SCO Grp v. Novell Inc

Filing 324

DECLARATION of G. Gervaise Davis III re 306 Sealed Document, SCO'S MEMORANDUM IN OPPOSITION re: 275 MOTION for Summary Judgment on SCO's First Claim for Slander of Title and Third Claim for Specific Performance, filed by SCO Group. (Attachments: # 1 Exhibit A-B)(Normand, Edward)

SCO Grp v. Novell Inc

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EXHIBIT A

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EXHIBIT A G. Gervaise Davis III 1150 Alta Mesa Road Monterey, CA 93940 Mr. Davis is a member of the State Bar of California, as well as being admitted to practice before the U.S. Supreme Court, the U.S. Tax Court, many of the U.S. Circuit Courts of Appeal, the Federal Court of Appeals for the Federal Circuit, and numerous U.S. District Courts across the country. Mr. Davis has served as an Adjunct Professor of Law at Santa Clara University Law School, where he taught courses in Intellectual Property and the Internet in both the JD and Masters of Law programs. He also taught an IP law survey course at the Monterey School of Law, Monterey, CA. He graduated from Georgetown University Law Center, Washington, D.C., with his J.D., and also holds a B.S. in Foreign Service from Georgetown. Mr. Davis was the founding principal of the internationally-known Monterey, California, law firm of Davis & Schroeder, a boutique business and intellectual property firm, specializing in matters relating to protection, development and licensing of software for businesses and nonprofits, as well as the complex legal issues arising from the Internet. He was lead Counsel in several landmark domain name cases at the Federal Appellate level, such as Avery Dennison Corp. v. Sumpton, 189 F.3d 868 (9th Cir. 1999) . He also served on the WIPO Domain Name Disputes Panel during the early stages of it. He has been with Terra Law LLP since 2003 and currently is Of Counsel to the Terra Law LLP. Mr. Davis is also an expert in copyright law, trademarks, domain names, trade secrets and intellectual property licensing. He has, for many years, advised multinational and domestic for profit and non-profit companies in these areas of the law. He serves as a frequent expert witness, mediator, or arbitrator in high tech litigation and dispute matters. He is an active arbitration panelist for the National Arbitration Forum, www.arb-forum.org, where he rules on disputed domain names under the ICANN/UDRP procedures. Mr. Davis is much in demand as a speaker on Intellectual Property law subjects and has served as an author and speaker for the Practicing Law Institute, NYC, for more than twenty years, principally on copyright and trademark matters. He also advises photographers and artists on protection of their work under the copyright laws. He is also the author of literally hundreds of articles in legal and business publications, in the area of copyrights, trademarks, Internet law and software licensing. In 1983, he authored one of the first books on the subject of protecting software, entitled Software Protection: Practical and Legal Steps to Protect and Market Computer Programs, now out of print. The book won several awards for excellence.

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Bar Admissions: District of Columbia, 1958 California, 1959 U.S. Court of Appeals 3rd Circuit U.S. Court of Appeals 9th Circuit U.S. Court of Appeals 10th Circuit U.S. Court of Appeals 11th Circuit U.S. Federal Courts, 1961 U.S. Supreme Court, 1965 U.S. Tax Court, 1961 U.S. District Court Northern District of California, 1959 U.S. District Court Central District of California, 1959 Education: Georgetown University Law Center, Washington, District of Columbia, J.D., Doctor of Jurisprudence, 1958 Law Review: GU Law Review, 1957 ­ 1958 Georgetown University, Washington, District of Columbia, B.S.F.S, Bachelor of Science in Foreign Service, 1954 Classes/Seminars Taught: Computer & Copyright Law, PLI, 1978 ­ 2006 Computer Law and Licensing, CLA, 1983 ­ 2001 Professional Associations and Memberships: Computer Law Association, 1986 ­ Present The Computer Lawyer, 1986 ­ Present Editorial Board University of Santa Clara High Technology Law Journal, 1986 ­ Present Advisory Board University of California Berkeley High Technology Law Journal, 1986 ­ Present Executive Advisory Board Past Employment Positions: Davis & Schroeder, Founding Principal, 1968 - 2003

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Published Works: Davis, G. Gervaise, III. "Can You Keep a (Trade) Secret?" Computerworld Vol. 16, No. 35a, pp: 21-28, Sep 1, 1982. Davis, GG. "It's the Law." DATAMATION, V 28, N12 , pp. 221-222 (1982). G. Gervaise Davis, III. "SOFTWARE PROTECTION, PRACTICAL AND LEGAL STEPS TO PROTECT AND MARKET COMPUTER PROGRAMS" (1985) Gervaise Davis, G. III . "Computer software--the final frontier: Clones, compatibility and copyright." The Computer Lawyer, Vol. 2, no. 7, pp. 11-14 (June 1985). G. Gervaise Davis, III. "1986 SPECIAL PROBLEMS IN 'LOOK AND FEEL' COPYRIGHT CASES," Practicing Law Institute PLI Order No. G4-3795 September 18, 1986, Computer Law Institute, 230 PLI/Pat 741 (1986). G. Gervaise Davis, III. "WHAT HATH CONTU WROUGHT?: HOW COMPUTER SOFTWARE COPYRIGHT CASES 'LOOK AND FEEL' EIGHT YEARS AFTER THE CONTU REPORT" Practicing Law Institute PLI Order No. G4-3802, October 29, 1987, Ninth Annual Computer Law Institute, 239 PLI/Pat 465 (1987). G. Gervaise Davis III. "`What hath CONTU wrought?' How computer software copyright cases 'look and feel' - eight years after the CONTU report." National Commission on New Technological Uses of Copyrighted Work, Canadian Intellectual Property Review, Vol. 4, No. 2, pp. 228-252 (May 1988). G. Gervaise Davis III. "CLONE WARS: THE EMPIRE STRIKES BACK, The Computer Lawyer (May 1988). G. Gervaise Davis, III. "REACHING THE LIMITS OF COPYRIGHT: PROTECTING PROGRAMMING LANGUAGES, MACROS, FORMATS AND COMPUTER HARDWARE UNDER THE COPYRIGHT LAWS" Practicing Law Institute PLI Order No. G4-3820, November 3, 1988, 10th Annual Computer Law Institute, 259 PLI/Pat 77 (1988). G. Gervaise Davis III. "ISSUES AND CONCERNS IN SOFTWARE LICENSES AND SUPPORT AGREEMENTS," Practicing Law Institute PLI Order No. G4-3832 May 9, 1989, Computer Law: Current Trends and Developments A Satellite Program, 272 PLI/Pat 465 (1989). G. Gervaise Davis, III. "REACHING THE LIMITS OF COPYRIGHT: PROTECTING PROGRAMMING LANGUAGES, MACROS, FORMATS AND COMPUTER HARDWARE UNDER THE COPYRIGHT LAWS," Practicing Law Institute PLI Order No. G4-3832, May 9, 1989 Presentation on Computer Law: Current Trends and Developments A. Satellite Program, 272 PLI/Pat 171 (1989).

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G. Gervaise Davis III. "CONTRACT ISSUES IN SOFTWARE DEVELOPMENT, ACQUISITION, MARKETING, AND USE," Practicing Law Institute PLI Order No. G4-3835, July 1, 1989 Presentation on Computer Software 1989: Protection and Marketing, 276 PLI/Pat 359 (1989). G. Gervaise Davis III. "Airing both sides of the 'look and feel' debate." (copyright protection for software products)(Viewpoint) Computerworld (8/13/90) G. Gervaise Davis, III. "NETWORK LICENSING POLICIES AND ECONOMICS: LEGAL AND ECONOMIC ISSUES IN AN INDUSTRY IN TRANSITION," Practicing Law Institute PLI Order No. G4-3867 October 24-25, 1991, 13th Annual Computer Law Institute, 322 PLI/Pat 513 (1991). Davis, G. Gervaise, III. "The Digital Dilemma: Coping With Copyright In A Digital World," The Computer Law Association Bulletin, Vol. 8, No. 1 (1992). G. Gervaise Davis, III. "PROTECTING COMPUTER SCREENS AND OTHER MYSTERIES RELATING TO COMPUTER SOFTWARE, COPYRIGHTS AND PATENTS," Practicing Law Institute PLI Order No. G4-3891, October 15-16, 1992 14th Annual Computer Law Institute, 345 PLI/Pat 259 (1992). G. Gervaise Davis, III. "SCOPE OF PROTECTION OF COMPUTER-BASED WORKS: REVERSE ENGINEERING, CLEAN ROOMS AND DECOMPILATION," Practicing Law Institute PLI Order No. G4-3905, October-November, 1993, 15th Annual Computer Law Institute 370 PLI/Pat 115 (1993). G. Gervaise Davis III. "War of the Words: Intellectual Property Laws and Standardization." IEEE Micro, Vol. 13, No. 6, pp. 19-27 (Nov/Dec, 1993). http://doi.ieeecomputersociety.org/10.1109/40.248049 G. Gervaise Davis, III. "WEBSITE AND MULTIMEDIA DEVELOPMENT AGREEMENTS," Practicing Law Institute PLI Order No. G4-4000 January, 1997 Presentation on Multimedia 1997: Protecting Your Client's Legal and Business Interests, 467 PLI/Pat 299 (1997). G. Gervaise Davis, III. "Internet Domain Names and Trademarks." 10 No. 2 Software L. Bull. 35, (February 1997). Stephen J. Davidson, Nicole A. Engisch. "A SURVEY OF THE LAW OF COPYRIGHT MISUSE AND FRAUD ON THE COPYRIGHT OFFICE: LEGITIMATE RESTRAINTS ON COPYRIGHT OWNERS OR EXCUSES FOR COPYRIGHT INFRINGERS?" Practicing Law Institute PLI Order No. G4-4003, June & July 1997. Revised and updated by G. Gervaise Davis III, 483 PLI/Pat 295 (1997). G. Gervaise Davis III . "INTERNET DOMAIN NAMES AND TRADEMARKS: A GROWING AREA OF DISPUTE," Practicing Law Institute PLI Order No. G4-4008, September, 1997 PLI's Third Annual Institute for Intellectual Property Law, 489 PLI/Pat 649 (1997).

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G. Gervaise Davis III. "THE GROWING DEFENSE OF COPYRIGHT MISUSE AND EFFORTS TO ESTABLISH TRADEMARK MISUSE: LEGITIMATE RESTRAINTS ON COPYRIGHT OWNERS OR ESCAPE ROUTES FOR COPYRIGHT INFRINGERS? WAYS OF PROTECTING DOMAIN NAMES?" Practicing Law Institute PLI Order No. G4-4037, June, 1998, 524 PLI/Pat 433 (1998). G. Gervaise Davis, III. "INTERNET DOMAIN NAMES AND TRADEMARKS: A GROWING AREA OF DOMESTIC AND INTERNATIONAL DISPUTES," Practicing Law Institute PLI Order No. G0-0024, October-November, 1998, PLI's Fourth Annual Institute for Intellectual Property Law, 532 PLI/Pat 383 (1998). G. Gervaise Davis III, Esq.. "INTERNET DOMAIN NAMES AND TRADEMARKS:RECENT DEVELOPMENTS IN DOMESTIC AND INTERNATIONAL DISPUTES." Eleventh Annual Computer Law Symposium. Hastings Communications and Entertainment Law Journal, Vol. 21, p. 601 (COMM/ENT) Spring (1999). G. Gervaise Davis, III. "THE RAPIDLY GROWING DEFENSE OF COPYRIGHT MISUSE AND EFFORTS TO ESTABLISH TRADEMARK MISUSE: LEGITIMATE RESTRAINTS ON COPYRIGHT OWNERS OR ESCAPE ROUTES FOR COPYRIGHT INFRINGERS? WAYS OF PROTECTING DOMAIN NAMES?" Practicing Law Institute PLI Order No. G0005M, New York City, June 24-25, 1999 566 PLI/Pat 639 (1999). G. Gervaise Davis III, Esq. "INTERNET DOMAIN NAMES AND TRADEMARKS: A PRIMER ON THE TECHNOLOGY AND CURRENT DEVELOPMENTS IN DOMESTIC AND INTERNATIONAL DISPUTES," Practicing Law Institute PLI Order No. G0-007N, New York City, October 7-8, 1999, PLI's Fifth Annual Institute for Intellectual Property 574 PLI/Pat 527 (1999). G. Gervaise Davis III, Esq. "INTERNET DOMAIN NAMES AND TRADEMARKS: RECENT DEVELOPMENTS IN DOMESTIC AND INTERNATIONAL DISPUTES: ENABLING ELECTRONIC COMMERCE ," Practicing Law Institute PLI Order No. G0-00CW, September, 2000 PLI's Sixth Annual Institute for Intellectual Property Law 617 PLI/Pat 609 (2000). G. Gervaise Davis III, Esq. "INTERNET DOMAIN NAMES AND TRADEMARKS: HISTORY AND RECENT DEVELOPMENTS IN DOMESTIC AND INTERNATIONAL DISPUTES: ENABLING ELECTRONIC COMMERCE ON THE INTERNET," Practicing Law Institute PLI Order No. G0-00PS, Presented September 2001 in New York City and November 2001 in San Francisco, at PLI's Seventh Annual Institute for Intellectual Property Law 670 PLI/Pat 551 (2001). Gervaise Davis. "The ICANN Uniform Domain Name Dispute Resolution Policy The UDRP in Perspective after Nearly Two Years of History." e-OTI: OntheInternet. (January/February 2002) http://www.isoc.org/oti/articles/1201/icann.html; CPR Institute for Dispute Resolution, Administrative Panel Decision http://www.cpradr.org/ICANN/icannDecisionCPR008001205.pdf

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G. Gervaise Davis. "COPYRIGHT AND TRADEMARK MISUSE: FRAUD ON THE COPYRIGHT OFFICE," Practicing Law Institute PLI Order No. G0-0119, 708 PLI/Pat 299 (June ­ July 2002). G. Gervaise Davis III, Esq. "INTERNET DOMAIN NAMES AND TRADEMARKS: HISTORY AND RECENT DEVELOPMENTS IN DOMESTIC AND INTERNATIONAL DISPUTES: ENABLING ELECTRONIC COMMERCE ON THE INTERNET," Practicing Law Institute PLI Order No. G0-0124, September 26-27, 2002, New York City. Presented November 14-15, 2002, San Francisco at PLI's Eighth Annual Institute for Intellectual Property Law 716 PLI/Pat 307 (2002). G. Gervaise Davis III, Esq. "COPYRIGHT AND TRADEMARK MISUSE: FRAUD ON THE COPYRIGHT OFFICE ," Practicing Law Institute PLI Order Number G0-01AD, 752 PLI/Pat 229 (June-July 2003). G. Gervaise Davis III, Esq. "INTERNET DOMAIN NAMES AND TRADEMARKS: HISTORY AND RECENT DEVELOPMENTS IN DOMESTIC AND INTERNATIONAL DISPUTES: ENABLING ELECTRONIC COMMERCE ON THE INTERNET," Practicing Law Institute PLI Order Number G0-016V, PLI's Ninth Annual Institute for Intellectual Property Law, Sept. ­ Nov., 2003, 764 PLI/Pat 335 (2003). G. Gervaise Davis III, Esq. "COPYRIGHT AND TRADEMARK MISUSE: FRAUD ON THE COPYRIGHT OFFICE," Practicing Law Institute PLI Order Number 2792, 792 PLI/Pat 211 (June 2004). G. Gervaise Davis. "COPYRIGHT & TRADEMARK MISUSE; FRAUD ON THE COPYRIGHT OFFICE," Practicing Law Institute PLI Order Number 6250, 832 PLI/Pat 205 (June 13, 2005). G. Gervaise Davis III . "THE AFFIRMATIVE DEFENSE OF COPYRIGHT MISUSE AND EFFORTS TO ESTABLISH TRADEMARK MISUSE, AND FRAUD ON THE COPYRIGHT OFFICE: ESTABLISHING LIMITATIONS ON THE SCOPE OF COPYRIGHT OWNERS RIGHTS BASED ON SEVERAL THEORIES" Practicing Law Institute PLI Order No. 8816, 867 PLI/Pat 103 (June, 2006).

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EXHIBIT B

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EXHIBIT B Materials Considered By G. Gervaise Davis, III Pleadings Memorandum Decision and Order, dated 6/9/04 Memorandum in Support of Novell, Inc.'s Motion to Dismiss, dated 8/6/04 Memorandum in Opposition to Novell, Inc.'s Motion to Dismiss SCO's Amended Complaint, dated 10/4/04 Reply in Support of Novell's Motion to Dismiss Amended Complaint, dated 11/8/04 Memorandum Decision and Order, dated 6/27/05 Novell, Inc.'s Response to SCO Group, Inc.'s Second Set of Requests for Production and Second Set of Interrogatories, date 11/6/06 Novell, Inc.'s First Supplemental Response to The SCO Group, Inc.'s First Set of Interrogatories, dated 2/2/07 SCO's Memorandum in Support of Its Motion of Partial Summary Judgment on Its First, Second and Fifth Causes of Action and For Summary Judgment on Novell's First Counterclaim dated 4/9/07, Declaration of Edward Normand in Support, and Exhibits 1-31 Novell's Memorandum in Support of Novell's Opposition to SCO's Motion for Partial Summary Judgment on SCO's First, Second and Fifth Causes of Action and For Summary Judgment on Novell's First Counterclaim (Copyright Ownership) dated 5/14/07 Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title and Third Claim for Specific Performance dated 4/20/07, Declarations of Allison Amadia, Tor Braham, Kenneth W. Brakebill, David Bradford, and James R. Tolonen, and supporting exhibits Summary Judgment Pleadings and Materials filed in SCO v. IBM Excerpts of powerpoint presentation regarding the APA, from SCO's Summary Judgment Hearing Binder used during SCO's argument on IBM's Motion for Summary Judgment on its Claim for Declaratory Judmgent of Non-Infringement (IBM's Tenth Counterclaim) IBM Ex. 123 (12/19/95 Asset Purchase Agreement between The Santa Cruz Group, Inc. and Novell) IBM Ex. 444 (10/16/96 Amendment No. 2 to the Asset Purchase Agreement)

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SCO Ex. 17 (11/9/06 Declaration of Alok Mohan) SCO Oppos. Ex. 18 (11/9/06 Declaration of Duff Thompson) SCO Oppos. Ex. 30 (12/6/95 Bill of Sale between The Santa Cruz Group, Inc.) and Novell, SCO1185881) SCO Oppos. Ex. 35 3/28/96 Software Agreement between Modcomp/Cerplex L.P. and The Santa Cruz Group, Inc.) SCO Oppos. Ex. 38 (11/4/06 Declaration of Kim Madsen) SCO Oppos. Ex. 39 (10/1/04 Declaration of Ed Chatlos) SCO Oppos. Ex. 40 (11/23/04 Declaration of Jim Wilt) SCO Oppos. Ex. 42 (11/19/04 Declaration of Steve Sabbath) SCO Oppos. Ex. 48 (12/6/95 Technology License Agreement between Novell and The Santa Cruz Group, Inc., Dep. Ex. 957) SCO Oppos. Ex. 50 (11/3/04 Declaration of Lawrence Bouffard) SCO Oppos. Exs. 258-268 (UNIX Copyright registrations) SCO Oppos. Ex. 322 (SCO's Memorandum in Support of its Motion to Compel Discovery, dated 10/27/05) SCO Oppos. Ex. 333 (11/7/06 Declaration of William M. Broderick) SCO Oppos. Ex. 355 (11/9/06 Declaration of John Maciaszek) Depositions and Deposition Exhibits 2/10/07 Robert Frankenberg Deposition Transcript and Deposition Exhibits 1045-1047 Mattingly Deposition Exhibit 2 (11/8/04 Declaration of Kellie Carlton in Support of Novell's Motion to Dismiss with attached 9/18/95 Novell Board Meeting Minutes) Thompson Deposition Exhibit 29 (11/9/06 Declaration of R. Duff Thompson) Stone Deposition Exhibit 1008 (12/6/95 Technology License Agreement between Novell and SCO)

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Stone Deposition Exhibit 1009 (10/16/96 Amendment No. 2 to the Asset Purchase Agreement) Messman Deposition Exhibit 1026 (12/6/95 Amendment No. 1 to the Asset Purchase Agreement) Messman Deposition Exhibit. 1028 (9/20/95 SCO Press Release) Messman Deposition Exhibit. 1030 (9/20/95 Article from the Wall Street Journal) Other Timelines re UNIX

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