Internal Documents

By Steven Vaughan-Nichols  |  Posted 2004-11-11 Print this article Print

In addition, Phillips said he doesnt think Novells meeting minutes are all that clear-cut in the case. "Theres probably at least enough of an issue of disputed fact to keep the SCO case against Novell going for now."

Thats because "courts dont usually grant summary judgment based on one internal document thats open to more than one interpretation," he said.

Specifically, Phillips noted that the "minutes say that Novell will retain all of its patents, copyrights and trademarks (except for the trademarks Unix and UnixWare), a royalty-free, perpetual, worldwide license back to Unix and UnixWare for internal use and resale in bundled products, Tuxedo and other miscellaneous and unrelated technology."

"True, the first clause in this sentence says that Novell will retain all its patents and copyrights, which would include the Unix copyrights and any Unix patents," Phillips said.
"But the very next clause in the same sentence says that Novell will also retain a worldwide license back to Unix and UnixWare. Why would Novell need a license back from SCO for internal use and resale of Unix and UnixWare if Novell were not assigning any Unix or UnixWare copyrights or patents to SCO?" Therefore, "its tough to say that this one internal document, standing alone, would provide a basis for the court to end the case against Novell," Phillips said.

Click here to read Senior Editor Steven Vaughan-Nichols thoughts on SCOs legacy. But Glenn Peterson, IP attorney and shareholder with Sacramento, Calif.-based law firm McDonough Holland & Allen, said he sees this latest Novell filing as devastating SCOs case. "Novells legal team [has] absolutely decimated SCOs case on the knowing falsehood issue. This is where Novell dropped the nuclear bombshell," Peterson said.

According to Peterson, the "board minutes from a September 1995 meeting unequivocally show that Novells board approved the sale of assets to SCOs predecessor with the explicit understanding that Novell retained ownership of the Unix copyrights." "In doing so," he said, "Novells lawyers have now made SCOs knowing falsehood claims an absolute joke. If that werent enough, Novell offered additional evidence that, in May 2003, SCO sent a letter asking Novell to transfer the copyrights to SCO! Thus, the argument: If SCO truly believed it owned the copyrights, why ask?

"There is ample room here for Judge Kimball to toss SCOs case, and I would be surprised by any different outcome," Peterson said. "I have from the outset been quite skeptical about SCOs creative slander of title strategy in this case. As more and more facts emerge in the court papers, creative is rapidly on its way to embarrassing."

Who is right? Only the court will decide that, and it has not indicated when it will render a decision.

In the meantime, SCO will fight on. "SCO looks forward to progressing with discovery in this case so that all of the relevant facts can be presented to the court," said Blake Stowell, SCOs public relations director.

Check out eWEEK.coms for the latest open-source news, reviews and analysis.

Steven J. Vaughan-Nichols is editor at large for Ziff Davis Enterprise. Prior to becoming a technology journalist, Vaughan-Nichols worked at NASA and the Department of Defense on numerous major technological projects. Since then, he's focused on covering the technology and business issues that make a real difference to the people in the industry.

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