Tuesday, May 22, 2007


5/22 SNR

One thing I ought to have mentioned yesterday is that among the pile of SCO filings was an unsealed declaration by one G. Gervaise Davis III. Discussion at Groklaw and Lamlaw.

He's a semi-retired IP lawyer, and he tries to explain what agreements like the OldSCO-Novell APA deal "usually" mean. Novell came up with the people who actually negotiated the deal, and they explained quite clearly what they had in mind at the time. SCO just has a guy who had nothing at all to do with the deal, but who has an extremely long resume. They appear to be arguing, now, that Novell accidentally transferred the copyrights, despite their intentions, and despite the plain wording of the asset purchase agreement. It's a stupid and nonsensical argument, but it's all SCO's got at this point.
It's important to see the Davis declaration in context. SCO's using it to try to fend off a looming PSJ motion. To do that, they don't actually have to prove that the copyrights really did transfer. They just have to convince the judge there are disputed facts around the issue, and the truth of the matter can only be resolved by a jury. That's all they need to accomplish right now, but even that might be a hard sell. Davis's argument is all about legal opinions, not disputed facts.

That's a strange bit, by the way. Davis is a lawyer, and he offers his professional legal opinion in his declaration. Yet SCO presents him as an expert witness, not as another attorney working on SCO's cases. I'm no lawyer, but this seems like dirty pool. They're making a nutty argument, and not really taking responsibility for it. Is this really SCO's position in the case, or isn't it?

After reading the declaration, one has to wonder who this Gervaise guy is. Well, details are starting to emerge. Over on IV, a great bit of research by Spanishinquisition brings some fun details to light. Gervaise Davis has been around the block a few times, and happened to work for Digital Research back when they failed to land the OS contract for the original IBM PC. Seems he argued against signing an NDA with IBM, for some reason, which was a bit of a dealbreaker. Then he convinced DR not to sue Microsoft for substantially cloning their CP/M operating system.

There may be even more to that. In his declaration, Davis also says he worked on DR-DOS for Digital Research. DR was eventually bought by Caldera, and Caldera soon launched their well-known suit against M$. M$ ended up coughing up a large pile of cash to make the suit go away. And now Caldera is [New]SCO. I don't know what that might mean. Just that there's prior history between Davis and one of SCO's predecessors-in-interest. Hmmmm...

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