Page Two

By Steven Vaughan-Nichols  |  Posted 2004-05-13 Print this article Print

Why would SCO want this case to be tried in state court rather then federal since both Novell and SCO have strong Utah roots? "SCO may well have decided to sue in state court because it could not satisfy the copyright ownership on paper requirement," Peterson said. "But there are other remedies outside copyright law to deal with situations where a party was supposed to convey copyrights and didnt.

"A party aggrieved by that can sue for breach of promise, or whatever else might be appropriate under the particular circumstances," he said. "SCOs slander of title claim muddies the waters a bit. No doubt, they didnt sue for breach of contract because they were not a party to the asset purchase agreement—SCOs predecessor in interest was the contracting party. But to have your title slandered, you must first have title; i.e., ownership on paper."

And that is something SCO doesnt have, according to Peterson. "SCO tacitly admits that it didnt get the ownership on paper or instrument of conveyance. In its prayer for relief, it specifically asks the court to order that Novell convey ownership to SCO."

This means, according to Peterson, "the heart of the case is clearly about determining contractual rights, and state courts have jurisdiction to determine copyright ownership issues in a contractual context."

Whether SCO can win Unixs copyright in the state court remains to be seen but, Peterson said, "the law generally favors SCO on these two motions," so SCO is likely to get its day in the Utah court.

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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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