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Novell's Declaration Re Ownership of Copyright - Lowry & Melaugh Declarations
Wednesday, October 27 2004 @ 02:57 AM EDT

Here is Novell's Certificate of Recordation, with its Declaration Regarding Ownership of US Copyright Registration Number TXU-510-028. It is attached as an exhibit to Bruce Lowry's Declaration. You will notice that he describes this document as "the declarations Novell submitted to the Copyright Office for recordation against SCO's UNIX copyright registrations". Both were submitted in support of Novell's Motion to Dismiss, as was this Declaration of David E. Melaugh in Support of Novell, Inc.'s Motion to Dismiss, in which you will learn how attorneys do research on Lexis, because he did a search for SCO and IBM from the date of the filing of the lawsuit against IBM in March of 2003 until July 28, 2004, and he found a hair-raising 2,845 articles, which illustrates that Prosco.net can't be needed, surely, as a way to get their message out. It's out already.

Our thanks go to Frank Sorenson for obtaining these documents, scanning them and doing the transcript for us.

I note that the one document I really want to see is referenced in the first paragraph of the Declaration Regarding Ownership of Copyright, an Agreement and Plan of Reorganization between UNIX System Laboratories, AT&T, Novell Acquisitions Corp., and Novell. Of course the reason I want to read it is to see exactly what Novell got under that contract. I'd so love to read the paperwork in the setting up of USL as well.

You will note that Novell states that SCO "acquired certain rights to, inter alia , carry out the business of licensing of UNIX, subject to various obligations to Novell". It goes on to say that under Amendment 2, all copyrights were excluded "except for the copyrights . . . owned by Novell as of the date of the [Asset Purchase] Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies" but that the SCO Group, as well as its predecessor SCO, Inc., "has failed as of the date of this Declaration to demonstrate that any of the UNIX copyrights . . . are required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies, despite Novell's request that SCO do so." That last part woke me up. On that basis, Novell concludes that "it retains all or substantially all of the ownership of the copyrights in UNIX. . ."

Yes, I did notice that their attorney has the last name McBride. I hope they are not close relatives, though, because that would surely be painful.

UPDATE:

I did some checking and they are not related at all.

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

DECLARATION REGARDING OWNERSHIP OF
U.S. COPYRIGHT, REGISTRATION NUMBER TXU-510-028

WHEREAS, pursuant to an Agreement and Plan of Reorganization entered into between UNIX System Laboratories, Inc., a Delaware corporation, American Telephone and Telegraph Company, a New York corporation, Novell Acquisition Corp., a Delaware corporation, and Novell, Inc. ("Novell"), a Delaware corporation, Novell became the owner of all right, title, and interest, including all copyrights, in that certain computer operating system and related systems software known as UNIX;

WHEREAS, pursuant to an Asset Purchase Agreement (the "Asset Purchase Agreement") between Novell and the Santa Cruz Operation, Inc., a California corporation ("SCO, Inc."), SCO, Inc. acquired certain rights to, inter alia, carry out the business of licensing of UNIX, subject to various obligations to Novell;

WHEREAS, pursuant to Section 1.1(a) and Schedule 1.1(b), Excluded Assets, to the Asset Purchase Agreement, "[a]ll copyrights" were excluded from the assets purchased by SCO, Inc.;

WHEREAS, pursuant to Amendment No. 2 to the Asset Purchase Agreement, Schedule 1.1(b) was revised to read, in relevant part, "All copyrights . . . except for the copyrights . . . owned by Novell as of the date of the [Asset Purchase] Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies"; and

WHEREAS, The SCO Group, Inc. ("SCO"), the successor to SCO, Inc., has failed as of the date of this Declaration to demonstrate that any of the UNIX copyrights owned by Novell as of the date of the Asset Purchase Agreement are required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies, despite Novell's request that SCO do so.

NOW, THEREFORE, Novell declares that it retains all or substantially all of the ownership of the copyrights in UNIX, including the U.S. Copyright Registration referenced above.

Executed at Provo, Utah on October 2nd, 2003.

signature of Patrick McBride
Patrick McBride
Intellectual Property Counsel
Novell, Inc.


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