Posted on 11/10/2004 7:08:08 AM PST by ShadowAce
Something extraordinary has happened. Novell has filed its Reply in Support of Novell's Motion to Dismiss Amended Complaint [PDF], and in the document it reveals that it has filed an exhibit, the 1995 minutes from the corporate kit of a meeting of the Board of Directors, which clearly and unequivocably say that Novell was to retain the UNIX copyrights in the sale to Santa Cruz that year:
"Moreover, contemporaneous, authoritative documentary evidence shows that at the highest levels of the organization, Novell approved the transaction on the understanding that "Novell will retain all of its . . . copyrights." (September 18, 1995, Minutes of the Meeting of the Board of Directors of Novell, Inc. at 2, attached as Ex. A to Declaration of Kellie Carlton in Support of Novell, Inc.'s Motion to Dismiss.)"
I think it is safe to say that this document from 1995 is likely to prove dispositive. September 18, 1995 is the day before the APA was signed. And there is another bombshell. Novell says that by introducing evidence outside the complaint, such as the Ed Chatlos declaration, SCO is inviting the Court to convert the motion to dismiss into a summary judgment, which they say means the Court now has the option to decide the matter once and for all and with finality right now. They cite a case that says that introducing such outside evidence is "a tactical mistake".
Here is how corporate paperwork is done: a corporation is required to document every major move it makes and typically such documentation is kept in its corporate kit. Normally, that is also where you keep the company's bylaws, articles of incorporation, and annual meetings minutes, as well as minutes of meetings held to approve corporate acts. This documentation is to prove that the corporation is acting with the appropriate approvals and also as a way of showing that the corporation, deemed a person, so to speak under the law, actually is a separate entity that acts, not as a way for the individuals in the company to avoid taxes and liability, but as a legitimate corporate entity. When you go to court, it's not unusual for a judge to tell a party to present its corporate kit, if there is any question about the legitimacy of the corporation. It comes up usually with small close corporations, where there may be only one individual or two or three in the corporation. If they show up with a kit minus such careful documentation, it usually does not go well for them. It's one way to pierce the corporate veil. What a wonderful requirement that turns out to be in this case.
Now that Novell has submitted this document to the court, it reasonably tilts any ambiguity in the APA and Amendment 2 in Novell's favor. And how can SCO possibly win the argument that Novell knew it didn't have copyright ownership, now that they have presented a 1995 document from the corporate kit showing that at a meeting of the board at the time of the sale, Novell absolutely believed that they retained copyrights? As for Ed Chatlos' declaration, it wipes it away as a statement by a man who didn't know what was going on at the highest levels of the company, which is how Novell paints it.
It's up to Judge Kimball to decide what persuades him, but this document gives him a peg to hang his hat on and to dismiss SCO's complaint. And if he decides SCO has no UNIX copyrights, what exactly can it do to anyone then? The legal cases would then start to stagger and fall, like dominos in a row. Here then, is the Reply in text:
SCO News ping
Sell SCO short.
Not a total geek, so I haven't followed the hardcore legal fights going on, but I do find someone asserting a UNIX copyright interesting. Can you briefly fill in the background & implications for those of us not in the loop?
IBM countersued.
Novell claimed that SCO doesn't own any copyrights--merely the Unix business. SCO sued Novell for slander of title.
SCO also sued Daimler-Chrysler and Red Hat (Linux distributor).
The SCO-DCC suit was thrown out, and the other suits are being delayed by SCO as they have yet to show any proof whatsoever for any of their claims.
> SCO also sued Daimler-Chrysler and Red Hat ...
DC and AutoZone.
RH sued SCO.
You're right. I had forgotten that.
You missed the most important event in your chronology:
The $50 million dollar "investment" by Microsoft to SCO.
They may have pumped up to $86 million into failing SCO - all just prior to SCO filing the Linux lawsuits.
-R
Forgot the link:
http://www.computerworld.com/softwaretopics/os/linux/story/0%2C10801%2C91145%2C00.html?f=x10
And because RedHat sued SCO, SCO can't just drop
that suit. Nor can SCO drop the IBM countersuit.
Not only is SCO going to lose all their cases,
there's a strong chance that some people face
criminal charges here.
Well, that *is* news. Looks like the Kneepad Mircoserf's game is up, and they'll just have to win on technical merits now.
LOL!
Thanks for the ping!
Surely , this must nuke SCO's claims!
"Something extraordinary has happened. Clueless, ideologically-driven bigots are posting articles about Novell again..."
When are you going to upgrade your name? Bush2000 is so pre-mandate. ;-)
Thanks ShadowAce! And to whomever posted the Dukes of Hazard link... not that I ever watched that show. :-)
Of course, my first question is, "Can the minutes from the 1995 corporate kit be duplicated on a typewriter from that era?"
Thank you, I'll be here 'til Thursday!
But it does expose why Caldera had to repeatedly ask Novell to transfer the copyrights, when Caldera supposedly already had 'em.
How so? It looks to me like Novell has written proof they own the copyrights to Unix, thus blowing SCO's case out of the water.
Of course, IANAL, so I may not be seeing this in the correct light.
I think (IANAL either) Kimball would love to decide the copyright, and no doubt AZ and IBM would like that too. But I also think Novell just wants to get this thing over with.
If SCO gets to do any discovery in this matter, they'll tie this one up for as long as they can, then they'll be back to playing the courts against each other, and some MicroIdiot might give 'em some more money to play with.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.