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SCO's Supplemental Exhibits in Support of PSJ Motion on 1st, 2d, 5th Causes of Action - Updated
Tuesday, June 26 2007 @ 05:28 PM EDT

We earlier listed some exhibits by number, the ones attached to the Supplemental Declaration of Edward Normand [PDF] in support, I think, of SCO's Motion for Partial Summary Judgment on its 1st, 2nd and 5th Causes of Action and for Summary Judgment on Novell's 1st Counterclaim [PDF]. It doesn't actually say what the exhibits are in support of, but it was filed with that motion, so I must assume that is its purpose. I've had a chance to take a look at the exhibits now, the ones that are not sealed, and so here they listed by number but also with a brief description of their contents.

Once again, SCO has made some odd choices, since its goal is to support this contention in their Memorandum in Support of the motion:

SCO submits that the Court should grant partial summary judgment on those claims and summary judgment on Novellís slander-of-title counterclaim, because the APA as amended plainly transferred the copyrights to Santa Cruz.

Why, then, attach as an exhibit the Aaron Alter deposition excerpts, where he testifies on behalf of the law firm of Wilson, Sonsini that Novell retained the copyrights in the Santa Cruz deal?

'Tis a puzzlement, especially because Mr. Alter's deposition isn't referenced in the SCO memorandum in support of its motion. Now *that* is truly odd. You don't normally just gather up exhibits and throw them at the judge. You are supposed to reference them in your filing, so he knows what they are for and what they are being used to prove.

This motion has been argued before Judge Dale Kimball and we await his decision. But while we wait, we may as well read what he's reading, so here are all the exhibits and what they are about:

  • Exhibit 1: Strategic Development Agreement between Novell, Inc. and The Santa Cruz Operation, Inc., December 6, 1995. This is the document that talks about the Eiger development anticipated back then. It includes this paragraph:
    1.1 Purpose. Novell and SCO are interested in satisfying the needs of their respective customers and in increasing the ease of use and interoperability of Novell and SCO products and Novell and SCO have developed and intend to continue to develop products to achieve such ease of use and interoperability. Novell and SCO desire to establish through this SDA the terms and conditions for use by them with regard to the development, licensing, sales or other activities of such products.

    Then on page 10, it's interesting to see what the parties would do if one of them, on viewing the confidential materials of the other, notice an apparent infringement of a patent. Of course, like you, I was reminded of the Microsoft-Novell patent deal. That made me wonder, what happens if Microsoft or Novell, in viewing each others' materials notices an apparent patent infringement? The patent deal does not cover the companies, after all, only the end users, unlike normal patent deals. But if you want to see a normal one, this is the document.

    There is also a "Statement of Work No. 1 for NetWare Software", which includes this paragraph:

    2.9 UnixWare - That certain technology provided to SCO by Novell pursuant to the Asset Purchase Agreement dated December 8, 1995 and described therein as UnixWare 2.1 (Eiger) and any follow on technology based upon that code. UnixWare shall exclude, however, the deliverables set forth in Exhibit A to this Statement of Work and defined as NetWare Software.

  • Exhibit 2 - SCO/Novell Documentation Transition Issues (10/16/95).

    This is a list of books and documents and how copyright notices would be handled. Notably I see no copyrights listed for anything but books and documents, except for a Novell SDK CD, which was not going to be continued.

    For online books, it says, "Only the notice that appears when each book is opened will be changed. SCO will replace Novell as the Copyright owner." But that is talking about books, not software. And it also shows me that SCO is incorrect in the testimony offered by Jay Petersen that SCO didn't replace any copyright notices on source code. I don't believe that is accurate anyway, but for sure this exhibit shows they certainly did change them on books. So once again, you can't help but ask why SCO thought this exhibit would help them, when it makes one wonder if they bothered to change copyright notices on things as insignificant as items on this list of books, why wouldn't they do so on software? And the CD is listed as not being important to change not because it wasn't SCO's habit to change copyright notices on software but because the CD was not going to be continued.

    There is, under the category of Third-party Copyrights a notation regarding SCO Trademarks: "Shelly approved use of SCO blanket acknowledgment, rather than listing all trademark owners like Novell does." Again, this is in connection with books. Under "Software Copyrights" it says "Shelly agreed that we did not have to list any software copyrights on the disclaimer page." As for "Source Code Product Docs" it says only that "Tech Pubs Team MP 15 will work with us; On 10/4/95, Jim emailed the UnixWare 2.01 Source Code Product plan to Bridget."

  • Exhibit 3 - Declaration of Sandeep Gupta

    All it says is that they found copyright notices for SCO in online books Novell transferred to SCO. That isn't the same as finding copyright notices in software. We know, for example, that copyrights in the books did transfer. That proves absolutely nothing about the software.

  • Exhibit 4 - Rule 30(b)96) Deposition of Michael J. Danaher, April 27, 2007

    Danaher is a partner at Wilson Sonsini. There is an Index of Exhibits that includes SCO's notice of third-party subpoena to Wilson, Sonsini and some email we haven't heard about before. There is also a "Letter to Ladies and Gentlemen" from Wilson, Sonsini. Hmm. A joke is trying hard to burst through a crack in the concrete will of mine not to say what I'm thinking.

    The lawyers at the deposition are Ted Normand and Kenneth Brakebill and Mark Marnes of Wilson Sonsini. Danaher says that at a "high level" he thought everything was supposed to transfer, but he says that he doesn't really know about any particular copyright or license, because "I didn't get involved in those details." He also testifies that he has no understanding of the litigation between SCO and Novell. "I don't think I was aware of who the parties were to the litigation until Wednesday when Mark told me." Normand says, "Good for you."

  • Exhibit 5 - Rule 30(b)(6) Deposition of Aaron J. Alter, April 27, 2007

    Same lawyers as in exhibit 4. Alter is representing here the firm of Wilson, Sonsini, where he is a partner. He says that everything set out at Exhibit 1.1(b) were to be retained by Novell. "Novell did retain the rights to the revenue stream and the royalty payments, and it did retain other intellectual property rights in the assets that were transferred."

    What he says that is helpful to SCO is that he doesn't think the retention of certain assets by Novell was due to worries about bankruptcy. He expresses it was because SCO didn't have enough money to pay for all the IP rights. He also states his belief that the rights granted to SCO "were sufficient to enable SCO to run the UNIX and UnixWare business going forward..." And he confirms that the license back to Novell was about any additional improvements SCO might make. Novell retained rights sufficient to develop UNIX and UnixWare, although it had no intention of doing so. They could also in his view make copies of it and he doesn't recall any prohibition blocking Novell from distributing the copies of the source code.

  • Exhibit 6 - I see Exhibit 6 is a letter to the Justice Department explaining the dispute in detail. We've read the media coverage about the Xenix story, but now we get to see Santa Cruz's view of it in depth.

  • Exhibit 7 - The Santa Cruz EU complaint about Xenix and Microsoft's alleged anticompetitive restrictions on Unix as per an early contract which came to a head back in the 90's has shown up, but I don't know why yet. But it's Exhibit 7, the actual application.

  • Exhibit 10 - A Tale of Two Press Releases, by Mitch Stone

    It's available still online, right here.

  • Exhibit 11 - Novell Internal Legal Memorandum from David R. Bradford to Kanwal Kehl

    Re: "Avoidance of $15.00 Per Copy Royalty to Microsoft"
    November 19, 1993
    CC: Ray Noorda, Sandy Tannenbaum

    The memo includes the following:

    "...Microsoft is now marketing NT which Bill Gates himself has called 'A Disciplined UNIX'... Also, the NT product itself may be violative of certain UNIX copyrighted code. We are attempting to obtain some NT source code in order to analyze it based on possible copyright infringement."

    This memo was written in 1993. The APA was September 1995. [ Update: I noticed something when I was rereading the APA and amendments about Xenix. One of the assets that did transfer was the Xenix agreement with Microsoft: "G. Microsoft agreement (Xenix Agreement) - Xenix compatibility and per copy fee agreement. Seller will agree to discuss with SCO Seller's interpretation of this agreement." "..will agree to discuss... interpretation of this agreement" is an intriguing phrase. I'd like to hear that interpretation myself. Do you recall the SCO version of Eric Levenez's Unix chart, how it purported to show a link between Xenix/Sinix and Minix and then to Linux? SCO has taken their chart down after we published the repudiation of that theory by Eric Levenez himself. It used to be at unixtree/unixhistory01.html

    But do you suppose that was the original plan? Certainly SCO and the gang mentioned Minix more than once.]

  • Exhibit 12 - Declaration of Steven Sabbath

    Sabbath testifies to the following:

    I participated in numerous meetings and discussions leading up to the 1995 Asset Purchase Agreement....

    I understand that the parties' intent and purpose in executing the APA was to transfer to Santa Cruz Novell's entire UNIX-related business, including all rights to UNIX and UnixWare and the UNIX copyrights...

    However, he also says that Amendment 2, which he claims to have personal knowledge of, unlike the above, was the result of a dispute about Novell signing, on Santa Cruz's behalf, a royalty buyout with IBM. If Novell didn't think it had that power, why did it do that? The unanswerable question. He admits that the dispute led to an amendment, but not Amendment 2. That was "intended to confirm... that SCO would obtain ownership of the UNIX copyrights under the APA" in his view.

    Except that the APA was signed in September of 1995, and here he says they "would obtain," not that it had already done so. So to me the wording of that amendment isn't helpful to SCO. It looks like it's an admission that they didn't get anything from the APA or the bill of sale.

    And as for the dispute, it would have to have an explanation why everything wasn't just put in Amendment X. He claims Amendment 2 was to "make clear" that Novell couldn't raise any licensee's rights to source code, grant any new source code licenses, or prevent Santa Cruz from "exercising the rights it obtained under the APA with respect to SVRX source code". Which would be what? This is his declaration from the IBM case.

  • Exhibit 13 - Deposition of Steve Sabbath Feb 12, 2007, his deposition in Novell

    He tellingly says:

    There were a lot of agreements and exhibits and schedules, and I can't tell you I reviewed every single one. That may not have been possible for anybody to do.

    That undermines his value as a witness, obviously.

    He read the APA, and when they asked him about copyrights, he said this: "...copyrights were going with the assets." He says they were needed, and he says that at no time that he recalls did Santa Cruz after Amendment 2 ask for copyrights to be transferred. ("Not that I recall.") He says they owned the technology, "lock, stock and barrel." Later, though, on page 98 of the transcript and page 5 of the PDF, he admits paragraph 26 of his IBM declaration isn't accurate, in that the trademark UNIX had been sold by Novell to X/Open. Normand points to his paragraph 29 also, and asks how it squares with his new position. He claims only the trademark was "in kind of limbo." His earlier declaration, he now claims, was close enough, but not 100% accurate.

    Nevertheless, I note he signed it.

    In the afternoon session, on the transcript's page 101, he says that in fact patents didn't transfer. And Jacobs points out that the word "all" isn't there. Neither is "the UNIX copyrights" and Sabbath says, yes it is. Then Jacobs shows him it's the exclusionary part where that shows up, and Sabbath says, "True." Oops.

    He also agrees that the business that transferred under the APA did not include SVRX licenses. So less lock, stock and barrel. Also he admits they could have developed derivative works under a license, without a copyright transfer. He also says he understood Amendment 2 to be a clarification, not actually an amendment, a clarification, not a revision. But when pressed by Jacobs, he says, "And I can only say I suppose so....Because I don't really speak very good Latin. No, what I meant is i don't understand the rules pertaining to that legal principle." If this goes to trial, I don't think we will see him on the witness stand.

  • Exhibit 14 - Deposition of Kim Madsen, February 13, 2007

    You could sum up her testimony in these words:

    "I don't remember anything in particular....I do not recall any conversation regarding the copyrights."

Next, I'll put up SCO's Memorandum in Support, so you can compare, as text. There were so many filings all at once in SCO v. Novell I'm still catching up, but I'm determined. I want a *complete* history.

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