SCO Grp v. Novell Inc

Filing 275

MOTION for Summary Judgment on SCO's First Claim for Slander of Title and Third Claim for Specific Performance filed by Defendant Novell, Inc.. (Sneddon, Heather)

SCO Grp v. Novell Inc

Doc. 275

Case 2:04-cv-00139-DAK-BCW

Document 275

Filed 04/20/2007

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MORRISON & FOERSTER LLP Michael A. Jacobs (pro hac vice) Kenneth W. Brakebill (pro hac vice) Grant L. Kim (pro hac vice) 425 Market Street San Francisco, CA 94105-2482 Telephone: [phone] Facsimile: [phone] ANDERSON & KARRENBERG Thomas R. Karrenberg, #3726 John P. Mullen, #4097 Heather M. Sneddon, #9520 700 Chase Tower 50 West Broadway Salt Lake City, UT 84101 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant and Counterclaimant Novell, Inc.

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC., a Delaware corporation, Plaintiff and CounterclaimDefendant, vs. NOVELL, INC., a Delaware corporation, Defendant and CounterclaimPlaintiff.

NOVELL'S MOTION FOR SUMMARY JUDGMENT ON SCO'S FIRST CLAIM FOR SLANDER OF TITLE AND THIRD CLAIM FOR SPECIFIC PERFORMANCE Case No. 2:04CV00139 Judge Dale A. Kimball

Dockets.Justia.com

Case 2:04-cv-00139-DAK-BCW

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Novell, Inc. ("Novell") moves the Court for partial summary judgment as to The SCO Group, Inc.'s ("SCO's") First and Third Claims for Relief for slander of title and specific performance, respectively. Federal Rule of Civil Procedure 56 permits the Court to grant partial summary judgment if the pleadings, discovery, and affidavits show that there is no genuine issue of material fact and that Novell is entitled to judgment as a matter of law. SCO's First and Third Causes of Action for slander of title and specific performance are based on SCO's assertion that Novell sold the UNIX and UnixWare copyrights to SCO's alleged predecessor, the Santa Cruz Operation ("Santa Cruz"), as part of the Asset Purchase Agreement ("APA"). Here, the undisputed facts show that the list of "Excluded Assets" in Schedule 1.1(b) of the APA explicitly excluded "all copyrights" from the assets to be transferred by Novell to Santa Cruz. This exclusion is reinforced by express language in the contract providing that the Assets purchased "shall not include those assets . . . set forth on Schedule 1.1(b)." SCO's attempt to overcome this exclusion by citing extrinsic evidence that "all copyrights" means "some copyrights" is unavailing. The plain meaning of "all" is all. The parol evidence rule precludes SCO from relying on parol evidence in support of an interpretation to which the APA is not reasonably susceptible. Moreover, the admissible extrinsic evidence confirms that the exclusion of all copyrights from the transferred assets was deliberate and consistent with the APA's objectives. The APA as amended by Amendment No. 2 also did not transfer the UNIX and UnixWare copyrights to Santa Cruz. The Copyright Act, 35 U.S.C. § 204, requires a written instrument, signed by the copyright owner, to transfer copyrights. Amendment No. 2 does not constitute such a written instrument because it did not purport to transfer any copyrights or other
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assets, nor did it retroactively amend the Bill of Sale that was executed ten months earlier. Moreover, although Amendment No. 2 revised the Schedule 1.1(b) list of Excluded Assets to create an exception for copyrights "required" for Santa Cruz to pursue its UNIX business, it did not specify which copyrights were required, and Santa Cruz did not require ownership of any UNIX copyrights because it already had a license to use the copyrights as needed to implement the APA. Because neither the APA nor Amendment No. 2 transferred copyright ownership to Santa Cruz, Novell is entitled to summary judgment on SCO's slander of title claim on the ground that SCO cannot establish that Novell's statement that SCO did not own the copyrights was false. Novell is also entitled to summary judgment on SCO's claim for an order requiring Novell to transfer the copyrights to SCO, because neither the APA nor Amendment No. 2 required Novell to transfer the copyrights. For all of these reasons, Novell requests that summary judgment be entered that neither the APA nor Amendment No. 2 transferred ownership of the copyrights to Santa Cruz, and that SCO's slander of title and specific performance claims fail as a matter of law.

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DATED: April 20, 2007 ANDERSON & KARRENBERG

By:

/s/ Heather M. Sneddon Thomas R. Karrenberg John P. Mullen Heather M. Sneddon -andMORRISON & FOERSTER LLP Michael A. Jacobs (pro hac vice) Kenneth W. Brakebill (pro hac vice) Grant L. Kim (pro hac vice) Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 20th day of April, 2007, I caused a true and correct copy of NOVELL'S MOTION FOR SUMMARY JUDGMENT ON SCO'S FIRST CLAIM FOR SLANDER OF TITLE AND THIRD CLAIM FOR SPECIFIC PERFORMANCE to be served to the following: Via CM/ECF: Brent O. Hatch Mark F. James HATCH JAMES & DODGE, P.C. 10 West Broadway, Suite 400 Salt Lake City, Utah 84101 Stuart H. Singer William T. Dzurilla Sashi Bach Boruchow BOIES, SCHILLER & FLEXNER LLP 401 East Las Olas Blvd., Suite 1200 Fort Lauderdale, Florida 33301 David Boies Edward J. Normand BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 Devan V. Padmanabhan John J. Brogan DORSEY & WHITNEY, LLP 50 South Sixth Street, Suite 1500 Minneapolis, Minnesota 55401 Via U.S. Mail, postage prepaid: Stephen Neal Zack BOIES, SCHILLER & FLEXNER LLP 100 Southeast Second Street, Suite 2800 Miami, Florida 33131 /s/ Heather M. Sneddon
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