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Declaration of David E. Melaugh Supporting Novell's Motions in Limine No. 1-3 (EV1 Agreement)
Monday, August 27 2007 @ 03:01 PM EDT

There are more filings in SCO v. Novell. There is a Declaration by David E. Melaugh in Support of Novell's Motion in Limine No. 3, with 15 exhibits attached. Actually, 14 to us. One is sealed.

I'm heading for Exhibit 4-6 first, as that is where the freshmeat is, Novell's Second Set of Interrogatories (interrogatories 4-13) and some of SCO's responses to those interrogatories. IIRC, we've never seen any of this before. Next, believe it or not, the EV1 agreement, Exhibit 1. We finally get to see it.

The interrogatories are mainly asking in multiple ways for what proof SCO had that it owned the UNIX and UnixWare copyrights (SCO answers it owned them all, including common law copyrights, whatever that is) and why it thought it could keep 100% of the Sun and Microsoft monies. From the judge's incorrect assumption that Novell must have received what it needed in discovery, I gather he hasn't seen this before either.

The EV1 agreement isn't like the template Linux license we saw back in 2003. And we find out what they paid, after a "50%" unit quantity discount and "Licensee Promotional Allowance" of $600,000 off if EV1 would let SCO trot them out to the public and provided EV1 would "discuss favorably the benefits of the Agreement" and not tell how much it paid. We learn now that after all the discounts, it was only $800,000. That's a lot for a pig in a poke, of course, but it's not the $699 per CPU fee SCO told the world all commercial users needed to pay.

I can't believe any company would sign such an agreement, since you lose all the benefits of Linux. But to each his own. It was a promise not to sue. Say. Just like Microsoft is doing with patents. What a coincidence.

Note especially paragraph 6.0, regarding SCO's representations of ownership:

SCO represents and warrants that it has full right and title to grant the rights hereunder to the SCO IP and related materials, and all copyrights, trade secrets and other intellectual and proprietary rights therein, are and remain the valuable property of SCO and its suppliers. SCO makes no representations or guarantees concerning the outcome of any pending or potential litigation, as outlined above, regarding SCO's claims of violations of its IP or contractual rights in the Operating System. Licensee acknowledges that SCO's claims regarding its IP as it relates to the Operating System are being litigated in one or more cases, with possibly more litigation to follow, and that SCO has not guaranteed that it will ultimately prevail in any of this litigation. Licensee, to avoid any such litigation and to effectuate a productive and prompt resolution of any and all issues relating to use of SCO's IP, desires to obtain this license.

I note that while SCO didn't guarantee it would win in litigation, it does claim rights that the judge just ruled it doesn't have in all respects. I notice too in Exhibit 2, right after the EV1 agreement, that the Linux License was tied to the copyrights SCO filed. I guess we should look through those again. And if anyone can do the entire agreement as text so we can add it to our collection, that would be lovely.

Here are all the new filings from PACER, and note that #396, which had redaction issues, has been fixed and replaced by #397:

396 - Filed & Entered: 08/24/2007
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [395] MOTION in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument of SCOsource Revenue [REDACTED] filed by Defendant Novell, Inc.. (Sneddon, Heather) Modified on 8/27/2007 by sealing document image. The image attached was not redacted and was mistakenly attached as the redacted version. Please see image #[397] for the redacted image (blk).

397 - Filed & Entered: 08/24/2007
Notice (Other)
Docket Text: NOTICE of Corrected Filing of MEMORANDUM IN SUPPORT by Novell, Inc. re [396] Memorandum in Support of Motion in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument Regarding Apportionment of SCOsource Revenue (Sneddon, Heather) Modified on 8/27/2007 by linking to #[395] Motion (blk).

398 - Filed & Entered: 08/24/2007
Docket Text: DECLARATION of David E. Melaugh re [395] MOTION in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument of SCOsource Revenue, [391] MOTION in Limine No. 1 to Preclude SCO from Challenging Questions Already Decided as a Matter of Law, [393] MOTION in Limine No. 2 to Preclude SCO from Contesting Licenses Conveying SVRX Rights are "SVRX Licenses" [REDACTED] filed by Novell, Inc.. (Attachments: # (1) Exhibit 1 & 2 # (2) Exhibit 3 Pt. 1# (3) Exhibit 3 Pt. 2 # (4) Exhibit 4-6 # (5) Exhibit Ex. 8-15)(Sneddon, Heather)

399 - Filed & Entered: 08/24/2007
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of Declaration of David E. Melaugh in Support of Novell's Motions in Limine Nos. 1-3 (Filed Under Seal), Opening Brief in Support of Novell's Motion in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument Regarding Apportionment of SCOsource Revenue (Filed Under Seal) filed by Defendant Novell, Inc. (Sneddon, Heather)

I haven't read it yet thoroughly, so we can do it together and as I see anything noteworthy, I'll swing back by and tell you. And vice versa. Exhibit 7 is the one filed under seal, which is why it's not on the list. It's more answers from SCO to Novell interrogatories. The Melaugh Declaration describes it like this:

10. Attached as Exhibit 7 are true and correct copy of Exhibits C and C-1 to SCO's Supplemental Responses and Objections to Novell's Second and Third Sets of Interrogatories dated July 12, 2007. This exhibit is being filed under seal pursuant to the August 2, 2006 Stipulated Protective Order.

Catch the date, July of 2007. So Novell never stopped trying to get the information it would need to apportion, I gather. I think that will prove to be significant in any decision the judge reaches.

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