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Setting Dangerous Precedents August 2, 2005

Posted by rjdohnert in Software reviews.

Novell as I blogged about earlier has filed its response to SCO’s claims and launched counter claims. The first being that Novell owns the copyrights and licensing privileges for System V UNIX. They also claim they are entitled to 95% of the SCO Source licensing revenue. I personally have read the APA and the ammendments to the 1995 purchasing agreement and to me it does appear that SCO does own all the copyrights to System V minus the contributions and copyrights on Novells own inventions. Novell is saying now that it never sold System V but more or less made SCO a sublicensee with the privilege of being able to license. In my opinion its bullshit because the APA is very clear and concise on who owns it and its SCO who owns UNIX. If the court goes ahead and invalidates the APA and claims that Novell and not SCO owns the UNIX system then this sets a very damning precedent in the software industry when it comes to sale of intellectual property. Other companies would start claiming their sales are invalid and renigging on their deals.

What does this mean? It means that anyone from Apple to IBM to Microsoft would get screwed. Can you imagine for a moment that the guys who originally created PowerPoint, Visio and FrontPage and sold to Microsoft could come back and say, “Wait a second, we never sold, we still own it and we are entitled to 95% of Microsofts revenue from these products.” The guys who sold their IP to Apple for some of their creative stuff? They could do very much the same thing. I have no doubt SCO will prevail over Novell on this issue but if they dont, the Software companies are screwed.



1. Anonymous - August 5, 2005

The APA is not so clear and concise as you suggest. It provides (under Amendment 2) only that “copyrights…required for [Santa Cruz Operation] to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies.” (my emph.) . It indicates that the APA is not per se a 204(a) writing (note there is no list of the copyrights in question) to execute a copyright transfer but merely anticipates that Santa Cruz will request one in the future – and that they must demonstrate the requirement in order for Novell to approve it.

When SCO (as Caldera) did this in 2002, Novell refused. SCO then instead of litigating Novell’s refusal to transfer the copyrights, decided to claim that they owned the copyrights all along.

2. Roberto J. Dohnert - August 8, 2005

“All rights and ownership of UNIX and UnixWare, including but not limited to all versions of UNIX and UnixWare and all copies of UNIX and UnixWare (including revisions and updates in process), and all technical, design, development, installation, operation and maintenance information concerning Unix and UnixWare, including source code, source documentation, source listings and annotations, appropriate engineering notebooks, test data and test results, as well as all reference manuals and support materials normally distributed by Seller to end-users and potential end-users in connection with the distribution of UNIX and UnixWare,…”
(Schedule 1.1(a), Assets, Page 1 of 4, section I)”

I think that says it all.

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