[TUHS] V8 - V10?

Pepe pepe at naleco.com
Thu May 22 10:45:36 AEST 2008

On Wed, May 21, 2008 at 03:31:53PM -0400, John Cowan wrote:
> Pepe scripsit:
> > It seems clear, now, that the copyright on that is Novell's, and that
> > The SCO Group *never* had the copyright for that transferred to them by
> > Novell, and that therefore the "open-sourcing" of that material done by
> > Caldera is void because Caldera was lacking just title to do such
> > re-licensing.
> IANAL and TINLA, but Caldera *did* have a license to sublicense the
> content to third parties (which is not the same as copyright ownership),
> so the BSD license should be valid.

Wrong. Caldera had a License to UNIX (including System V and UnixWare)
furnished by Novell, and they could only sublicense with a different
license if under Novell's prior permission to do so, which didn't happen.

Section 4.16(b) of the "Asset Purchase Agreement" entered to by the old
Santa Cruz and Novell, states: "[Santa Cruz] shall not, and shall not
have the authority to, amend, modify, or waive any right under or assign
any SVRX License without the prior consent of [Novell]". It is true that
here they are talking about System V, and not about Version 8 - Version

What Novell transferred to the old SCO was the UNIX and UnixWare
trademarks, the UNIX business assets, and a license to pursue the UNIX
business on their own; and it excluded the UNIX and UnixWare copyrights.

Judge Dale A. Kimball says in his ruling on the 10th of August of 2007:
"SCO contends that the exclusion of the UNIX and UnixWare copyrights
would render the APA meaningless because it would prevent Santa Cruz
from pursuing its UNIX business. [...] Contrary to SCO's assertions,
there is evidence that SCO did not need to own  the UNIX and UnixWare
copyrights to pursue its UNIX business. It is well established that a
contract involving copyrighted works confers an implied  license to use
the copyrights as needed to implement the transaction."

So, The SCO Group can operate the UNIX business it acquired from Novell,
but cannot change the license of that material is under because The SCO
Group does not own copyright of it, and because the APA the old SCO
and Novell entered prohibits such change of license without Novell's

It's not all clear cut, because the explicit reference to the
prohibition to modify the License only mentions SVRX, but it follows
quite clear that only the copyright owner, or those allowed to do so by
the copyright owner, can change the license of the material.

Therefore, only Novell can "open-source" V8 - V10, which is the point
being discussed here, and Caldera had no title to do it.

pepe at naleco.com

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