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SCO's new deal with its lawyers
SCO's new deal with its lawyers
Posted Nov 4, 2004 21:21 UTC (Thu) by danw6144 (guest, #14336)Parent article: SCO's new deal with its lawyers
More lawyers are needed. The agreement between IBM,
Novell and SCO reads:
AMENDMENT NO. X
Novell, SCO, and IBM agree as follows:
1. No Additional Royalty. Upon payment to SCO of the
consideration in the section entitled "Consideration", IBM
will have the irrevocable, fully paid-up, perpetual right
to exercise all of its rights under the Related Agreements
beginning January 1, 1996 at no additional royalty fee.
The Copyright Act's section 203 reads:
Section 203. Termination of transfers and licenses granted
by the author.
(3) Termination of the grant may be effected at any time
during a period of five years beginning at the end of
thirty-five years from the date of execution of the
grant;...
Obviously the provision in Amendment X that states
"irrevocable, fully paid-up, perpetual right" is in
*direct* conflict with section 203's provision "at any time
during a period of five years beginning at the end of
thirty-five years" stated in subsection (3).
Since statutory copyright law prevails over contract
provisions, Amendment X is effectively nullified as to
duration by section 301(a) of the Copyright Act.
Mutual mistake about preemption probably voids covenants
under Amendment X unless the court can provide
other contract interpretation. No license exists, therefore
Novell can't waive anthing on behalf of IBM.
This conclusion is confirmed in light of the Seventh
Circuit Court of Appeals ruling in WALTHAL, ET AL. v COREY
RUSK, ET AL. 172 F3d 481 (Seventh Cir. 1999):
"Nimmer says that the 35-year period in sec. 203 is a
maximum period that a contract can be enforced, not a
minimum as Rano holds. See 3 Melville B. Nimmer & David
Nimmer, Nimmer on Copyrights sec. 11.01 (1998)...
Under the principle of preemption, for instance, in light
of the existence of sec. 203, we could not use common law
rules for the interpretation of contracts to require that a
contract for the life of the copyright be enforced for that
length of time. That interpretation would be in direct
conflict with sec. 203."
IBM is probably in more trouble than it admits.
Daniel Wallace
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SCO's new deal with its lawyers
Posted Nov 4, 2004 21:57 UTC (Thu) by JoeBuck (subscriber, #2330) [Link]
You've found a provision that says that a license grant can always be revoked after 35 years, and note that this conflicts with the perpetual license grant, and therefore think that the license grant can be revoked immediately. Sorry, but the law can't possibly work that way, as "perpetual license" is a common practice in the software industry, and no judge is going to instantly evaporate every non-term software license in the country.The best you could do with this kind of argument is to say that "perpetual license" really means 35 years.
SCO's new deal with its lawyers
Posted Nov 4, 2004 22:22 UTC (Thu) by iabervon (subscriber, #722) [Link]
Section 203 doesn't deal with works for hire, which I assume UNIX was. Otherwise, it would apply not to SCO's grant to IBM but Novell's grant, if any, to SCO, as it is only the author who can withdraw a grant, not any later owner. As SCO didn't write UNIX personally, section 203 isn't even applicable. See here, and note "other than a work made for hire" and "executed by the author".
SCO's new deal with its lawyers
Posted Nov 5, 2004 1:51 UTC (Fri) by error27 (subscriber, #8346) [Link]
>>Section 203 doesn't deal with works for hire, which I assume UNIX was.
You know what they say about assuming... The original UNIX was written a long time ago under different copyright laws. In the BSD trials the judge thought it was likely to not be copyright at all.
Just thought I'd throw that out.