Novell v. SCO certiorari petition
Al Petrofsky
U.S. Supreme Court's review of the decision in SCO Group, Inc. (f/k/a
Caldera International, Inc.) v. Novell Inc., 578 F.3d 1201 (10th
Cir. 2009).
I've placed a copy of the petition, as provided to me by Novell, here:
http://scofacts.org/Novell-vs-SCO-cert-petition.pdf
That includes the petition and all of the appendices, for a total of
229 pages (but only half a megabyte, thanks to the advanced method and
concept of "not pointlessly printing things out and scanning them back
in just to create a huge, textless, and crappy version of the
original").
Below is the text of the petition (without appendices).
____________________________________________________________
No. _________
================================================================
In The
Supreme Court of the United States
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NOVELL, INC., PETITIONER,
v.
THE SCO GROUP, INC.
------------------------------------------------------------------
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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PETITION FOR A WRIT OF CERTIORARI
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MICHAEL A. JACOBS DEANNE E. MAYNARD
GEORGE C. HARRIS Counsel of Record
MORRISON & FOERSTER LLP BRIAN R. MATSUI
425 Market Street JEREMY M. MCLAUGHLIN
San Francisco, CA 94105 MORRISON & FOERSTER LLP
2000 Pennsylvania Ave., N.W.
Washington, D.C. 20006
(202) 887-8740
dmay...@mofo.com
Counsel for Petitioner
MARCH 4, 2010
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
____________________________________________________________
QUESTION PRESENTED
Section 204(a) of Title 17 of the United States
Code provides: "A transfer of copyright ownership,
other than by operation of law, is not valid unless an
instrument of conveyance, or a note or memorandum
of the transfer, is in writing and signed by the owner
of the rights conveyed or such owner's duly autho-
rized agent." The question presented is:
Whether Section 204(a) requires a writing that
specifies which copyrights were conveyed, or whether,
as the court of appeals held, requires only that the
written instrument could be construed to convey some
copyrights, leaving the factfinder to determine which,
if any, copyrights were conveyed.
____________________________________________________________
ii
PARTIES TO THE PROCEEDING
The parties are as stated in the caption.
RULE 29.6 CORPORATE
DISCLOSURE STATEMENT
Petitioner has no parent corporation, and no pub-
licly held company owns 10% or more of petitioner's
stock.
____________________________________________________________
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED................................... i
PARTIES TO THE PROCEEDING ..................... ii
RULE 29.6 CORPORATE DISCLOSURE
STATEMENT .................................................... ii
TABLE OF AUTHORITIES ................................. v
PETITION FOR A WRIT OF CERTIORARI ....... 1
OPINIONS BELOW............................................. 1
JURISDICTION ................................................... 1
STATUTORY PROVISION INVOLVED .............. 1
INTRODUCTION ................................................ 2
STATEMENT OF THE CASE .............................. 4
A. Statutory Framework ................................ 4
B. Factual Background .................................. 5
C. Proceedings Below ..................................... 8
REASONS FOR GRANTING THE PETITION ..... 12
THE COURTS OF APPEALS ARE SHARPLY
DIVIDED ON THE REQUIREMENTS FOR
A COPYRIGHT TO BE VALIDLY TRANS-
FERRED UNDER SECTION 204(a)'S
WRITTEN-TRANSFER REQUIREMENT ....... 12
A. The Decision Below Deepens A Recog-
nized Circuit Conflict Concerning The
Written-Transfer Requirement Of Section
204(a) ......................................................... 13
____________________________________________________________
iv
TABLE OF CONTENTS � Continued
Page
B. Review Is Necessary Because The Ques-
tion Presented Raises An Issue Of Ex-
ceptional Importance To Every Owner Of
Copyrights ................................................. 18
1. The ruling below undermines predict-
ability and certainty in copyright
ownership ............................................ 18
2. This case is an ideal vehicle to
address Section 204(a) and raises
issues of utmost importance to open-
source software users throughout
the nation ............................................ 26
CONCLUSION..................................................... 29
Appendix A: Opinion of the United States
Court of Appeals for the Tenth
Circuit, dated August 24, 2009 ...........1a
Appendix B: Memorandum Decision and Or-
der of the United States District
Court for the District of Utah,
dated August 10, 2007 .......................59a
Appendix C: Order of the United States Court
of Appeals for the Tenth Circuit
denying petition for rehearing
and petition for rehearing en
banc, dated October 20, 2009 ..........190a
Appendix D: 17 U.S.C. � 204 ................................191a
____________________________________________________________
v
TABLE OF AUTHORITIES
Page
CASES:
American Plastic Equip., Inc. v. Toytrackerz,
LLC, No. 07-2253, 2009 WL 902422 (D. Kan.
Mar. 31, 2009) .....................................................17
Beck v. Prupis, 529 U.S. 494 (2000) .........................19
Bernstein v. Glavin, 725 N.E.2d 455 (Ind. Ct.
App. 2000) .........................................................23
Bridge v. Phoenix Bond & Indem. Co., 128
S. Ct. 2131 (2008) ................................................27
Community for Creative Non-Violence v. Reid,
490 U.S. 730 (1989) .........................................5, 18
Conwell v. Gray Loon Outdoor Mktg. Group,
Inc., 906 N.E.2d 805 (Ind. 2009) ...........................17
Dean v. Burrows, 732 F. Supp. 816 (E.D. Tenn.
1989) ..................................................................17
Eden Toys, Inc. v. Florelee Undergarment Co.,
697 F.2d 27 (2d Cir. 1982) .....................................21
Effects Assocs., Inc. v. Cohen, 908 F.2d 555
(9th Cir. 1990), cert. denied, 498 U.S. 1103
(1991) ................................................. 13, 14, 15, 21
Foraste v. Brown Univ., 290 F. Supp. 2d 234
(D.R.I. 2003) ......................................................17
Hammond v. Hacker, 111 So. 511 (Fla. 1927) ............19
ITOFCA, Inc. v. Mega Trans Logistics, Inc., 322
F.3d 928 (7th Cir. 2003) ......................................16
____________________________________________________________
vi
TABLE OF AUTHORITIES � Continued
Page
Johnson v. Tuff-n-Rumble Mgmt., Inc., No. 99-
1374, 2000 WL 1145748 (E.D. La. Aug. 14,
2000) ..................................................................17
Konigsberg Int'l, Inc. v. Rice, 16 F.3d 355 (9th
Cir. 1994) .......................................................14, 24
Lyrick Studios, Inc. v. Big Idea Prods., Inc., 420
F.3d 388 (5th Cir. 2005), cert. denied, 547
U.S. 1054 (2006) ...................................... 13, 14, 23
Maurice v. Hatterasman Motel Corp., 248
S.E.2d 430 (N.C. Ct. App. 1978) ...........................19
Merck & Co., Inc. v. Reynolds, No. 08-905 (U.S.
cert. granted May 26, 2009) ..................................27
MGM Studios Inc. v. Grokster, Ltd., 545 U.S.
913 (2005) ..........................................................24
Morissette v. United States, 342 U.S. 246 (1952).......20
National Ass'n for Stock Car Auto Racing, Inc.
v. Scharle, 356 F. Supp. 2d 515 (E.D. Pa.
2005) ..................................................................17
Playboy Enters., Inc. v. Dumas, 53 F.3d 549 (2d
Cir.), cert. denied, 515 U.S. 1010 (1995) ................15
Radio Television Espanola S.A. v. New World
Entm't, Ltd., 183 F.3d 922 (9th Cir. 1999)........14, 24
Rico Records Distribs., Inc. v. Ithier, No. 04-
9782, 2006 WL 846488 (S.D.N.Y. Mar. 30,
2006) ..................................................................17
Saenger Org., Inc. v. Nationwide Ins. Lic.
Assocs., Inc., 864 F. Supp. 246 (D. Mass.
1994) ..................................................................16
____________________________________________________________
vii
TABLE OF AUTHORITIES � Continued
Page
Saxon v. Blann, 968 F.2d 676 (8th Cir. 1992) ......13, 14
Schiller & Schmidt, Inc. v. Nordisco Corp., 969
F.2d 410 (7th Cir. 1992) ..................................15, 16
Shy v. Lewis, 12 S.W.2d 719 (Mo. 1928) ..................19
Sony Corp. of Am. v. Universal City Studios,
Inc., 464 U.S. 417 (1984) .....................................24
Trident Center v. Connecticut Gen. Life Ins. Co.,
847 F.2d 564 (9th Cir. 1988) ...................................3
Weinstein Co. v. Smokewood Entm't Group,
LLC, 664 F. Supp. 2d 332 (S.D.N.Y. 2009) .......16, 23
U.S. CONSTITUTION & STATUTES:
U.S. Const. art. I, � 8, cl. 8 .......................................4
17 U.S.C. � 204(a) ........................................... passim
17 U.S.C. � 302(a) ...................................................21
OTHER AUTHORITIES:
Robert S. Boynton, How to Make a Guerilla
Documentary, N.Y. TIMES, July 11, 2004
(magazine) .........................................................24
Jay Dratler, Jr., Intellectual Property Law:
Commercial, Creative, & Industrial Property
(2008) .................................................................20
Alice Haemmerli, Take It, It's Mine: Illicit
Transfers of Copyright by Operation of Law,
63 WASH. & LEE L. REV. 1011 (2006) ....................20
____________________________________________________________
viii
TABLE OF AUTHORITIES � Continued
Page
Molly Shaffer Van Houweling, Distributive
Values in Copyright, 83 TEX. L. REV. 1535
(2005) .................................................................25
Melville Nimmer & David Nimmer, Nimmer on
Copyright (2009).................................. 18, 22, 24, 25
Richard Powell, Powell on Real Property
(Michael Allan Wolf ed., 2009) ........................19, 20
Press Release, The SCO Group, The SCO Group
Announces Strategic Plan & Management
Change (Oct. 19, 2009) ........................................28
Stephen Shankland, CNET News, SCO sues
Big Blue over Unix, Linux (Mar. 6, 2003) ........27, 28
S. Rep. No. 105-190 (1998) (Conf. Rep.)...................25
H.R. Rep. No. 94-1476 (1976) ...............................5, 19
____________________________________________________________
PETITION FOR A WRIT OF CERTIORARI
Novell, Inc. respectfully petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Tenth Circuit.
OPINIONS BELOW
The opinion of the court of appeals (App., infra,
1a-58a) is reported at 578 F.3d 1201 (2009). The
memorandum decision and order of the district court
(App., infra, 59a-189a) is unreported.
JURISDICTION
The court of appeals entered its judgment on
August 24, 2009. A petition for rehearing and rehear-
ing en banc was denied on October 20, 2009. App.,
infra, 190a. On January 8, 2010, Justice Sotomayor
granted an extension of time within which to file a
petition for a writ of certiorari to and including Feb-
ruary 18, 2010, and, on February 4, 2010, she granted
a further extension to and including March 4, 2010.
This Court's jurisdiction is invoked under
28 U.S.C. � 1254(1).
STATUTORY PROVISION INVOLVED
Section 204(a) of Title 17 of the United States
Code provides: "A transfer of copyright ownership,
other than by operation of law, is not valid unless an
instrument of conveyance, or a note or memorandum
of the transfer, is in writing and signed by the owner
of the rights conveyed or such owner's duly autho-
rized agent." App., infra, 191a.
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2
INTRODUCTION
This case presents an important question of
statutory interpretation that will affect billions of
dollars in copyright transactions across the country.
The 1976 Copyright Act significantly overhauled
copyright law, in part to enhance predictability and
certainty in copyright ownership and transfer.
Section 204(a) of the act provides that a consensual
transfer of copyright ownership is "valid" only if made
through an "instrument of conveyance" or a "note or
memorandum of the transfer" that is "in writing and
signed by the owner of the rights conveyed." 17 U.S.C.
� 204(a). This provision furthers the Copyright Act's
goal of promoting certainty in copyright transactions
by requiring that any transfer of copyright ownership
be in a writing that memorializes the transaction.
Among other things, that writing serves as a guide-
post for subsequent disputes between parties and
their successors.
In this dispute, respondent The SCO Group, Inc.
claims that petitioner Novell, Inc. transferred owner-
ship of certain valuable copyrights to the UNIX
operating system--copyrights that have been licensed
to the world's leading businesses, institutions, and
governments and are critical to the nation's Internet
infrastructure. Respondent's ownership claims are
based on an ambiguous writing that fails to specify
which, if any, copyrights were actually subject to the
transaction between the parties. The court of appeals
held that such an ambiguous writing could effect a
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3
valid transfer under the Copyright Act. Under that
decision, it is enough to satisfy Section 204(a) if the
writing could be construed to convey some copyrights.
In the court of appeals' view, a jury can then be left
to determine--from extrinsic evidence and oral testi-
mony of "partisan witnesses whose recollection is
hazy from passage of time and colored by their con-
flicting interests"--which specific copyrights, if any,
were transferred. App., infra, 28a (quoting Trident
Center v. Connecticut Gen. Life Ins. Co., 847 F.2d 564,
569 (9th Cir. 1988)).
The effect of this ruling could not be more pro-
found, not only on petitioner and the millions of users
of the copyrights at issue in this dispute, but on every
individual, company, or institution that uses copy-
righted works and thus exposes itself to copyright
liability to the works' true owners. The court of ap-
peals' ruling undermines certainty and predictability
in copyright ownership, and creates a significant
likelihood that parties will be subject to claims that
they inadvertently transferred copyright ownership
in vague writings that set forth no terms of any
agreement and do not specify which copyrights, if
any, were conveyed. In this digital age, companies
investing in innovative ways to bring media to
consumers--through mobile devices, tablet com-
puters, or other e-readers--rely on licenses to provide
content. Especially given the increasing new uses of
older works, that content often comes with long
chains of title attached--some as long as a cen-
tury or more--that the ruling below will cloud.
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4
Organizations that have obtained, or are seeking to
obtain, copyrights have an interest in confirming
precisely who owns the copyrights. The ruling below
will frustrate that search for certainty.
This is of particular concern given that copy-
rights survive for 70 years after the death of the
original author. Copyright ownership disputes thus
often arise long after the memories of key percipient
witnesses have faded, or the key witnesses have died,
making it difficult or impossible to resolve such
disputes based on extrinsic evidence.
Not surprisingly, the ruling below cannot be
reconciled with the decisions of several other courts of
appeals. Absent this Court's review, the nation's
intellectual property will be subject to great un-
certainty and will be at risk of unintentional transfer
by ambiguous writings. And disputes over ownership
will be governed by divergent standards, which will
lead to forum shopping.
STATEMENT OF THE CASE
A. Statutory Framework
1. The original federal copyright law was en-
acted by the first Congress in 1790 pursuant to its
congressional authority "[t]o promote the Progress of
Science and useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries." U.S. Const. art.
I, � 8, cl. 8. While Congress enacted significant
revisions to the copyright laws in 1831, 1870, and
1909, after 1909 no substantial changes were made to
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5
the Copyright Act for nearly seven more decades.
During that decades-long interval, some of the most
significant changes to affect the operation of copy-
right law occurred--from the advancement of radio
and television to other technological advances.
In the 1976 Copyright Act, Congress significantly
overhauled copyright law, in part to enhance predict-
ability and certainty of copyright ownership. One
goal of these revisions was to limit the effect of incon-
sistent state laws on issues relating to copyright
transfers. Community for Creative Non-Violence v.
Reid, 490 U.S. 730, 740 (1989); see H.R. Rep. No.
94-1476, at 129-131 (1976). In Section 204(a) of the
act, Congress provided that a purported transfer of
a copyright "is not valid unless an instrument of
conveyance, or a note or memorandum of the transfer,
is in writing." 17 U.S.C. � 204(a). This provision
prevents later misunderstandings over copyright
ownership by requiring that parties spell out the
terms of their agreement, disciplining the parties to
clarify their thinking and consider future problems,
and determine which rights are to be transferred.
B. Factual Background
1. UNIX is a groundbreaking computer operat-
ing system first developed by AT&T in the late 1960s.
UNIX was the first operating system that standard-
ized the commands needed to make a computer
work, independent of the hardware. App., infra, 3a.
UNIX has been licensed to many of the world's
leading institutions, including government agencies,
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6
universities, and both large and small businesses.
Linux is an operating system which was developed as
part of a free and open source software collaboration.
Linux can be installed on a wide-range of computers
(including cell phones and digital video recorders).
Linux is extensively used for servers; it is estimated
that most web servers run on Linux.
In 1993, petitioner Novell paid over $300 million
to purchase UNIX System Laboratories, the AT&T
spin-off that owned the UNIX intellectual property,
including the copyrights, and customer agreements.
Two years later, petitioner decided to sell its UNIX
business to Santa Cruz. Petitioner and Santa Cruz
entered into an Asset Purchase Agreement dated
September 19, 1995. Because Santa Cruz did not
have sufficient cash to buy petitioner's UNIX busi-
ness, the deal was structured so that Novell retained
significant UNIX-related rights (including "[a]ll copy-
rights"), and Santa Cruz agreed to issue as con-
sideration shares of its common stock valued between
$125 to $150 million. App., infra, 3a-5a.
Under the Asset Purchase Agreement, the only
assets transferred were the "right, title, and interest
in and to the assets" identified in Schedule 1.1(a) of
the agreement. And the only "Intellectual Property"
identified in that schedule were the "[t]rademarks
UNIX and UnixWare"; nowhere did Schedule 1.1(a)
mention copyrights. To the contrary, Schedule 1.1(b)
to the Asset Purchase Agreement expressly excluded
certain assets from the transaction, including "[a]ll
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7
copyrights and trademarks, except for the trademarks
UNIX and UnixWare" and "[a]ll Patents." App., infra,
4a-5a. The Asset Purchase Agreement further pro-
vided that no assets would transfer until the parties
executed a Bill of Sale, which they did on December 6,
1
1995. The Bill of Sale provided that the Asset
Purchase Agreement was "the exclusive source of the
agreement and understanding between" the parties.
App., infra, 64a.
Approximately a year later, the parties amended
the Asset Purchase Agreement. This amendment
modified the assets expressly excluded by Schedule
1.1(b) so that the provision as modified excluded:
"[a]ll 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." App., infra, 5a. This
amendment, however, did not identify any specific
copyrights or trademarks that were being trans-
ferred. Moreover, the amendment did not include any
language of transfer and did not modify the assets
transferred in Schedule 1.1(a), which identified the
UNIX and UnixWare trademarks as the only intel-
lectual property transferred by the agreement. App.,
infra, 24a. Nor was a new Bill of Sale or other
1
The district court erroneously noted the date of execution
as December 6, "2005." App., infra, 64a.
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8
transfer document executed contemporaneous with
the amendment. App., infra, 24a.
2. In May 2001, Santa Cruz sold its UNIX
business to respondent SCO (then named Caldera).
App., infra, 8a.
Respondent SCO later launched what is known
as the "SCOsource initiative"--an aggressive and well-
publicized attempt by SCO to get users of Linux to
pay respondent licensing royalties. App., infra, 94a-
95a. In letters to 1500 Linux end-user corporations,
respondent claimed that Linux infringed respondent's
claimed UNIX intellectual property, and that those
Linux users needed to purchase a license from re-
spondent to continue use of Linux without infringing
respondent's copyrights. App., infra, 95a.
Some Linux users complied with respondent's
demand and purchased licenses; IBM, petitioner, and
others refused to do so. App., infra, 95a. Respondent
sued IBM and others, alleging that they infringed
SCO's claimed UNIX intellectual property rights, and
sought billions of dollars in damages. App., infra,
95a-96a. Petitioner, for its part, publicly declared
that it had never transferred the UNIX copyrights to
respondent and that respondent was not the owner of
the UNIX copyrights that the Linux users were
allegedly infringing. App., infra, 96a.
C. Proceedings Below
1. Respondent SCO filed a slander of title action
in state court, which petitioner removed to federal
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9
court. Petitioner Novell contended that it retained
the UNIX copyrights and eventually asserted
counterclaims for slander of title, breach of contract,
declaratory relief, restitution/unjust enrichment, and
accounting. SCO amended its pleadings and added
claims for breach of contract, specific performance,
copyright infringement, and unfair competition.
App., infra, 8a-9a.
The district court granted summary judgment for
petitioner, holding that petitioner owned the UNIX
copyrights at issue. App., infra, 138a-139a. The
court explained that under 17 U.S.C. � 204(a), "[a]
transfer of copyright is simply `not valid' without the
required written instrument." App., infra, 132a. The
amendment to the Asset Purchase Agreement did not
transfer any UNIX copyrights; rather, "[i]t merely
revised the definition of the intellectual property
category of the Excluded Assets schedule." App., infra,
133a. Moreover, the court reasoned that even had the
amendment to the Asset Purchase Agreement pur-
ported to transfer copyrights, that amendment "did
not identify which copyrights, if any, were `required
for SCO to exercise its rights with respect to the
acquisition of UNIX and UnixWare technologies.' "
App., infra, 134a. As the district court explained,
"[t]he written instrument required by Section 204
should contain sufficient information to serve as a
guidepost for the parties to resolve their disputes."
App., infra, 134a (internal quotation marks and
citation omitted).
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10
2. The court of appeals reversed the district
court in part. App., infra, 1a-58a.
The court held that there was an issue of fact as
to whether the amendment to the Asset Purchase
Agreement transferred ownership of the UNIX copy-
rights at issue in this case. App., infra, 28a. The
court explained that it was enough to satisfy the
Copyright Act's written-transfer requirement if there
was any writing that a jury could read as having
transferred some copyrights.
The court of appeals recognized that "predict-
ability and certainty of ownership" was a "paramount
goal" of the Copyright Act revisions, but nevertheless
concluded that Section 204(a) does not require any
particularity as to which copyrights a written docu-
ment purports to transfer. In reaching this conclu-
sion, the court acknowledged that it was parting ways
with "some courts" which have held that "a writing
is insufficient to transfer copyrights unless (1) it
reasonably identifies the subject matter of the agree-
ment, (2) is sufficient to indicate that the parties have
come to an agreement, and (3) states with reasonable
certainty the essential terms of the agreement."
App., infra, 21a. By contrast, the court of appeals
held that "Section 204's writing requirement is best
understood as a means of ensuring that parties
intend to transfer copyrights themselves, as opposed
to other categories of rights." App., infra, 22a. Any
"linguistic ambiguity concerning which particular
copyrights" were involved, the court noted, can be
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11
determined with the use of extrinsic evidence. App.,
infra, 23a.
Under this standard, the court of appeals did not
hold that any copyrights actually transferred from
petitioner to SCO. App., infra, 29a-37a. Rather, the
court below explained that whether any copyrights at
issue in this case had transferred was disputed,
because a rational trier of fact "could" conclude, based
upon extrinsic evidence, that "at least some copy-
rights transferred to SCO." App., infra, 31a-32a
(emphasis added). Based on this possibility that a
transfer had occurred, the court of appeals held that
the issue of copyright ownership could not be resolved
on summary judgment. Significantly, the court of
appeals recognized that there "may be reasons to
discount the credibility, relevance, or persuasiveness
of the extrinsic evidence that SCO presents." App.,
infra, 28a. Nevertheless, the court held that cases
involving "complicated, multi-million dollar business
transaction[s] involving ambiguous language" could
be resolved at trial, even though it might mean
resorting to "the self-serving testimony offered by
partisan witnesses whose recollection is hazy from
passage of time and colored by their conflicting
interests." App., infra, 27a-28a (citation omitted).
The court remanded for trial, which the district court
has scheduled for March 2010.
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12
REASONS FOR GRANTING THE PETITION
THE COURTS OF APPEALS ARE SHARPLY
DIVIDED ON THE REQUIREMENTS FOR
A COPYRIGHT TO BE VALIDLY TRANS-
FERRED UNDER SECTION 204(a)'S WRITTEN-
TRANSFER REQUIREMENT
This case presents a question of fundamental
importance to copyright law because it affects the
crucial question of who owns a copyright. The answer
to the question presented will have broad ramifica-
tions for the software, music, film, publishing, and
other creative industries. Under the court of appeals'
decision, a writing is sufficient under 17 U.S.C.
� 204(a) to transfer copyright ownership so long as
that writing evinces that a transfer of some copy-
rights might have been intended, even if the identity
of those copyrights is not clear. If allowed to stand,
this decision will leave to juries the question of what
rights, if any, have been transferred by an ambiguous
writing. This decision deepens a preexisting conflict
among the courts of appeals. Five courts of appeals
now have adopted divergent standards for deter-
mining whether Section 204(a)'s written-transfer
requirement has been met, and most require more
specificity than that tolerated by the decision below.
Because this case presents an ideal vehicle to address
an important and recurring problem, the petition
should be granted.
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13
A. The Decision Below Deepens A Recognized
Circuit Conflict Concerning The Written-
Transfer Requirement Of Section 204(a)
As the court of appeals expressly recognized,
(App., infra, 21a), the ruling below cannot be
reconciled with decisions of other courts that have
addressed the question presented.
1. In conflict with the decision in this case,
three courts of appeals have held that, to constitute a
valid transfer, a writing must identify with reason-
able certainty the specific subject matter and the
essential terms of the transfer. Lyrick Studios, Inc. v.
Big Idea Prods., Inc., 420 F.3d 388, 393-396 (5th Cir.
2005), cert. denied, 547 U.S. 1054 (2006); Saxon v.
Blann, 968 F.2d 676, 680 (8th Cir. 1992); Effects
Assocs., Inc. v. Cohen, 908 F.2d 555, 557 (9th Cir.
1990), cert. denied, 498 U.S. 1103 (1991). These
courts have thus required an "instrument of
conveyance" or a "note or memorandum of the
transfer," as the text of Section 204(a) mandates.
17 U.S.C. � 204(a).
In Effects Associates, Inc. v. Cohen, the Ninth
Circuit explained that a purpose that undergirds the
1976 revisions to the Copyright Act--viz., "predict-
ability and certainty of copyright ownership"--
requires parties to "spell[ ] out the terms of a deal in
black and white" so that they know "precisely what
rights" are involved in the transaction. Effects Assocs.,
908 F.2d at 557. In contrast to the ruling below, the
Ninth Circuit has explained that a writing that
____________________________________________________________
14
satisfies Section 204(a) must be sufficiently detailed
so that the "parties need only look to the writing" to
determine "their respective rights." Ibid. Thus, un-
like the Tenth Circuit, the Ninth Circuit has declined
to permit juries to determine whether vague writings
that refer to copyrights can constitute a valid transfer
of copyrights under Section 204(a). Radio Television
Espanola S.A. v. New World Entm't, Ltd., 183 F.3d
922, 927 (9th Cir. 1999) (Section 204(a) not satisfied
where a series of documents contained no "informa-
tion about the deal itself," such as "the terms of any
license agreement"); Konigsberg Int'l, Inc. v. Rice, 16
F.3d 355, 357 (9th Cir. 1994) (Section 204(a) not
satisfied because document was not specific enough to
"serve as a guidepost for the parties to resolve their
disputes").
The Fifth Circuit also has held that a collection
of documents that described only "some" terms of
an agreement "is not the kind of memorandum
envisioned by � 204(a)," Lyrick Studios, 420 F.3d at
393-396, and has reversed a jury's determination that
those documents granted an exclusive license. Like-
wise, unlike the court below, the Eighth Circuit has
explained that a document purporting to transfer
"rights of ownership" of a particular book (including
its negatives and layouts) is insufficient under Sec-
tion 204(a) without any mention of the term "copy-
right." Compare Saxon, 968 F.2d at 680 with App.,
infra, 24a (noting that a transfer does not even need
to mention the word "copyright" to satisfy Section
____________________________________________________________
15
204(a) (quoting Schiller & Schmidt, Inc. v. Nordisco
Corp., 969 F.2d 410, 413 (7th Cir. 1992))).2
There can be little doubt that in all three of these
courts of appeals the outcome of the present suit
would have been different. Far from ensuring that
the "parties need only look to the writing" to deter-
mine "their respective rights," Effects Assocs., 908
F.2d at 557, the decision below acknowledged that
petitioner "Novell has powerful arguments to support
its version of the transaction" and that there "may be
reasons to discount the credibility, relevance, or
persuasiveness of the extrinsic evidence that SCO
presents." App., infra, 28a. Nevertheless, the Tenth
Circuit found no impediment under Section 204(a) to
the use of extrinsic evidence that could lead to, "[a]t a
trial in a case like this, the intention of the parties
* * * `[being] divined from self-serving testimony
offered by partisan witnesses whose recollection is
hazy from passage of time and colored by their
conflicting interests.' " App., infra, 28a (citation
omitted).
2
The Second Circuit has held, in conflict with the Eighth
Circuit, that a transfer under Section 204(a) need not specify
that it is transferring copyrights to be valid. Playboy Enters.,
Inc. v. Dumas, 53 F.3d 549, 564 (2d Cir.), cert. denied, 515 U.S.
1010 (1995). That court, however, has not squarely addressed
the degree of certainty that is required for a transfer to take
place under Section 204(a). See ibid. (noting, but not expressly
adopting, the district court's willingness to consider parol evi-
dence to determine whether a valid transfer of copyright had
occurred).
____________________________________________________________
16
2. On the other side of the legal divide, the
Seventh Circuit has permitted extrinsic evidence to
determine whether copyrights have been transferred.
In Schiller & Schmidt, Inc. v. Nordisco Corp., 969
F.2d 410 (7th Cir. 1992), the Seventh Circuit held
that a written transfer agreement may satisfy Section
204(a) even when it "does not mention the word
`copyright' " itself. Id. at 413. Thus, according to the
Seventh Circuit, it is enough under Section 204(a) if
there is some writing; the "issue" then for the court
"is its interpretation." Ibid.; see also ITOFCA, Inc. v.
Mega Trans Logistics, Inc., 322 F.3d 928, 932 (7th Cir.
2003) (concluding that copyrights must have been
transferred by nonspecific agreement because other-
wise the transferee "could not use the [transferred
goods] profitably"). Such a ruling, like that of the
court below, allows Section 204(a) to be satisfied by a
writing that may not even transfer a copyright. Once
a court determines that Section 204(a) has been
satisfied, it falls to the factfinder to look to extrinsic
evidence to determine what rights, if any, have been
transferred.3
3
Federal district courts also are divided. Contrary to the
court of appeals here, several district courts (like the district
court in this case) have held that Section 204(a) requires
specificity as to the purported transfer. Saenger Org., Inc. v.
Nationwide Ins. Lic. Assocs., Inc., 864 F. Supp. 246, 250
(D. Mass. 1994) (requiring specificity in a writing purporting to
transfer a copyright under Section 204(a)); Weinstein Co. v.
Smokewood Entm't Group, LLC, 664 F. Supp. 2d 332, 342
(S.D.N.Y. 2009) (holding that a writing sufficient under Section
(Continued on following page)
____________________________________________________________
17
3. This conflict in the courts of appeals is well-
recognized, and it will not resolve itself absent this
Court's review.
The Supreme Court of Indiana has acknowledged
that "the federal circuits do not yet agree on the
nuances" of Section 204(a)'s writing requirements.
Conwell v. Gray Loon Outdoor Mktg. Group, Inc., 906
N.E.2d 805, 816 (Ind. 2009). Nor has this conflict
been lost on commentators. One leading copyright
treatise notes the different standards that apply to
204(a) will provide "the parties with a clear guide to their rights
and responsibilities"); American Plastic Equip., Inc. v.
Toytrackerz, LLC, No. 07-2253, 2009 WL 902422, at *5 (D. Kan.
Mar. 31, 2009) (writing did not "clearly show an agreement to
transfer the rights in the copyright"); Foraste v. Brown Univ.,
290 F. Supp. 2d 234, 239 (D.R.I. 2003) (rejecting a writing that
contained "[n]ot a single relevant detail of the purported
transfer" and "spell[ed] out no material terms"). On the other
hand, some district courts have permitted transfers to occur
based on broad, general language like the ruling below. See, e.g.,
Rico Records Distribs., Inc. v. Ithier, No. 04-9782, 2006 WL
846488, at *1 (S.D.N.Y. Mar. 30, 2006) (a Section 204 writing
need only specify "that a copyright transfer was intended");
National Ass'n for Stock Car Auto Racing, Inc. v. Scharle, 356
F. Supp. 2d 515, 523 (E.D. Pa. 2005) (characterizing Section 204
as a "lax" requirement and finding sufficient a document that
transferred all copyrights generally); Johnson v. Tuff-n-Rumble
Mgmt., Inc., No. 99-1374, 2000 WL 1145748, at *6 (E.D. La. Aug.
14, 2000) (copyright transfer valid because, even though the
specifics of what was transferred were "ambiguous," the writing
contemplated the assignment of some copyrights); Dean v. Bur-
rows, 732 F. Supp. 816, 823 (E.D. Tenn. 1989) (finding sufficient
a check endorsement referring to "mold designs and molds"
without mentioning copyright ownership).
____________________________________________________________
18
Section 204(a)'s written-transfer requirement. See 3
Melville Nimmer & David Nimmer, Nimmer on Copy-
right � 10.03[2] (2009). The treatise explains that a
writing lacking the terms "transfer" and "copyright"
sometimes "may suffice," but it also notes that some
courts have reached an "alternative holding." Ibid.
B. Review Is Necessary Because The Question
Presented Raises An Issue Of Exceptional
Importance To Every Owner Of Copyrights
1. The ruling below undermines predict-
ability and certainty in copyright owner-
ship
This Court has recognized that a "paramount
goal" of the 1976 Copyright Act was to create a
"national, uniform copyright law" and thus "enhanc[e]
predictability and certainty of copyright ownership."
Community for Creative Non-Violence v. Reid, 490
U.S. 730, 740 & 749 (1989). The standard adopted by
the ruling below--which permits any writing that
arguably purports to transfer some copyright to
satisfy Section 204(a)--will frustrate that congres-
sional purpose and will have a significant adverse
effect on copyright ownership in industries dealing in
intellectual property worth billions of dollars.
a. Section 204(a) gives effect to Congress' goal of
certainty and predictability, because the only way a
transfer can be certain is when the terms of that
transfer are explicit. Congress thus did not permit
any writing to satisfy the written-transfer require-
ment. Rather, Congress required an "instrument of
____________________________________________________________
19
conveyance" or a "note or memorandum of the
transfer." 17 U.S.C. � 204(a); see also H.R. Rep. No.
94-1476, at 124 (1976) (noting that a "specific written
conveyance of rights" is required to transfer a
copyright) (emphasis added).
That choice of words is significant. At common
law, to be a valid transfer of real property, "instru-
ments of conveyance," such as deeds, must have
"language in the description sufficient to serve as a
guide." Maurice v. Hatterasman Motel Corp., 248
S.E.2d 430, 432 (N.C. Ct. App. 1978); see also Shy v.
Lewis, 12 S.W.2d 719, 721 (Mo. 1928) (discussing the
specificity required in the written instrument of
transfer). This specific language must be within the
instrument itself; courts will not resort to extrinsic
evidence to cure ambiguities unless they can first
determine from the instrument the "particular piece
of land" involved. Hammond v. Hacker, 111 So. 511,
511 (Fla. 1927); see also 14 Richard Powell, Powell on
Real Property � 81A.05[1][c][iii] (Michael Allan Wolf
ed., 2009) ("a description may not be so meager in
its identification of the property as to require sub-
stantially the entire description to depend on parol
evidence"). Given that settled understanding, Con-
gress is presumed to have intended those prerequi-
sites when it required an "instrument of conveyance"
or other "note or memorandum of transfer" for
copyright. See Beck v. Prupis, 529 U.S. 494, 500-501
(2000) ("[W]hen Congress uses language with a
settled meaning at common law, Congress `presuma-
bly knows and adopts the cluster of ideas that were
____________________________________________________________
20
attached to each borrowed word in the body of
learning from which it was taken and the meaning its
use will convey to the judicial mind unless otherwise
instructed.' " (quoting Morissette v. United States, 342
U.S. 246, 263 (1952))).
And Congress required such a writing for the
same reason that "instruments of conveyance" were
introduced into real property law: to make it possi-
ble "to prove the transfer, and its specific terms,
many years into the future." 14 Powell, supra,
� 81A.01[2][b]; see Alice Haemmerli, Take It, It's Mine:
Illicit Transfers of Copyright by Operation of Law, 63
WASH. & LEE L. REV. 1011, 1012 (2006) (noting that
"the drafters of the Act undertook to ensure that
transfers of ownership would be clearly demarcated[,]
always explicit[,] * * * and unequivocally intention-
al"). As with real property transfers, the written-
transfer requirement for copyrights serves the
purposes of "establish[ing] the boundaries of the prop-
erty," "determin[ing] the extent of record notice," and
providing descriptions of the property for third par-
ties. 14 Powell, supra, � 81A.05[1][b]. Indeed,
specificity is particularly important for copyright
transfers because, unlike a parcel of real property,
which is confined to a specific place, a copyright is
intangible. See 3 Jay Dratler, Jr., Intellectual Property
Law: Commercial, Creative, & Industrial Property
� 6.03[3] at 6-74.5 through 6-74.6 (2008) (explaining
that intellectual property transactions inevitably
require parties to "describ[e] the bounds of intangible
rights that cannot be seen or felt").
____________________________________________________________
21
Moreover, the length of copyright protection, and
the continuing development of new uses of older
works, make specificity especially important in intel-
lectual property transactions. See 17 U.S.C. � 302(a)
(providing that copyrights created on or after January
1, 1978 are protected for the life of the author and 70
years after the author's death). Under the ruling
below, factfinders often will be required to discern
whether there was an intent to transfer from ex-
trinsic evidence, including witnesses who may not
remember the original understanding or who may be
unavailable because they have since passed away.
b. It has been the real-world experience of
copyright holders and courts resolving such disputes
that a specific writing requirement under Section
204(a) is critically important to ensure that each
party to a copyright transaction knows precisely what
rights are being transferred. This clarity is guaran-
teed only by a requirement that any transfer taking
place pursuant to Section 204(a) clearly describe the
rights at issue. As other courts of appeals have
explained, Section 204(a) forces parties "to clarify
their thinking" and "spell[ ] out the terms of a deal in
black and white." Effects Assocs., 908 F.2d at 557.
This avoids the untoward result, which Congress
sought to guard against, of a hapless author inadver-
tently giving away his or her copyrights. Ibid. ("Sec-
tion 204 ensures that the creator of a work will not
give away his copyright inadvertently"); Eden Toys,
Inc. v. Florelee Undergarment Co., 697 F.2d 27, 36 (2d
Cir. 1982) ("the purpose of [Section 204(a)] is to
____________________________________________________________
22
protect copyright holders from persons mistakenly or
fraudulently claiming" property rights). Under the
ruling below, however, owners of copyrights are more
susceptible to challenges from litigants who have al-
legedly acquired rights under ambiguous writings
purporting to transfer some unspecified copyrights
from the author.
Indeed, the concerns raised by the ruling below
are anything but inchoate. The court of appeals in
this case held that a jury should determine what
copyrights, if any, were transferred by an ambiguous
writing that addressed only what copyrights were
excluded from the transaction in question. App.,
infra, 27a-28a. In reaching this conclusion, the court
of appeals acknowledged that partisan witnesses with
fading memories would be presenting potentially self-
serving testimony to a jury. App., infra, 28a. Eco-
nomic considerations and other conditions can easily
change over time resulting in "[r]emanufactured
memories and new advice * * * combin[ing] to ascribe
an updated and previously uncontemplated meaning
to the term[s]" in an ambiguous writing. 3 Nimmer,
supra, � 10.08[B] (citation omitted).
c. If left uncorrected, the ruling below will
adversely affect a broad range of industries, ranging
from performing arts and literary works to computer
software companies, which collectively own copy-
rights worth billions of dollars.
Cases in these industries demonstrate that the
pernicious effects generated by the decision below will
____________________________________________________________
23
reach all levels of industries dealing in copyright
ownership. Production companies and artists have
long faced costly challenges involving the ownership
of copyrighted works, and, because there often are not
clear writings memorializing agreements, the out-
come of the dispute depends upon the written-
transfer standard the court applies. For example,
there have been challenges involving entertainment
for children. See Lyrick Studios, 420 F.3d at 390-391
(even though there was no final, signed agreement
between the parties, and even though the initial
proposal between the companies indicated that "no
contract will exist until both parties have executed a
formal agreement," the jury found that a collection
of documents constituted a contract that granted
exclusive licensing rights);4 Bernstein v. Glavin, 725
N.E.2d 455, 459 (Ind. Ct. App. 2000) (holding that the
author of the lyrics to the theme song for the hit
children's program Barney and Friends had trans-
ferred her ownership rights in return for a mere copy
of a children's songbook and recognition as the song's
writer). And there have been lawsuits involv-
ing Oscar nominated films. See Weinstein Co. v.
Smokewood Entm't Group, LLC, 664 F. Supp. 2d 332,
4
Although the Fifth Circuit ultimately reversed the jury
finding and adopted a more rigorous requirement for Section
204(a) writings, the case demonstrates the dangerous conse-
quences that could flow from a rule, like that adopted by the
decision below, which permits ambiguous documents to transfer
copyright ownership and relies on a jury's interpretation to
determine what copyrights were transferred.
____________________________________________________________
24
339-340 (S.D.N.Y. 2009); see also Radio Television
Espanola S.A. v. New World Entm't, Ltd., 183 F.3d
922, 927-929 (9th Cir. 1999) (rejecting argument that
documents generated during negotiations were suffi-
cient for purposes of Section 204(a) to grant an exclu-
sive license to broadcast Spiderman and Marvel
Action Hour). Even authors ranking among the most
widely read in modern history have faced challenges
by parties claiming ownership rights in their works.
See Konigsberg Int'l, 16 F.3d at 356-357 (rejecting a
claim that Anne Rice had granted ownership rights
based on a document generated after a lawsuit was
instituted).
And clear title to copyrights has become par-
ticularly vital in the digital age. 3 Nimmer, supra,
� 12B.01 (noting copyright owners' concerns about
copyright infringement due to developments in the
digital age); cf. Sony Corp. of Am. v. Universal City
Studios, Inc., 464 U.S. 417, 430 (1984) ("From its
beginning, the law of copyright has developed in
response to significant changes in technology.").
Copyrighted material is licensed and then reproduced
in numerous media at a rapid pace. MGM Studios
Inc. v. Grokster, Ltd., 545 U.S. 913, 928-929 (2005)
(noting the ease with which copyrighted materials
can be distributed digitally); Robert S. Boynton, How
to Make a Guerilla Documentary, N.Y. TIMES, July 11,
2004 (magazine) (commenting on the ease with which
the public can make productions available electron-
ically). Computers, tablet computers, e-readers, and
other mobile devices have become new means for
transmitting copyrighted works to consumers, and
____________________________________________________________
25
the providers of such content depend on the certainty
that Section 204(a) was intended to provide. See
3 Nimmer, supra, � 12B.01; Molly Shaffer Van
Houweling, Distributive Values in Copyright, 83 TEX.
L. REV. 1535, 1539 (2005) (explaining the important
role that copyright protection plays for artists in the
digital age); see generally S. Rep. No. 105-190, at 1
(1998) (Conf. Rep.) (explaining that a purpose in
amending copyright law is to "provide certainty" for
copyright owners in light of emerging technologies).
In this digital age where movies, music, and
software are all available online for purchase or
license, the ruling below destabilizes more than just
the direct parties to an ambiguous transaction.
Unlike a parcel of real property, which will have a
physically limited number of users, a copyright may
be used by thousands or tens of thousands of indi-
viduals and companies across the globe. Indeed, this
case involves an attempt by a party to claim owner-
ship in open-source software that is extensively used
throughout the world to support many of the world's
websites. Unless the specific copyright alleged to be
in the software is in fact owned by the individual who
licensed these uses, every one of these end users is a
potential infringer. This would certainly be the case
with a germinal operating system such as UNIX,
whose uncounted users have investment-backed
expectations that their licensor owns the relevant
copyrights. The same is true for the millions of users
that download books, music, and movies every day
through services such as iTunes and Netflix. Yet if
____________________________________________________________
26
ambiguous documents are permitted to effect a trans-
fer of copyright ownership, costs for these everyday
transactions will increase as licensors will be forced
to expend significant effort to ascertain each link in
the copyright chain of title.
The less stringent standard for Section 204(a)
adopted by the decision below creates significant un-
certainty, will give rise to costly lawsuits, and en-
courage forum shopping, as savvy litigants with the
alleged back-of-the-cocktail-napkin agreement will
file suits in jurisdictions, like the Tenth Circuit,
where that ambiguity is enough to have a jury--
rather than specific transfer documents resulting
from arms-length negotiations--determine which
copyrights have been transferred.
2. This case is an ideal vehicle to address
Section 204(a) and raises issues of ut-
most importance to open-source software
users throughout the nation
a. This case presents an ideal vehicle for the
Court to address Section 204(a)'s written-transfer
requirements. The writings relied on by respondent
as satisfying Section 204(a) are plainly ambiguous
and provide this Court with a clear example of the
type of unclear language that sometimes is used in
these kinds of business transactions. Indeed, the
court of appeals concluded that a jury trial was neces-
sary to determine which copyrights, if any, were
transferred by the writings at issue in this case.
App., infra, 37a. Thus, it cannot be disputed that a
____________________________________________________________
27
rejection of the Section 204(a) standard adopted by
the ruling below would be dispositive in this case.
Moreover, notwithstanding the fact that the court
of appeals remanded the case for trial, this Court
should address the question presented now, because
any extrinsic evidence that may be developed in the
district court is irrelevant to the Section 204(a)
analysis. Indeed, in cases where further development
of the record will not enhance this Court's review, the
Court has not hesitated to address case-dispositive
legal questions despite ongoing proceedings on re-
mand. See, e.g., Merck & Co., Inc. v. Reynolds, No.
08-905 (U.S. cert. granted May 26, 2009); Bridge v.
Phoenix Bond & Indem. Co., 128 S. Ct. 2131 (2008).
b. The question presented has substantial
ramifications beyond this case. The decision below
potentially affects all users of Linux, which is a vital
open-source computer operating system used in
webservers throughout the nation, as respondent
claims those users are infringing the copyrights
allegedly transferred to it by petitioner. Respondent
already has sued IBM and others, see, e.g., The SCO
Group v. IBM (No. 03-294 D. Utah), The SCO Group
v. AutoZone (No. 04-237 D. Nev.), The SCO Group v.
DaimlerChrysler (04-056587 Oakland County 6th
Judicial Circuit Ct. (Cal.)), demanding billions of dol-
lars in damages. Such lawsuits create high stakes for
defendants, and in terrorem settlements by parties
who are unwilling to litigate "are often quite lucra-
tive" for plaintiffs. Stephen Shankland, CNET News,
____________________________________________________________
28
SCO sues Big Blue over Unix, Linux (Mar. 6, 2003),
available at tinyurl.com/yfvvqjq (last visited Mar. 2,
2010). Although some of those suits apparently
have settled, respondent continues to look for other
Linux users it might sue. Press Release, The SCO
Group, The SCO Group Announces Strategic Plan &
Management Change (Oct. 19, 2009), available at
tinyurl.com/yhh2lp5 (last visited Mar. 2, 2010)
(indicating respondent's plan to "pursue litigation").
This has resulted in "fear, uncertainty and doubt"
within the software industry and among users of
Linux, which is precisely what respondent sought as
part of its plan to garner royalties. Shankland,
supra.
Indeed, due to the uncertainty caused by respon-
dent's actions, numerous lawsuits arose as the indus-
try struggled to resolve the ensuing confusion, and
websites have been developed for the very purpose of
following the controversy generated by respondent's
actions. See www.groklaw.net. Given respondent's
avowed campaign of collecting licensing royalties,
there is no reason to believe that these lawsuits are
nearing an end. Moreover, even aside from the
copyrights at issue in this case, permitting a copy-
right transfer to be based on ambiguous writings will
open the door for other parties to benefit from dubi-
ous claims of copyright ownership. Only early inter-
vention by this Court can stifle the wave of litigation
that already has begun.
____________________________________________________________
29
CONCLUSION
For the reasons set forth above, the petition for a
writ of certiorari should be granted.
Respectfully submitted,
MICHAEL A. JACOBS DEANNE E. MAYNARD
GEORGE C. HARRIS Counsel of Record
MORRISON & FOERSTER LLP BRIAN R. MATSUI
425 Market Street JEREMY M. MCLAUGHLIN
San Francisco, CA 94105 MORRISON & FOERSTER LLP
2000 Pennsylvania Ave., N.W.
Washington, D.C. 20006
(202) 887-8740
dmay...@mofo.com
Counsel for Petitioner
MARCH 4, 2010
Al Petrofsky
yesterday in Novell, Inc. v. SCO Group, Inc. (f/k/a
Caldera International, Inc.), No. 09-1061, U.S. Sup. Ct..
I've placed a copy of the opposition, as provided to me by Novell, here:
http://scofacts.org/Novell-vs-SCO-cert-opposition.pdf
That's just a scan, with highly-inaccurate OCR, because the court's
stone-age rules do not require SCO to provide the electronic text of
its brief to anyone (although the rules do at least require electronic
text for the actual merits briefs in cases in which certiorari is
granted; see SCR 25.9).
(As noted in the parent of this message, Novell's petition, filed back
in March (before the latest trial began), can be found here:
<http://scofacts.org/Novell-vs-SCO-cert-petition.pdf>.)
SCO's first argument is that "THE PETITION IS MOOT", on account of
Novell prevailing on everything at trial, and the Court should deny
this petition and instead consider the petition that Novell would be
entitled to file if and when the Tenth Circuit were to reverse the
latest trial result. SCO only devotes one of its fifteen pages to
this argument, because it is so simply stated. However, I'm guessing
the Court will find it to be ample reason to deny the petition (and,
indeed, to not even bother reading the rest of the briefs).
When I say that "SCO filed [the brief] yesterday", that just means
that SCO sent it on its way to the Court yesterday. Sometime after
the Court actually receives it, note of its filing should be added to
the Court's docket page, which can be found here: