Notice This Notice?

Groklaw ^ | 17 June 2004 | Pamela Jones

[ShadowAce]

We've been trying to make sense of the Novell-SCO spat over who owns the copyrights. Dr Stupid decided that a good way to determine who is right would be to look at the copyright notices back at the time of the Agreement and the later Amendment 2, and see what the conduct of the parties indicated as to what they thought at the time. I think you will find it revealing.

You may wish to have all the relevant documents handy, so here is where you can find all of them:

• SCO-Novell Asset Purchase Agreement, 1995
• Amendment No. 1

• Amendment No. 2

• Technology License Agreement
• Schedules

• Asset Purchase Agreement With Amendments 1 & 2 Merged

The ultimate decision as to who owns the copyright will be made by the court, obviously. But the copyright notices Dr Stupid now presents may convince you, as it did me, that Novell has some compelling evidence in hand to make a persuasive case.

*******************************

Notice this Notice?
~by Dr Stupid

Executive Summary

The clearest and least biased indication of the nature of the 1995 agreement between Novell and The Santa Cruz Operation (hereafter "oldSCO") comes from the contemporaneous statements and, more crucially, actions of both parties.

oldSCO's handling of the UnixWare source code in the years following the deal seem to me most consistent with those of a company that had obtained the right to freely derive from and sell products based on the code, but inconsistent with those of a company that had been granted, or believed they owned, the copyrights on that code.

There is also some evidence that indicates to me that the notices of copyright ownership became gradually obfuscated over time, either by accident or design.

Conclusion

Based on the above publicly available evidence, which -- being contemporaneous -- is the least likely to be coloured by today's agendas of the parties involved, in my opinion, the deal between oldSCO and Novell was most likely as follows:

• Novell sold the physical assets, reseller channel and information related to the UnixWare business to oldSCO and was given oldSCO stock in return. This was part of an overall strategy whereby Novell, HP and oldSCO would co-operate on driving forward the Unix platform.
• oldSCO were given every right they needed to conduct the business -- the trademarks, and the right to develop and license the UnixWare code as they saw fit.
• Novell retained ownership of the copyrights and patents, both so as to retain a revenue stream from royalties and for its internal needs.
• Because Novell retained such broad rights to UNIX, oldSCO needed assurances that Novell would not undermine their business. Thus, Novell was contractually bound not to create new System V licensees, not to try to "sell" System V in general, and so forth.
• In return, Novell needed assurances that oldSCO would not undermine the System V royalty stream by allowing licensees to buyout their System V licenses, or by harassing the licensees. Thus, Novell retained far-reaching powers of waiver with respect to the old licenses, and it was agreed that royalty buyouts needed both parties' approval.

• oldSCO negotiated a royalty buyout in respect of its existing System V licenses, so that it could create the merged product (UnixWare 7) and sell it without paying any royalties to Novell.

[ShadowAce]

I have removed the discussion between the "Executive Summary" and the "Conclusion." For those of you who scoff at Groklaw, you are welcome to do so provided you can debunk their sources, which are fully documented within the article.

[ShadowAce]

SCO tech Ping

[Boundless]

Keep in mind here that this excellent legwork may have no
immediate relevance to the present cases, except that it
demonstrates that SCO likely does not even own the property
over which they are filing suits.

The SCO-Novell case is already effectively dead because
a federal judge has stated on the record that the
ownership of the (c)s is unclear - therefore the SCO
Slander of Title complaint will fail for lack of malice.

The other cases are either about contract matters unrelated
to copyright, or to the extent that there is any claim that
Unix SysV code is in Linux, that's simply false regardless
of who owns the (c)s.

[ShadowAce]

There is the small matter of SCOSource, the incredibly vast failure of SCO to generate revenue by "licensing" Linux to other companies.

Once this information gets more widely publicized, even fewer companies are gonna want to be part of that fiasco.

[stylin_geek]

What I find irritating is the fact that Unixware 7 was a pretty decent OS, (except for the fact SMP had to be installed PRIOR to installation of service packs, otherwise it couldn't be installed at all) yet they managed to screw it up.

[Ernest_at_the_Beach]

Put me on your ping list for this topic.

Others are likely interested also.

SCOX

[ShadowAce]

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