permitted by Novell to be added to Linux, and as such is protected. Even owning the copyrights is useless to SCO at this date.

- wjarvis

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