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Novell-872.Pdf Brent O. Hatch (5715) Stuart Singer (admitted pro hac vice) [email protected] [email protected] Mark F. James (5295) Sashi Bach Boruchow (admitted pro hac vice) [email protected] [email protected] HATCH, JAMES & DODGE, PC BOIES SCHILLER & FLEXNER LLP 10 West Broadway, Suite 400 401 East Las Olas Blvd. Salt Lake City, Utah 84101 Suite 1200 Telephone: (801) 363-6363 Fort Lauderdale, Florida 33301 Facsimile: (801) 363-6666 Telephone: (954) 356-0011 Facsimile: (954) 356-0022 David Boies (admitted pro hac vice) [email protected] Robert Silver (admitted pro hac vice) [email protected] Edward Normand (admitted pro hac vice) [email protected] BOIES SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 Telephone: (914) 749-8200 Facsimile: (914) 749-8300 Attorneys for Plaintiff, The SCO Group, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH THE SCO GROUP, INC., by and through the SCO’S MEMORANDUM IN SUPPORT Chapter 11 Trustee in Bankruptcy, Edward N. OF ITS RENEWED MOTION FOR Cahn, JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, FOR A Plaintiff/Counterclaim-Defendant, NEW TRIAL vs. Civil No. 2:04 CV-00139 NOVELL, INC., a Delaware corporation, Judge Ted Stewart Defendant/Counterclaim-Plaintiff. TABLE OF CONTENTS TABLE OF AUTHORITIES .........................................................................................................iii PRELIMINARY STATEMENT .................................................................................................... 1 ARGUMENT.................................................................................................................................. 3 I. SCO IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ................................... 3 A. SCO Acquired the Copyrights Required to Exercise SCO’s Ownership Rights in the UNIX and UnixWare Technologies It Acquired.................................. 4 B. The Copyrights Are Required for SCO to Exercise Its Ownership Rights in The UNIX and UnixWare Technologies It Acquired................................................ 9 II. IN THE ALTERNATIVE, SCO IS ENTITLED TO A NEW TRIAL............................. 14 A. SCO Acquired the UNIX and UnixWare Copyrights.............................................. 15 1. The Intent of the Negotiators and Principals Regarding the APA.................. 15 2. The Parties’ Course of Performance............................................................... 22 B. The Copyrights Are Required for SCO to Exercise Its Ownership Rights in the UNIX and UnixWare Technologies It Acquired................................ 24 CONCLUSION............................................................................................................................. 25 ii TABLE OF AUTHORITIES Cases Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33 (1980).................................................................................................................... 14 Black v. Heib’s Enters., Inc., 805 F.2d 360 (10th Cir. 1986) ............................................................................................ 14, 15 Brown v. McGraw-Edison Co., 736 F.2d 609 (10th Cir. 1984) .................................................................................................. 14 Caruolo v. John Crane, Inc., 226 F.3d 46 (2d Cir. 2000)........................................................................................................ 15 Children’s Broadcasting Corp. v. Walt Disney Co., 357 F.3d 860 (8th Cir. 2004) .................................................................................................... 14 Davis v. Blige, 505 F.3d 90 (2d Cir. 2007).......................................................................................................... 9 Flying J Inc. v. Comdata Network, Inc., 405 F.3d 821 (10th Cir. 2005) .................................................................................................. 18 Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (1996).................................................................................................................. 14 Giles v. Rhodes, 171 F. Supp. 2d 220 (S.D.N.Y. 2001)....................................................................................... 15 ITOFCA, Inc. v. Megatrans Logistics, Inc., 322 F.3d 928 (7th Cir. 2003) ...................................................................................................... 5 J.I. Case Credit Corp. v. Crites, 851 F.2d 309 (10th Cir. 1988) .................................................................................................... 4 Relational Design & Tech., Inc. v. Brock, No. 91-2452-EEO, 1993 WL 191323 (D. Kan. May 25, 1993) ................................................. 5 Shaw v. AAA Eng’g & Drafting, 213 F.3d 519 (10th Cir. 2000) .................................................................................................... 3 Shugrue v. Cont’l Airlines, Inc., 977 F. Supp. 280 (S.D.N.Y. 1997).............................................................................................. 5 iii Siemens Med. Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc., 615 F. Supp. 2d 884 (N.D. Iowa 2009)..................................................................................... 15 Silvers v. Sony Pictures Entmt., Inc., 402 F.3d 881 (9th Cir. 2005) ................................................................................................ 9, 13 Tanberg v. Sholtis, 401 F.3d 1151 (10th Cir. 2005) ................................................................................................ 15 The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201 (10th Cir. 2009) ......................................................................................... passim Traicoff v. Digital Media, Inc., 439 F. Supp. 2d 872 (S.D. Ind. 2006)....................................................................................... 10 Vanmeveren v. Whirlpool Corp., 65 Fed. Appx. 698 (10th Cir. 2003)............................................................................................ 3 Wagner v. Live Nat’l Motor Sports, Inc., 586 F.3d 1237 (10th Cir. 2009) ..................................................................................................3 Other Authorities 1 Copyright Throughout the World § 19:29 (2009)...................................................................... 10 1 The Law of Copyright § 4:44 (2009)......................................................................................... 10 17 U.S.C.A. § 101......................................................................................................................... 10 3 Patry on Copyright § 7:2 (2010) ................................................................................................ 10 Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, 3 J. High Tech. L. 1 (2003)........................................................ 10 Fed. R. Civ. P. 50(a)(1)................................................................................................................... 3 Fed. R. Civ. P. 50(b) ..................................................................................................................... 14 Fed. R. Civ. P. 59(a) ..................................................................................................................... 14 Restatement (Second) of Contracts § 201(2)................................................................................ 18 iv Plaintiff/Counterclaim-Defendant, The SCO Group, Inc. (“SCO”), respectfully submits this Renewed Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial.1 PRELIMINARY STATEMENT The jury verdict in this case is the type for which Rule 50(b) and Rule 59 exist. The jury simply got it wrong: The verdict cannot be reconciled with the overwhelming evidence or the Court’s clear instructions regarding the controlling law. The jury answered “no” to the single question: “Did the amended Asset Purchase Agreement transfer the UNIX and UnixWare copyrights from Novell to SCO?” We do not know whether the verdict resulted from misapprehension of the jury instructions, confusion about the meaning of prior judicial decisions that Novell read into the record for the ostensible purpose of challenging SCO’s damages theory, Novell’s persistent efforts to focus the jury on the old language of the Asset Purchase Agreement (“APA”) which was replaced by a binding amendment, or other factors. Whatever the explanation for the verdict, the evidence demonstrated that ownership of the UNIX and UnixWare copyrights is required for SCO to exercise the complete ownership rights in the UNIX and UnixWare technologies (including the source code) it acquired under the APA, and that the amended APA provides that such copyrights were transferred. That record compels judgment as a matter of law for SCO under Rule 50(b). At a minimum, the verdict is clearly against the substantial weight of the evidence, necessitating a new trial under Rule 59. 1 These motions and SCO’s Proposed Findings on its claim for specific performance all relate to the ownership of the UNIX and UnixWare copyrights. SCO believes the appropriate order of consideration is for the Court first to decide the Rule 50(b) motion which, if granted, would set aside the jury determination on ownership of the copyrights as a matter of law; if that were not granted, to consider SCO’s alternative motion for a new trial under Rule 59; and if neither of these post-trial motions were
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