Why, you ask? Graham explains, "In simplest terms, a state contract analysis would presume that the writing transferred copyright, making the only issuealbeit a complex issue itselfwhat copyrights were included in a transfer of copyright. This could include testimony and evidence of what the parties thought the agreement transferred." But that isnt what happened. Instead, Graham continues, "The copyright analysis questions whether the form of the writings and the terms of Amendment No. 2 could even be a writing as required by the Copyright Act and analyzed in case law." "SCO would have preferredand could have a better chance of successif the only issue were the analysis of the terms of the writing. The federal court held, however, that the sufficiency of the writing itself must first be determined," Graham adds.SCO would have had a much better chance of pursuing this common-sense argument in a state court. In the federal court, though, the judge is saying that because good old Amendment No. 2 doesnt clearly and explicitly set out what IP rights were being bought and sold, SCO may actually not legally own any of Unixs IP. Now, wouldnt that be a kick in the head? Not to mention the death of SCO. Getting back to the case, Graham goes on, "Notable, too, is the fact that although the court denied Novells motion to dismiss, it allows that the issue might be appropriate for either trial or summary judgment." Next Page: SCOs situation shows the need to avoid "vague language in essential business agreements."
Now, this is important, Id say vital, because SCOs best shot at claiming the copyright was getting a court to agree that clearly no company in its right mind would buy a proprietary operating system without its intellectual property (IP).