Robert Pogson

This is in a report on GROKLAW:

“Novell’s Mr. Brennan asks, When you were presenting to potential customers, you were referring to pre-APA versions?

Mr. Tibbitts answers, In part, yes.”

So SCOG showed malloc code comparisons and preliminary versions of the Asset Purchase Agreement to fool suckers into buying SCOSource commitments not to sue. When the malloc code had been widely discussed after being publicly showed, this is fraud, pure and simple, because the preliminary drafts included transfer of copyright at some point. The final version and the amendments stated explicitly that copyrights were excluded generally. Copyright for manuals was transferred, not for code.

• SCO’s malloc display and analysis by others
• what was transferred to Santa Cruz (SCOG’s predecessor in the business transferred)

Here are some excerpts:

• Excluded Assets “V. Intellectual Property:
  A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.”
• Amendment 2 changed this exclusion to “All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. However, in no event shall Novell be liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks.”

This wording was chosen because Novell was not even sure it had legal copyright to everything and Santa Cruz Operation certainly did not need copyrights to carry on the business which it did for years. This certainly is not a transfer of copyright in the ordinary senses of the term. SCOG was faudulently collecting millions for not suing people over violation of a copyright they did not own.

The malloc code is stuff that was released years ago by Caldera and certainly is not something SCOG defended in the SCOG v IBM case. Judge Kimball expressed astonishment at how little evidence SCOG presented after years of discovery and litigation.

If a corporation cannot be jailed for fraud, its officers should be.