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| Novell's Memorandum in Opposition to Motion to Remand |
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Wednesday, March 31 2004 @ 12:21 AM EST
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Action on the Novell front too. They have filed their Memorandum in Opposition to Motion to Remand. I'm just starting to read it, so we can do that together.
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| Authored by: The Mad Hatter r on Wednesday, March 31 2004 @ 12:34 AM EST |
Ohmigosh - SCO is starting to look like Wylie Coyote with a piano, a rock, and
an anvil poised above his head...
---
Wayne
telnet hatter.twgs.org
[ Reply to This | # ]
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| Authored by: TheMohel on Wednesday, March 31 2004 @ 12:46 AM EST |
In arguing that an action arises under the Copyright Act only
if it is for a remedy expressly granted
by the act, SCO selectively quotes from
Harms. (See Remand Mot. at 3.) The omitted portion
of
Harms makes clear, however, that SCO's view is
incorrect.
Oh, how judges love it when you misquote by
omission.
Novell seems to be having fun. [ Reply to This | # ]
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| Authored by: chrisbrown on Wednesday, March 31 2004 @ 12:47 AM EST |
I think the Judge is gonna love SCO's mischaracterizing and improperly quoting
the Harmes and esp. Jasper cases.[ Reply to This | # ]
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| Authored by: anwaya on Wednesday, March 31 2004 @ 12:57 AM EST |
| I'm on page 7, and unless I've missed it, I'm still waiting for Novell to
explain why SCO is only the alleged successor of interest to the Assets
conveyed by the APA. It's distracting me from the argument. [ Reply to This | # ]
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- Alleged SCO - Authored by: chrisbrown on Wednesday, March 31 2004 @ 01:06 AM EST
- Waiting for the other shoe - Authored by: Anonymous on Wednesday, March 31 2004 @ 01:08 AM EST
- The dog ate it. - Authored by: trox on Wednesday, March 31 2004 @ 01:13 AM EST
- The dog ate it. - Authored by: Anonymous on Wednesday, March 31 2004 @ 01:27 AM EST
- The dog ate it. - Authored by: Anonymous on Wednesday, March 31 2004 @ 03:34 AM EST
- The dog ate it. - Authored by: Anonymous on Wednesday, March 31 2004 @ 07:27 AM EST
- MIT "experts" - Authored by: Anonymous on Wednesday, March 31 2004 @ 09:59 AM EST
- The dog ate it. - Authored by: sphealey on Wednesday, March 31 2004 @ 10:32 AM EST
- Waiting for the other shoe - Authored by: Anonymous on Wednesday, March 31 2004 @ 01:23 AM EST
- Contract issue - Authored by: Peter Smith on Wednesday, March 31 2004 @ 01:34 AM EST
- Waiting for the other shoe - Authored by: dmscvc123 on Wednesday, March 31 2004 @ 01:39 AM EST
- They don't have to - Authored by: Anonymous on Wednesday, March 31 2004 @ 02:29 AM EST
- Waiting for the other shoe - Authored by: Anonymous on Wednesday, March 31 2004 @ 02:30 AM EST
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| Authored by: Anonymous on Wednesday, March 31 2004 @ 01:15 AM EST |
II. BECAUSE SCO'S OWNERSHIP CLAIM REQUIRES RESOLUTION OF
A SUBSTANTIAL COPYRIGHT LAW QUESTION, FEDERAL
JURISDICTION IS PROPER.
Federal jurisdiction is proper in this case because SCO's complaint raises
a substantial
federal law question regarding section 204(a) of the Copyright Act. Contrary
to SCO's
argument, the two leading cases in the area, Harms and Jasper, strongly
support a finding of
federal jurisdiction.
A. Federal Jurisdiction Over a State Law Claim is Proper Where, As
Here, the Complaint Asserts a Claim Requiring Construction of the
Copyright Act.
A case may be validly removed from state to federal court if a claim
"arising under"
federal law appears on the face of the well-pleaded complaint. Greenshields
v. Warren
Petroleum Corp., 248 F.2d 61, 64 (10th Cir. 1957). Even where state law
creates plaintiff's
cause of action, the case still arises under federal law if the plaintiff's
right to
relief requires
resolution of a substantial federal question. Mountain Fuel Co. v. Johnson,
586 F.2d
1375, 1381 (10th Cir. 1978).
An action "arises under" the federal Copyright Act not only (as SCO
notes) if the
complaint "is for a remedy expressly granted by the Act," but also (as
SCO
ignores) if the
complaint "asserts a claim requiring construction of the Act" or
"presents a
case where a
distinctive policy of the Act requires that federal principles control the
disposition of the claim."
T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir. 1964). 3 In arguing that
an action arises
under the Copyright Act only if it is for a remedy expressly granted by the
Act, SCO selectively
quotes from Harms. (See Remand Mot. at 3.) The omitted portion of Harms
makes clear,
3 Courts in this circuit frequently look to the Second Circuit for guidance on
issues of copyright
law. See e.g. TransWestern Publ'g Co. LP v. Multimedia Mktg. Assocs., 133
F.3d 773, 777 (10th Cir.
1998) (adopting Second Circuit's test for copyright infringement); Gerig v.
Krause Publ'ns, Inc., 58F.
Supp. 2d 1261, 1267 & n.5 (D. Kan. 1999) (adopting Second Circuit's Harms
criteria for determining
whether case arises under Copyright Act); Grundberg v. Upjohn Co., 137
F.R.D. 372, 384 (D. Utah 1991)
(adopting Second Circuit's approach to determinations of copyrightability).
The Fifth Circuit has called
the Second Circuit the "de facto copyright court of the United
States." Easter
Seal Soc'y for Crippled
Children and Adults of Louisiana v. Playboy Enters., 815 F.2d 323, 325 (5th
Cir. 1987).[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 31 2004 @ 01:18 AM EST |
<rambling on>
Well, I can't say I'll miss this charade. But it never seizes to amaze me what
some of our fellow man will do to others. The sad part McBribe will never
"get it". He's too busy trying to make it by hook or crook. There's
only one person that matters to him. He'll probably walk past someone drowning
in a puddle without helping because he might get a few drops of water on
himself.
Meanwhile it's been a good learning experience. Our group shows that there's
hope for man. That most people will try to do the right thing and help others.
Only the few and weak try to pull a rug over others. But they make so much noise
it seems to be the majority. Media do what they can to make it seem that way
too, especially here in the US.
So here's $20 that says we'll see someone fleing to Argentina to avoid facing
hard time in a federal getaway...[ Reply to This | # ]
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| Authored by: Hygrocybe on Wednesday, March 31 2004 @ 01:37 AM EST |
It has taken a long time, but the end games are beginning and the SCO checkmate
is now in sight. I don't think any of us will feel sorry in any way for Darl and
his fellows..and that includes the directors who sanctioned this horribly
expensive legal farce which (strictly from my view) only had the aims of stock
pumping and buyout. It hasn't worked and the collapse is going to be quite
unpleasant I think.
For what it is worth, myself and a fellow Australian express only one concern:
somehow, please make sure that the "South American option" cannot be
taken by these people. They created the music and now they should be made to
dance to it themselves.
---
Blackbutt, Australia[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 31 2004 @ 01:39 AM EST |
I read the entire 12 pages, and the legalese gets so thick at times, I had to
re-read a few sections.
Novell is really making SCOG look reckless. They are essentially telling the
judge that SCOG mis-represented some of the cases cited, when in actuality they
support Novell's position. I'm sure that will go down well with the Judge.
Now the question is: when will SCO implode from Darl battling his own legal
team?
It might possibly be that in addition to all the legal fronts they have opened,
Darl is opening another front on his legal team given his love for conflict. He
may now be in the process of hiring lawyers to sue his lawyers! Johnny Cochran
to the rescue!!![ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 31 2004 @ 02:23 AM EST |
Did they buy a Brooklin Bridge or what! Me thinks McBride came in in a hurry (as
a CEO) and following his old habits frantically started looking for something to
ligitate. Then he found the Unix thing, misread the whole contract with Novell,
even worse misread the one with IBM, a few other people pointed fingers at IBM
over Monterey (they were probably pissed off by IBM's departure from the
project) and poof - here comes the charade.
Details, details, my friends. Seems like folk at SCO have to learn to pay more
attention to those pesky little things. Novell and IBM lawyers are now having a
field day with Boies and company. No wonder the guy couldn't nail any of his big
cases...[ Reply to This | # ]
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- One more waypoint... - Authored by: Anonymous on Wednesday, March 31 2004 @ 02:32 AM EST
- Oh boy! - Authored by: Anonymous on Wednesday, March 31 2004 @ 07:35 AM EST
- Too much credit - Authored by: Anonymous on Wednesday, March 31 2004 @ 09:26 AM EST
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| Authored by: scott_R on Wednesday, March 31 2004 @ 02:30 AM EST |
Perhaps I'm looking at this the wrong way, but I see something kind of
interesting here. On the one hand, Novell has to make this case seem important
(or complicated) enough that the Federal court will feel that it's important
that the case stays there. On the other hand, they don't want the same court to
think that SCO might have a legitimate case.
If Novell pushes too hard on the obvious weak points of this, a judge might
determine that this is something that can be handled easily enough by a lower
court. (Especially if the court's workload is heavy, or a major publicity laced
case lands on them.) On the other hand, if they don't push hard enough, they
might leave themselves open to long proceedings and a trial. It's a kind of
tightrope walk they're doing. They want to stay in Federal court, but once
that's settled, they want maintain the option to liquify SCO's case. (Liquify
as in a blender setting.) :)[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 31 2004 @ 02:51 AM EST |
Novell is clearly right and SCO is clearly wrong. Why did SCO even bother
trying to remand the suit to state court? Judge Kimball normally reaches his
decisions quickly. He says that lets people either deal with his answer and
move on or appeal it. My guess is that he will dismiss this case within 2
weeks.
Once the case is dismissed, SCO will file a contract violation claim against
Novell. They probably have it all written up so that they can file it before
the ruling affects their share price.
I wonder if they will file it in the state court or in a federal court.
Obviously, it belongs in a federal court, but SCO seems to prefer filing in the
wrong court.
Probably SCO should think about filing in a Delaware federal court. Both SCO
and Novell are Delaware corporations. The Delaware federal court system seems
to be really slow. It's stupid for them to have both the IBM and Novell lawsuit
in front of the same judge like it is now.
[ Reply to This | # ]
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| Authored by: Artiken on Wednesday, March 31 2004 @ 04:07 AM EST |
Ahhhhh!
If you loose in a lower court you can always apeal to a higher court.
If you start out in a higher court. There is no where to go.
It is true that you have the option of going from Federal court to the Supreme
court. But last time I checked the Supreme court only tries stuff related to the
constitution. And you have to prove to them that you have a valid case, that it
was mistried, and that the mistrial resulted in a constitutional violation. I
really don't see it happening here.
It seems to me like TSG's tactics are going to be to get the case into a lower
court. Lose the case. Declair a mistrial. Then retry the case (again) in Federal
court.
(paraphrase)
SCO: It's a contract case.
Judge: You lose.
SCO: opps it really was a copyright case. MISTRIAL!!!!
FED Judge: Haven't we been here before? I can't say that it is nice to see you.
WHAT do you want this time?
SCO: We got the case thrown out of the State court because it really belongs in
Federal court. It wasn't really a contract case. It's really a copyright issue.
So will you let us try it here? (pretty please?) After giving M$ the rights to
examine UNIX. They responded "This is really old and usless stuff. Can you
get us the new stuff." Your Honer We need to delay some more so that IBM
gives us the AIX code. That is the stuff that M$ really needs to make
longhorn(palladium) fly. Oh. And some of our major stockholders haven't fully
sold off their stocks yet. And all responsible parties are not sufficiently
relocated to other countries yet. (Daryl is still blabbing at one of the many
trials. He just won't shut up. It is kinda embarassing. Right now he keeps
talking about The wild West and cows. Something about Longhorn cows and how
Cowboy Gates won the west and is planning on taking over the rest of the world.)
With Daryl and Gates constantly humming "keep them doggies rolling" we
had a hard time concentrating in the lower court. So can we please have some
more time.
(/paraphrase)
I appoligize for my jump into fantasy land. But my main guess as to what is
happening is in the first 4 paragraphs.
I can't see the judge granting the change of venue. The judge will probably
disallow the change of venue for this exact reason.
Allowing all of the delays also helps keep one of the parties from screaming
Mistrial later as well.
Artiken
"There is what is moral, legal and logical. In a court these three don't
always co-exist."[ Reply to This | # ]
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| Authored by: Peter Smith on Wednesday, March 31 2004 @ 04:27 AM EST |
I think we can look forward to a favourable settlement that negates all of
SCO's claims.
But what then?
Linux will come out of this much stronger than before and go mainstream as the
perceived official, annointed successor to Unix.(and my crystal ball says in
time the desktop will fall to Linux, but my crystal ball hasn't been certified
by Harry Potter)
MS will intensify the DRM battle (with help from Congress) hoping to retain
their monopoly this way. But this is a story for another day.
The tangled body of Unix copyrights will remain in Novell hands.
But should they remain there? All sorts of interesting possibilities suggest
themselves.
My preferred scenario is one where Novell transfers them to the OSDL.(the
official blessing of Linux)
It is an important issue that should be debated.[ Reply to This | # ]
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| Authored by: nealywilly on Wednesday, March 31 2004 @ 02:07 PM EST |
I finally read the Novell's response to SCO's motion to remand. I think it's
even better than their summation of their motion to dismiss.
It's filled with bombs with SCO's name on them.
"SCO has not cited, however, even one contract interpretation case under
state law that supports its position, and its argument ignores the relevant
provisions of the Copyright Act."
Plus, they called SCO a liar and / or a cheater no fewer than eight (8) times.
Footnote 2 (about the APA transferring "all copyrights related
thereto")
Page 4 (about selectively quoting from the Harms case)
Footnote 6 (about the third party being dispositive to the Jasper case)
Page 7 (about the plaintiff in Jasper raising the federal jurisdiction issue)
Page 7 (about Jasper being a copyright infringement action)
Page 8 (about Yount being a copyright case)
Page 8 (about Dolch being a copyright case)
Page 8 (about Noble being a copyright case)
I can't wait to see SCO sputter in response to this.
Now I wish SCO had the chance to respond to Novell's final word on the motion to
dismiss.
nw[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 31 2004 @ 04:37 PM EST |
| http://www.albinoblacksheep.com/flash/winrg.php [ Reply to This | # ]
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| Authored by: Hygrocybe on Wednesday, March 31 2004 @ 06:51 PM EST |
All right, all right...I surrender. Trust Groklanders to have a right royal go
at a throw away line...corrections accepted in full.
But in the light of what is now happening: Who cares ?
AS LONG AS IT WORKS !!!!!!
(and it seems that it does from the current state of play and IBM's latest
moves.)
---
Blackbutt, Australia[ Reply to This | # ]
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