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Novell Asks Appeals Court To Reverse its Decision on SCO
Novell doubtless knows it’s a long shot but figures it’s one worth taking if it can gum up the works for SCO

Novell Tuesday asked the 10th Circuit Court of Appeals to rehear en banc its decision overturning the Utah summary judgment awarding ownership of Unix to Novell and sending SCO’s suit against Novell back to Utah for trial.

En banc would mean all of the God knows how many judges on the circuit’s bench not just the three who heard it the first time through, a situation usually reserved for unusually complex cases or cases of unusual significance.

Novell’s nine-page petition attempts to invest the case with grave significance but what are the odds that the 10th Circuit will throw out a unanimous 54-page decision by three of its jurists written by one of the finest mind on the bench, Michael McConnell, a constitutional law scholar who just stepped down to be director of the Constitutional Law Center at Stanford Law School? Figures suggest it’s a rare thing indeed and rarer still to win.

Anyway, this is first-year law school kinda of stuff. Judge McConnell found that the Utah district court ignored a dispute over facts that should have been sent to jury to decide, not resolved by an “inappropriate,” “improper” and “premature” summary judgment. You can’t have a summary judgment when there are conflicting facts.

Novell doubtless knows it’s a long shot but figures it’s one worth taking if it can gum up the works for SCO by putting doubts in any would-be investors head and delay the court-ordered trial in Utah.

Novell’s petition claims the “case raises a question of exceptional importance regarding the interpretation of the Copyright Act: Does Section 204(a) require a writing that specifies the subject matter and essential terms of the copyright transfer with reasonable certainty, as held by courts in the Ninth Circuit and supported by the decisions of other federal and state courts?”

It says the 10th Circuit’s August 24 decision “holds that a writing is sufficient if it merely shows an intent to transfer some copyrights, even if the identity of the copyrights is unclear. On that basis, the Panel reversed summary judgment for Defendant Novell and remanded for trial to determine which copyrights, if any, were transferred. The Panel decision, which will become the law of this Circuit if not revised on rehearing, would require a trial whenever a party can show some evidence of intent to transfer copyright ownership, even though, as here, there is no basis in the alleged instrument of transfer to determine with reasonable certainty which, if any, copyrights were to be transferred.”

It figures the court “should grant this petition to consider whether the Panel Opinion properly interprets Section 204(a) in light of Congress’ declared purpose of enhancing predictability and certainty of copyright ownership, or whether this Circuit should instead join other courts in holding that Section 204(a) requires a written instrument of conveyance or memorandum of transfer that specifies the subject matter and essential terms of the transfer with reasonable certainty. The Panel Opinion is contrary to the legislative intent and the weight of authority, and errs in reversing summary judgment for Novell and remanding for trial even under the Panel’s interpretation of Section 204(a).”

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

The 10th Circuit’s decision also overturned Novell’s waiver of SCO’s termination of IBM’s right to distribute AIX and Novell’s order to SCO to abandon its breach-of-contract and copyright suit against IBM and Sequent.

Meanwhile, SCO is offering a free one-year subscription with the purchase of its new OpenServer 5.0.7V virtualized operating system optimized for VMware. The deal is available until October 2.

About Maureen O'Gara
Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at) or paperboy(at), and by phone at 516 759-7025. Twitter: @MaureenOGara

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