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SCO Sues Novell This Time
Tuesday, January 20 2004 @ 07:32 PM EST

I knew if I took a day off some big news would break.

As you probably found out before I did, SCO just sued Novell. [Update: The url no longer resolves, because SCO has removed the sco.com/novell page entirely; however you can obtain the complaint as PDF or text from Groklaw] Novell. They don't like it that Novell registered for copyrights on Unix. Certainly, the competing copyright claims should be resolved before SCO can successfully sue anybody else for copyright infringement, because if they sued someone, Novell could stand up and tell the judge in essence: "I am the correct party to settle the issue of who has the copyright. The hapless end user that SCO is suing is in no position to know who has the rightful copyright, so SCO is suing the wrong party. It should settle this issue with me."

I am both appalled and thrilled. Appalled because I can't believe that SCO is interested in opening a new legal front. It's a little like Napoleon invading Russia. At some point, you are overextended. Then it's winter. Then it's over.

I am thrilled because a Novell win would block SCO from suing anyone for copyright infringement, using the DMCA as a club. No one can infringe your copyright if you don't own one. Red Hat is asking the judge to declare that Red Hat is not infringing on SCO's copyright. Novell, in contrast, will presumably be asserting that they own the copyrights so SCO has no copyright to infringe. So the Novell lawsuit is the complete copyright package in a frame, and it will answer the question: does SCO even have a copyright?

Obviously, if Novell prevails, it will impact almost every other case. First, the Red Hat issue would be won, without breaking a sweat. Contract issues that are not copyright-related could continue, so IBM still would have to carry the world on its shoulders in its case, but it has broad shoulders. Of course, a SCO win would have a damaging ripple effect in the opposite direction. I find it hard to believe Novell would have registered for the copyrights if it didn't feel confident of its position.

Here's the press release announcing the grounds SCO alleges for their lawsuit:

"Among the allegations in the suit:
* Novell has improperly filed copyright registrations in the United States Copyright Office for UNIX technology covered by SCO's copyrights.

* Novell has made false and misleading public claims that it, and not SCO, owns the UNIX and UnixWare copyrights.

* Novell has made false statements with the intent to cause customers and potential customers to not do business with SCO.

* Novell has attempted, in bad faith, to block SCO's ability to enforce its copyrights.

* Novell's false and misleading representations that it owns the UNIX and UnixWare copyrights has caused SCO irreparable harm to its copyrights, its business, and its reputation.

The lawsuit, filed in Utah State court, in Salt Lake City, requests preliminary and permanent injunctive relief as well as damages. The injunction would require Novell to assign to SCO all copyrights that Novell has wrongfully registered, prevent Novell from representing any ownership interest in those copyrights, and require Novell to retract or withdraw all representations it has made regarding its purported ownership of those copyrights.

"SCO takes this action today given Novell's recent and repeated announcements regarding their claimed ownership of the UNIX and UnixWare copyrights. SCO has received many questions about Novell's actions from potential customers, investors and the press. Although SCO owns the UNIX and UnixWare copyrights, Novell's efforts to claim ownership of these copyrights has forced this action," said Mark Heise, partner, Boies, Schiller and Flexner, LLP. "We encourage the public and commercial Linux users to read the Asset Purchase Agreement from 1995 (including Attachment E found at www.sco.com/novell) and Amendment 2 so they can see for themselves that SCO owns the copyrights to UNIX and UnixWare."

The lawsuit seeks damages in an amount to be proven at trial for Novell's alleged slander of SCO's title to the UNIX and UnixWare copyrights. In addition, the lawsuit seeks punitive damages in an amount to be proven at trial for Novell's malicious and willful conduct.

SCO is asking the judge for both a preliminary and a permanent injunction. And once again they want to have it heard in Utah state court, very much as they tried to arrange with IBM. It turns out Novell is a Delaware corporation with its principal offices in Massachusetts, not Utah, according to SCO's complaint. Whether Novell would like to stay in Utah state court or not is unknown. More here in the Register. You can read the Asset Purchase Agreement as text here. Amendment 2 is here This wasn't the only amendment though. Here is Amendment 1 and here is the Technology License Agreement. Here is the color coded Asset Purchase Agreement with Amendments 1 and 2 merged, so you can see it all together. All the attachments are here.

In other news, Red Hat, which already had a defense fund for programmers, now has one for users as well, the Open Source Now Fund, part of its Open Source Assurance Program:

A key feature of the Open Source Assurance Program is an Intellectual Property Warranty. The warranty ensures, that in the event that an infringement issue is identified in Red Hat Enterprise Linux software code, Red Hat will replace the infringing code. Red Hat's warranty assures customers that they can use Red Hat Enterprise Linux and related solutions without interruption. The warranty is available for all customers having a valid registered subscription to Red Hat Enterprise Linux or related solutions.

"Enterprise platform deployments are key investments that should be protected. Red Hat customers have the security of a trusted partner to guarantee a resolution should there be an issue for continued use," said Bryan Sims, vice president of Business Development at Red Hat. "We have provided this guarantee to many of our large enterprise customers and we are now extending this guarantee to all customers who use Red Hat Enterprise Linux."

And finally, because we all probably need a funny diversion, these folks are asking for entries in the Top 11 Lines of "SCO-owned source code found in Linux". Here are a couple of entries they list, but I am positive we have some among us who can come up with something far more clever:
* -- /** uh, like put code here, dude. */
* -- /** Darl was here! */

Finally, finally, since some are having trouble finding Attachment E, here it is on its own, thanks to Chris Brewer. I have to get some sleep, so here's your homework. Find any source code or binaries helpful to SCO on this list? And what is this a list of? Drivers and manuals? Is it in fact a list of copyrights transferred?:

**************************************

ATTACHMENT E

Selling Copyrights in Product(s) of Business

TITLE OF THIS WORKREGISTRATION NUMBER
SYSTEM V BINARY COMPATIBILITY SPECIFICATIONTX 2 824 732
UNIX(R) SYSTEM V BINARY INTERFACE WE(R) 32000 Processor SupplementTX 2 824 713
SYSTEM V APPLICATION BINARY INTERFACE Intel386(tm) Processor Supplement TXu 498 197
UNIX(R) SYSTEM V/386 RELEASE 4: Mouse Driver Administrator's Guide TXu 455 747
UNIX SYSTEM V/386 RELEASE 4 Network User's and Administrator's GuideTX 2-943-744
UNIX SYSTEM V/386 RELEASE 4 PC-Interface Administrator's GuideTX 2-900-957
UNIX SYSTEM V/386 RELEASE 4 Programmer's Guide: SCSI Driver InterfaceTX 2 902 863
UNIX SYSTEM V APPLICATION BINARY INTERFACE Motorola 88000 Processor SupplementTX 2 902 556
UNIX SYSTEM V/386 RELEASE 4 MULTIBUS(R) Reference ManualTX 2 902 542
UNIX(R) SYSTEM V RELEASE 4: Product Overview and Master IndexTX 2 902 862
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: XWIN(tm) Graphical Windowing System The X ToolkitTX 2 902 861
UNIX(R) SYSTEM V RELEASE 4 Programmer's Guide: XWIN(tm) Graphical Windowing System Xlib-C Language InterfaceTX 2-900-958
UNIX(R) SYSTEM V RELEASE 4 Programmer's Guide: XWIN(tm) Graphical Windowing System Addenda: Technical PapersTX 2-0901-148
UNIX SYSTEM V/386 RELEASE 4 Integrated Software Development GuideTX 2 931 646
UNIX(R) SYSTEM V/386 RELEASE 4: Product Overview and Master IndexTX 2 925 901
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: X11/NeWS(R) Graphical Windowing System NeWSTX 2-946-827
UNIX(R) SYSTEM V RELEASE 4 Programmer's Guide: X11/NeWS(R) Graphical Windowing System tNt Technical Reference ManualTX 2-900-956
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: X11/NeWS(R) Graphical Windowing System Server GuideTX 2 902 864
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: X11/NeWS(R) Graphical Windowing System XVIEW(tm)TX 2 907 137
UNIX(R) SYSTEM SOFTWARE READINGS TXu 300 346
UNIX(R) SYSTEM V RELEASE 4 Programmer's Reference Manual Operating System API for Intel ProcessorsTX 3 218 268
UNIX(R) SYSTEM V RELEASE 4 User's Reference Manual/System Administrator's Reference Manual for Intel Processors Commands m-zTX 3 221 656
UNIX(R) SYSTEM V RELEASE 4 Integrated Software Development Guide for Intel ProcessorsTX 3 221 657
UNIX SYSTEM V RELEASE 4 User's Reference Manual/System Administrator's Reference Manual for Intel Processors Commands a-lTX 3 227 639
UNIX(R) SYSTEM V RELEASE 4 Programmer's Guide: Streams for Intel ProcessorsTX 3 218 286
UNIX(R) SYSTEM V RELEASE 4 Device Driver Interface/Driver Kernel Interface Reference Manual for Intel ProcessorsTX 3 232 578
UNIX(R) SYSTEM V RELEASE 4 Master Index for Motorola ProcessorsTX 221 653
UNIX(R) SYSTEM V RELEASE 4 Device Driver Interface/Driver Kernel Interface Reference Manual for Motorola ProcessorsTX 3 220 500
UNIX(R) SYSTEM V RELEASE 4 User's Reference Manual/System Administrator's Reference Manual for Motorola Processors Commands a-lTX 3 220 331
UNIX(R) SYSTEM V UTILITIES RELEASE NOTESTX 2 123 158
UNIX(R) SYSTEM V STREAMS PROGRAMMERS GUIDETX 2 123 157
UNIX(R) SYSTEM V STREAMS PRIMERTX 2-120-499
UNIX(R) SYSTEM V PROGRAMMER'S GUIDETX 2-120-502
UNIX(R) SYSTEM V/386 RELEASE 4 MULTIBUS(R) Installation and Configuration GuideTX 2 902 541
UNIX(R) SYSTEM V/386 RELEASE 4 Transport Application Interface GuideTX 2 881 542
UNIX(R) SYSTEM V/386 RELEASE 4 Device Interface/Driver Kernel Interfaces (DDI/DKI) Reference ManualTX 2-883-235
UNIX SYSTEM V/386 RELEASE 4 Migration GuideTX 2-890-470
UNIX SYSTEM V/386 RELEASE 4 System Administrator's Reference ManualTX 2 881 543
UNIX SYSTEM V/386 RELEASE 4 PROGRAMMER'S REFERENCE MANUALTX 2-853-760
UNIX SYSTEM V/386 RELEASE 4 User's Reference ManualTX 2-890-471
UNIX SYSTEM V APPLICATIONS BINARY INTERFACE: SPARC(tm) Processor SupplementTX 2 862 662
UNIX SYSTEM V APPLICATION BINARY INTERFACE: Motorola 68000 Processor Family Supplement TX 2 870 036
UNIX(R) SYSTEM V RELEASE 4 User's Reference Manual TX 2 820 791
UNIX(R) SYSTEM V RELEASE 4 USER'S GUIDE TX 2 832 010
UNIX(R) SYSTEM V RELEASE 4 ANSI C TRANSITION GUIDE TX 2 820 798
UNIX SYSTEM V RELEASE 3.2 SYSTEM ADMINISTRATOR'S GUIDE TX 2 832 226
UNIX(R) SYSTEM V RELEASE 4 DEVICE DRIVER INTERFACE/DRIVER KERNEL INTERFACE (DDI/DKI) REFERENCE MANUAL TX 2 820 792
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE POSIC conformance TX 2 820 885
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: Streams TX 2 833 114
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S REFERENCE MANUAL TX 2 832 009
UNIX(R) SYSTEM V RELEASE 4 NETWORK USER'S AND ADMINISTRATOR'S GUIDE TX 2 832 008
UNIX(R) SYSTEM V RELEASE 4 SYSTEM ADMINISTRATOR'S REFERENCE MANUAL TX 2 830 989
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: Ansi C and Programming Support Tools TX 2 820 849
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMERS GUIDE: System and Application Packaging Tools TX 2 825 383
UNIX(R) SYSTEM V RELEASE 4 MIGRATION GUIDE TX 2 820 886
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: Character User Interface (FMLI and EII) TX 2 825 299
UNIX(R) SYSTEM V RELEASE 4 BSD/XENIX(R) COMPATIBILITY GUIDE TX 2-878-051
UNIX(R) SYSTEM V RELEASE 4 PROGRAMMER'S GUIDE: Networking Interfaces TX 2 838 323
SYSTEM V APPLICATION BINARY INTERFACE TX 2 847 232
AT&T UNIX System V/386, Release 3.2 Utilities Release Notes TX 2 454 845
AT&T UNIX SYSTEM V/386 Release 3.2 Streams Primer TX 2 454 847
UNIX SYSTEM V/386 Release 3.2 User's Guide TX 2-488-749
AT&T UNIX SYSTEM V/386: Programmer's Guide, Vol. II TX 2 454 884
UNIX SYSTEM v/386 Release 3.2 Programmer's Reference Manual TX 2 494 658
UNIX SYSTEM V/386 Release 3.2 Streams Programmer's Guide TX 2 497 054
UNIX SYSTEM V/386: Network Programmer's Guide TX 2 366 626
UNIX(R) SYSTEM V/386: Programmer's Reference Manual TX 2 373 759
UNIX(R) SYSTEM V/386: User's Guide, 2nd edition TX 2-363-829
UNIX(R) SYSTEM V/386: User's Reference Manual TX 2 365 627
UNIX(R) SYSTEM V/386: System Administrator's Reference Manual TX 2-371-952
UNIX(R) SYSTEM V/386: Streams Programmer's Guide TX 2-367-657
UNIX(R) SYSTEM V/386: Programmer's Guide TX 2-400-593
UNIX(R) SYSTEM V/386: Streams Primer TX 2 366 645
UNIX(R) SYSTEM V/386: System Administrator's Guide TX 2 378 091
UNIX(R) SYSTEM V/386: Utilities Release Notes TX 2 366 532
UNIX(R) SYSTEM V NETWORK PROGRAMMERS GUIDE TX 2 117 799
UNIX(R) SYSTEM V: User's Guide, 2/E TX 2 052 293
UNIX(R) SYSTEM V RELEASE 3.2: Framed Access Command Environment (FACE) User's Guide TX 2 611 527
UNIX(R) SYSTEM V RELEASE 3.2: Forms and Menu Language Interpreter (FMLI) Programmer's Guide TX 2 605 294
UNIX(R) SYSTEM V RELEASE 3.2: Utilities Release Notes TX 2-611-984
UNIX(R) SYSTEM V RELEASE 3.2: Programmer's Guide, Volume II TX 2 595 940
UNIX(R) SYSTEM V RELEASE 3.2: System Administrator's Reference Manual TX 2-611-860
UNIX(R) SYSTEM RELEASE 3.2: User's Guide TX 2-611-861
UNIX(R) SYSTEM V RELEASE 3.2: Programmer's Guide, Volume I TX 2-611-862
UNIX(R) SYSTEM V BINARY COMPATIBILITY SPECIFICATION: WE(R) 32000 Processor Supplement TX 2 824 711
UNIX(R) SYSTEM V RELEASE 4: Programmer's Guide: OPEN LOOK(tm) Graphical User Interface TM 2-900-966
UNIX(R) SYSTEM V RELEASE 4 OPEN LOOK(tm) GRAPHICAL USER INTERFACE USER'S GUIDE TX 2-901-147
UNIX(R) SYSTEM V RELEASE 3.2: System Administrator's Guide TX 2 611 530
UNIX(R) SYSTEM V RELEASE 3.2: Streams Programmer's Guide TX 2 604 382
UNIX(R) SYSTEM V RELEASE 3.2: Programmer's Reference Manual TX 2 605 292
UNIX SYSTEM V: Documentor's Workbench, Reference Manual TX 2 986 119
UNIX SYSTEM V: Documentor's Workbench, User's Guide TX 2 986 118
UNIX System V/386 Release 3.2 System Administrator's Guide TX 2 454 792
AT&T UNIX System V/386 Release 3.2 Network Programmer's Guide TX 2 454 846
THE UNIX(tm) SYSTEMS USER's GUIDE TX 1 788 418
UNIX(R) SYSTEM RELEASE 3.2: Programmer's Guide, Volume I TX 2-611-862
UNIX SYSTEM V/386: Programmers Guide, Vol. II TX 2 454 884
UNIX(R) SYSTEM V RELEASE 4 User's Reference Manual/System Administrator's Reference Manual for Motorola Processors Commands m-z TX 3 218 267
UNIX(R) SYSTEM V RELEASE 4 System Files and Devices Reference Manual for Motorola Processors TX 3 221 654
UNIX(R) SYSTEM V RELEASE 4 Programmer's Reference Manual: Operating System API for Motorola Processors TX 3 221 655
Operating System Utility Programs TXu 301 868
UNIX(R) Operating System Edition 5 and Instruction Manual TXu 510 028
UNIX(R) Operating System Edition 6 and Instruction Manual TXu 511 236
UNIX(R) Operating System Edition 32V and Instruction Manual TXu 516 704
UNIX(R) Operating System Edition 7 and Instruction Manual TXu 516 705

And here is the press release in full:

*********************************

SCO Files Slander of Title Lawsuit Against Novell

Complaint Requests Injunctive Relief and Damages Against Novell for Copyright Misrepresentations and Alleges Bad Faith Effort by Novell to Interfere With SCO's Intellectual Property Rights to UNIX and UnixWare

LINDON, Utah, Jan. 20 /PRNewswire-FirstCall/ -- The SCO Group, Inc. (Nasdaq: SCOX), the owner of the UNIX(R) operating system and a leading provider of UNIX-based solutions, today filed suit against Novell (Nasdaq: NOVL) for its alleged bad faith effort to interfere with SCO's rights with respect to UNIX and UnixWare(R). Among the allegations in the suit:

* Novell has improperly filed copyright registrations in the United States Copyright Office for UNIX technology covered by SCO's copyrights.

* Novell has made false and misleading public claims that it, and not SCO, owns the UNIX and UnixWare copyrights.

* Novell has made false statements with the intent to cause customers and potential customers to not do business with SCO.

* Novell has attempted, in bad faith, to block SCO's ability to enforce its copyrights.

* Novell's false and misleading representations that it owns the UNIX and UnixWare copyrights has caused SCO irreparable harm to its copyrights, its business, and its reputation.

The lawsuit, filed in Utah State court, in Salt Lake City, requests preliminary and permanent injunctive relief as well as damages. The injunction would require Novell to assign to SCO all copyrights that Novell has wrongfully registered, prevent Novell from representing any ownership interest in those copyrights, and require Novell to retract or withdraw all representations it has made regarding its purported ownership of those copyrights.

"SCO takes this action today given Novell's recent and repeated announcements regarding their claimed ownership of the UNIX and UnixWare copyrights. SCO has received many questions about Novell's actions from potential customers, investors and the press. Although SCO owns the UNIX and UnixWare copyrights, Novell's efforts to claim ownership of these copyrights has forced this action," said Mark Heise, partner, Boies, Schiller and Flexner, LLP. "We encourage the public and commercial Linux users to read the Asset Purchase Agreement from 1995 (including Attachment E found at http://www.sco.com/novell) and Amendment 2 so they can see for themselves that SCO owns the copyrights to UNIX and UnixWare."

The lawsuit seeks damages in an amount to be proven at trial for Novell's alleged slander of SCO's title to the UNIX and UnixWare copyrights. In addition, the lawsuit seeks punitive damages in an amount to be proven at trial for Novell's malicious and willful conduct.

Forward-Looking Statements

This press release contains forward-looking statements regarding SCO's lawsuit against Novell. These forward-looking statements relate to SCO's allegations against Novell and the relief sought by SCO. These forward- looking statements are subject to risks and uncertainties including, without limitation, the risk that SCO may not be successful in its claims against Novell and that the pursuit of protections for SCO's copyrights will require the expenditure of resources and may result in further litigation. These forward-looking statements are also subject to the risks and uncertainties set forth in SCO's filings with the Securities and Exchange Commission. About SCO

The SCO Group (Nasdaq: SCOX) helps millions of customers in more than 82 countries to grow their businesses everyday. Headquartered in Lindon, Utah, SCO has a worldwide network of more than 11,000 resellers and 4,000 developers. SCO Global Services provides reliable localized support and services to partners and customers. For more information on SCO products and services, visit http://www.sco.com .

SCO, and the associated SCO logo are trademarks or registered trademarks of The SCO Group, Inc. in the U.S. and other countries. UNIX and UnixWare are registered trademarks of The Open Group.


  


SCO Sues Novell This Time | 1103 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT - Another suit in Australia...
Authored by: eamacnaghten on Tuesday, January 20 2004 @ 09:02 PM EST
A threat of a lawsuit, at least, from down-under...

http://www.s mh.com.au/articles/2004/01/21/1074360802009.html

[ Reply to This | # ]

Copyright suit?
Authored by: RedBarchetta on Tuesday, January 20 2004 @ 09:03 PM EST
Is this the "copyright" suit that Kevin mentioned in court? The one where he said they would file in "weeks" during their Dec. 5, 2003 court appearance?

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Tuesday, January 20 2004 @ 09:03 PM EST
We have seen the correspondance, the documents and the
contracts - is this a close call or a bluff?

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: CPD on Tuesday, January 20 2004 @ 09:04 PM EST
Sorry, PJ, it looks like the Unixware patents are not in dispute (despite the
obfuSCOtion going on) and they belong to SCO. If that's right, SCO still has a
copyright club to wield (though they ought to be suing IBM for copyright
infringement, as IIRC they would be the only possible illicit conduit for such
code via their joint effort - not that logic or due process ever restrain these
folks).

Colin



---
Just when I thought it couldn't get any wierder, SCO proved me wrong again.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: jm493 on Tuesday, January 20 2004 @ 09:04 PM EST
Complaint as PDF

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Tuesday, January 20 2004 @ 09:05 PM EST
Lot's of luck. Don't wake a sleeping lion. They're into a snare and won't
get out. Go after them Novell.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: bruzie on Tuesday, January 20 2004 @ 09:06 PM EST

SCO has posted a whole pile of docs at www.sco.com/novell. I've already converted Amendment E and sent it to PJ. I'm working on the complaint itself.

Hope you had a well deserved rest today, PJ. Looks like it's going to get busy... :)

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: atul on Tuesday, January 20 2004 @ 09:11 PM EST
I guess the first order of business is to delve into what constitutes
"Slander of Title", and precisely what SCO needs to prove if they
want to have any chance of winning their case. Then there's the question of
why this particular line of argument, and nothing about Linux or directly about
copyright violations. It's interesting to speculate about the timing of the
filing, and how it affects the IBM and RHAT cases.

There's already been a lot of discussion over the Asset Purchase Agreement and
the later Amendment 2 regarding who really owns what. I, and probably most
readers here, *hope* that they mean Novell still owns the goods, but it's also
the case that the agreement & amendment are pretty vague and contradictory
in this area. A good purchase agreement would have spelled out precisely what
was being purchased and what was being excluded from the purchase, rather than
listing broad categories and vague criteria. SCO's unlikely to get quick
results from this case, since the contracts in question are open to a great deal
of interpretation. Their view of things is certainly not explicitly spelled out
in the agreement.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: WhiteFang on Tuesday, January 20 2004 @ 09:12 PM EST
4 Comments - and all of them technically OT.

1} PJ, you're certainly entitled to a day off!

2} We appreciate it when you take your time to dissect and cogently comment on
SCOX's insanities.

3} We wouldn't want you to feel any pressure to post overly quickly of course.

4} Well heck, I've only been checking every 10 minutes waiting for your first
comments on this lastest news.

[ Reply to This | # ]

Confused about malicious aspect...
Authored by: jmccorm on Tuesday, January 20 2004 @ 09:13 PM EST
I think I read some definitions over on Yahoo! and got confused. Does SCO
actually have to prove a malicious intent of Novell in order to win that
particular claim?

(If not, can just about everyone + dog sue SCO for the same activity against
Linux?)

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: fb on Tuesday, January 20 2004 @ 09:13 PM EST

(1) Another stalling maneuver? No other court actions can proceed until these copyright issues are settled? Puts the IBM and RedHat actions into limbo. [SCO thinking they're clever.]

(2) Walking into Novell's trap? By baiting SCO into moving first, Novell forces them to lay down their hand first, just as they are forced to do in the IBM action. Once again they show nothing. [SCO thinking they're being clever but in fact are suckered.]

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: merodach on Tuesday, January 20 2004 @ 09:19 PM EST
I ask like I did when I submitted the story because I'm really curious -

SCO is seeking to have a court force Novell to hand over all of its copyrights
to UNIX and UNIXWare.

If Novell's copyright filings are invalid why qould SCO be asking a judge to
force Novell to hand over the copyrights? In my IANANBAL (I am not anywhere near
being a lawyer) understanding the judge could only legitimately one rule of
three ways : either the Novell filings are to be voided and stricken, that
SCO's filings are null and void, or that neither SCO nor Novell have rights to
UNIX/UNIXWare.

[ Reply to This | # ]

What ever happened...
Authored by: jkondis on Tuesday, January 20 2004 @ 09:21 PM EST
...to the lawsuits they were threatening for breach-of-contract? I.e. when The
SCO Group said Novell was violating the non-compete clauses?

Did The SCO Group/Caldera give up on the non-compete stuff? Are they
backpedaling again???

...J

[ Reply to This | # ]

Obscure Language use
Authored by: SkArcher on Tuesday, January 20 2004 @ 09:21 PM EST
Language is just a machine for conveying information. Statement 2 is (deliberately?) obscure.

in its full version it is;
2. In attachment E of Novell's Disclosure Schedule to the Asset Purchase Agreement (Exh. A at Attachment E), Novell provided a list of approximately 106 copyright registrations (encompassing 8 pages) covering products relating to the business transferred to SCO.

Now, if we eliminate the explanatory text in brackets, this then reads;
2. In attachment E of Novell's Disclosure Schedule to the Asset Purchase Agreement, Novell provided a list of approximately 106 copyright registrations covering products relating to the business transferred to SCO.

However, this statement is ambiguous. Do SCO mean this is;
2. In attachment E of Novell's Disclosure Schedule to the Asset Purchase Agreement, Novell provided a list of approximately 106 copyright registrations covering products relating to the business transferred to SCO.

i.e. Products (copyrights) which were transfered, or do they mean;
2. In attachment E of Novell's Disclosure Schedule to the Asset Purchase Agreement, Novell provided a list of approximately 106 copyright registrations covering products relating to the business transferred to SCO.

I.e. this is just a list of copyrights Novell owns and is identifying that relate to the Business they sold (are selling, at the time this was written) to (old) SCO.

Because the meaning of this sentence is unclear, and changes so much depending on where the emphasis is placed, I think further clarification is necessary.

The meaning of the sentence is further obscured by the addition of the brackets detailing the number of pages. There is no need to tell the court how many pages there are; all this does is break the sentence up in such a way that it appears to read as talking about copyrights being transfered due to the way brackets stop-start the flow of the grammar.

What is very important to notice is that the document presented as Attachment E is not a standalone document. In full title it is;

"Attachment E of Novell's Disclosure Schedule to the Asset Purchase Agreement"

In other words the disclosure schedule that Novell performed for OldSCO so they could be assured of having all copyrights "necessary for the business" as per the sale agreement. This isn't a bill of sale, nor is it even Novell suggesting that these copyrights are necessary - this is a complete list for SCO to discuss with Novell.

We need to see the covering letters that came with the document to be certain of what this document means.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: red floyd on Tuesday, January 20 2004 @ 09:23 PM EST
<I> And once again they want to have it heard in Utah state
court,</I><P>
Isn't Copyright a federal matter? It's one of those powers reserved to
Congress (Article I, Section 8), so why would State courts have jurisdiction in
this matter?

---
"Those who would give up essential Liberty, to purchase a little temporary
Safety, deserve neither Liberty nor Safety." -- Benjamin Franklin

[ Reply to This | # ]

The crucial words in Amendment 2
Authored by: Jude on Tuesday, January 20 2004 @ 09:26 PM EST

With respect to Schedule 1.1(b) of the Agreement, titled "Excluded Assets", Section V, Subsection A shall be revised to read:

All 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. However, in no event shall Novell be liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks.

I have no idea what this really means. If the intent was to transfer the copyrights,
why not just say so and list them? OTOH, it also seems silly to have an amendment
that basically says "..maybe transfer some copyright(s) someday.."

It really seems like sloppy contract writing. What do courts do with messes like this?

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Nathan Hand on Tuesday, January 20 2004 @ 09:27 PM EST
Of course, a SCO win would have a damaging ripple effect in the opposite direction. I find it hard to believe Novell would have registered for the copyrights if it didn't feel confident of its position.

The contrary argument is that it's hard to believe SCO would have registered for the copyrights if it didn't feel confident of its position.

I don't personally believe SCO has a snowball's chance, but to an uninformed observer there is no difference.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Tuesday, January 20 2004 @ 09:27 PM EST
I think novell should have sued frist. Then the lawyers would have to go to
thier juirsdiction (sp?? to late).

[ Reply to This | # ]

How will this affect the IBM case?
Authored by: eris on Tuesday, January 20 2004 @ 09:28 PM EST

Help this ianal understand: Could SCO try to have the IBM case delayed by declaring the evidence requested as part of IBM's discovery requests *cannot* be presented until the case against Novell determines the status of the Unix copyrights? If they do try this, what do you think their chance of success is? (Looking back at the requested info http:// www.g roklaw.net/article.php?story=20031206202454712 I don't get the impression that the copyrights matter that much at this point.)

If the IBM case does get delayed, would the countersuit still go forward on its own?

---
Eris Caffee

[ Reply to This | # ]

I figured it out
Authored by: Anonymous on Tuesday, January 20 2004 @ 09:30 PM EST
It finally makes sense. When their execs are being tried for fraud, now they
can legitimately plead insantiy.

[ Reply to This | # ]

Attachment E
Authored by: SkArcher on Tuesday, January 20 2004 @ 09:31 PM EST
The text of attachment E can be found in the top story Here on Groklaw. Thanks to Rakaz for finding it for me.

In this document the titles are formatted to resemble the column format of the original PDF file. This causes the titles to be broken accross several lines and intermixed with the identification codes.

I have reformatted the document from PJs version so that the titles are all of one piece (no line breaks or excess spaces). This document is the first reply to this post (its big, and I don't want to splurge lots of text onto the main page of a story for those who aren't interested).

[ Reply to This | # ]

OT - American FUD
Authored by: k4_pacific on Tuesday, January 20 2004 @ 09:31 PM EST
I got bored and wrote a song parody today.

It can be sung to the tune of Don McLean's American Pie (sort of)

Enjoy!

American FUD

A long long time ago, I can still remember
how Unix used to be so great
Tape drives were as big as cars
For saving files, known as tars
And perhaps, we could save it from its fate

But Richard Stallman surely shivered
When Windows NT was delivered
With icons on the desktop
And the flying toaster backdrop

But I can't remember if I cried
with great relief I felt inside
We had IBM on our side
The day that Windows died

*Bye Bye Mr. McBride
You said there's Unix in my Linux
But I know that you lied.
And them Redmond boys cursing Samba and WINE
Are betting this'll be the way that they die
This'll be the way that they die.

Did you use the kernel source?
Well the GPL you can't enforce.
Because I said it is so
We'll sue you if you don't desist
Its not a slap across the wrist
and that's the FUD coming from SCO

Well, he belongs in a prison cell
Or the fiery pits of hell
His name is Darl McBride
And he'll take you for a ride
His SCOsource license costs a grand
But no one's got one in his hand
We all told him to go pound sand
The day that Windows died, we were singin'

<repeat *>

Didio came to spread the FUD
And SCO they wanted Linus's blood
But that's not how its going to be
Cuz PJ came and did her blog
And Darl I'm sure, that dirty dog
Reads it all, quite religiously

In Las Vegas back in August
SCO tried hard, tried with earnest
To prove Linux wasn't free
But they showed us BSD!
We all laughed and we all reeled
Over what was actually revealed
So now they keep their evidence sealed
The day, that Windows died, we were singin'

<repeat *>

Then they released some header files
And that left them on the tiles
Because they contained no code
You can't lay claim to 123
Its just a number you can see
That tells the program how to load

It's public knowledge, for all to know
That's what was told by us to SCO
And did they believe it?
They couldn't even conceive it.
"We own Unix's derivative works
All its traits and all its quirks"
And then they called us stupid jerks
The day, that Windows died, we were singing

<repeat *>

And now they're suing Novell too.
They'll sue me and they'll sue you
They're suing every place
They are fighting against ol' IBM
And fighting the authors of RPM
they don't have a solid case

It's gonna bust its gonna break
Investor's money they plan to take
stock won't be worth a dime
And it will be a crime
Insider trading we'll all cry
Linux was just their alibi
Darl and Kevin the feds will try
the day that Windows died, we're a singin'

<repeat *>

When times were dark and things were glum
Darl had Linux by the thumb
Someone had to save the day
But like an episode of Scooby Doo
PJ and friends they came through
And Linux is here to stay

But in Utah, so it seemed
SCO did cry, and they screamed
They couldn't match a token
Copyright wasn't broken
And the OS I admire most
Is free to all, coast to coast
And SCO is but a distant ghost
The day that Windows died, and we were singin'

<repeat *>


IANAL or a poet or a musician, so there.

[ Reply to This | # ]

Play for Time
Authored by: rgmoore on Tuesday, January 20 2004 @ 09:31 PM EST

My gut feeling is that this is a desperate play for time by SCO. I don't think that anyone really familiar with the suit thinks that SCO has a reasonable chance of winning in the long run. More importantly, the hearing on Friday has the potential to convert that "long run" into quite a short time. SCO's only hope right now is to delay the inevitable by introducing an excuse to delay the IBM suit. Suing Novell could serve nicely. They copyright issue looks as though it could be determinative for the IBM case, so SCO could make a superficially reasonable request that the IBM suit be delayed until after the Novell business is over. They could even position themselves as being nice to IBM; IBM won't lose anything if SCO wins and is in a better position of Novell does, so delaying for the Novell suit can only help IBM. Of course it gives SCO more time to spread FUD and pump their stock, which is what they're really interested in, and they were about to lose to IBM anyway, so it's not as generous as it looks, but it could be good PR.

---
Behind every sleazy lawyer, there's a sleazy client.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Pres on Tuesday, January 20 2004 @ 09:33 PM EST
Did SCO get permission from the PIPE investors (Baystar et al) to launch this
new lawsuit ?

Wasn't that part of the recent agreement between the PIPE investors and SCO ?

[ Reply to This | # ]

Why in Utah state court?
Authored by: Anonymous on Tuesday, January 20 2004 @ 09:36 PM EST
I have read the complaint. Why on earth are they filing in a Utah state court?
Does Utah have amy jurisdiction in this matter??? Aren't copyright &
patent issues under federal jurisdiction?

Best,

Leeway

[ Reply to This | # ]

Don't forget this bit.
Authored by: RabidChipmunk on Tuesday, January 20 2004 @ 09:38 PM EST
Santa Cruz appears to have agreed with Novel at the time of purchase.

Jim Bengtson found the following(my emphasis):

It's interesting to read how The Santa Cruz Operation (old SCO) phrased the nature of it's UNIX business in it's 1996 Annual Report (Form 10-K):

"In fiscal year 1996, SCO acquired the UnixWare(R) and UNIX System V Release 4 source-license business from Novell, Inc." 1996 SCO Annual Report

Santa Cruz did not say "SCO bought UnixWare and SysV." We might expect that they would have said exactly that if they thought they had.

If Novel can show that the original purchaser, at the time of purchase, had the same (or substantially similar) understanding of the meaning of that contract, then they win.

It doesn't matter what SCOX thinks they bought from Santa Cruz. Santa Cruz didn't think they owned it to sell.

[ Reply to This | # ]

The wrong court again?
Authored by: DH on Tuesday, January 20 2004 @ 09:40 PM EST
Did SCO chose the wrong court again?

In my understanding the Asset Purchase Agreement between Novell and the Santa
Cruz Operation specified californian jurisdicton.

"9.8 Governing Law.

This Agreement shall be governed by and construed in accordances with the laws
of the State of California regardless of the laws that might otherwise govern
under applicable principles of conflicts of laws thereof. "

Doesn't this apply here?

[ Reply to This | # ]

Full text of complaint
Authored by: Anonymous on Tuesday, January 20 2004 @ 09:44 PM EST
This was originally posted by an anonymous user in the previous thread. I'm
posting as anonymous because it isn't my work and i'm not wanting any credit
just for bringing someone elses work accross to the story it deserves to be in.

The first reply post will have the full text in.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Tuesday, January 20 2004 @ 09:46 PM EST
This looks like a suicide mission to me. How much of the code that Novell
registered copyrights for is not:

1. Public domain because of AT&T's failure to put copyright notices on the
files before copyright law was changed.

2. Not part of BSD Lite or current versions of BSD that are unencumbered.

3. Not part of the ancient Unixes that Caldera released under a BSD-like
license.

Furthermore, if there is code in SysV not covered by 1-3 above, is any of this
subset of the code really in Linux? And what is that ancient, obsolete code
worth today? Certainly not $699 or $1499 per CPU.

And if there were really some minimal amount of code in there, who is liable for
copyright infringement? I believe it's only people who distribute it, like Red
Hat, SuSE, Mandrake or kernel.org and not end users who don't distribute the
code. It's no different than a publisher or author being liable for plagiarism
rather than the owner of a book, magazine or newspaper.

And, SCO has themselves done nothing to mitigate damages. On the contrary,
they've continued to willingly and knowingly distribute their own Linux kernel
under the GPL for many months after they made public announcements about alleged
illegal code.

A devastating countersuit will soon be filed by Novell. The lawyers will eat all
SCO's money. SCO has no future. Their bankruptcy is assured. It's not a matter
of if, but when. They will not survive long enough to even see the start of the
IBM, Red Hat or Novell trials.

And then the lawsuits from their shareholders and from the PIPE investors will
follow. I can only hope that SCO executives end up in prison and are
financially ruined before this disaster ends. I look forward to seeing the
mugshots of McBride, Sontag and Stowell on Groklaw.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: dadillow on Tuesday, January 20 2004 @ 09:48 PM EST
I.1 Through an Asset Purchase Agreement dated September 19.1995, as amended ([...]) wherein Novell received 6.1 million shares of SCO common stock, valued at the time at over $100 million in consideration, SCO, through its predecessor in interest, acquired from Novell [...] (emphasis added)

Is it just me, but isn't this staement misleading? Technically, yes, Novell received consideration from Trantella (nee SCO), but this seems like TSG is claiming they gave Novell their stock. Of course, this doesn't suprise me, given what we've seen from them in the past...

On a brighter note, didn't they just admit in a court document that they are the successor in interest, and as such, the noncompete clause is rendered void?

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Tuesday, January 20 2004 @ 09:51 PM EST
They didn't have a choice. I guess the tin foil hat types might think it a
delay tactic, but when they get before a judge, and he says, Novell is disputing
your claim of ownership, SCO can't say, well we do own it.

I think it was force upon them, especially with the correspondance between
Novell and SCO public.

Now we can put on the tin foil hat, and try to make some sense of the whole
thing. How about IBM and Novell have been working on this together, made the
correspondance public, after the comply with discovery date, knowing Novell
would get sued (or some action) before the big Friday. Now SCO looks in pretty
tough shape, with 3 legal actions in the US, and Boise looking for a way out
(sinking ship and all), they can say SCO needs more lawyers, but no one will
touch this case even for 50%!

More PIPE!

[ Reply to This | # ]

Summary of comments on the Novell suit
Authored by: Thomas Frayne on Tuesday, January 20 2004 @ 09:56 PM EST
I am preparing a summary of the comments on the Novell suit, both for this
article, and the previous one. I plan to post one or more responses to this
current post that abstract the Groklaw readers' comments and link to the
originals. I expect to do the first post in an hour or two.

It would help if I knew how to make the links go directly to a specific comment.
Sometimes it happens, but I don't know how to force it to happen, especially
for comments in the main thread.


[ Reply to This | # ]

Attachment E is Docs only
Authored by: Bill The Cat on Tuesday, January 20 2004 @ 09:58 PM EST
I read Attachment E and it is all Manuals. Documentation. Unless I missed it
after looking it over, I didn't see anything relating to the copyrights, code,
etc. Only the release notes, documentation for specifications, documentation
supplements, programming guides and various manuals.

How this could be interpreted as transferring the copyrights, source code or any
trade secrets or such is beyond me.

IANEAL but I can read.


---
Bill Catz

[ Reply to This | # ]

Is Amendment No. 2 Valid At All?
Authored by: Anonymous on Tuesday, January 20 2004 @ 09:58 PM EST
Shouldn't signatures of contracting parties be situated on
the _very same_ sheet of paper?

IANAL so I'm very confused therefore.

Any expieriences / clues?



[ Reply to This | # ]

No way Novell can fight this part
Authored by: Anonymous on Tuesday, January 20 2004 @ 10:00 PM EST
From the Yahoo! board, by darlmclied

http://finance.messages.yahoo.com/bbs?.mm=FN&action=m& ;board=1600684464&tid=cald&sid=1600684464&mid=83653

"ha s caused SCO irreparable harm to ... its reputation"

BWHAAHGAHGAAHGAHAHAHAHAHAHA!!!!!
BWHAAHGAHGAAaaackckkc cggggg gurrglle blub choke sputter ...

Oh gawwd help me BWHGAHAHAHAHAHAHA HORK k - k - k I'm laughing so hard I'll cough out a lung!!!

BWHAAHGAHGAAHGAHAHAHAHAHAHA!!!!!

[ Reply to This | # ]

  • Bad faith - Authored by: Anonymous on Tuesday, January 20 2004 @ 10:08 PM EST
    • Bad faith - Authored by: Anonymous on Tuesday, January 20 2004 @ 11:06 PM EST
    • Bad faith - Authored by: Anonymous on Tuesday, January 20 2004 @ 11:16 PM EST
    • Bad faith - Authored by: Anonymous on Wednesday, January 21 2004 @ 02:17 PM EST
WRONGFULLY registered? Remains to be proven!
Authored by: Tsu Dho Nimh on Tuesday, January 20 2004 @ 10:03 PM EST
"The lawsuit, filed in Utah State court, in Salt Lake City, requests
preliminary and permanent injunctive relief as well as damages. The injunction
would require Novell to assign to SCO all copyrights that Novell has wrongfully
registered, prevent Novell from representing any ownership interest in those
copyrights, and require Novell to retract or withdraw all representations it has
made regarding its purported ownership of those copyrights."

<P>I see some flaws in this: before SCO can get a court to force Novell to
assign copyrights to SCO, it has to prove that Novell "wrongfully
registered" them. That will take a full-blown copyright suit, which can
NOT be done in a state court. USC-17, the USA copyright law, clearly states
that any copyright spats have to be fought in a FEDERAL court, with USC-17 as
the only law that can be used as a cause for complaint. SCO is trying to make
another end run around that pesky copyright law, and I doubt it will work.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Tuesday, January 20 2004 @ 10:09 PM EST
This actually explains where Heise was all the time. He was working on the
Novell complaint. You really have to acknowledge Novell's patience here. SCO
got nervous and called first. Now it has to show its hand.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: jimboz on Tuesday, January 20 2004 @ 10:10 PM EST
Let's see how this fares as a lawsuit. Judging by the way SCOG's lawyers
phrased their action, SCOG thinks that Novell owns the copyrights.

Section I, Paragraph 8, Item a, Sub-Item i:
"Requiring Novell to assign to SCO all subsequently registered copyrights
Novell has registered in UNIX and UnixWare."

A way to view this phrase in the complaint is that SCOG & lawyers views the
copyright registrations that Novell registered as valid registrations for
Novell. SCOG wants Novell to TRANSFER them to SCOG. If SCOG & lawyers view
the registrations as invalid, they would file for have the copyright
applications filed by Novell to be voided. SCOG views the copyright
registrations by Novell as VALID.

[ Reply to This | # ]

And the quote of the day, children...
Authored by: kberrien on Tuesday, January 20 2004 @ 10:10 PM EST
McBride also disputed that he was a "sue-happy cowboy," with one concession. "On my birth certificate, under my father's occupation, it says cowboy," he said. "So I will admit to being a cowboy, but not sue-happy." Darl McBride, 11-19-03

http://ww w.infoworld.com/article/03/11/19/HNgplthreatens_1.html

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Stumbles on Tuesday, January 20 2004 @ 10:15 PM EST
Seems to me McBride has dug his hole that much more deeper.
Correct me if I'm wrong but isn't McBride's SCO not the same
SCO
that originally had the agreements with Novell?

And wasn't it the first SCO that originally had the agreement? And
doesn't that APA say in effect that specific rights fall back to Novell
in the event of a change of control? And wouldn't a judge when
looking at the APA consider going from SCO/1 to Caldera to SCO
(today's SCO) a change of control?

Seems to me Darl has done more than shoot himself in the foot,
he now has a gaping hole in his head.

[ Reply to This | # ]

Help Please !!
Authored by: Anonymous on Tuesday, January 20 2004 @ 10:17 PM EST
I am very confused about what exactly was sold ...

In attachment E, which is promisingly entitled,
"Selling copyrights in product(s) of business"
(I think -- it's not very clear in the pdf),
at the very end we have this list:

"Unix operating system edition 5 and instruction manual"
"Unix operating system edition 6 and instruction manual"
"Unix operating system edition 32V and instruction manual"
"Unix operating system edition 7 and instruction manual"

Exactly what are all these unixes (unices?) and what
bearing does this list have on the case ?? TIA

[ Reply to This | # ]

What does Amendment 2 actually say?
Authored by: arreaux on Tuesday, January 20 2004 @ 10:27 PM EST
In reading the SCO postings today, I think they have missed the point. The
whole copyright claim seems to depend on the much talked about Amendment 2 to
the Asset Purchase agreement. The important part modifies Schedule 1.1
"Excluded Assets" of the original agreement. It looks to me that
Novell is reading it correctly. What am I missing? Can SCO be that wrong?

--
AMENDMENT No. 2
TO THE ASSET PURCHASE AGREEMENT

As of the 16th day of Oct, 1996. The September 19, 1995 Asset Purchase Agreement
(the "Agreement") Novell, Inc., ("Novell") and The Santa
Cruz Operation, Inc. ("SCO") is amended in the following respects.

A. With respect to Schedule 1.1(b) of the Agreement, titled "Excluded
Assets", Section V, Subsection A shall be revised to read:

All 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. However, in
no event shall Novell be liable to SCO for any claim brought by any third party
pertaining to said copyrights and trademarks.

[ Reply to This | # ]

Who's shooting SCO in the foot?
Authored by: jerm on Tuesday, January 20 2004 @ 10:31 PM EST

So now poor SCO claims that Novell is slandering them? What a joke. Novell has presented more evidence to prove it retained the rights to UNIX than all the evidence SCO has presented to back up its varied, incoherent, slanderous, and threatening allegations. One claim backed with some good evidence versus more claims than I have appendages backed up by nothing.

And SCO claims that Novell is hurting their business? I'm sure Novell is prepared for something like this. IANAL, but I'll recommend this course of action for Novell: Present SCO's amended 8K filing in which they state quite clearly several times that their bullshit lawsuit and bluster is destroying their business, and then ask the judge to dismiss the case.

It will be interesting to see who actually shows up for court on SCO's behalf. Maybe we'll get to see Kevin the wunderkind in action again.

jerm

---
Real programmers don't comment their code. If it was hard to write, it should be hard to understand.

[ Reply to This | # ]

Yet another legal problem...
Authored by: Bill The Cat on Tuesday, January 20 2004 @ 10:32 PM EST
http://www.s mh.com.au/articles/2004/01/21/1074360802009.html says: A Perth-based open source consulting company has told the SCO Group that unless it details, by February 1, the specifics of what it claims are IP violations in the Linux kernel, the company would refer the matter to the appropriate legal authorities.
Enjoy!

---
Bill Catz

[ Reply to This | # ]

Delaware.... I mean... Delaware
Authored by: tjw on Tuesday, January 20 2004 @ 10:36 PM EST
It turns out Novell is a Delaware corporation with its principal offices in Massachusetts, not Utah, according to SCO's complaint.

If you look at the cover sheet of that document, it not only says that Novell is a Delaware company, but that SCO is a Delaware company as well.

If I recall correctly, RedHat is also a Delaware company.

What _is_ it about Delaware? Can you exploit some great tax loophole if you set up your corporate offices in that state?

Shouldn't legal disputes between companies based in the same state be settled in that state? I wonder how the judicial system in Utah feels about an out-of-state company bringing all these suits against other out-of-state companies in their courtrooms. It certainly doesn't seem appropriate.

[ Reply to This | # ]

(Non-)relevence of Attachment E
Authored by: whoever57 on Tuesday, January 20 2004 @ 10:37 PM EST
Attachment E is not referenced in the Asset Purchase Agreement , so it's not part of the agreement.

What's more, the attachments to the asset purchase agreement appear to be numerically labelled (1, 2, 3, ... not A, B, C, ...), so it appears that the document is completely unrelated to the asset purchase.

Finally, if that were not enough, it does not even include SysV.

So why have SCO promoted this document? One reason and one reason alone: many reporters and analysts won't do the proper research and they will write that SCO does appear to own the copyrights.

---
-----
For a few laughs, see "Simon's Comic Online Source" at http://scosource.com/index.html

[ Reply to This | # ]

To Stop Baystar/RBC flushing SCO down the PIPE
Authored by: anwaya on Tuesday, January 20 2004 @ 10:39 PM EST
On Friday, SCO amended their November S3, saying (in part) that they needed to
establish their copyrights. If they didn't start doing that pretty quickly, the
PIPE deal would go very sour.

But anyone involved with this on the SCO side should be feeling rather
embarrassed. This is really crass, and out in the open.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Tuesday, January 20 2004 @ 10:43 PM EST
FWIW, Derek Morr's "history of unix" available at
http://www.lug.psu.edu/ includes the unfortunate
line:

1996 - SCO buys Unix copyrights from Novell

So it has been thought outside of SCO ... (I have
no idea how accurate or inaccurate Morr's presentation
is).

[ Reply to This | # ]

Not unexpected
Authored by: PeteS on Tuesday, January 20 2004 @ 10:47 PM EST
When Novell Placed their Correspondence with SCO on their site it put SCOX in a jam.

Now, all those companies talking to Novell are reading this and basically saying to SCOX "You don't own squat, Novell does. Go away."

This is a desperation play; SCOX has nothing if they have no copyrights; and I think Novell has this one - after all, they were the ones keeping quiet and just trading letters, not press releases.

---
Recursion: n. See Recursion

[ Reply to This | # ]

  • Not unexpected - Authored by: Anonymous on Wednesday, January 21 2004 @ 09:11 AM EST
Another excuse option
Authored by: PM on Tuesday, January 20 2004 @ 10:49 PM EST
SCO told the 'Red Hat' case judge that SCO could not do discovery just yet
because of the time taken with discovery for the 'IBM' case. If SCO has
trouble attending to two simultaneous cases, how will it handle four (including
Google or some other hapless outfit)? Of course, this gives a good excuse for
delaying discovery in all cases.

On the other hand, SCO may not need to worry too much about the 'IBM' case
when the judge blows the guts out of it soon.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Tuesday, January 20 2004 @ 10:55 PM EST
It may be purely coincidental, but TSG's suit against Novell comes the day
before LinuxWorld opens in NY, at which Jack Messman is the opening keynote
speaker. Novell has a press conference scheduled from NY tomorrow at 10 a.m.
EST. One can assume that TSG will at least garner some mention during the press
conference.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Tuesday, January 20 2004 @ 11:03 PM EST
They are effectively elongating the time frame under which IBM, Novell and Linux
will be operating 'under a shadow'. This could be a momentum stopper, although
it hasn't been yet. My grampa caught a dogfish once, put it in a gunny sack in
the trunk of his car after beating its head in, in the morning it latched on to
his shoe as he was attempting to divide it up for the rose bushes. It still
became plant food, but...

[ Reply to This | # ]

Slander Of Title v Breach Of Contract
Authored by: Anonymous on Tuesday, January 20 2004 @ 11:18 PM EST
SCO are suing under Slander Of Title

In the last discussion, there was some comments about whether this common law tort is even applicable, as it seems to be applied to property with liens on, and stuff like that.

And further, even if applicable, asking for transfer of the copyright registrations is a possible form of relief, even if proven.

IANAL so I don't know the answer.

But from my man in the street point of view, I would have thought SCO should be suing under some breach of contract type theory (assuming they believe they have a case of course).

Maybe I'm way off here, but the whole thing just doesn't seem quite right to me.

I further add, that in one article today, a SCO spokesman (not Stowell, the other one in PR), as quoted as saying something along the lines of SCO do NOT expect a response from Novell. This doesn't make sense to me either.

Has anybody any kind of explanation.

IANAL, IA very confused.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: wvhillbilly on Tuesday, January 20 2004 @ 11:19 PM EST
If a statement is proveably true, it is not slander.



---
What goes around comes around, and it grows as it goes.

[ Reply to This | # ]

Did SCO sue the wrong company?
Authored by: Sunny Penguin on Wednesday, January 21 2004 @ 12:02 AM EST
In the sale from Novell to SCO (The real SCO, Santa Cruz)
was there a clause:

However, in no event shall Novell be liable to SCO for any claim brought by any
third party pertaining to said copyrights and trademarks.

Does this mean The SCO Group sued the wrong company?
SCO vs SCO would be a great court case, nice ring to it <g>

---
SCO directly to jail, do not collect two hundred dollars.
BTW - I could never become a Lawyer.(I ID ten tee)

[ Reply to This | # ]

PJ: Source and Binaries in list
Authored by: Anonymous on Wednesday, January 21 2004 @ 12:06 AM EST
Operating System Utility Programs
TXu 301 868

UNIX(R) Operating System Edition 5 and Instruction Manual
TXu 510 028

UNIX(R) Operating System Edition 6 and Instruction Manual
TXu 511 236

UNIX(R) Operating System Edition 32V and Instruction Manual
TXu 516 704

UNIX(R) Operating System Edition 7 and Instruction Manual
TXn 516 705


Notice the fuky wording "product" and "manual". I find
it interesting they filed a single copyright for both the product and manual.

Anyway, are these transferred to SCO or is this just a list of the copyrights
that are related to SCO's business and which SCO could request to be
transferred in writing if they were needed to perform that business?

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: gribnick on Wednesday, January 21 2004 @ 12:09 AM EST
No time like the present to (1) screw up the day for Jack's keynote tomorrow
and (2) get a head start on the major smoke screen that will be needed to cover
Friday's callamities. I didn't see anything that the final part of SCO's
reponses had been delivered to IBM yet (were to be delivered before Friday and I
can't imagine it will be looked on very well if it is done Thursday nite) and
there were supposed to be some briefs filed prior to Friday which should be
appearing most any time now if this thing is to go off Friday as planned. Unless
of course by filing late SCO is going to try to force IBM to ask for more time
to review evidence. And there won't be much question why the stuff was late now
will there ??

[ Reply to This | # ]

Why Novell?
Authored by: Anonymous on Wednesday, January 21 2004 @ 12:16 AM EST
Why is SCO sueing Novell? NewSCO bought a rotten apple from OldSCO and is sueing
the tree? WTF? Why are they not sueing OldSCO???

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: mjscud on Wednesday, January 21 2004 @ 12:25 AM EST
16. Software technology is valuable only insofar as the intellectual property contained therein is protected from unlawful misappropriation. Copyrights provide critical protection against misappropriation established by the United States Congress under the Copyright Act. SCO required the full copyright protection it purchased from Novell to enforce its rights in UNIX and UnixWare technology, including proprietary source code, against infringing parties.

This seems to me the crux of SCO's legal argument; without this being accepted, all the rest falls apart.

How reasonable does this paragraph seem to people? It doesn't seem to me to be flat our ridiculous; I can easily imagine a lawyer arguing it as the true interpretation of the contract to a jury.

However, I think that the business being sold was the selling of source code licenses and the releasing of new versions of UnixWare. Given that this contract gives the old SCO the right to sell source code licenses, then they don't also need the copyrights; they just need Novell to hold the copyrights and not to license the code independently. In that case, organizations wanting to buy access to the source code and the right to create derivative works from Unix and/or Unixware have to go through them. And the transfer of control clause seems to make it a business that can't be effectively sold without the agreement of Novell. Meaning that what Caldera=SCO Group got from the old SCO was not worth very much, since they then can't do a buyout w/o Novell's permission, while Novell can do a buyout w/o asking Caldera's permission.

The Unix and/or Unixware is another important legal issue, of course, which seems to be particularly obfuscated by the contract language I've read.

What is the chronology of this contract and the transfer of the Unix trademark (and specification rights? are there such things as specification rights?) to the Open Source group? By SCO Group's argument that they ended up with Unix, would one or the other of the assignments of Unix to the Open Source Group and old SCO have to be illegal?

I note that in this press release SCO acknowledges that The Open Group has the trademark to Unix.

Comments? Am I confused about what's really important to the (legal as opposed to Stock Price Pumping) potential success of SCO's suit?

---
Even a fool, when he keeps silent, is considered wise. Proverbs 17:28

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 12:28 AM EST
Sco has asserted (refer to http://www.sco.com/novell/) that -

"Paragraph 4.7 of the Asset Purchase Agreement states that Novell and SCO
"shall issue a joint press release."

Why then does SCO appear as the only contact on the *joint* press release? See
below URL for the press release -

http://www.sco.com/novell/sco_unix12-03.pdf

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: eric76 on Wednesday, January 21 2004 @ 12:31 AM EST
Isn't it normal for the plaintiff to be required to post a bond in order to get
a temporary restraining order with the bond to cover the possible damages to the
defendant?

If so, how much would SCO's bond need to be to cover Novell's possible
damages? Would the damages be quite small or could they be quite large?

It's obvious that if SCO had asked for a temporary restraining order against
IBM's continued distribution of AIX, they could not possibly have covered the
damages that IBM would incur.

But how about in this case?

[ Reply to This | # ]

Do the time limits inactivate Novell's rights?
Authored by: Anonymous on Wednesday, January 21 2004 @ 12:37 AM EST
I have questioned the impact of Amendment 2.

Specifically, section C.ii gives rights back to Novell under conditions in
Agreement schedule 6.3(c). I know it says 6.3(g) but that is an obvious
typo. Those stated conditions have materially occurred around 1999.

However, schedule 6.3(c) terms cease two years after September 19,
1995. Obviously, the old SCO survived more than two years thereafter.

Does this mean that Novell has lost the right to recover licensing rights
to SVRx? Licensing may turn out to be just as important as copyrights to
IBM.

SCO public statements still are just ludicrous. But I am cautious
whenever there are sharks around.

[ Reply to This | # ]

RedHat DJ and Novell??
Authored by: tichael on Wednesday, January 21 2004 @ 12:40 AM EST
IANAL....Maybe I am missing something. Everyone keeps talking about how this
could potentially impact the RedHat case. Isn't RedHat asking for a declarator
judgement? It was a while back when I was reading about what a DJ(declaratory
judgement) is here on Groklaw so maybe I have misinterpreted what a DJ really
is.

I am summarizing here, but basically isn't a DJ asking for a judgement from the
courts on RedHat's liability to SCO? In a DJ, doesn't the court determine if
RedHat has infringed upon SCO's "rights." And then if it is found
that they have infringed upon SCO's rights, SCO must specify what was infringed
upon. The purpose is to allow RedHat to remedy the situation, i.e. remove all
offending code, to prevent future infringements.

Could someone explain to me how the Novell case has a major impact on the RedHat
DJ? I see it having relevance, but I don't see it as a make or break
situation.

[ Reply to This | # ]

What are they really?
Authored by: kberrien on Wednesday, January 21 2004 @ 12:41 AM EST
>UNIX(R) Operating System Edition 5 and Instruction Manual TXu 510 028
>UNIX(R) Operating System Edition 6 and Instruction Manual TXu 511 236
>UNIX(R) Operating System Edition 32V and Instruction Manual TXu 516 704
>UNIX(R) Operating System Edition 7 and Instruction Manual TXn 516 705

What are these really. Could it be the name is deceptive. Ie, not THE
OPERATING SYSTEM and THE MANUAL but some item, be it a manual that's entiled
"Unix (R) Operating System Edition 7 and Instruction Manul"

I tried looking up the TXn numbers on a .gov copyright website, but I get lots
of junk entries, it doesn't lock right onto the TX number.

Can someone else look these up and see what they are? The registrations do
contain some other details.. I just can't find these specific ones.

[ Reply to This | # ]

Unix copyrights transferred in Attachment E?
Authored by: radix2 on Wednesday, January 21 2004 @ 12:49 AM EST
Is this SCO's basis for claiming they own the copyrights. These items (from the very bottom of attachment E seem to infer that the operating systems copyright was transferred as part of the sale. But then isn't that explicity denied in the exclusions part of the Asset Purchase Agreement?

ATTACHMENT E

Selling Copyrights in Product(s) of Business
.
.
.
UNIX(R) Operating System Edition 5 and Instruction Manual TXu 510 028
UNIX(R) Operating System Edition 6 and Instruction Manual TXu 511 236
UNIX(R) Operating System Edition 32V and Instruction Manual TXu 516 704
UNIX(R) Operating System Edition 7 and Instruction Manual TXn 516 705

[ Reply to This | # ]

I hate to say this, but...
Authored by: Anonymous on Wednesday, January 21 2004 @ 01:06 AM EST
...it seems to me that SCO just might be right here. Now there is a part of this
that we haven't seen and that's the Old SCO to new SCO asset transfer
documents, and I'm still not clear on with which SCO the Amendment 2 was
signed, but it seems to me that the only reasonable way to interpret the
amendment and the rights SCO would require to conduct the business of selling
Unix SysV and Unixware would be if it held the copyrights. In addition the
transfer of liability clause in the contract also suggests that the rights must
have transferred along with the risks. I may not be a lawyer but it seems to me
that SCO has a LOT better case here then it does verses IBM.
Of course a judge might find that the contract was so poorly written that it was
null and void (no clear meeting of the minds) so that SCO should return the
software to Novell and Novell should return the stock to SCO plus intrest and
damages. Then everybody would be happy! No more ambiguity!
And pigs can learn to whistle too!

[ Reply to This | # ]

The Big Picture
Authored by: Anonymous on Wednesday, January 21 2004 @ 01:16 AM EST
In reading GrokLaw lately (and Slashdot, and elsewhere), I get the impression
that a lot of you think that this whole thing is about to blow over. I think
that you are wrong. These guys that we are dealing with are professionals, and
they are not going to give up lightly.

There are a number of reasons why SCO may win:

1) The courts do not always rule sanely. Look at the Eolas patent that was
enforced against Microsoft. That patent was so vague, overbroad, and had so
much prior art that MS should have been able to stomp those guys. Wrong. Eolas
won, and it took an outcry involving the W3C to finally get the courts to
reexamine the Eolas patent.

2) You are assuming that things are not being manipulated behind the scenes.
Geeks live in a world of numbers and code, where things happen for clear and
rational reasons. Politics (including law) is not like that. There may be
unseen forces at work, including certain representatives whose children work for
Boies' law firm.

3) The Caldera lawsuit mill won once before against Microsoft for DR-DOS, which
was a claim that I consider to be less absurd than the SCO claim but still
pretty vacuous. MS has a big legal team and was unable to defeat them then.
This is largely the same crowd, backed by Canopy, at it again.

4) This may have been in the planning stages long before any of you realize. I
speculated years ago that some Linux company involved in what I called the
"Linux gang-bang" would trojanize Linux with IP issues and then come
back and try to use that to take control of it later. When Linux started
getting big, I was almost waiting for this to happen. Certain cliques in the
software industry don't want a free OS, and they would rather see Linux be
owned if it is to be successful so that someone can collet profits from it.

5) MS may be pulling strings, and has a lot of money and connections to do so.
See #2.

6) If this is as vacuous as you guys seem to think it is, then Darl and co. are
STUPID and are risking JAIL TIME! It's called market fraud, and can send you to
a nice cushy federal pen where you can play tennis with the Enron execs. I
doubt that these guys are that stupid and reckless. They have to have thought
this out and planned it so that at the very least they get to stay out of jail.
I suspect that they have an ace up their sleeve, and that we won't see it for
at least another six months minimum... maybe years. The aim could actually be
to disarm everyone by appearing to lose at first and then to stick it to us (and
IBM, and Novell, and Google, and others...)

7) This is political. Also see reason #2. Linux represents a different
philosophy that runs at odds with the conservative American mainstream. This is
a conflict of cultures, and culture wars can get very very ugly. Remember when
Darl talked about being open to "working with members of the open source
community to monetize software technology." What he was saying is
"look, everything in the world must be owned... either you get a piece of
it or nobody does." There is ideology involved here.

The bottom line is that we should be taking this whole thing *very* seriously
and acting accordingly. No more trolls, lighthearted dismissals, and certainly
no more immature acts like DDOS attacks against SCO. We need to behave as if we
are all members of a culture that is under attack, and we need to behave as if
that attack is very serious. It is.

If SCO wins here, they will go after:

- FreeBSD/NetBSD/OpenBSD
- Darwin/OSX (those will no longer be open)
- gcc and g++
- GNU tools and other things that make the basis of a
free OS

Remember their noises about owning rights to C++?

This is serious folks. Stop dismissing these guys.

[ Reply to This | # ]

Taking things out of context is fun
Authored by: Captain on Wednesday, January 21 2004 @ 01:31 AM EST
c) Following Novell's receipt of SCO's June 6, 2003, letter, Novell issued a press release dated that same date which recanted Messman's prior statement claiming Novell owned UNIX copyrights stating "[t]he amendment [to the Asset Purchase Agreement] appears to support SCO's claim that ownership of certain copyrights for UNIX did transfer to SCO in 1996."
Wow, that looks pretty damaging to Novell. Oh wait, what do I read in the very same complaint? (IV.24)
"Novell, and not SCO, owns the UNIX and UnixWare copyrights."

[ Reply to This | # ]

More perspective
Authored by: Anonymous on Wednesday, January 21 2004 @ 01:37 AM EST
Something I forgot to mention in my earlier post:

The commercial software industry is heavily based on customer lock-in through
vertical control of the OS and development platforms. That business is worth
*tens of billions* per year.

Do you know what happens when someone or something gets in the way of that kind
of money?

Wars are fought and people are *killed*. It happens everyday.

The idea that some manipulation might go on, some lawsuits be filed, and some
company might take possession of Linux to get it out of the way of MS and other
companies' profits is not far-fetched given what occurs in the world at large
when those sums of money are at stake.

[ Reply to This | # ]

It helped: SCOX up again
Authored by: Anonymous on Wednesday, January 21 2004 @ 01:44 AM EST
Checking Reuters info on SCOX on NASDAQ I get
Price Today's change
15.97 +0.52 +3.37%

(Last trade Jan 20, 2004 04:01 PM ET)

IMHO this lawsuit was totally expected. SCO really had no choice if it wanted to
continue riding the tiger, and I'm certain Novell knew it was coming and is
prepared. I don't think we have yet seen all of Novell's documentation on
this. Interesting times...

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Greebo on Wednesday, January 21 2004 @ 01:44 AM EST
Hi,

I think this is great news. PJ is right. SCO have too many legal fronts now,
and it's only a matter of time before the line starts to break. Personally
Friday can't come quick enough for me!

One thing i'd like explained to me though. I've seen the Lanham Act mentioned
a few times (more than a few times!) in a lot of the posts, but IANAL, and i
have no idea what this is.

Could someone please explain this act in clear English, and how it applies to
SCO?

Sorry if this is a really dumb question, but i don't have a clue about legal
stuff.

Cheers,

Greebo.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 01:52 AM EST
"I have a hard time accepting transfer of "all rights" and
"ownership" without actual transfer of the copyrights, but do recall
that when you buy a CD you don't buy the copyright to anything, just a bunch of
rights over it, which is probably what Novell thinks SCO has: the rights, not
the copyrights."

Too, you have to remember what was EXCLUDED from the deal: PATENTS, were listed.
Thus IF you accept the stance that "all rights were transferred to
SCO" you then come upon the section of things EXCLUDED which included the
PATENTS. Thus IF you are of the mind that "ALL RIGHTS" were
transferred to SCO that would HAVE TO INCLUDE the PATENTS, which as we clearly
have seen were EXCLUDED, therefore it is more likely that the MOST of the
copyrights were likewise EXCLUDED, and were maintained under the control of
NOVELL. The ONLY copyrights that seem to have been transferred were those needed
by SCO to execute their business -- ie a LIMITED and specific set of copyrights
were transferred, not ALL copyrights.

The other problem SCO will have to face is the section regarding license fees
(?) wherein 100% were remitted to NOVELL who then gave SCO a 5% commision for
collecting those fees. IF SCO owned "ALL RIGHTS" to UNIX as they say
they did, WHY were they giving NOVELL 95% of those collections??
My GUESS is that this was a franchise operation, wherein SCO received certain
rights and certain copyrights plus a 5% commision for collecting and remitting
lic. fees which were the property of NOVELL, SCO was given given control over
source code for the faithful execution of these activities. This is backed up by
the section that starts saying something like, The BUYER has and shall not have
ANY right over..." unless it was first approved by NOVELL. In short NOVELL
holds the reigns and SCO must answer to, and be compliant to, the wishes of
NOVELL.

Last there is that question about "change of ownership" SCO GROUP
might want us to believe that there was NO CHANGE of ownership, however if you
look at their SEC filiings SCO Group is listed as CAULDERA Systems, not SCO.

Thus regarless of ones stance SCO GROUP still have a lot of TOUGH questions to
answer before they could legitimately be awared control over all UNIX.

I think, but IANAL, that when viewed in totality that regardless of what SCO
might claim, and even what the APA seems to say, when viewed in totality, the
actuall APA was intended to turn over the day-to-day operations of managing
NONVELL's assets, in return SCO was given a 5% commission on all collections,
as well as control over, for BUSINESS REASONS ONLY, NOVELL's UNIX holdings.,
but NOVELL still had the final say-so in all matters, SCO little to none. SCO
was not the OWNER of UNIX and never was the owner NOVELL's UNIX patemts, nor
copyrights, and would not be issued either unless SCO could prove a REASON they
NEEDED ownership of those copyrights.

Bobcat

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: TerryL on Wednesday, January 21 2004 @ 02:06 AM EST
The injunction would require Novell to assign to SCO all copyrights that Novell has wrongfully registered...

Maybe it's just the wooly way I use words as a normal person but the 'assign' sounds like a claim of "we don't have the copyright but we think we should have it and we want it"

---
All comment and ideas expressed are my own and do not necessarily reflect those of any other idiot...

[ Reply to This | # ]

Question: countersuing?
Authored by: ile on Wednesday, January 21 2004 @ 02:07 AM EST
It's not just that IANAL, in fact IANEAUSC (I am not even
a US citizen), so I know nothing about US law except for
what I have learnt here...so I have a question for you
knowledgeable lot:

Is Novell now in the situation of being able to
countersue SCO for breach of contract, since SCO seems not
to have paid up the famous 95% for the new/modified
licences?

The two issues look rather different to me, but they might
be conflated in court, I guess...

I guess (please do correct me if I am wrong) that in any
case Novell can countersue using Lanham and other stuff...

BTW: in which ways do the provisions of the Lanham act
differ from slander of title? Isn't the common law slander
of title in this case somehow subsumed in the act?

Fully ignorant, as you can see,

ile

[ Reply to This | # ]

Caldera's release of ancient Unix in violation of Novell's copyrights?
Authored by: whoever57 on Wednesday, January 21 2004 @ 02:18 AM EST
Here's a thought: if Novell still owns the "ancient Unix"
copyrights, then surely Caldera's release under a BSD-like license was in
violation?

If Novell were to allege that, then SCO's best defence might be to prove that
the code was public domain and no-one owned any copyrights on it!


---
-----
For a few laughs, see "Simon's Comic Online Source" at
http://scosource.com/index.html

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: seeks2know on Wednesday, January 21 2004 @ 02:19 AM EST

Now SCO has active lawsuits on three burners.

The IBM lawsuit has been a huge drain on SCO's cash.

The RedHat litigation has been in suspended animation for a while; but I expect that to end soon. When it does this will suck up cash as well.

Now with SCO dragging Novell to court, who knows the legal expenses? But after reading and re-reading all of documents involved, I have to believe that it will consume many hours of expensive experts to untangle.

So here are my questions for the financial gurus: (1)Is SCO finacially able to feed this three-ring litigation circus? (2) At what point do they run out of cash?

---
"Convictions are more dangerous enemies of truth than lies." - Friedrich Nietzsche

[ Reply to This | # ]

SCO to Stall IBM
Authored by: kb8rln on Wednesday, January 21 2004 @ 02:26 AM EST

This new lawsuit is just a stall tactic for SCO vs IBM because now SCO can say "We ask to court to postpone these proceding because we need the copyright from Novell to complete our lawsuit.

[ Reply to This | # ]

What is SCO's goal, really?
Authored by: Anonymous on Wednesday, January 21 2004 @ 02:28 AM EST
What is the best case scenario for SCO? If they win against Novell and get the
copyrights awarded, the RedHat complaint gets dropped and they win against IBM,
what is a realistic outcome? They paid $50m for some rights. No way on earth
would they get $3bn in damages for it. Not even your average brain-dead jury
would award that. Lets say they get $100m. And then? $20m goes directly to
Boies, $50m goes back to BayStar, and SCO is back to square 1. They have some
cash left, but no business. So whats the point of this whole mess?

[ Reply to This | # ]

If novell owns nothing ..
Authored by: Anonymous on Wednesday, January 21 2004 @ 02:39 AM EST
If Novell owns nothing, why do SCO pay them (license monies)?

and why has SCO pestered them for the copyrights ?

Could it be Novell *actuall* do own the stuff ?

Sounds like SCO is a bunch of 3yr olds screaming for stuff that is not theirs.

From reading Amendment E, the wording is too vague in areas to be a proper legal
document. It does not make it clear if it is items transferred to SCO, or listed
(as being owned by Novell, and part of unix) in order to assist with enforcement
of licence

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 02:57 AM EST
I notice that the copyrights to "SYSTEM V APPLICATION BINARY INTERFACE" is included in amongst the copyright to a whole load of manuals.

On the caldera site there is a Unix manual named "SYSTEM V APPLICATION BINARY INTERFACE". Perhaps Darl. clutching at straws, saw ABI in the list of copyright assignments and therefore thought that he owned the code rather than the manual? Attachment E clearly indicates (in context) intent to hand over copyight to the manual rather than code.

IANAL, IAAProgrammer.

[ Reply to This | # ]

Completing the hat trick
Authored by: Anonymous on Wednesday, January 21 2004 @ 03:01 AM EST
Hmmm, I guess between IBM, Red Hat, and now Novell (i.e. SuSE), SCO is now
involved with lawsuits with the three most predominant linux companies (at least
IMHO)

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 03:16 AM EST
Danger: If SCO win this, they will once again revoke IBM's and SGI's licence.
This is the one SCO needs to win, cause then they can hurt IBM's business
legally, or atleast till IBM sue SCO for breaching their licence agreement.

This all seems to be getting rather messy, with no end in sight.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: GLJason on Wednesday, January 21 2004 @ 03:18 AM EST
I really do hate to admit it, but it does look like SCO might have a case (at least for having the UNIX copyrights). I don't know where this Attachment E came from that lists the copyrights that are registered and were sold... Why, if this existed, did SCO go ahead and re-register the copyrights as they said they did. And why would Novell then try to register the copyrights as well? If Attachment E really went with the Asset Purchase Agreement, it clearly states a whole bunch of UNIX copyrights that were transferred to old SCO. Maybe this is not from the APA, but from the agreement Caldera had with old SCO?

You can look the copyrights up by telnetting to LOCIS.LOC.GOV (go to www.copyright.gov to get the link and instructions on how to use the interface). The ones I checked still showed AT&T.

Ther phrase "all rights and ownership", saying you're selling those versions of UNIX, and listing the "source code" as one of the things you're selling sure makes it seem like the copyrights are getting sold. The exclusion in 1.1b could be seen to pertain to the assets listed in 1.1b (netware products, netware code in UNIXware and Eiger, etc.), and not to the items being sold. Ammendment #2 with the explicit transfer of "...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" is pretty vague... If they say they are enforcing those rights by trying to license Linux users, then they sure need the copyrights to whatever it is is Linux that they claim is taken from UNIX.

I think the most telling thing though is that NOVELL required a license to use the Unix code! If Novell really had retained the copyrights and it was supposed to be understood in the contract, they would have NO NEED for a license. You don't need a license to use a product you own the copyright on...

I don't know if Novell planned this back when they sold UNIX or if this new interpretation comes from going back to look at the contract after ignoring it for years...

[ Reply to This | # ]

non lawyer critique
Authored by: error27 on Wednesday, January 21 2004 @ 03:30 AM EST
This document is a lot simpler, and cleaner than the original complaint that SCO
filed against IBM. It doesn't try to hide the evidence of the case. It
doesn't refer to RMS as an MIT professor.

This document says "predecessor in interest" in the 2 places where
it talks about Old-SCO. It doesn't do it consistently though. For example, it
says that Novell got $100 mil worth of SCO stock when really Novell got stock
from Old-SCO. The document doesn't talk about Caldera or Tarrantella. They
should have been more clear on this point because it's pointless to try trick
the judge about this.

The document has a lot of table pounding. Everything is either
"clear" or "unambiguos". Unfortunately it's not
convincing.

Probably Novell will try to change the venue. If they can move the trial to
Delaware or California that will make things more expensive for SCO.

Novell will take their time with this. Everyone expects SCO go bankrupt in
2005, but they could go bankrupt sooner. If SCO goes bankrupt then everyone
wins so why not just delay until SCO kicks the bucket?

Novell is going to file counter claims, obviously.

Someone needs to do a point by point rebuttal of each paragraph, but I need to
go to sleep...

[ Reply to This | # ]

UNIX *and* UnixWare?
Authored by: jm493 on Wednesday, January 21 2004 @ 03:43 AM EST
In their complaint, SCO provides statements that Novell claims copyright to UNIX
(complaint paras 4, 19(a), 19(c), 19(g), 19(h), 19(i), 19(j))

But then it accuses Novell of claiming rights to "UNIX and
UnixWare"
(complaint paras 5, 6, 7, 8, 18, 19, 20, 21, 24, 25, ...)

Is this SCO exagerating their rights, pushing some different agenda, or what?

If they have no basis for complaining about UnixWare, does this undermine their
case to be given rights to "UNIX and UnixWare"?

Would it have been more prudent to have made some claims for UNIX rights, and
separate claims for rights to UnixWare.

[ Reply to This | # ]

Red Hat Fund NOT for users
Authored by: Anonymous on Wednesday, January 21 2004 @ 03:44 AM EST
Red Hat's fund has not been extended to users. The warranty only says they will
replace code. I checked this with Red Hat and they have no current plans to fund
customer's legal bills. Anyway, probably irrelevant given that SCO v Novell
will keep them busy for a while...

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 03:56 AM EST
I read the complaint and I was simultaneously laughing my
head off at the stupidity of it all AND spitting tacks at
their temerity!!!

This is the first time I saw mention of Attachment E
listing transferred copyrights, and for a moment I thought
we had trouble. I should have known better than to trust
SCO at their word. Can those guys even read? I've
scanned through E, and every single item is a reference or
user manual. NO CODE!!! Add that to their contridictions
within the complaint, their obvious and wilfil
mis-interpretation of Amendment 2, and
mis-characterisation of Novells statements and actions and
they could soon be in serious troble with the courts.

America must truely me an irony-free zone, because SCO
claims on slander and interference are the most ironic
thing I've heard since Alanis Morisette wrote a song about
about what she thought was ironic, but really wasn't.
I've an idea, lets take this complaint as a bolierplate,
swap the names SCO and NOVELL, change the quoted Novell
letters and re-submit it to the court as the counter-suit.
Better yet, put Linus' name in there as plaintiff and
really stick it to them...

[ Reply to This | # ]

PJ
Authored by: Anonymous on Wednesday, January 21 2004 @ 04:44 AM EST
Don't you think that to better represent the facts in the whole mess, we should
differentiate between Caldera/SCO and the old SCO (Santa Cruz Operation) when we
refer to them in our articles? That would go a long way in clearing the
confusion.

Sorry for my poor english though ..

[ Reply to This | # ]

Broken TheRegister link
Authored by: Anonymous on Wednesday, January 21 2004 @ 05:22 AM EST
The link to The Register ("More here in the Register") is missing
the "L" from the end of .html
It should be http://www.theregister.co.uk/content/4/35004.html
not
http://www.theregister.co.uk/content/4/35004.htm

[ Reply to This | # ]

Selling vs. Seller's
Authored by: PeteS on Wednesday, January 21 2004 @ 05:38 AM EST
There seems to be a typo in the title of attachment E

'Selling Copyrights in Product(s) of Business' should probably read

'Seller's Copyrights in Product(s) of Business'.

This is crucial. As the attachments are schedules of what each party had, not a
statement of what was to be sold (that's in the main Asset Purchase Agreement),
then it's just a statement of what Novell owned at the time of the agreement.
Nothing about that's what Novell *sold*.



---
Recursion: n. See Recursion

[ Reply to This | # ]

SCO (predicatbly) Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 06:05 AM EST
Just some thoughts, feel free to pick them apart:

I doubt this came as a suprise to Novell. So far any information they have
released has been exquisitely timed to dampen SCO's big moments. Much like
poking a stick at a pit bull, they knew SCO would bite eventually.

Novell could have kept quiet and see what happened, as the IBM and RH cases
don't seem to be about copyright yet. I don't think they would have allowed
themselves to get involved unless they chose to.
However, IBM and Novell are business partners in Linux and have vested interest
to convincingly squash SCOs arguments. I would say it's a fairly safe bet that
the two legal departments are communicating with one another.
These companies have both survived (Novell just about) Microsoft onslaughts,
they are battle hardened players in the IT game. They know what they are doing.
I think they are working together to deal with this.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 06:17 AM EST
It's Pump&Dump time again!

You know, what would be really nice is to be able to add a link to groklaw.net
on the Yahoo! Finance page, as it seems a lot of people get their
'information' from there. Possibly other investor sites/forums as well.

After they read the Groklaw articles, let's see how fast their stock will drop.

[ Reply to This | # ]

Attachment E - a HOAX
Authored by: Anonymous on Wednesday, January 21 2004 @ 06:27 AM EST
SCO says in the complaint:

2. In Attachment E of Novell's Disclosure Schedule to the Asset Purchase
Agreement (Exh. A at Attachment E), Novell provided a list of approximately 106
copyright registrations (encompassing 8 pages) covering products relating to the
business transferred to SCO.

Sounds like this is a list of copyrights that Novell sold and the title in
Attachment E actually seems to confirm this:

ATTACHMENT E

Selling Copyrights in Product(s) of Business

But actually in the Disclosure Schedule Attachment E is listed as:

Attachment E to this Schedule contains a listing of Seller's copyright
registrations covering product(s) of the Business

The seller being Novell this means it is actually a list of Novell's
copyrights, not sold items.

So did SCO lie in court papers. Not exactly, they just told the truth in a very
confusing way. They say it is a list of registrations (Novell's) covering
products (Novell's) relating to the business that was transferred to SCO. The
only thing being transferred was the business.

[ Reply to This | # ]

Don't be fooled
Authored by: Anonymous on Wednesday, January 21 2004 @ 06:30 AM EST
Everybody is talking as if this is the most important case, but it is a big deal
only if SCO loses it. If this happens then their whole Linux licensing is dead.

If SCO wins, they will try to spin this as the validation of their claims but it
really will leave us at a very similar place as we are now. They still will have
to prove their case against IBM and they will still have to prove that any of
the copyrighted code is in Linux. Owning the copyrights doesn't have anything
to do with the first and doesn't automatically proves the second.

This is a smart move from SCO because it is shifting the focus from showing
proof that any copyrighted code is iligally in Linux to showing proof of owing
the copyright to some obsolete code that really doesn't matter anyways.

I think that SCO outmanouvered Novell here by suing first and now they'll get
to spin this to the press as they want.



[ Reply to This | # ]

Time for a bit of dry humor
Authored by: Anonymous on Wednesday, January 21 2004 @ 06:30 AM EST
As ever this SCO 'event' is in Slashdot. This has to be the best quote on the
entire page:

http://yro.slashdot.org/comments.pl?sid=93627&cid=8037073

"If IBM is an 800lb gorilla, and their lawsuit was their weapon, then they
essentially are asking the gorilla for a stick to hit them with.

If Novell is the 400lb cousin of the 800lb gorilla, then SCO just shot it with a
BB gun and is expecting it to drop.

If you locked John Grisham in a room blaring Rage Against the Machine and hooked
him up to an IV drip with LSD filled in the bag and gave him some Nicotine gum
to chew and no sleep for 10 days, he wouldn't come up with this mess in a
million years."

[ Reply to This | # ]

Possible OS and Manual listed
Authored by: Tsu Dho Nimh on Wednesday, January 21 2004 @ 07:05 AM EST

In adition to a boatload of manuals, this is the possible software listed ... the "and Instruciton manual" part makes me think that it's possible source code. However, in the absense of a paragraph somewhere in the agreement explicitly assigning the copyrights of everything in Schedule E to oldSCO, just having them listed means nothing. What we have is a paragraph explicitly DENYING the transfer, and old SCO spending the next 5 years servicing the UNIX license business for Nobvell without any apparent need for copyrights.

UNIX(R) Operating System Edition 5 and Instruction Manual TXu 510 028

UNIX(R) Operating System Edition 6 and Instruction Manual TXu 511 236

UNIX(R) Operating System Edition 32V and Instruction Manual TXu 516 704

UNIX(R) Operating System Edition 7 and Instruction Manual TXn 516 705

[ Reply to This | # ]

Off-topic rambling...
Authored by: eggplant37 on Wednesday, January 21 2004 @ 07:07 AM EST
Has anyone noticed, and judging by the rise in number of comments to stories on
Groklaw we have been seeing lately, this site now probably has the same
readership numbers as Slashdot?

Congratulations.

[ Reply to This | # ]

Novell registered "Modifications" only
Authored by: Tsu Dho Nimh on Wednesday, January 21 2004 @ 07:16 AM EST
Looking at the copyrights Novell recently registered, they are listed as for
"Modifications to" the code ... not the whole code.

At AT&T had the original copyrights (clouded, but at least registered) it's
likely that Novell made some mods before they passed the UNIX business to
oldSCO, and are just cleaning up their paperwork.

A *transfer of copyright* has to be in writing, and would have been listed as
such in the transaction records. Novell could have recieved something like that
from AT&T when they bought them out of the UNIX business.

[ Reply to This | # ]

Attachment E
Authored by: Anonymous on Wednesday, January 21 2004 @ 07:25 AM EST
That looks like a list of the titles of the full set of end-user manuals for
UNIX that were originally published by AT&T. We used to have a couple
of bookshelves with these in them.

[ Reply to This | # ]

Is this about copyright on specifications instead of code ?
Authored by: Anonymous on Wednesday, January 21 2004 @ 07:33 AM EST
Within the list of manuals, there are a number of specification documents such
as the System V ABI.

This makes me wonder if SCO's copyright claim against Novell is equally as much
about the interfaces (once again) as well as actual code.

If this is the case, then how far could this go ?

For example, is there any possible way that SCO could believe that it could
charge licensing fees for someone implementing the ELF specification on any
operating system even if it's not a System V OS ? (I'm thinking about FreeBSD
and friends here)

[ Reply to This | # ]

SCO's copyrights
Authored by: the_flatlander on Wednesday, January 21 2004 @ 07:51 AM EST
I know, I know, I sound just like a broken record....

The SCOundels are *crazy*. Novell did not own the copyrights to UNIX. Not Sys
V, not UNIX in general, nothing. They could not possibly, so they could not
have sold them to old SCO.

Consider, for just a moment, what happened when AT&T sued BSD. The judge
told AT&T *they* didn't hold the copyrights to UNIX. Too many authors, too
little registration, (which was required back then, if not now). If AT&T
didn't own clear title they could not have sold clear title to Novell. And
Novell, regardless of any Amendments to its APA with old SCO, could not have
sold clear title to old SCO. Therefore, and really this is not a leap, the
SCOundrels could not possibly own clear title. They might own a copyright to
*something*, but they sure-as-sh^H^Hheck don't know what that would be.

State Court, Federal Court, makes no difference, this case is DOA. It is
another case that will never make it out of discovery.

TFL

I am not a lawyer. But, when sober, I can do logic.

[ Reply to This | # ]

Utah vs. Delaware vs. Mass. or Calif.
Authored by: Anonymous on Wednesday, January 21 2004 @ 08:19 AM EST
Greetings all. Fine comments, good arguments.

Some folks were concerned that the suit was filed in Utah. I see no reason that
SCO/Caldera would get favorable treatment there or that they should expect a
'home field' advantage. Despite Novell's status as a DE corp and the Offices
in MA, they are and always have been a UTAH company.

They are a DE corp for protection from stock lawsuits. (I live in DE - LOTS of
companies have tiny offices here for this purpose.)

They have a HQ in MA because they 'merged' with a Cambridge consulting company
to bring Messman back in as president a little while back.

Novell has been around longer and employs more people than SCO/Caldera, seems to
me the (local) political backing would lean to Novell.

Unless Utah courts are somehow 'favorable' for copyright infringement cases,
the only advantage for SCO/Caldera to file in Utah is lower travel costs.

--Jay H.
(CNE and long time Novell observer)

[ Reply to This | # ]

SCO has to Sue Novell This Time!
Authored by: RSC on Wednesday, January 21 2004 @ 08:24 AM EST
Let me know if I am way off.

2002: SCO/Caldara on the brink of bankruptcy. Darl hired to set things straight.
Darl finds there is no chance of any profitable product coming out of SCO. He
sees that he has been placed in a no win job, and the great deal he got for a a
package could be worthless.

He gets the execs to asks a couple of guys in the Dev dept. to see if there is
any code in linux that looks like it came for UNIX. Hey with all those lines of
code written by so many people there in the public, some have got to be the same
as some in UNIX.

The techies come back from the grep/diff with a bunch of code segments and they
say "we got them, where did it come from". Someone says IBM.

The execs say yep thats the ticket. They figure that if they get a high profile
lawyer and sicks them on IBM they can increase the stock prices, and with the
proof they have, they can stick them for a cool bil or get IBM to buy the
company out .

So SCO files suit.

But two things happen that throw a spanner in the works.

IBM don't bat an eyelid, and the "code" evidence is torn to shreads
by the community and GrokLaw.

Things start to look shakey. What can he do? Their stock prices have sky
rocketed, but they need it to stay high until theirs vests, or they'll lose a
lot of money. They can't admit they did not do their home work or all their
money goes bye bye, and they'll have a lot of trouble get a jobs anywhere.

they figures if they can keep up the FUD and delay things as long as possible
they can still win out and walk away with pockets full of money.

Meanwhile, IBM does it's home work, figures SCO is in deep poo, and formulates
a countersuit to sink SCO forever. They put together a discovery package to
extract all the right info, and if SCO is as screwed as they think it is, they
can force a dismissal before the case gets to court. Even if it gets to court,
they know that there are no "breaches of contract" and will win
anyway. So they file their countersuit.

Redhat, of course files suit. They have a lot to lose themselves so they have
to.

Then the real killer. Novell stands up and says, "Sorry guys you have no
copyrights to UNIX. We own them". Now what can SCO do? What can Darl and
his co-hortes do? If they try to back out, there is a good chance they could end
up in goal.

Now with two suits against them, only a couple of others to support them and a
huge lawyers bill, they are backed into a corner. So they do what they can to
get Novell to hand over the copyrights. When they did not, they go a head and
register the copyrights themselves.

With the registrations in hand, they start to threaten more suits, against end
users, and crank up the licensing story, in the hope of scoring some money and
bolster the stock.

They walk into the hearing on 12 Dec knowing that they have a bad hand, and
expect to rolled, But the Judge goes one step futher, and puts a dead line on
the "show your code" ruling.

Then Novell "sneek" in and register the same copyrights as they
have, which really shakes them up.

On top of that, Novell then start releasing details of the paper trail of the
last few months. This and the apparent cooperation between Novell and IBM and
they're in real sh*t.

What options have they left? There is no obvious way to back out of the fiasco,
it is obvious that Novell is on the brink of filing suit. All they can do is
grab their balls and forge on. Thus we have SCO filing suit against Novell.

They have to or all their FUD falls apart. With out the copyrights, they can not
go forward with the end user litigation, the Redhat suit becomes a smack down,
and IBM grinds them into dust.

They are now in a position where they can not do anything but continue. If they
don't, they end up in more trouble than the old directors of Enron.

Now of course all this is purely *theoretical*. But does it fit?

Have a think and let me now.

RSC.



---
----
An Australian who IS interested.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: pooky on Wednesday, January 21 2004 @ 08:24 AM EST
I noticed there's no complaint of a contract breach by Novell (you remember
don't you, the SuSE acquisition). SCO went so far as to send Novell a letter
stating that Novell's purchase of SuSE violated the non-compete clause of the
APA. But not mentioned in the complaint. Hmm...

This is the next logical step for SCOG, and I can't wait to see what Novell
counter sues them with (which I'll bet includes complaints of contract
breaches). SCOG can't sue anyone for copyright infringement until they resolve
the dispute with Novell, and they seem unwilling to let Novell's auditors
mythodically pick them apart piece by piece, so they have to sue and make a big
deal out of it.

I mean, if you got a call from SCOG given everything that has been reported in
the press so far, would you pay them a license? They say you owe, but Novell
says otherwise, and IBM says they didn't do it, and nothing has been proven in
court yet. Then add in the fact that SCOG keeps changing it's story, and
that's more than enough for me to tell SCOG that they can go prove in court
they own it before I'll pay them anything.

This "hiccup" with Novell is why SCOG has to pick on it's own
licensees 1st, because SCOG can sue them for contract breach (weak but...) and
keep the litigation threats going. If I were Novell, I would be counter suing
and asking for a preliminary injunction against SCOG to stop them from suing
anyone else over rights enforcement in UNIX Sys V until SCOG complies with the
APA terms. I would assume from the wording of the APA and the giant grey lake of
FUD that spilled out of SCOG that there's a resonable basis for granting an
injunction since clearly SCOG is not listening to Novell.

-pooky

---
Veni, vidi, velcro.
"I came, I saw, I stuck around."

[ Reply to This | # ]

Bois et al
Authored by: pfusco on Wednesday, January 21 2004 @ 08:25 AM EST
As this firm finally makes their presence known in this lawsuit against Novell, I wonder if that this might not have been their strategy from the get go. To draw Novell out and then set the stage for what they hope to be a surer victory.

I wonder this because it is in fact the first we have seen of Bois's firm actually doing anything of substance.

---
only the soul matters in the end

[ Reply to This | # ]

Do Novell have any redress to SCO damaging the revenue stream?
Authored by: jaydee on Wednesday, January 21 2004 @ 08:36 AM EST
Did they have the right to do this?

IANAL

1. Assuming that Novell holds the copyrights.

2. SCO pays Novell royalties.

3. SCO / Caldera distribute code under the GPL.

4. Linux is damaging SCOs product line revenue.

5. This damages Novells revenue stream.

Do Novell have any redress?

[ Reply to This | # ]

SCO?
Authored by: Anonymous on Wednesday, January 21 2004 @ 08:40 AM EST
It used to be SCO, refered to as Old SCO, and it's now SCO Group. What does SCO mean?

SCO (Old): Santa Cruz Operation -- the old
SCO Group: Standard Criminal Organization -- the present
SCO Group: Successful Criminal Organization -- what they acheive to be



"Don't worry, be happy."

[ Reply to This | # ]

  • SCO? - Authored by: Anonymous on Wednesday, January 21 2004 @ 09:24 AM EST
  • SCO? - Authored by: markhb on Wednesday, January 21 2004 @ 11:00 AM EST
  • SCO? - Authored by: wllacer on Wednesday, January 21 2004 @ 11:11 AM EST
This is becoming to much complex
Authored by: Anonymous on Wednesday, January 21 2004 @ 08:45 AM EST
Has someone realize that everyone is making a move that eventually will benefit
them depending on the result?

I mean, if Novell win the suit, then they will have the Unix pattens on hands
and after the desease of SCO Novell could become a potential suer as SCO was.

Could anybody analyze the implications after the present status? and see what
would happend in any scenario?

Regards

[ Reply to This | # ]

Unreal 2 - SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 08:47 AM EST
What a saga this has become...
Some friends and I decided to join forces in playing the national lottery, and
hit the jackpot. But now we have a new idea: We could buy SCO shares. The chance
of "winning" is like that of the lottery... or maybe just a little
higher :-)

Best regards to all penguins worldwide,
Ivan Vaklinov, www.vaklinov.com

[ Reply to This | # ]

Idiotic crap lawyers can't read contracts
Authored by: Anonymous on Wednesday, January 21 2004 @ 08:57 AM EST
"Selling Copyrights in Product(s) of Business" != "We are
selling these copyrights."

== "These are the copyrights on which the selling of product(s) are
based."

Copyrights transferred (still) == none.

[ Reply to This | # ]

Under what Law will this be judged?
Authored by: fjaffe on Wednesday, January 21 2004 @ 09:06 AM EST
From the APA:
9.8 Governing Law. This Agreement shall be governed by and construed in accordances with the laws of the State of California regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.

Unless one of the parties challenges this designation of the choice of law from the Asset Purchase Agreement, it appears that this contract dispute will be governed by California law.

I could not find a reference that any disputes must be tried in a specific court, or that the parties must go through arbitration.

Any thoughts on whether the use of California law will have an impact on the case?

[ Reply to This | # ]

PJ: Text version of complaint posted under the previous story
Authored by: Anonymous on Wednesday, January 21 2004 @ 09:28 AM EST
Just so noone misses it..

[ Reply to This | # ]

Postponement?
Authored by: overshoot on Wednesday, January 21 2004 @ 09:51 AM EST
The Provo local paper has an article this morning with a rather curious last paragraph:
Stowell said IBM's attorneys have requested for a postponement of a hearing scheduled Jan. 23 on evidence of the infringing code IBM had requested from SCO. No new court date has been set, and IBM could not be reached for comment.
Nothing on Pacer yet, though.

[ Reply to This | # ]

  • Postponement? - Authored by: Anonymous on Wednesday, January 21 2004 @ 10:10 AM EST
    • Postponement? - Authored by: jmc on Wednesday, January 21 2004 @ 10:21 AM EST
    • Postponement? - Authored by: Anonymous on Wednesday, January 21 2004 @ 12:04 PM EST
  • Postponement? - Authored by: Anonymous on Wednesday, January 21 2004 @ 10:21 AM EST
  • Postponement? - Authored by: Anonymous on Wednesday, January 21 2004 @ 10:48 AM EST
    • Postponement? - Authored by: jmc on Wednesday, January 21 2004 @ 11:44 AM EST
      • Postponement? - Authored by: Anonymous on Wednesday, January 21 2004 @ 11:52 AM EST
  • Postponement? - Authored by: jaydee on Wednesday, January 21 2004 @ 11:11 AM EST
  • Blake Stowell quote - Authored by: jam on Wednesday, January 21 2004 @ 11:16 AM EST
  • Postponement? - Authored by: Jude on Wednesday, January 21 2004 @ 12:31 PM EST
  • Postponement? - Authored by: Anonymous on Wednesday, January 21 2004 @ 01:13 PM EST
OT:Deutsche Bank boss goes on trial
Authored by: MacUser on Wednesday, January 21 2004 @ 10:07 AM EST
From http: //www.businesswor ld.ie/livenews.htm?a=840871

Deutsche Bank boss goes on trial
Wednesday, January 21 10:05:17
The chief executive of Germany's Deutsche Bank has appeared in court today on charges that he paid sweeteners to executives during a UKŁ 100bn takeover deal four years ago.
Josef Ackermann and five others face criminal charges for improperly authorising E57m in bonuses for Mannesmann executives during Vodafone's takeover of the German phone company.
The payments were approved after management at the Germany firm dropped their opposition to the takeover.All six have pleaded not guilty to the charges. They have argued that Mannesmann shareholders tripled the value of their investment within a year of the deal and that the bonuses reflected this growth in value.
More than 60 witnesses will give evidence during the trial, which is expected to last until July. Evidence will only be heard two days a week to allow Ackermann to continue to run Deutsche Bank.

[ Reply to This | # ]

Interesting Business Model (IBM)
Authored by: gbl on Wednesday, January 21 2004 @ 10:20 AM EST
Sue anybody who looks at you in a "funny" manner until you run out
of cash, then borrow a lot more money by telling the bankers that "your
ship will come in" one day (not telling them your ship hasn't even been
launched yet) and put up your house and first born as collateral.

The next move will be to go to a corporate loan shark...

Finally do a "deal" with "Lefty" who's a runner for
some wiseguys.

In the meantime any technology advantage you did have is ebbing away rapidly.
If all the money being spent on Boise and Co were being spend on developing a
Unix/Linux based product line SCOv2 may just have had a viable future.

---
If you love some code, set it free.

[ Reply to This | # ]

SCO readies final coffin nail
Authored by: Anonymous on Wednesday, January 21 2004 @ 10:42 AM EST

It appears to me, with a small step back, that SCO filed this suit for two purposes:

1. To help hasten is sure-to-be demise (more on this in a minute) and

2. One last "pump the stock price" hoorah!

By filing this suit and with the upcoming hearing in SCO vs. IBM, and the Red Hat suit, SCO is going to run out of money pretty quick.

Add to that the very high probability that Novell will get 95 percent of the Sun and Microsoft "licensing" fees.

IMHO, SCO is trying to make it possible to declare bankruptcy before any nasty rulings againts SCO, which leaving IBM, Red Hat and Novel, holding an empty bag, because SCO has had its cash drained by 1) paying lawyers, 2) paying off the PIPE investors and 3) other "business" expenses.

SCO has almost pulled a Slashdot "First Post!" with Novell by filing "Phirs+ s00+, d00d!" (only kidding, of course).

This way, SCO can do major pumping on the udders of Bessie, the stock market cow, before they file their inevitable "we have no money, we have declared bankruptcy, if you want money from us, you will have to file the appropriate documents with the bankruptcy court. Have a nice day."

However, I am very certain that as more evidence comes forth over the next few weeks, that criminal fraud, stock market manipulation and other similar charges will be brought against Darl, SCO board members and executives and, possibly, Canopy board members.

I almost feel like we haven't seen anything as outrageous as we are going to see in the next three to four weeks.

[ Reply to This | # ]

Mostly documentation...
Authored by: Deven on Wednesday, January 21 2004 @ 10:42 AM EST
Looking over the list in Attachment E, one thing is readily apparent -- almost all of it is documentation. I see only one entry in the list, "Operating System Utility Programs", which appears to be for source code. (You can search for the title and verify that it is indeed registered as #TXu-301-868, but search by registration number seems to be broken.) This registration might contain the source code of all utility programs, but it could just as easily be just a couple.

I see nothing else in the list that appears to be source code, and this source code clearly isn't in the kernel, since the title says "utility programs". The only other thing that sounds close is "SYSTEM V APPLICATION BINARY INTERFACE", which I can't find registered as #TX-2-847-232, but there is a registration #TX-2-847-222 titled "System V application binary interface." However, this registration is classified under "nondramatic textual works", not "computer programs".

This particular list of (allegedly) transferred copyrights doesn't really seem to provide much support for SCO's claims on its own, especially with regards to the kernel...

(ObDisclaimer: IANAL.)

---
"Simple things should be simple, and complex things should be possible." - Alan Kay

[ Reply to This | # ]

My Code Submission
Authored by: James on Wednesday, January 21 2004 @ 10:43 AM EST
while(1){ sue(); }

[ Reply to This | # ]

Novell/SCO APA... and Caldera an Alegory
Authored by: Anonymous on Wednesday, January 21 2004 @ 10:48 AM EST
An alegory:

Billy, Jimmy, Ray and Darl

Little Billy has bought some 'K. Thompson' rollerblades in hopes of becoming a
roller racing champion. Not long afterward he discovers that, notwithstanding
'Thompson' being the original, the blades old and are not that great. Worse,
nobody cares about rollerblade races anyway. So Billy decides to try
skateboarding instead, and wants to get rid of his 'blades.

Jimmy wants to be a rollerblade racer too, but the blades he has are a crappy
knockoff he got from a disreputable shop in Redmond WA. Billy sells his
rollerblades to Jimmy for $10, but he keeps an extra set of bearings since they
might come in handy for the skateboard, and Jimmy doesn't need them.
A little later Jimmy says
"Hey, what if I DO need some of those bearings?"
and Billy, wnting to be fair, says
"I can't conceive that you would ever need them, but if you really
need any of them I will give them to you."
Well time passes, Jimmy discovers that he would rather be rock climbing than
rollerblading, so he sells his 'blades,
including the 'Thompson's' and the crappy Redmond blades, to Ray, who just
wants to canibalize them for parts.

Ray only pays $3.50 for BOTH sets of blades. the parts don't end up fitting
vaery well with Ray's own blades so they just sit gathering dust, until Ray
moves out and little brother Darl gets his room.

"Cool! Old skates!"

But the skates are even older and crappier now.

"Hey, Billy," says Darl "I need those bearings you
promised Jimmy he could have."
"Billy never asked for them."
"Yes, but I need them now."
"I'm sorry, Darl, I only agreed to give them to Jimmy, and now I'm
thinking about getting into rollerblades again,
so I might need the bearings."
"But, you PROMISED! LIAR! And you also promised never to race against
Billy. Now that I have Billy's Skates you can't race against me
either!"
"Darl, you may have My old 'blades, but you can't have the bearings,
and You arent Billy, so I AM going to race. Check out my new 'blades. They
are called SuSEblades, and I am going to win big with them."
"MOM, Billy STOLE MY BEARINGS. He's LYING! Make his give me my
Bearings"

(c) 2004 Joshua A Clayton
you may reproduceable verbatim (if it reads better than I think it does)
or modify it (to make it better) so long as the original meaning is retained.

[ Reply to This | # ]

Sweet Irony
Authored by: CPD on Wednesday, January 21 2004 @ 10:56 AM EST
I have been daydreaming. I saw SCOG warning of the serious consequnces that
Novell trying to manipulate their stock price could have. Wouldn't it be sweet
irony indeed if SCOG called in the SEC to investigate stock price manipulation
and the SEC indited all SCOG's officers?

Now THAT's what would happen if this universe were inherently fair...

Colin

---
Just when I thought it couldn't get any wierder, SCO proved me wrong again.

[ Reply to This | # ]

TUXEDO not TUCEDO
Authored by: Anonymous on Wednesday, January 21 2004 @ 10:58 AM EST
This has no bearing on the main discussion, and the original document may have
the mispelling as well, but roman numeral 3 under schedule 1.1(b) of the asset
purchase agreement (listing excluded assets) should read TUXEDO and not TUCEDO.
TUXEDO was purchased from NOVELL by BEA SYSTEMS in the late 1990s. At least for
a while, it was a component of Web-logic Server (and might still be).

[ Reply to This | # ]

Attachment E and Amendment 2 thoughts...
Authored by: Anonymous on Wednesday, January 21 2004 @ 11:08 AM EST
Sorry if this has been posted earlier in the thread, but I think there might be
an important point about the disputed wording of Amend 2 and the Attachment E:

Attachment E lists the copyrights transferred to old SCO. Here we find things
like programmer guides, API documentation, specifications, etc. As PJ pointed
out, there is not a transfer of source code copyright contained here. What we
find is a list of documentation which would be included with a release of
UnixWare. Hense, SCO does have a copyright w/ respect to the reference manuals
and related documentation with respect to UnixWare. In this respect, SCO has
control over modifications, etc to the supporting documentation which allows
them to create a complete UnixWare release (compiled OS w/ support docs).

SCO, however, _does not_ have a copyright on SYSVRX _source code_ and they
don't need it for their UnixWare business. Reading Amendment 2 with Attachment
E in mind illustrates the meaning of the disputed clause: An additional
copyright would mean some manual or API specification that was not included on
the APA list which SCO needed to sell as part of the packaged UnixWare product.
Given the sheer volume of documentation included with an OS release, it is
understandable that SCO would want to have a way to obtain any forgotten
materials w/o having to pay Novell a second time. I think this is the intent of
the clause in Amendment 2.

IANAL, so I might be way off base here, but given Harlan's analysis on the
matter of the source code copyrights (never were transferred from Novell as
these were explictly excluded), plus the type of copyrights which were
transferred, I can't think of any other way to interpret Amend 2's clause than
to denote some API documentation, specification, manual, etc. Thoughts on
this?

-Tomcat

[ Reply to This | # ]

A thought
Authored by: Anonymous on Wednesday, January 21 2004 @ 11:08 AM EST
Could WE not all file reports w/ Delaware Consumer Affairs? Basically saying to
SCO "Put up or Shut up", forcing the hand. I mean if Dep. of
Consumer Affairs was bombarded by say 1000 requests they would have to take
notice and might get some sort of injunction against SCO to cease and desist
collecting revenue and producing FUD until the FACTS have been proven in a court
of law. Just a thought
stormkrow

[ Reply to This | # ]

  • A thought - Authored by: Anonymous on Wednesday, January 21 2004 @ 03:23 PM EST
Do Yahoo predict SCOG failure?
Authored by: Anonymous on Wednesday, January 21 2004 @ 11:16 AM EST
Look at Analyst Estimates on Yahoo Finance for the current quarter growth estimates. The page is here (http://finance.yahoo.com/q/ae?s=SCOX)

What does -100% growth indicate?

[ Reply to This | # ]

Giants Battle by Proxy
Authored by: Anonymous on Wednesday, January 21 2004 @ 11:28 AM EST
When IBM made a $50 million investment in Novell, I assumed it was to help
Novell improve SuSE and Gnome, with the aim of speeding Linux's progress on the
desktop.

But now it occurs to me that another reason, perhaps the main reason, was to
improve Novell's ability to defend their Unix copyrights in court.

So the real battle is between Microsoft and IBM (we knew that), though it has to
be fought through proxies.

There are differences between the two sides, of course.

Microsoft is, as usual, trying to destroy a superior technology. Microsoft has
never won a fair competition, having resorted to cheating whenever they faced a
strong opponent, and Microsoft has no intention of trying to compete against
Linux.

IBM, on the other hand, is simply trying to defend themselves, and Unix (and, by
extension, the rest of us).

Microsoft has to try to hide what they are doing, which is why they pretended to
buy a license they don't need. Paying a third party to try to destroy a
competitor through the courts is probably not legal under normal circumstances,
but it is certainly not legal for Microsoft, being a convicted monopoly.
Besides, having destroyed any public trust through their illegal attacks on Java
and Netscape, not to mention their lack of concern for security, Microsoft is
now trying to portray themselves as a kinder, gentler company. Fat chance!

IBM, on the other hand, is on the honorable side of this fight, and can thus act
right out in the open. Hopefully that will provide some advantage for them.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 11:29 AM EST
PJ,
Has no one else but you realized that SCO's list of copyrights
only refers to manuals and guides, whereas Novell's list is for all the
programs themselves?

If this is so then SCO have the copyright to some useless old books, whereas
Novell have the copyright to all the code!

[ Reply to This | # ]

It seems like this phrase is Novell's Magic Buulet
Authored by: ausoleil on Wednesday, January 21 2004 @ 11:35 AM EST
This from the agreement between Novell and SCO:

<i>Schedule 1.1(b) <u>Excluded Assets</u> (Page 2 of 2)

V. Intellectual Property:

A. <u>All copyrights and trademarks</u>, except for the trademarks
UNIX and
UnixWare.
</i>

Or do I just plain have it all wrong?

Seems pretty darned clear: you do not get the copyrights.

[ Reply to This | # ]

Novell responds
Authored by: Anonymous on Wednesday, January 21 2004 @ 11:39 AM EST
This just posted on the finance boards...

"Novell just slapped back by: hengeem 01/21/04 11:30 am Msg: 83863 of 83865

-- ht tp://www.amtddj.inlumen.com/bin/djstory?StoryId=Cqa4huaebqLqWmdu1nJK

[ Reply to This | # ]

SCO does not exist. . .
Authored by: Anonymous on Wednesday, January 21 2004 @ 12:10 PM EST
It doesn't. Further, it hasn't existed for a number of years.

What appears to be happening here is a game of Three Card Monty. No more ... no
less.

The original 'SCO', the Santa Cruz Operation, located across the street from
Harvey West Park (a really cool place) was started by brothers in the mid to
late '70s. In 1993 the company issued an IPO which, if I remember correctly,
peaked at about $14 (U.S.) per share. It has fallen ever since the IPO date.

The original 'SCO' has had numerous internal problems over the decades as
well. Which was one of the reasons for the continous decline of their stock and
a reason why their product line was never, if you will, up to date. Most of
these internal problems were reported, to some extent, in the local paper, the
"Santa Cruz Sentinel."

In 1995, the original 'SCO' purchased "UNIX technology from
Novell." Then, in 2001, the original 'SCO' sells its "operating
system divisions to Caldera Systems, Inc." Further, in 2001, the original
'SCO' changed its name to Tarantella.

Now, in 2002, Caldera Systems hires Darl (and his other brother Darl) McBride as
CEO. McBride changes the name of company (sort of) and the company stock symbol
from 'CALD' to 'SCOX'. But their incorporation papers have *never*
changed.

SCO Group is, has been and still remains Caldera Systems Inc.

Now, do a flow chart and just replace SCOG or SCO Group with Caldera Systems
Inc. It clears up a lot of issues as to who owns what and by whom.

This is nothing more than a game of Three Card Monty with McBride shifting the
cards.

krp

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Oloryn on Wednesday, January 21 2004 @ 12:26 PM EST

With suits against 'end users' supposedly on the horizon, TSG appears to be on a roll to test the validity of Londo Molari's dictum:

"Only an idiot fights a war on 2 fronts. Only the heir to the throne of the kingdom of idiots would fight a war on 12 fronts..."

[ Reply to This | # ]

Novell Responds
Authored by: RealProgrammer on Wednesday, January 21 2004 @ 12:36 PM EST

Yahoo says Novell will Defend Itself Against SCO Suit - CEO.

"This lawsuit illustrates SCO's campaign against enterprise adoption of Linux is foundering," said Jack Messman, Novell's chairman and chief executive, at a press conference at the LinuxWorld conference here. "It seems litigation has become SCO's principal line of business."

Provo, Utah-based Novell sold its Unix business to SCO's predecessor in 1995, but contends it retained certain Unix copyrights. "When we sold the business we kept the copyrights," Messman said.

---
(I'm not a lawyer, but I know right from wrong)

[ Reply to This | # ]

SCO does own the copyrights - according to our friend DiDio
Authored by: Anonymous on Wednesday, January 21 2004 @ 12:39 PM EST
DiDio says she thinks SCO does own the copyrights, after all Caldera (!) paid $100m+ for them. I guess we can all go home now :-)

I'm not even going to bother to comment. Enjoy!

http://www.ecommercetimes.com/perl/story/32645.html

My opinion is that, on the surface, the executives at Caldera (which originally bought the Unix System V copyrights in 1995 from Novell and were all ex-Novell executives) would have had to have been extremely stupid or crazy to pay in excess of $100 million and not get the copyrights," DiDio said. "It's likely that the SCO Group does own the rights. However, there may be some legal loophole in the contract that the public is not aware of."

[ Reply to This | # ]

Termination of Contract?
Authored by: BsAtHome on Wednesday, January 21 2004 @ 01:23 PM EST

Could Novell preempt SCO's suit by invoking article 7 (termination) of the original agreement?

This could be a nice move...

---
SCOop of the day, Groklaw Rulez

[ Reply to This | # ]

Is Amendment No. 2 Valid At All?
Authored by: Anonymous on Wednesday, January 21 2004 @ 01:24 PM EST
What SCO would need to produce is Amendment 2 with
Novell's signature.

Discovery motion from SCO, for Novell to produce?

[You heard it here first]

[ Reply to This | # ]

Novell's defense
Authored by: Anonymous on Wednesday, January 21 2004 @ 01:35 PM EST
Wouldn't it be funny if Novell invoked the libel-proof plaintiff doctrine as a
defense?

(No, I don't seriously think that it would work, but one can dream.)

[ Reply to This | # ]

New 8-K filling with SEC
Authored by: Anonymous on Wednesday, January 21 2004 @ 01:44 PM EST
Did not have time to read, you can get it at http://www.sec.gov/Archives/edgar/data/1102542/000104746904001453/a212 7070z8-k.htm.

[ Reply to This | # ]

Is there any code in that list?
Authored by: Anonymous on Wednesday, January 21 2004 @ 01:54 PM EST
Looking at the list of Attachment E, I see "primer,"
"guide," and "manual." I know from the little coding I
have done that many of these are typical of manuals used by programmers and
which document the calls and interfaces in particular systems and languages.
But one word I do not see is "source." The title of the attachment
seems to indicate that these are documents that any vendor would have to make
available is they wanted to sell the system to developers - who theoretically
don't really need the Unix system code in order to write programs to run on a
unix system. This looks like a set of copyrights to a comprehensive set of
documentation and manuals for SysV and its subsystems and implementations on
various hardware, but not the for code itself.

I would expect that SCO needed to be able to supply these to any developer or it
would have prevented them from doing business.

[ Reply to This | # ]

Amendment No. 2 - sco slight mischaracterization
Authored by: Anonymous on Wednesday, January 21 2004 @ 01:56 PM EST
taking just one small point - (imho) a slight sco mischaracterization:

from sco's argument:

"15. In Amendment No. 2 to the Asset Purchase Agreement, Novell and SCO made clear that SCO owned all "copyrights and trademarks owned by Novell as of the date of the [Asset Purchase Agreement] required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies," ..."

IMHO this appears slightly mischaracterized:
From interpreting Amendment 2 in context, the "all" should become "only":

"15. In Amendment No. 2 to the Asset Purchase Agreement, Novell and SCO made clear that SCO owned only "copyrights and trademarks owned by Novell as of the date of the [Asset Purchase Agreement] required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies," ..."

Actual start of Amendment No. 2 in context and judge for yourself:

"AMENDMENT No. 2
TO THE ASSET PURCHASE AGREEMENT

As of the 16th day of October, 1996, the September 19, 1995 Asset Purchase Agreement (the "Agreement") between Novell, Inc. ("Novell") and The Santa Cruz Operation, Inc. ("SCO") is amended in the following respects.

A.
With respect to Schedule 1.1(b) of the Agreement, titled "Excluded Assets", Section V, Subsection A shall be revised to read:

All 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.... "

seems clear that: all should be excluded from sco, except for...

nw (ianal)

[ Reply to This | # ]

What about 4.16 (b) ?
Authored by: Jude on Wednesday, January 21 2004 @ 02:04 PM EST
4.16 SVRX Licenses.

(b) Buyer shall not, and shall not have the authority to, amend, modify or waive any right under or assign any SVRX License without the prior written consent of Seller. In addition, at Seller's sole discretion and direction, Buyer shall amend, supplement, modify or waive any rights under, or shall assign any rights to, any SVRX License to the extent so directed in any manner or respect by Seller. In the event that Buyer shall fail to take any such action concerning the SVRX Licenses as required herein, Seller shall be authorized, and hereby is granted, the rights to take any action on Buyer's own behalf. Notwithstanding the foregoing, Buyer shall have the right to enter into amendments of the SVRX Licenses (i) as may be incidentally involved through its rights to sell and license UnixWare software or the Merged Product [as such latter term is defined in a separate Operating Agreement between the parties to be effective as of the Closing Date, a copy of which is attached hereto as Exhibit 5.1(c)], or future versions of the Merged Product, or (ii) to allow a licensee under a particular SVRX License to use the source code of the relevant SVRX product(s) on additional CPU's or to receive an additional distribution, from Buyer, of such source code. In addition, Buyer shall not, and shall have no right to, enter into new SVRX Licenses except in the situation specified in (i) of the preceding sentence or as otherwise approved in writing in advance by Seller on a case by case basis.

This seems to prohibit SCO from selling any new SysV licenses without Novell's prior written permission on a case-by-case basis. I'm wondering how this would effect SCO's "Linux License" plan?

If the alleged copied code comes from SysV, then it would seem that any "Linux License" would effectively be a new SysV license, and would therefore be subject to this restriction.

OTOH, if SCO's alleged copied code is not SysV code, then how on earth would it have gotten into Linux?

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 02:05 PM EST
Just to try to keep things straight in my own head, I have adopted the following
translations:

The old SCO, now Tarentella becomes SCOLD
The old Caldera, now the new SCO Group becomes SC(ON)EW, and of course we
replace the "ON" with "R" to make SCREW

[ Reply to This | # ]

Lewis A. Mettler opinion
Authored by: _Arthur on Wednesday, January 21 2004 @ 02:07 PM EST
Lewis A. Mettler of www.LamLaw.com wasn't in rant mode today (sorry, your
Esquireship!) and argue that a Slander of Title is the wrong process for this
case.

Well worth a read. Isn't he a lawyer ?

Any judge in any Court will have the case changed into a simple Breach of
Contract at once. It doesn't qualify as a Slander of Title at all.

After all, Novell once was the owner of the disputed Copyrights, and unless
SCOG can provide a clear Bill of Sale, it is a simple dispute over an admittedly
murky contract between Novell and Santa Cruz Operations.

(my own opinion, here) The SCO Group may have to sue Tarentella for having
re-sold them IP rights that they didn't owned. I'd put even money the sale to
Caldera never mentionned explicitely the Unix Sys V Copyrights. Tough luck for
SCOG, who will have to throw bad money after bad.

_Arthur

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 02:17 PM EST
On Ameritrade, there is still nothing but positive SCOX news. Everything is spun
positively, and all stories relate to SCO on the offensive. If I knew nothing
about the case, I would be betting big on the growth of this smart and agressive
company that is "enforcing their IP." (This is a magic phrase in
today's business world that means "wads and wads of cash with no effort
whatsoever.")

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: ragnar on Wednesday, January 21 2004 @ 02:44 PM EST
http://biz.yahoo.com/d jus/040121/1326001220_3.html

In a widening legal dispute, SCO Group filed a lawsuit Tuesday alleging Novell is falsely claiming ownership of Unix and interfering with SCO's rights to the operating system. It asks a judge to force Novell to retract its ownership claims and assign Unix copyrights to SCO.

Doesn't that imply that SCO not only knows it doesn't own the source code copyrights, but that it has no case against Novell? It's been suggested that is was merely a PR stunt to keep stock level until 01/23/2003, D-day.

One this is for sure, this whole fiaSCO will set some precident for the future, let's hope it sets the right one. Thanks PJ and all the Groklaw people for your hard work.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 02:48 PM EST
Sounds to me that SCO have probs figuring all this out. Seems like they do not
know exactly, what they got from oldSCO and are using a court to sort it out.

[ Reply to This | # ]

Ancient Unix sources are bad news for SCOX
Authored by: troy on Wednesday, January 21 2004 @ 03:00 PM EST
Reading this thread answered a question that's been nagging me for a while: If Caldera didn't own the ancient UNIX code that they released, how could they do it? And why didn't Novell object?

The obvious answer is that Caldera did buy that code.

And the bad news seems to be that the ancient code is the only code they bought.

It would be very difficult to win the argument that the new code was accidentally left off the list. It seems very deliberate that some code was included and some code was excluded. Especially when the new code is where the money was. If that is what I wanted to buy, I would make doublely certain that it was in the list.

The fact that Caldera released only that code to the public suggests very strongly that they knew EXACTLY what they bought.

[ Reply to This | # ]

DiDio Chimes In
Authored by: Sten on Wednesday, January 21 2004 @ 03:07 PM EST

From LinuxInsider article: Yankee Group senior analyst Laura DiDio told the E-Commerce Times that, although she is not a copyright expert and therefore cannot state with assurance or authority that either SCO or Novell has the best claim, she can offer her opinion.

"My opinion is that, on the surface, the executives at Caldera (which originally bought the Unix System V copyrights in 1995 from Novell and were all ex-Novell executives) would have had to have been extremely stupid or crazy to pay in excess of $100 million and not get the copyrights," DiDio said. "It's likely that the SCO Group does own the rights. However, there may be some legal loophole in the contract that the public is not aware of."

Sabre Rattling
DiDio added that the correspondence between the two companies suggests to her a lot of posturing and sabre rattling on both sides and that it also appears that Novell is willing to do anything to curry favor with IBM.

As to motivation, "Only Darl McBride, the CEO of SCO, can say for certain what his motivation was in filing the suit," DiDio said. "To an industry observer like myself, it appears that there is a lot of bad blood now between Darl McBride (an ex-Novell executive) and Jack Messman (who was on Novell's board of directors for 10 years prior to becoming CEO). This is nasty, and it will get even nastier as time goes on. I'm sure that McBride feels he is protecting SCO's interests. When and how this will end is anyone's guess."

DiDio offering her opinion in something that she knows nothing about; theres a first.

[ Reply to This | # ]

Wow a pretty good article - Add to quotes database
Authored by: Anonymous on Wednesday, January 21 2004 @ 04:03 PM EST
Good article in Salt Lake City weekly - and pretty complete on most major
issues

http://www.slweekly.com/editorial/2004/feat_2004-01-22.cfm

Only one error, that I could see - says Judge Kimball instead of Magistrate
Judge Wells.

Key point - there are a lot of Darl quotes in there - some of which could be
useful to our side down the line. *** Hope they get into the database ***



McBride says: CLAIMS TO HAVE SOLD LINUX LICENSES

"We haven&#8217;t published the exact number yet," McBride said.
"It&#8217;s not in the dozens, but it&#8217;s, you know,
we&#8217;ve had some that have started to sign up."


McBride says: BUY UNIX, NOT LINUX, OR WE SUE...

"Our customers that are buying [UNIX] from us today, we generally
don&#8217;t have a problem with," McBride said. "We have some
former customers that have left that are running on Linux, and they are in the
crosshairs."


McBride says: NOVELL HAVE NO CLAIM...

"[T]he ownership with Novell has absolutely been legally decided.
We&#8217;ve got all the documents in front of us. Anybody who has any legal
sense here says &#8216;I don&#8217;t get it, can Novell not read the
English language?&#8217;" McBride said.


McBride says: I HAVE REVEALED THE CODE

McBride says SCO has shown plenty. "They&#8217;re disingenuous on that
or they would be ripping out the million lines of code we&#8217;ve already
pointed to," he said, adding that the violations are too far-reaching to
simply rip out anyway. One million lines amounts to roughly 20 percent of the
entire Linux kernel. McBride says SCO revealed the offending code last August at
its Las Vegas SCOForum. "Truly, and then they just ignored it," he
said.


McBride says: OUR 60 PAGES ARE GREAT

Make no mistake about it, says Darl McBride, SCO isn&#8217;t bluffing.
"And anybody that says we don&#8217;t have any claims there, yes, I
guess they will be going home with a sock in their mouth," he said.


[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: pooky on Wednesday, January 21 2004 @ 04:03 PM EST
I keep seeing this in bits and pieces but thought I would re-iterate it out hear
in the main line discussion. If SCOG owns the copyrights to UNIX Sys V as they
are claiming they do against Novell, then they have knowingly and deliberatly
violated the court order compelling complete reponses to IBM's discovery, part
of which is asserting all rights SCOG claims with regards to UNIX Sys V.

SCOG cannot have it both ways. They cannot assert they own the copyrights in a
court against Novell and assert they don't claim copyright ownership in court
against IBM.

I wouldl Like Laura DiDio to explain that one if she is so confident they own
the rights to UNIX.

-pooky


---
Veni, vidi, velcro.
"I came, I saw, I stuck around."

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 04:08 PM EST
EWeek seems to be getting a more rounded set of opinions:

According to a Novell official, Novell will audiocast a press conference from
LinuxWorld with Messman and former SuSE Linux CEO Richard Seibt on Wednesday
morning. In the briefing, the SCO lawsuit will be addressed in detail.

SuSE and Novell resellers at a channel partner event on Tuesday evening
dismissed SCO's actions, passing off the announcement as an attempt by SCO to
spoil Novell's first LinuxWorld as a member of the Linux community.

One party-goer, the president of a Novell integrator, said that none of SCO's
actions has any legal merit.

http://www.eweek.com/article2/0,4149,1451982,00.asp?kc=EWNWS012104DTX1K0000599

I need to dig around and find the press conference that was supposed to be held
today:^)

[ Reply to This | # ]

Change of Control? Maybe Not
Authored by: Anonymous on Wednesday, January 21 2004 @ 04:09 PM EST
Am I the only one who does not think there was a change in control per the APA?

Before you all slam me as a troll, yes, I know there was a change in control in
general. I am asking from the specific language of the APA and TLA.

The provision for the TLA is established in APA 1.6 and it refers to section
6.3(c) for the Buyer Change in Control and section 6.6 for the Seller Change in
Control.

Section 6.3 refers to a very short list of potential controlling parties
(acquirors).

Section 6.6 defines Change of Control in the context of the Seller.

The TLA says that Change of Control has the meaning from the APA.

Since APA 1.6 bothered to specify different parts of the agreement for Buyer
versus Seller Change of Control and is internally consistent with rest of the
APA, why does everyone assume that the TLA meaning of Change of Control is the
broader definition applied and referred to in the APA as pertaining to the
Seller and not the narrower description (i.e., a short list of potential
acquirors) that everything else to which the APA refers?

At best this seems as confusing as the Amendment 2 issue.

[ Reply to This | # ]

Attention Australians!
Authored by: Anonymous on Wednesday, January 21 2004 @ 04:21 PM EST
Attention Australians!

There was some discussion about whether the threat of litigation about alleged copyright infringements is extended to Australia.

This discussion seemed to center on whether there was a sufficiently clear threat, for various possible avenues of redress.

SCO have just obliged us by clarifying their position

http://www.computerworld.com.au/index.php?id=331283602&fp= 16&fpid=0

While the threat of a court room tussle is a "last resort" option for the Unix developer, SCO Australia's general manager Kieran O'Shaughnessy told CW, "We reserve the right to seek redress through the courts."

...

"Those who do not buy the licence will be contacted by SCO directly and the process will begin; we are not suggesting that we will sue every man and his dog, but we will seek redress through the courts if necessary. In the US we have announced we will be suing large Linux users.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Nick_UK on Wednesday, January 21 2004 @ 04:26 PM EST

It's a little like Napolean invading Russia. At some point, you are overextended. Then it's winter. Then it's over.

Ummm. I would suggest it's even more of an analogy to Hitler and the invasion of Russia - the Eastern front... instead of the original aim of taking the Ukraine oilfields (which would have crushed Russia), he got detracted on the way and got fixated and addicted to the Capture of Stalingrad at all costs - and the pesky Russians dug-in and wouldn't give up (penguins now :) ). And, as we know, winter came...

Nick

[ Reply to This | # ]

Does SCOX Own the Copyrights
Authored by: fjaffe on Wednesday, January 21 2004 @ 04:38 PM EST
Please bear with me, we know that new SCO claims to own the copyrights, but I saw something interesting on the Yahoo SCOX message board.

In this post yogi61bear points out the announcement of Caldera Systems acquisition of SCO Server Software and Professional Services Division

Now what I found most interesting in this was the following quote:

SCO will retain its Tarantella Division, and the SCO OpenServer revenue stream and intellectual properties. [emphasis added]

The quote is from this edgar filing.

If true that intellectual properties transferred to Tarantella, then how could the modern day SCO have a legitimate claim on the copyrights? Wouldn't copyrights be "intellectual properties"?

IANAL, and IMBMTWT (I may be misunderstanding this whole thing]

[ Reply to This | # ]

SCOldera did NOT pay $100 million for Unix!
Authored by: Jude on Wednesday, January 21 2004 @ 05:07 PM EST
I found a Caldera SEC filing that give Caldera's own breakdown of the various assets they aquired from SCO Classic (Tarantella) and the values Caldera assigned to them.
You can see it at Caldera 10-Q 2001-07-31

Scroll down to the top of Page 10. There's a brief discussion of the deal, followed by a chart of Caldera's own valuations.

Top items include $26.7 million for the reseller channel, and a whopping $66 million for "Goodwill".
Unix itself weighs in at only a paltry $5.8 million.

DiDio is full of beans.

[ Reply to This | # ]

More fodder for the quotes database
Authored by: Anonymous on Wednesday, January 21 2004 @ 05:45 PM EST
http://www.whatpc.co.uk/Analysis/1152153

Reiterates threats on non-compete against Novell

Reiterates they need to see IBM's code

Claims to have sold tens of licenses

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Tejano on Wednesday, January 21 2004 @ 05:56 PM EST
They've got nowhere to go. Napoleon could presumably have stopped and
consolidated. But then, Napoleon had something to consolidate. SCO is doing
all this on momentum.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 06:14 PM EST
It occurs to me that SCO may be straining themselves to get into a Utah court
because they figure they can own a home-court judge. Any victory, even one sure
to be overturned on appeal, is worthwhile to them for its stock-pumping value.

[ Reply to This | # ]

SCO seems to be lobbying Congress
Authored by: leeway00 on Wednesday, January 21 2004 @ 06:25 PM EST

from NewsForge.

OSAIA blasts SCO's letter to Congress

"SCO is continuing to press its unfounded vendetta against open source software to Congress. Repeating the Fear, Uncertainty, and Doubt that the company has spread through past letters and lawsuits, SCO executives are telling Congress that open source software in general, and specifically, the General Public License (GPL), which protects most open source software is a threat to the U.S. information technology industry; a threat to U.S.' competitive position; and a threat to national security. All of these assertions are false."

SCO FUD letter to Congress

Leeway

[ Reply to This | # ]

You know, we may be seeing the Exit Strategy
Authored by: trevmar on Wednesday, January 21 2004 @ 06:38 PM EST
Let's just assume that SCO knows it will be in trouble at next Friday's
hearing. Let's say that they are worried they might have their case thrown out
by the Judge and Magistate sitting a joint bench.

Let's assume that they worry their stock price might plummet as a result.

This lawsuit might just be posturing, so that Darl (et al) could have plausible
deniability in any SEC or stockholder suit based on the Friday-induced price
plunge. "Yes, of course we thought those were our copyrights - we bought
them from Novell - we paid $100 million for them - see we even tried to stop
Novell confusing you all from learning the truth about them..."

[ Reply to This | # ]

Friday hearing postponed!
Authored by: leb on Wednesday, January 21 2004 @ 06:42 PM EST
The Daily Herald, a Utah newspaper, ran a front page story today about SCOG suing Novell. You can read the story here. At the very end of the story, Stowell said that IBM's attorneys requested a postponement of Friday's hearing.

Since the source of the info is basically SCOG, I called Judge Wells' chambers. They just returned my call and said that the hearing has just been rescheduled for February 6th, and they are just now sending out the notices to the involved parties.

So, we have to wait 2 more weeks. But if this is really IBM's request, then it just means they are setting up something really good.

Elizabeth Sorenson

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: shoden on Wednesday, January 21 2004 @ 07:08 PM EST
The IBM lawyers are still ROFL after reading the 60 pages.

---
S.K.

MR. MCBRIDE: Your Honor, I have a smaller, obviously --

[ Reply to This | # ]

Woo-hoo, or Whoa-whoa?
Authored by: Anonymous on Wednesday, January 21 2004 @ 07:15 PM EST
There are many different ways to see this: here are two.

WOO-HOO - Novell has the muscle to tear Darl's arguments to shreds (I can
almost hear him singing soprano). They are also the original source of money
for Canopy Group - and can provide IBM (or themselves) with the deep knowledge
required to get Ralph Yarrow singing soprano too. Ralph may be on an airplane
to a foreign country without extradition along with Darl and the crew.

WHOA-WHOA - OK, this is a long shot but, what if Novell and SCO are in on this
together? Don't laugh yet! What if it is in fact NOVELL that wants to own
Linux? If SCO loses, no big deal (for Novell) since they have a license,
copyrights, etc., and they can choose to go after Yarrow or not. If SCO wins,
also no loss, because they can pull SCOs license, take back all of the code (and
keep it out of Yarrow's hands, who will just sell it to some other slime mold).
And in case (SCO wins), they'd also "own" Linux.

But no matter how you look at it, the latest action by SCO has moved them from
the looney-bin, to the truly pathetic list. At the very least, it looks like a
thinly veiled way to avoid paying Novell the millions they apparently owe them,
by claiming everything is under dispute.

The poor folks who were duped into investing in SCO must be very, very, very
worried about their money right. This is a no-win for SCO, and they are
flushing money down the lawyer toilet at an even faster rate now. As the line
in Matrix says "No Lieutenant, your men are already dead."

[ Reply to This | # ]

Page one of SCO's letter to Congress as text
Authored by: Flower on Wednesday, January 21 2004 @ 07:35 PM EST
Sorry. Straight text here. No formatting.

January 8, 2004

[Note: There is a stampmark dated JAN 20 2004 on the document]

The Honorable

Washington, DC 20515




Dear Honorable

I am writing to you to draw your attention to an important controvery that has
become one of the dominant issues in the software industry. The way in which
this issue is resolved will have very important ramifications for

our nations's economy
our continued ability to lead the world in tecnological innovation
our internaltional competitive position in the global software industry, and
even for
our national security.

The source of this controversy is the rapid spread of a form of software called
"Open Source software." The most widely used Open Source product is
a software environment called Linux. Open Source Linux software is developed and
enhanced by a loose, worldwide group of volunteers, lately abetted by the
efforts of several major computing companies, Linux software has become a
popular way to run computer server systems, Web sites, networks and many
applications.

Innovation in software in itself is not a problem -- new computing technologies
have long been an engine of growth for our nation. But there are two serious
problems associated with the spread of Linux and the Open Source approach to
software development and distribution.

First, Linux and Open Source software are developed and distributed (often at no
cost) under a scheme called the GNU General Public License (GPL) which, some
believe, is in direct contradiction to the U.S. Copyright law, to the Digital
Millennium Copyright Act (DMCA), and to the recent Supreme Court decision in
Eldred v. Ashcroft. I have attached a document that describes in detail the
problems of the GPL and the ways in which it violates current U.S. statutes.

Those who designed the GPL readily admit that they created this license to have
the effect of "Freeing" software - taking it out of the realm of
copyright protection by placing it in the public domain. The author of the GPL
is well-known for his view that proprietary software (meaning software as an
intellectual asset from which the designer can derive profit) is unaccepptable.


---
Teach it phenomenology.

[ Reply to This | # ]

And the stock goes... nowhere!
Authored by: Anonymous on Wednesday, January 21 2004 @ 07:47 PM EST
If the goal was to pump the stock, it failed miserably. SCOX stock closed down
$0.119 (0.75%) to $15.831.

I guess Novell wasn't a big enough target. They need to aim higher - like the
entire nation of Finland, or perhaps the United Federation of Planets. I'm sure
that will generate some nice PR and boost the stock price!

Fruity

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: Anonymous on Wednesday, January 21 2004 @ 07:57 PM EST
Sure makes sense to me.

krp

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: RSC on Wednesday, January 21 2004 @ 08:14 PM EST
Doe anyone else think that if the SCO Execs had kept their mouths shut the be in
a better legal position now?

Their stock prices may not have been as high, but their would be a lot less
amunition otu there for their enemies to use.

RSC.


---
----
An Australian who IS interested.

[ Reply to This | # ]

OT - On Desktop PCs, Linux Is A Bigger Hit With Smaller Businesses
Authored by: leeway00 on Wednesday, January 21 2004 @ 08:23 PM EST

Here's a link to: On Desktop PCs, Linux Is A Bigger Hit With Smaller Businesses from Yahoo republishing an IBD article.

The best quote from the article:

"According to the SG Cowen study, 22% of firms with yearly sales of up to $50 million are using Linux for desktop PCs. That's compared with just 8% of firms with $500 million or more in sales. About 8% of PCs at smaller firms run Linux vs. 0.4% for the larger firms."

It looks like Microsoft has some reason to worry. At some point, the knowledge base has to hit critical mass.

Leeway

P.S. The only IP that I can see SCO owns outright is the algorithm they use to formulate their business strategy. That has to be unique by standard of measure.

[ Reply to This | # ]

The List in Attachment E
Authored by: mikb on Wednesday, January 21 2004 @ 08:38 PM EST

Except for these:

    Operating System Utility Programs TXu 301 868
    UNIX(R) Operating System Edition 5 and Instruction Manual TXu 510 028
    UNIX(R) Operating System Edition 6 and Instruction Manual TXu 511 236
    UNIX(R) Operating System Edition 32V and Instruction Manual TXu 516 704
    UNIX(R) Operating System Edition 7 and Instruction Manual TXn 516 705

Everything else is a printed/printable manual (I've got many of them, with "AT&T Press" imprints no less), over which copyright should be fairly straightforward :-)

Originally, UNIX version numbering was based on the edition of the printed manual (hence 6th Edition, 7th Edition, etc). So even these might only be manuals. I don't see anything in the list that represents a current version of the source code.

[ Reply to This | # ]

OT: Does Darl post to Yahoo?
Authored by: Anonymous on Wednesday, January 21 2004 @ 09:01 PM EST
Now and then a fresh ID shows up on Yahoo's SCOX board supporting SCO's
position. I get a feeling Darl is posting to the Yahoo board under different
handles, to create a false impression of SCO support.

[ Reply to This | # ]

Whining about offshoring
Authored by: Anonymous on Wednesday, January 21 2004 @ 09:14 PM EST
Darl is obviously trying to tie into current media stories which the
Congresscritters might be afraid of. Offshoring. How can Darl make Linux out
to be the cause of offshoring and threatening the technical leadership of the
US? Darl himself has offshored a bunch of jobs! Linux has never done that.
But the bigger picture is that the technological leadership of the US is already
somewhat of a myth. Much research is actually outsourced. As someone else
pointed out the latest federal encryption standard was developed outside the US.
Many tech workers in the US are not permanent residents. So what? This is a
global economy. I thought Darl liked capitalism, innovation, and competition?

Oh right, only when it puts his company on the top of the food chain. What a
narcisisitc world view.

[ Reply to This | # ]

Does Amendment 2 guarantee Novell retains its copyrights and trademarks?
Authored by: Anonymous on Wednesday, January 21 2004 @ 09:56 PM EST
In Amendment 2, part A, I really want to add one comma so it reads the
way I want:

"All 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. However, in no event shall Novell be liable to
SCO for any claim brought by any third party pertaining to said
copyrights and trademarks."

Now part A clearly states that Novell keeps all copyrights and trademarks
that it retained after the original Agreement. Specifically, Amendment 2
states it does NOT transfer any additional copyrights and trademarks to
the original SCO. Do you think Daryl is buying this?

Also, I want part A to mean the original SCO can show professional
printing shops that SCO has the legal right to publish all those UNIX
documents with AT&T and other copyright statements. The acquisition of
UNIX by licensees means they need expensive documentation that
stretches many feet wide.

IANAL, this is the only consistent deconstruction I can make of part A
from the perspectives of the original SCO and Novell in 1996.

[ Reply to This | # ]

OT story
Authored by: Anonymous on Wednesday, January 21 2004 @ 10:42 PM EST
Picture this:
Two young brothers are out camping and starting to feel a little cold as they
sit next to their diminishing fire.

Darl: Kevin, throw some more wood on the fire
Kevin: There is none left
Darl: Damn, of course there is, go and find some

Kevin comes back with a wooden sign which reads "Utah National Park -
Please do not use signs for firewood as they contain toxic chemicals"

Kevin: I found this sign but I dont think we can use it.
Darl: Of course we can.. Why would they put up signs if they werent meant to be
used?
Kevin: But really, can we burn something that belongs to Utah State?
Darl: Sure we can, Utah's our state dummy.
Kevin: But we don't own Utah
Darl: No, but we belong to Utah, and therefore what belongs to Utah belongs to
us.
Kevin: Youre so smart Darl..You know , when I grow up I'm gonna be a lawyer.
Darl: Yeah that'd be great.. so long as we get rich.

The boys start to fall asleep... Lets hope those toxic chemicals don't affect
them too much.

[ Reply to This | # ]

  • OT story - Authored by: Anonymous on Thursday, January 22 2004 @ 05:51 AM EST
OT: first 1000+ comments for an article!
Authored by: belzecue on Wednesday, January 21 2004 @ 10:46 PM EST
Congrats to PJ, Mathfox (et al.), and Geeklog.

I think this is the first article to accrue a thousand comments. Wow. I can
hear the database groaning as it struggles to let out its belt a couple more
notches...

[ Reply to This | # ]

McBride FUDing His Way Across Capitol Hill
Authored by: Anonymous on Wednesday, January 21 2004 @ 11:00 PM EST
Slashdot is carrying a story about a letter Darl McBride sent to US
congresspeople. The text of the message can be found at
http://www.osaia.org/letter/sco_hill.pdf

In response, I ripped off a letter to my two state senators (Levin and Stabenow)
and to my representative (Killdee). Below is the text of the message I sent. I
suggest that everyone send a message to their congresspeople to stop the FUD of
McBride and company. You can use whatever portions of the letter I wrote (posted
below), but don't make a carbon copy of it lest it look like an organized
campaign.

I know this is a rather topical letter, but it was the best I could do in a half
an hour. Kudos to Groklaw for giving me the background knowledge to even be able
to do this.

This is a serious heads up to everyone.

PJ -- Love this site more and more with each passing day.

*********************************************************

Dear Honorable Senator Levin:

It has come to my attention that Mr. Darl McBride of the SCO Group (formerly
Santa Cruz Organization) has been circulating a letter around Capitol Hill
regarding open source software. If you have not seen this letter, you may
preview a copy of it at http://www.osaia.org/letter/sco_hill.pdf. There are
several erroneous and frankly absurd dissertations in the text of the letter.
Thus, I send this to you as a private citizen, and a professional software
developer, to raise counter-points to some of the items claimed in the letter.

Mr. McBride mis characterizes the OpenSource Software (OSS) initiatives and the
General Public License (GPL) as directly in contrast to the copyright laws of
the United States. This is absolutely absurd. The GPL in no fashion, form, or
manner imposes a duty upon anyone working with GPL software to release the code
under the GPL and make it part of the OpenSource community. There are numerous
companies who exist providing value added services and software to OSS and GPL
programs. To say that the GPL is “viral” in nature and that it leads to loss of
copyright protection is patently false. Software developers are not compelled in
any manner to release their work under the GPL. Any person or company who offers
software code to the OpenSource community and under the GPL has done so
willingly and with full knowledge. Any claims to the contrary are a bold-faced
lie. The GPL secures the copyrights to the developer. One simply has to read the
text of the GPL and see what is stated within its confines. The GPL, for all
intents and purposes, is a copyright legal mechanism that protects the software
developer and his or her stake.

Secondly, OSS is not a threat to the national economy. Neither is it a threat to
the national standing for technological excellence in the software industry. As
a case in point, Linus Torvalds, the man who invented the Linux operating
system, moved to the United States to continue his work. Moreover, companies of
the likes of IBM and Novell have staked their future on providing service and
secondary programs to OSS (in this case, Linux) to generate a large revenue
stream. This flies in the face of the assertion that OSS or GPL programs are a
threat the national economy. Furthermore, the OpenSource movement had
re-invigorated the software development community. The Linux operating system
was the first, and nearly the only, operating system to embrace 64-bit
technology. It is the only operating system fully capable of utilizing this
recent development in technology. What Mr. McBride hid in the details of his
letter was that the business model for software development is changing. The
speed with which Linux has developed is due in large part to the collective
minds of a world-wide body of programmers working to better the operating
system. Such a collaboration has produced fast, strong software that is more
robust and secure than software developed in the proprietary manner. Closed
programming houses cannot match this combined might of brain power and
willingness to better the product.

Thirdly, the concept that OSS and GPL software threatens national security is
purely an alarmist tactic. The record that OSS software is fundamentally more
secure than proprietary software is in the public record on a world-wide basis.
For all the bluster Microsoft had made regarding security flaws in the Linux
variants of operating systems, their contention does not withstand scrutiny.
Microsoft made a concerted effort to select a very specific point in time to
compare Linux with the Windows operating system. However, a one-to-one
comparison of current versions yields far different results. The year 2003 will
stand as a time when inherent weaknesses in Windows was exposed. Hundreds of
virus were aimed at the countless flaws buried in the software. Linux operating
systems were not immune; yet the scale of vulnerabilities was minuscule compared
to Windows. However, the speed with which bugs were rooted out and fixed
surpasses any private software developer. Moreover, the pace at which the Linux
patches were released dwarfed any other company. Once again, the power lies in
the collective power of the OpenSource development community. In the same
respect, the number of bugs and security flaws in OSS is greatly reduced because
so many developers are taking different approaches at examining the source code.
The end result is that OSS software is dramatically more secure upon release.
This is not idle hearsay: this is a proven fact.

If one takes into consideration the three main points addressed by Mr. McBride
and the takes the time to do sufficient research into the issues, it becomes
very obvious that his statements in the letter to representatives and senators
is riddled with fallacy. He is attempting pray on th worst fears of a group of
people who may not have the knowledge or even the time to inform themselves on
the issues raised. It is, as I have stated, an alarmist tactic. Furthermore, Mr.
McBride and The SCO Group are embroiled in several lawsuits concerning the Linux
operating system. Thus, one must ply a skeptical eye to what is being stated.
One cannot fault Mr. McBride for wanting to preserve the future of his company,
yet the facts bear out the truth that The SCO Group have failed miserably in the
software development arena. They have not produced products that are in demand,
and he seeks to blame the failure of The SCO Group on the OpenSource community
and the GPL. They have failed to keep pace with the recent trends in software
development and, as a result, have watched their market share erode. Mr. McBride
seeks to sow seeds of fear, uncertainty and doubt through the application of the
letter he circulated.

In closing, I would ask that you and the rest of the Senate take time to
seriously investigate the issues. Avoid the temptation to simply accept the word
of lobbyists since they will only provided information that is skewed toward
achieving their desired ends. I firmly believe that the future of software
development lies along the path of the OpenSource community and the GPL.
Everyone will benefit if they take a moment to understand what it is all about.

Sincerely,

RDH

<Signature>

[ Reply to This | # ]

OT: Shouldn't we be happy about MS/Vintella deal?
Authored by: Anonymous on Wednesday, January 21 2004 @ 11:10 PM EST
OT: Shouldn't we be happy about MS/Vintella deal?

I mean, assuming Canopy survives the next 3-5 years, doesn't this pretty much
guarantee that they'll be suing MS by then?

:-)

[ Reply to This | # ]

ACCC
Authored by: Anonymous on Wednesday, January 21 2004 @ 11:35 PM EST
http://www.zdnet.com.au/news/business/0,39023166,39115793,00.htm

[ Reply to This | # ]

Guess about the future
Authored by: Anonymous on Wednesday, January 21 2004 @ 11:38 PM EST
IANAL IMHO

My guess, IBM to file dismissal and sanctions motions, my bet, on Friday at
least for the dismissal motion

I would think this fits with the hearing being rescheduled to Feb 6.

[ Reply to This | # ]

Is newSCO a third party for APA amendment 2 ?
Authored by: Anonymous on Thursday, January 22 2004 @ 12:38 AM EST
> [...] However, in no event shall Novell be liable to SCO
> for any claim brought by any third party pertaining to
> said copyrights and trademarks.

During the sale of the asset of this agreement to newSCO,
did the identity of "SCO" (i.e. oldSCO) get replaced ?
IANAL, but the "SCO" seems to refer to the legal entity,
i.e. the corporation that is still in existence,
not whoever now owns the purchasing end of the agreement.

[ Reply to This | # ]

SCO Sues Novell This Time
Authored by: wllacer on Thursday, January 22 2004 @ 07:03 AM EST
Just a wild guess ... pls comment.

Let's look Schedule 1.1(b) as admended
<quote>
All 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. However, in
no event shall Novell be liable to SCO for any claim brought by any third party
pertaining to said copyrights and trademarks.
</quote>
which shall be read as
excluded: All copyrigths and trademarks but
included: c&t owned by Novell ... of UNIX (ignore for the moment anything
inside this words)

Now let's look to Attachment E. There are nowhere any copyrights to System III
nor to System V code *.

It can mean two very different things (depending on what this attachment
means), either Novell didn't own the copyrights at the moment or didn't want
to sell them.

If the former, it's clear from schedule 1.1(b) that they are excluded
assests (as they don't belong to Novell). Caldera has no case, but ... who on
the hell owns System V ?
If the later, Santa Cruz got them not. So it's up to Caldera to prove
that, according to the schedule, they need NOW those copyrights to
"exercise its rights with respect to the acquisition ..."


* As for the record neither Unixware, maybe are there in a separate attachment ?

[ Reply to This | # ]

Top infringing lines of code
Authored by: Anonymous on Thursday, January 22 2004 @ 08:46 AM EST
Here are my nominations:

#include....
#ifdef....
#endif
#define....

Obviously all lines which start with #ifdef are showing the same
expression-based content and hence are infringing!!!

Same with #include and #define...

Disclaimer: I am not a kernel programer.

[ Reply to This | # ]

OT : Microsoft gets more worried
Authored by: PeteS on Thursday, January 22 2004 @ 09:07 AM EST
In This eweek article Microsoft exec slams the Linux noise.

Continues the FUD with the usual 'point the customers at our Get the Facts website'.

Seems they have to step up everything during Linux Show weeks - that tells me they are getting very worried about losing market share and the pricing pressure they face.

---
Recursion: n. See Recursion

[ Reply to This | # ]

Damage to SCO
Authored by: jrw on Thursday, January 22 2004 @ 11:13 AM EST
"* Novell's false and misleading representations that it owns the UNIX
and UnixWare copyrights has caused SCO irreparable harm to its copyrights, its
business, and its reputation."

I'd like to see SCO justify this comment. How has irreparable damage been
caused to its copyrights, its business, or it reputation?

It doesn't have any copyrights, there's little that anybody could do to damage
its reputation, and since its entire business model is now based upon
litigation, if anything, Novell have actually done them a favour...

sigh.

[ Reply to This | # ]

And the stock goes... nowhere!!!
Authored by: Anonymous on Friday, January 23 2004 @ 06:19 PM EST
SCOX closed the week at 15.711, which is basically the same level it was at the
BEGINNING of the week, before the Novell lawsuit.

[ Reply to This | # ]

Rock and a hard place
Authored by: papafox on Saturday, January 24 2004 @ 07:22 AM EST

It looks like IBM and Novell may be co-ordinating their actions, albeit in an unspoken way. Novells' action against SCO will cause SCO lots of problems with the counter-suit by IBM.

SCO actually has quite a good defense against at least some of IBM's counter-claims, particularly the patent infringement claims: SCO can argue that IBM is suing the wrong party for patent infringment, that since SCO was simply acting as an agent of Novell, that Novell is liable for any patent claims

However, now that Novell is suing SCO, SCO finds itself in the position of arguing in one court that it is the owner of all the IP in question, while arguing in another court that Novell owns the IP and that SCO was just an agent

This is, of course, untenable :-)

Papafox

[ Reply to This | # ]

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