|
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)
|
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. |
|
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.) |
|
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. |
|
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. |
|
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.) |
|
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. |
|
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.) |
|
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. |
|
|
Authored by: Anonymous on Friday, May 28 2010 @ 07:53 PM EDT |
WooHoo! been dying for my SCO fix! [ Reply to This | # ]
|
- It sorta makes sense - Authored by: Anonymous on Friday, May 28 2010 @ 08:07 PM EDT
- It makes NO sense! - Authored by: R.A.G. on Friday, May 28 2010 @ 08:25 PM EDT
- It sorta makes sense - Authored by: Anonymous on Friday, May 28 2010 @ 08:28 PM EDT
- It sorta makes sense - Authored by: Silurian on Friday, May 28 2010 @ 08:35 PM EDT
- No. - Authored by: SilverWave on Friday, May 28 2010 @ 08:44 PM EDT
- It sorta makes no sense - Authored by: Ed L. on Friday, May 28 2010 @ 09:10 PM EDT
- Slip of the fingers? - Authored by: Anonymous on Friday, May 28 2010 @ 09:44 PM EDT
- Circular argument - Authored by: bugstomper on Friday, May 28 2010 @ 10:36 PM EDT
- Daft as ... - Authored by: Anonymous on Friday, May 28 2010 @ 10:37 PM EDT
- It sorta makes sense - Authored by: globularity on Saturday, May 29 2010 @ 12:02 AM EDT
- It sorta makes sense - Authored by: Gerhard Mack on Saturday, May 29 2010 @ 08:07 AM EDT
- Sure - Authored by: Anonymous on Saturday, May 29 2010 @ 10:09 AM EDT
- The only business it makes sense for ... - Authored by: Anonymous on Saturday, May 29 2010 @ 12:59 PM EDT
- Any argument can sound good when considered alone - Authored by: Anonymous on Saturday, May 29 2010 @ 01:12 PM EDT
- SCO should not be allowed to change stories (again) - Authored by: hardmath on Saturday, May 29 2010 @ 01:39 PM EDT
- OMG/LOL/ROFL/Etc/Etc/ - Authored by: Aladdin Sane on Saturday, May 29 2010 @ 10:11 PM EDT
- Caldera is not, was not SCO - Authored by: Sunny Penguin on Sunday, May 30 2010 @ 12:24 AM EDT
- The Business Plan is equal to ZERO income (so no business plan) - due to several reasons. - Authored by: Anonymous on Sunday, May 30 2010 @ 08:29 AM EDT
- Where it all falls down - Authored by: Anonymous on Sunday, May 30 2010 @ 12:40 PM EDT
- It sorta makes sense - Yes it does - Authored by: Anonymous on Monday, May 31 2010 @ 10:34 AM EDT
- It sorta makes sense - Authored by: Anonymous on Tuesday, June 01 2010 @ 03:46 AM EDT
- Two things were under consideration - SCO is attempting to combine them. - Authored by: Anonymous on Tuesday, June 01 2010 @ 10:00 AM EDT
|
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 | # ]
|
|
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 | # ]
|
|
Authored by: bprice on Friday, May 28 2010 @ 08:13 PM EDT |
---
--Bill. NAL: question the answers, especially mine.[ Reply to This | # ]
|
- The missing code? - Authored by: Nemesis on Friday, May 28 2010 @ 08:54 PM EDT
- J. Allard's goodbye note: 'No chairs were thrown' - Authored by: luvr on Saturday, May 29 2010 @ 05:26 PM EDT
- In case anyone cares, no more SCO sign on building - Authored by: Anonymous on Saturday, May 29 2010 @ 07:01 PM EDT
- Fla. Bankruptcy Trustee Quits With More Than $1 Million Missing, Sources Say - Authored by: The Mad Hatter r on Saturday, May 29 2010 @ 10:32 PM EDT
- Death by Foxconn - Authored by: Anonymous on Sunday, May 30 2010 @ 01:48 AM EDT
- Microsoft in tag control - Authored by: Anonymous on Sunday, May 30 2010 @ 02:45 AM EDT
- Browser stats , IE usage down to 3% - Authored by: Anonymous on Sunday, May 30 2010 @ 09:23 AM EDT
- "ethical" - Authored by: Anonymous on Sunday, May 30 2010 @ 11:08 AM EDT
|
Authored by: bprice on Friday, May 28 2010 @ 08:14 PM EDT |
---
--Bill. NAL: question the answers, especially mine.[ Reply to This | # ]
|
|
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 | # ]
|
|
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 | # ]
|
|
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 | # ]
|
|
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 | # ]
|
|
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 | # ]
|
|
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[ Reply to This | # ]
|
|
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 | # ]
|
|
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 | # ]
|
|
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 | # ]
|
|
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 | # ]
|
|
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.
[ Reply to This | # ]
|
|
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" [ Reply to This | # ]
|
|
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
[ Reply to This | # ]
|
|
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)[ Reply to This | # ]
|
|
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
[ Reply to This | # ]
|
|
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
[ Reply to This | # ]
|
|
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 | # ]
|
|
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.
[ Reply to This | # ]
|
|
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. [ Reply to This | # ]
|
|
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... [ Reply to This | # ]
|
|
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.[ Reply to This | # ]
|
|
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 | # ]
|
|
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[ Reply to This | # ]
|
|
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. [ Reply to This | # ]
|
|
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 | # ]
|
|
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 | # ]
|
|
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
. [ Reply to This | # ]
|
|
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 | # ]
|
|
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 | # ]
|
|
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 | # ]
|
|
Authored by: Anonymous on Monday, May 31 2010 @ 01:26 AM EDT |
Count 'em!
TEN![ Reply to This | # ]
|
|
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 | # ]
|
|
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 | # ]
|
|
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 | # ]
|
|
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[ Reply to This | # ]
|
|
|
|
|