Open Source Journal on Ulitzer

In the unlikely event that Novell and IBM harbored any hope that the trustee set over SCO would abandon its litigation, that hope has been dashed.

SCO last Thursday sent in its brief opposing Novell's bid for a rare en banc rehearing of the 10th Circuit Court of Appeals' decision overturning a Utah summary judgment that Novell owns Unix "by and through Edward W. Cahn as Chapter 11 Trustee."

That means that Judge Cahn as the "party-in-interest" is effectively asking the 10th Circuit to ignore Novell's petition and let the issue go to trial in Utah in front of a jury and a new judge.

If SCO wins there, the road to the IBM copying-Unix-into-Linux case will be reopened as well as SCO's claims to a tax on Linux.

Judge Cahn, appointed trustee over SCO by the bankruptcy court in Delaware, is the retired chief judge of the Eastern District of Pennsylvania, whose specialties include antitrust, alternative dispute resolution, arbitration, mediation, litigation, complex litigation, corporate shareholder actions and securities litigation. He teaches at Lehigh and is connected with Blank Rome, a big Philadelphia law firm.

Novell's petition takes exception to the way the three judges deciding SCO's appeal interpreted Section 204(a) of the Copyright Act.

Novell claims a special itemized bill of sale - a second bill of sale on top of Amendment 2 to the now infamous Unix Asset Purchase Agreement (APA) between Novell and the Santa Cruz Operation - was needed to pass the copyrights to SCO and that the judges sent the case back to Utah to figure out which, if any, copyrights transferred to SCO based on an intent to transfer that they found in the APA, Amendment 2 and other evidence such as Novell's transfer of Unix copyright registrations to SCO and its change of copyright notices in the code in favor of SCO.

SCO's got all of Novell's old management on its side saying they intended to sell Santa Cruz, the old SCO, the Unix copyrights, evidence Utah ignored.

SCO's rebuttal argues that the decision of the three-judge panel doesn't conflict with any decision of the Supreme Court or any appeals court and isn't the matter of great import required for an en banc rehearing that Novell makes it out to be.

It says the appellate court merely found that as a matter of law the Novell-Santa Cruz sale did not exclude the transfer of Unix copyrights and so should be tried.

SCO's brief says "Novell cannot cite a single case holding that a court should disregard extrinsic evidence of the parties' intent in determining whether a writing satisfies Section 204(a) or that an agreement specifically identifying copyrights (like the amended APA) cannot satisfy Section 204(a). Instead, Novell proposes a standard under which a reasonable dispute between parties regarding their intent to transfer particular copyrights could not be resolved like any contract dispute."

Novell resists reading the APA, which conveys "all rights and ownership" in Unix, and Amendment 2, which is said to pass along the copyrights, together the way SCO and the appeals court do, but not to SCO says, quoting the appeals court, makes the Amendment "a nullity," lacking in common sense.

SCO says the Copyright Act only requires a "note or memorandum of transfer," that the amended APA suffices and that the circuit "broke no new ground" in its decision.

In ignoring extrinsic evidence, Novell, it claims, is proposing "a new rule that no court has previously followed that would conflict with the well-established precedent interpreting Section 204(a) and that would subvert longstanding rules of statutory interpretation."

Novell probably doesn't seriously expect to get a rehearing but the bid does delay going to trial in Utah, which is likely the point.