In this May 2007 blog post I wrote about the litigation between Novell and SCO. (That post dealt with the implications of retaining drafts of a contract.)
Well, last week brought further news in this saga, as a federal jury found that two key Unix copyrights belonged to Novell and not to SCO. (Click here for the WSJ Law Blog’s account.)
A reader sent me a link to this item in the Y Combinator news feed. It starts by asking the very question I was asking myself—”How is it even remotely possible that sophisticated parties selling something so major as the UNIX-related rights can’t agree whether the copyrights were transferred in the deal?” It then considers the contract roots of the dispute.
I’m not inclined to search through the rubble myself. But it would seem that someone experienced a failure of imagination by not following through the implications of how the assets were divided up. In drafting any contract, you have to constantly ask yourself, “What if … ?”
It sounds to me from the Y Combinator item as though the parties might have used a standard asset purchase form that didn't accommodate at least one unique aspect of their intended deal (or, depending on which form it was, they didn't use the right aspect of the form or the right ancillary document). If so, this illustrates the care that must be taken in using standard documents if one wishes to avoid finding that one had used a Nike where a Jimmy Choo was required.