Below is the text of the signed letter whose imaged pages can be found at (that file, like this one, does not include any of the exhibits).
For more information, including most of the material in the exhibits, see

Alan P. Petrofsky
3618 Alameda Apt 5
Menlo Park CA 94025

September 16, 2005

BY CERTIFIED MAIL, ARTICLE NUMBER 7005 1160 0004 0082 1054

Jim F. Lundberg 
Novell, Inc.
Legal Department 
1800 S Novell Pl 
Provo UT 84606 

Re:  Vexation in Novell's name by Jeffrey Vernon Merkey

Dear Mr. Lundberg:

Over the past few months, Jeffrey Vernon Merkey ("Merkey"), a former
Chief Scientist at Novell, has been making many statements -- on his
website, on internet discussion boards, in email, in voicemail, and in
submissions to a federal court -- that could charitably be described
as delusional.

Interspersed with his more fanciful lies, he has also made several
less-easily disproven statements about activities of the Novell legal
department.  I write to request Novell's confirmation or denial of
these statements.

Additionally, Merkey has been making public statements about a 1998
settlement agreement to which Novell was a party and which was
originally confidential.  I also seek to learn Novell's current
position on the confidentiality of that agreement.


On June 21, 2005, Merkey filed, in The United States District Court,
District of Utah, a complaint ("the Complaint") captioned Merkey
vs. Perens et al., case 2:05-CV-521-DAK.  The Complaint makes
fascinating accusations of murderousness and terrorism by a variety of
defendants.  A copy of the Complaint and its exhibits are attached to
this letter as Exhibit A.  I was added to the list of defendants in an
amended complaint filed on July 20, but I have not been served with

The second exhibit to the Complaint is a copy of a settlement
agreement ("the Agreement") entered into on August 18, 1998, by,
between, and among Novell, Inc., Jeffrey V. Merkey, Darren Major,
Larry Angus, and Timpanogas Research Group, Inc..  The agreement
settles two cases: Novell vs. Timpanogas Research Group et al.,
97-0400339 in Utah County; and Merkey vs. Novell, 2:98-cv-311 in the
District of Utah.

Letter from Petrofsky to Lundberg       September 16, 2005      Page 2

On June 22, the day after the Complaint was filed, Judge Dale Kimball
entered an order, a copy of which is attached to this letter as
Exhibit B.  Here is the entire text of that order:

   Plaintiff filed a Verified Complaint in this matter on June
   21, 2005, including a confidential settlement agreement as Exhibit
   2 to the Verified Complaint.  Plaintiff notified the court that he
   intended to file this exhibit under seal.  However, because it was
   not filed according to the court's rules regarding sealed
   documents, the exhibit was scanned into the court's public
   electronic docket.  Pursuant to paragraph 6 of the settlement
   agreement, the parties agreed that the settlement agreement was
   confidential.  Therefore, the court hereby seals Exhibit 2 of the
   Verified Complaint in this matter and directs the Clerk of Court to
   remove the exhibit from the court's electronic docket.

Earlier that day, I and at least one other person had obtained copies
of the Complaint's exhibits from the court's internet docket-access
website,  I had then made the exhibits,
including the Agreement, freely available to the public over the

The statements in the Agreement, endorsed by Novell in 1998, indicate
that Novell considered the Agreement's confidentiality to be valuable
to Novell, at least at that time.  Based on those statements, I ceased
distributing the Agreement on June 23, as a courtesy to Novell.  I
informed you of that decision in an email message I sent that day,
which can be found on page 4 of the email collection that is attached
as Exhibit C to this letter.

In contrast to the confusion about the sealing of one of the
Complaint's exhibits, it has always been clear that the Complaint
itself is not sealed, and Merkey has never requested that it be
sealed.  In fact, he has distributed the Complaint directly to the
public through his own website, (see Exhibit D to
this letter).  The Complaint contains several statements about the
Agreement, including the following on page 29:

   93. Novell further stated in the permanent injunction which was a
   part of the settlement agreement, Merkey was not allowed to posses
   [sic] 10 year old source code of NetWare or Wolf Mountain or use it
   in exchange for the right to use all "intangible" knowledge in his
   possession, whether considered a Novell trade secret or not.  Since
   there was little value in antiquated and unused source code from
   Netware products which are no longer in use in Novell's relevant
   markets, Merkey viewed the permanent injunction as moot, since he
   had not possessed Novell source code unlawfully, and the State
   Court had issued a specific finding that "no Novell source was used
   by Merkey" during or following the trade secret litigation.

   94. The affect [sic] of this language was to in affect [sic] grant
   to Merkey the unfettered right to use patents, trade secrets, and
   the sum total of Novell's vast body of intellectual property in any
   projects he wished and endeavored to create.

Letter from Petrofsky to Lundberg       September 16, 2005      Page 3

   95. This agreement nullified the preliminary injunction and
   represented a 180 degree shift in Novell's position regarding it's
   professed concerns over protecting its trade secrets.  This was
   particularly true given the fact Novell was facing at the time a
   multi-billion dollar Sexual Harassment action in Federal Court and
   possible criminal indictment of it's executives and Board of
   Directors for their actions in the trade secret litigation in
   setting up dozens of Novell employees to commit perjury in State
   Court in a futile attempt to prove it's merit less [sic] claims.
These and other statements in the Complaint, and numerous other public
statements by Merkey over the past few months, appear to be flagrant
breaches of the confidentiality provisions in paragraphs 3 and 6 of
the Agreement, and in particular of clauses 6(b) and 6(d).  I notice
that in paragraph 7 of the Agreement, the parties agreed that such
breaches by Merkey would result in liquidated damages of One Hundred
Thousand Dollars ($100,000).


On August 23, 2005, Merkey submitted a sworn affidavit in support of a
motion for leave to conduct expedited discovery.  A copy of the
affidavit and the first of its four exhibits are attached to this
letter as Exhibit E.  In paragraph 4 on page 2 of the affidavit,
Merkey states that Exhibit 1 of the affidavit contains emails he sent
to Pamela Jones, one of the defendants.  At page 4 of Exhibit 1, in an
email dated October 28, 2004, 12:49 pm, Merkey states:

   I am not a jerk or an asshole, but you are creating a huge mess
   that just may end up back in court with Novell (with you getting
   hit with Subpoena Deus [sic] Tecum Requests left and right).  They
   just sent me a threat to reopen the litigation because of this
   stupid article

At page 3 of Exhibit 1 to the affidavit, in an email dated January 25,
2005, Merkey states:

   Novell has authorized me to serve your ISP and associates at OSRM
   with a Subpeona [sic] AT YOUR COST AND EXPESNE [sic] if you fail to
   comply with this request and force us to locate you for service.

Attached as Exhibit F is a copy of my letter to Merkey, dated
September 6, 2005, regarding his request that I waive service of a
summons.  On September 9, he sent me a voicemail reply.  A copy of
that voicemail is on a Compact Disc attached as Exhibit G.  For your
convenience, I have also attached a transcript of it as Exhibit H.  In
the voicemail, Merkey states:

   Listen here, you little twerp ...

   ... And Novell's coming after you.  They met with me yesterday, and
   you're in a lot of trouble, my friend.

Letter from Petrofsky to Lundberg       September 16, 2005      Page 4


If Novell has actually enlisted Merkey to be making these statements
on its behalf, then I would appreciate written confirmation of that,
and I would also like to humbly suggest that Novell find a different
messenger who comes across as a bit less deranged.  On the other hand,
if Merkey's statements about Novell are fabrications, then I believe a
statement to that effect would be helpful to everyone.

In particular, I would appreciate a written response to this letter
that states:

   1. Whether or not any Novell representatives met with Merkey on
      September 8, 2005.

   2. Whether or not Novell is "coming after" me.

   3. Whether or not Novell has "authorized" Merkey to serve any

   4. Whether or not Novell has any plans (or is aware of any plans by
      some Higher Authority) to "hit" anyone with "Subpoena Deus Tecum

I would also like to know whether or not Novell will be seeking
"immediate injunctive relief" to enforce the confidentiality-keeping
obligations of the Agreement's other parties.  (Pursuant to paragraphs
3 and 6 of the Agreement, Novell is entitled to such relief, in
addition to the other remedies provided by the Agreement.)  If, by
October 17, 2005, I have not received notice that Novell has filed a
motion for an injunction against Merkey, then I will conclude that
Novell no longer considers the Agreement's confidentiality (to the
extent that any confidentiality still exists) to be of value to
Novell, and that there is therefore no point in me continuing to omit
the Agreement from my website as a courtesy to Novell.

I thank you for your attention to this matter.

Yours truly,

Alan P. Petrofsky

cc: Michael A. Jacobs, Morrison & Foerster LLP,
       425 Market Street, San Francisco, California,
       by hand delivery;
    Pamela Jones, c/o Domains by Proxy, Inc.,
       15111 N Hayden Rd Ste 160 PMB 353, Scottsdale AZ 85260,
       by Certified Mail, article number 7005 1160 0004 0082 1061;
    Jeffrey Vernon Merkey,
       1058 E 50 S, Lindon UT 84042,
       by Certified Mail, article number 7005 1160 0004 0082 1078.

$Id: Merkey-other-2005-09-16-letter.html,v 1.4 2005/09/23 21:19:51 al Exp $