[linux-elitists] Info on SCO Lawsuit

Rick Moen rick@linuxmafia.com
Thu May 29 15:29:05 PDT 2003

Quoting Jeff Waugh (jdub@perkypants.org):
> <quote who="Karsten M. Self">
> > It would seem SCO admits here to licensing Novell's technology for
> > SCO's Unix products, and actually realizes little revenue from Unix
> > licensing as it is -- save the 5% "administration fee".
> The passage doesn't make the reality entirely clear - the arrangement
> applies only to existing Novell licensors when the deal was struck.
> SCO just administers those payments (Novell wanted to continue making
> money on these licenses). New licensors pay full $$$ to SCO, and
> according to their Asia Pacific managing director, Kieran
> O'Shaughnessy, they're making a good sum on those.

Like Jonathan C., I've been made a little queasy by the sheer scope and
quantity of doubtful and often-contradictory statements that have emerge
from Orem.  Their May 12 threat letter (among other things) claimed
ownership of the SystemV codebase copyright.  Novell's press release,
yesterday said "Au contraire," to which McBride responded that the four
signatories to the Old-SCO/Novell contract -- all of whom are absent
from this conflict -- intended to transfer that copyright ownership,
despite such a transfer not being stated in the contract: "It was very
clear in our minds that we already purchased that."

Now, IANAL, but I recognise a stupendous copyright-law gaffe when I see
it:  It's a settled principle of copyright law that copyright ownership
may be transferred _only_ in writing.  That's distinct from licences
under copyright law, which may be written, oral, or implicit in the
conduct of the parties.

In the USA, that point was made abundantly clear in the plain wording of
the Copyright Act, and underlined in case anyone missed it in the
leading USSC case on work for hire, CCNV v. Reid, 490 US 730 (1989):
Although the main thrust of CCNV v. Reid was to define the tests
defining what is creation "by an employee in the regular scope of
employment", it's also a handy and lucid refresher course on Copyright
Act fundamentals including the law of copyright title.

So, Mr. McBrides's statements notwithstanding, Caldera Systems d/b/a The
SCO Group doesn't own the System V copyright and never did -- unless it 
can produce a _written_ statement from Novell unambiguously giving it to
that company.  And one gathers that none exists.

In general, it would be nice to know what legal significance if any
attaches to public statements by corporate flacks that are neither
oath-attested to a court of law nor part of a regulatory filing (e.g.,
to the SEC).  It may be that such are completely irrelevant to the legal
proceedings -- where, so far, I believe we've seen only a vague
complaint of trade secret abuse and of business interference, followed
by a change of venue from state to Federal court.

Cheers,                    "Send a policeman, and have it arrested."
Rick Moen                     -- Otto von Bismarck, when asked what he 
rick@linuxmafia.com               would do if the British Army landed.

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