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How the World (of SCOX) Ends | 46 comments (46 topical, editorial, 3 hidden)
Re: Pessimistic? I don't think so. (3.66 / 3) (#40)
by pgk (PG_King zzzzzzz (yahoo.com)) on Sat Aug 6th, 2005 at 03:46:45 EST
(User Info)
I'm not convinced it's as simple as that. Novell aren't a party to the contracts and so cannot insert themselves into them to make a claim against SCO.

Again back to the analogy, I have wronged person Y by selling something which was not mine. If person X decides ok $5000 is a fair price, person X cannot come after me for the $5000, I have no relationship with person X. Person X is still the rightful owner of the car. Person Y would have to retrieve the money and enter into a separate deal with person X.

OK in Novell's case there APA forms a relationship with SCO, but since the APA does not permit selling of new licenses or substantial changes to existing license, Novell doesn't have that contractual relationship with SCO.

Even it somehow they can, it would seem dangerous to me, as it is effectively setting a precedent that SCO can do such activities provided they send on the royalties. SCO could do the same in the future (on very different terms) and Novell could be in an estoppel position  due to the acceptance this time for SCO doing so.

Not to mention Novell would be particularly foolish (in my view) to get involved in contracts for which it has no knowledge of the breadth or depth of rights issued. What if the rights issues go beyond the bounds of even Novell's rights to third party code?

Regarding SCO being estopped in their defence, of course they are. The defence will be as you say that they believed they owned the rights and it's nothing to do with Novell.  If the judge finds that Novell do own the rights, it's no different Novell don't take over ownership of the contracts, the contracts are voided.  

No different to me selling the car, if my defence is I believe I was allowed to sell the car, I still haven't defrauded X, because my belief was false. Person X is still the rightful owner of the car and no action on my part can change that. Person X still hasn't lost out. The only person who can attempt to retrieve the money from me is person Y, the person I defrauded.


[ Parent ]

  • Re: Pessimistic? I don't think so. by sphealey, 08/06/2005 10:48:21 EST (4.00 / 3)
    • Re: Pessimistic? I don't think so. by pgk, 08/06/2005 12:31:22 EST (none / 2)

How the World (of SCOX) Ends | 46 comments (46 topical, 0 editorial, 3 hidden)
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