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Did SCO Get Linux-mob Justice?
An anonymous reader writes "According to Fortune's legal blogger Roger Parloff, "once in awhile a judicial ruling comes down that's so wrong at such a basic level that you're just left scratching your head". He claims that Judge Kimball's "102-page ruling (about SCO) was greeted with widespread rejoicing and I-told-you-so's", but "the problem is not that Judge Kimball's view of the facts is wrong". Was the ruling unfair?"
Link to said ruling
Those who believe the Internet is private,
find their privates are on the Internet.
As I understand it copyrights can only be transferred by contract where there is explicit language transferring the copyright. Sco was arguing for an "implied" transfer which as far as I know isn't allowed in copyright law. Therefore everybody's testimony is irrelevant absent an agreement which explicitly transfered the copyrights to Sco.
Caldera knew this when they bought the unix business from the Santa Cruz Operation - They were asked if they planned to opensource unix at the conference call and said they'd like to but didn't have the necessary copyrights to do so.
The right to a jury trial is not universal. A jury is only needed if there are questions of fact to be decided - juries decide facts, judges decide the application of laws.
In this case, the law was quite clear - without a written transfer of copyright, there were no facts in question for a jury to decide, just the application of the law, which is for a judge.
SCO's theory of an "implied transfer of copyright", without citing a single legal statute, or a judgement or precedent that was not later reversed on appeal, left no legal basis for a jury trial.
Kevin Smith on Prince
There are a few things that you are missing:
1. Yes, Novell always wanted to sell the whole business including copyrights. Unfortunately, SCO's predecessor didn't have the money to afford paying for the copyrights, so the copyrights were excluded. So the question that the CEO was asked isn't the one that counts: He was asked "what was your intention to sell". He was not asked "and what _did_ you actually sell". 2. Novell and SCO signed a contract. And that contract is absolutely one hundred percent clear: Copyrights were not included. That's what the words of the contract say. Now the wording of the contract is undisputed. SCO can argue as much as they want what the contract _means_, but there is no disagreement about the text. As the text of the contract is undisputed, the judge can and must decide what the contract means as a matter of law. No jury required, no jury actually allowed because there are no disputed facts. With the written contract available, there is no need for any witnesses. Actually, the judge is required by law to _ignore_ all witnesses that contradict the clear text of the contract. TFA claims that "nobody remembers anymore what the contract means". That is nonsense. The text of the contract is available, so you just give it to the judge to read and the judge will tell exactly what it means. That's why you write down contracts, so that you don't rely on people's memories.
3. Even if a contract claims to sell the copyrights, copyrights need to be transferred by a separate transfer document. That is a legal requirement. As SCO cannot show such a transfer document, Novell still holds the copyrights. Now SCO could have tried to sue Novell to have the copyrights transferred, but they haven't. The copyrights are Novell's until Novell signs a transfer document, no matter what the contract says.
Three points:
- Copyright law REQUIRES that all transfers be in writing. The parties can't agree to do a work-around.
- The APA specifically excluded copyrights, since Santa Cruz didn't have enough $$$ to buy everything.
- SCO obviously didn't believe that the copyrights had transferred, because before they filed their suit against IBM, they repeatedly asked Novell to transfer them.
The whole thing was a stock scam.Kevin Smith on Prince
I have only looked at the excerpts of the contract included in TFA, but I don't see where people are getting the obvious conclusion that the copyright was not transferred in writing.
And that's the problem. The article utterly mischaracterizes the language in the APA.
If you interpret the language from the contract that says Novell is transferring "all rights and ownership of UNIX ... including source code . . ., such assets to include without limitation" as including the copyright...
But you can't interpret the language that way because that very sentence is followed by...
Notwithstanding the foregoing, the Assets to be so purchased shall not include those assets (the "Excluded Assets") set forth on Schedule 1.1 (b).And Schedule 1.1 (b) specifically lists the following...
V. Intellectual Property:A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.
B. All Patents
There's no ambiguity. The contract basically says, "I give you everything in set A, excluding those things that are in set B." You're arguing that set A is really big, but that doesn't matter at all. The thing that they want is specifically enumerated in set B, so it's excluded.
Then there's some frantic spinning to try to suggest that because pretty much everything in items I through IV of the Excluded Assets specifically refers to NetWare, obviously "All copyrights" must mean only NetWare copyrights, too. Of course, that's nonsense: the fact that "NetWare" is repeated in every item that refers specifically to NetWare suggests that this item most certainly does not refer to NetWare. Moreover, "the trademarks UNIX and UnixWare" clearly do not refer to NetWare, so why would "All copyrights"? And a final kicker, SCO does not claim (and has never claimed) to have received any patents from the APA, while patents are excluded in precisely the same manner as copyrights.
The arguments presented in the article are bogus: they were already offered to the court, and were resoundingly rejected.
Unfortunately, the author of TFA is a known SCOtroll, like the mogtroll, lyin' lyons, and pretenderle, and chose not to include in his citation the list of rights specificially excluded; that list excludes the copyright transfers.
Originally, Santa Cruz (not Caldera (later to change their name to SCO), who only bought a part of Santa Cruz - the rest became Tarantella) was supposed to buy everything, but they didn't have the money. So, they paid a lesser amount to became Novell's agent in the handling of the Unix licenses, passing on 100% of the revenue, and Novell then remitting them a 5% fee.
This is why Ransom Love (head of Caldera, before the name change) stated that Caldera couldn't open source Unix - others held the copyrights.
SCO, as supposedly Caldera's "successor in interest", (but not Santa Cruz's successor in interest, as they did NOT buy out all of Santa Cruz, contrary to the FUD they have been spreading - just some of the assets) should have known this; the lawsuits were predictably as DOA as the rebadged Maxtor drives from the China factory currently being sold by Seagate.
Kevin Smith on Prince