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| SCO Goofed. DC's Memorandum: It Hasn't Used The Licensed Software for 7 Years. |
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Friday, April 30 2004 @ 02:00 AM EDT
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Robert McMillan has an article on the DaimlerChrysler case. DaimlerChrysler sent two letters to SCO. They suggested they contact DC to see about dropping the lawsuit. Here's why: DaimlerChrysler is "not even using and has not used the licensed software for more than seven years."
Here is the complete filing for DaimlerChrysler, so you can read it in full. The Memorandum in Support, which tells the whole story, begins on page 11, followed by the two letters, beginning on page 33, as well as cases in support of their position.
No wonder the IT department at DaimlerChrysler was on the floor laughing when news of the lawsuit arrived, with its allegations that DC had refused to provide SCO with a "certificate of compliance" over its use of Unix.
Here is what Mr. McBride said was the reason they were suing DaimlerChrysler when they first announced it, and you probably recall SCO sued AutoZone around the same time, saying SCO was copying the methods of the RIAA: "The company was going to 're-educate' people about its rights and it expected to see the same fall in illegal usage that the RIAA has seen after its actions.
"At the same time, McBride announced the company had lodged a second lawsuit in Oakland against DaimlerChrysler for 'failure to respond' to SCO's demand that the company provide a certificate of compliance with its software licensing agreement. McBride later admitted that the DaimlerChrysler suit was based on the company's contribution toward Linux and that it was continuing to work on the open-source OS. 'They need to confirm one way or another,' McBride stated."
Now DC has disdainfully replied:
"'DaimlerChrysler has provided SCO with the only certification required under the licence demonstrating that DaimlerChrysler is not even using and has not used the licensed software for more than seven years,' the response stated." Think this incredible blunder on SCO's part in choosing a victim to sue might have something to do with BayStar's angst?
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| Authored by: TT:FD on Friday, April 30 2004 @ 02:21 AM EDT |
Thought you may enjoy this....
http://www.firmdesign.ca/darl_will_fud_for_food.jpg
something I amusing I whipped up, maybe a glimpse of the future? I actually
posted an anonymous comment this morning about this and Fuding for food.
enjoy[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 02:22 AM EDT |
And they are paying how much in legal fees for this kind of
goof?
BTW, am I the only person on Groklaw still up? [ Reply to This | # ]
|
- Parent mine - Authored by: josmith42 on Friday, April 30 2004 @ 02:23 AM EDT
- Wow - Authored by: kb8rln on Friday, April 30 2004 @ 02:27 AM EDT
- Wow - Authored by: Anonymous on Friday, April 30 2004 @ 02:34 AM EDT
- Wow - Authored by: Anonymous on Friday, April 30 2004 @ 02:40 AM EDT
- Wow - Authored by: lifewish on Friday, April 30 2004 @ 08:06 AM EDT
- Time? - Authored by: jtwyford on Friday, April 30 2004 @ 02:41 AM EDT
- Time? - Authored by: PJ on Friday, April 30 2004 @ 02:45 AM EDT
- Time? - Authored by: Anonymous on Friday, April 30 2004 @ 02:57 AM EDT
- Time? - Authored by: RevSmiley on Friday, April 30 2004 @ 03:04 AM EDT
- Time? - Authored by: rc on Friday, April 30 2004 @ 03:04 AM EDT
- Good to see so many people up - Authored by: Anonymous on Friday, April 30 2004 @ 05:27 AM EDT
- THE SUN NEVER SETS ON GROKLAW - Authored by: Anonymous on Friday, April 30 2004 @ 05:43 AM EDT
- Doesn't matter - Authored by: bsm2003 on Friday, April 30 2004 @ 02:39 PM EDT
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| Authored by: Juggler9 on Friday, April 30 2004 @ 02:25 AM EDT |
According to the ComputerWorld story "SCO declined to comment on this
story."
Wonder why...? ;)
I stand by my earlier comment regarding weapons-grade stupidity.[ Reply to This | # ]
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| Authored by: blacklight on Friday, April 30 2004 @ 02:28 AM EDT |
"Think this incredible blunder on SCO's part in choosing a victim to sue
might have something to do with BayStar's angst?" PJ
The more corporate enemies Baystar makes gratuitously, the better for us.
Baystar essentially put a contract out on the Linux community when Baystar
decided to give the Darl aid and comfort. Let's all see if Baystar can take it
as well as it can dish it out.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 02:31 AM EDT |
IMHO, this is probably not as good news as everybody seems to think. Since SCO
claims that Linux contains their code, they will tell DCX that by using Linux,
they are using the Licensed Product; and that the original reply from DCX is
therefore wrong.
Note that I don't think they're right, I just think they will ask for the DCX
case to be stayed pending discovery in the IBM case.
These people are so tedious...[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 02:52 AM EDT |
I'm not sure if it's just me, but the latest news that we're seeing on Groklaw
seem to indicate a complete meltdown of SCO and their legal team. Anyone else
getting the same feeling?[ Reply to This | # ]
|
- Just me? - Authored by: blacklight on Friday, April 30 2004 @ 03:04 AM EDT
- Just me? - Authored by: stevem on Friday, April 30 2004 @ 04:38 AM EDT
- Yup... - Authored by: Anonymous on Friday, April 30 2004 @ 04:51 AM EDT
- Yup... - Authored by: Anonymous on Friday, April 30 2004 @ 08:01 AM EDT
- Just me? - Authored by: Anonymous on Friday, April 30 2004 @ 10:44 AM EDT
- Nope - Authored by: dht on Friday, April 30 2004 @ 04:08 PM EDT
- Just me? - Authored by: Anonymous on Friday, April 30 2004 @ 09:27 AM EDT
- Cast your mind back ... - Authored by: Anonymous on Friday, April 30 2004 @ 12:29 PM EDT
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| Authored by: blacklight on Friday, April 30 2004 @ 02:58 AM EDT |
"The company was going to 're-educate' people about its rights <i>and
it expected to see the same fall in illegal usage that the RIAA has seen after
its actions.</i> [My italics]<br><br>
I believe that this statement constitute prima facie evidence that the Darl was
out to impair IBM and RH's business models by improperly and maliciously
interfering with corporate end users' adoption of Linux for SCOG's own financial
gain. The Darl had best substantiate his allegations that usage of Linux is
illegal, or there will be hell to pay.[ Reply to This | # ]
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| Authored by: rakaz on Friday, April 30 2004 @ 03:21 AM EDT |
From the Software Agreement between Chrysler and AT&T:
7.10
(c) Any statement, notice, request or other communication shall be deemed to be
sufficiently given to the addressee and any delivery hereunder deemend made when
sent by certified mail addressed to LICENSEE at its office specified in this
Agreement or to AT&T-IS at the appropriate address specified in this Section
7.10. Each party to this Agreement may change an address relating to it by
written notice to the other party.
So, everytime the
address of one of the parties changes they need to tell the other party. This
should have happened when the Agreement was transferred to USL, to Novell, to
Santa Cruz and finally to Caldera.
DC's reply to SCO
letter: SCO is not a party to the SA, and DaimlerChrysler has no knowledge
of any assignment of the rights of the Licensor under the SA to SCO. According
to our records, the SA was assigned from AT&T Information Systems Inc. to
UNIX System Laboratories, Inc. on or about November 1,
1990.
DaimlerChrysler claims that they did receive such a
notice when the Agreement was tranferred to USL, but neither Novell, Santa Cruz
or Caldera bothered to inform them.
So strickly speaking the correct contact
address for any communication to the LICENSEE is still Unix Systems
Laboratories. This probably also the reason why SCO didn't have the correct
address when they send their original letter to DaimlerChrysler. DC probably
send their change of address notice to USL. Ooops...
Pretty funny is the
certification letter send by Mr. Powell of DC on April 6, 2004. It is also still
addresses to Unix System Laboratories... [ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 03:24 AM EDT |
Remember when I wrote that joke article about
The Santa Disney Operation ?
"cross-promotion will include SCO's Goofy UNIX"
It was a premonition!!
man, I can see the future !!
hehehe
On a more serious note, this is out in BusinessWeek today
"The Penguin Spreads Its Wings", including comments by Marc Andressen
and also SCO's stupidness coverage.
YAY !!
http://www.businessweek.com/technology/tc_special/tc_04linux.htm
[ Reply to This | # ]
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| Authored by: major_figjam on Friday, April 30 2004 @ 03:27 AM EDT |
DCC file their response: Baystar demand repayment.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 03:36 AM EDT |
http://www.groklaw.net/article.php?story=20040303182714835
O
n [SCO’s] request, but not more frequently than annually, Licensee shall furnish
to [SCO] a statement, certified by an authorized representative of Licensee,
listing the location, type and serial number of all Designated CPUs hereunder
and stating that the use by Licensee of Software Products subject to this
Agreement has been reviewed and that each such Software Product is being used
solely on such Designated CPUs (or temporarily on back-up CPUs) for such
Software Products in full compliance with the provisions of this
Agreement. (Emphasis added.)
SCOX put the emphasis on the
last phrase, so I think they're implying DC is required to certify the entire
Agreement, not just CPU use.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 03:38 AM EDT |
As much as I dislike SCO, I simply cannot believe
that their lawyers could have make just an obvious
mistake. Could it be that SCO knew that DC has not
been using the SOFTWARE for more than 7 years, but
filled anyway just for publicity? That way, when the
case is dismissed, SCO could still say "This was not
a Linux lawsuit, merely a contract suit. The real
Linux lawsuits will come veeryyy soon now..."
Just part of their delay tactic... Or do I need a
tinfoil hat?
NNP [ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 03:43 AM EDT |
What has "not having used the License for seven years " to do with
" being in compliance with its terms " ?[ Reply to This | # ]
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| Authored by: MikeA on Friday, April 30 2004 @ 03:51 AM EDT |
| A review of the IBM papers reveals that they, too, seem to question the validaty
of SCO's complete ownership of the System V software. They state:
"SCO
believes that: [...] SCO “owns” certain rights under the Software Agreement
referenced above (“SA”).
Can't help but notice they put the word "owns"
in quotations there. SCO doesn't do that it their press releases, do
they?
"SCO is not a party to the SA, and Daimler Chrysler has no
knowledge of any assignment of the rights of the Licensor under the SA to SCO.
According to our records, the SA was assigned from AT&T Information Systems
Inc. to UNIX System Laboratories Inc. on or about November 1, 1990. […] [It is
DaimlerChrysler’s] right to assert that SCO has no rights under the
SA."
DC is stating that SCO doesn't have any rights to the Software
Agreement for Unix System V, and they dont believe that the rights were ever
transferred to them. Hmmm.
Just to drive the point home, DC essentially says
'if you really want to know if we are properly certified, then take a
look at this certification letter we just drafted up to the REAL owners of the
software...'
April 6, 2004 Certification letter sent to:
UNIX System Laboratories, Inc.
PO Box 25000 Greensboro, NC
27420
Oh, and by the way...we haven't been using this software for over
seven years.
Very interesting. I can't help but wonder if SCO will run away
with its tail between its three legs, or if it will change course and
re-file against them as a Linux end-user?
---
Change is merely the
opportunity for improvement. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 03:59 AM EDT |
Stacy Quand, industry analyst focusing on Linux, mentions the lack of females in
the Linux/OSS world and says it's great that you started groklaw.. it's towards
the end of the article.
http://www-1.ibm.com/linux/news/stacey.shtml?ca=dgr-lnxw01StacyQuandt
.. although you probably already read the article, since it's about the growth
of Linux and was linked on slashdot :)
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 04:20 AM EDT |
if you download the pdf and go to page 38 (page 2 of the Hesse v Chippewa case),
read through the story from the first paragraph.
seems to be a little like a veiled threat to baystar. let sco poke around in the
deep dark place with a bic lighter and baystar (guy standing around) will get
'accidentally' offed.
i know this is way far fetched, but i'm having fun.
boy would i like to see the original contract between chrysler and att.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 04:25 AM EDT |
could this be an attempted hand slap on a suspected source code leaker? could
they think that someone in dcc leaked the source code to an open source guy so
he could grep it against linux? for some reason this rings a little bell.
also, if dcc hasn't used the software for seven years, why do they keep the
contract going? sure, maybe they are paid up till doomsday, but i'd like to know
why for sure.
boy i wish we had a look at the original chrysler + att contract.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 04:33 AM EDT |
think sco will drop this lawsuit and sue google now that they've made public
their plan to have an ipo?[ Reply to This | # ]
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| Authored by: rsmith on Friday, April 30 2004 @ 04:45 AM EDT |
At least, that's what it looks like from here.
I hope the judge hands out some punishment to SCOG for wasting the court's time.
I mean, they didn't get an answer to _one_ letter asking for things they weren't
entitled to anyway, and they file a lawsuit. At the very least they could have
been expected to try more then once?
---
Never ascribe to malice that which is adequately explained by incompetence.[ Reply to This | # ]
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| Authored by: stevem on Friday, April 30 2004 @ 05:31 AM EDT |
In fairness to the hardworking folk via DCC who went to all the trouble of
providing us with such an entertaining legal document to read I hereby present
my review/scoring for their edification and enjoyment:
Humour value: 9.5
Ease of Understanding: 7.5
Supporting Documentaion: 8.8
For an overall score of 8.6.
Go DCC! :-)
- SteveM[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 05:58 AM EDT |
Wow. I don't think DC is interested in playing :-)
You never told us you assumed ownership of the contract.
You never told us where to send correspondence.
You didn't listen when we responded to you.
And we haven't been using the software since 1997.
So there.
IBM's been playing with its food. DaimlerChrysler is trying to finish its meal
in one gulp. AutoZone's not hungry, RedHat has been told it can't eat yet, and
Novell seems like it's trying to get some of everyone else's meal.[ Reply to This | # ]
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| Authored by: Polar Weasel on Friday, April 30 2004 @ 06:09 AM EDT |
Great response from DC, except ...
I wish they'd referenced at least *some* case law to support their position
....
Or had a grasp of the "fundamental principles of contract law" at
least equal to that of those sharp, sharp, SCO legal eagles ....
-Polar Weasel[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 06:41 AM EDT |
Groklaw and the scrutiny of TSG's (SCO's, Caldera's) activities over
the last year, have continually shined the glaring light of truth on
TSG.
For the most part, we already knew that "the emperor had no clothes
on", but now we are seeing that, so to speak, he is not even the emperor, emits
odors that scare little children and animals, etc.
More and more of the
daming details of what TSG is and has been doing in its push to "protect its
IP", will start being revealed at a faster rate, IMHO.
It would not surprise
me (any more) to see the whole TSG vs. the World go down as one of the
grossest corporate scams in recent history, as well as being one of the worst
examples of abusing the our court system.
TSG's activities sicken me. And I
sincerely hope that the key players involved are finally fully exposed and a
large number of them spend time peering through cold gray bars.
TSG's
incompetence, back in the start of this whole "IP protection" scheme, might have
been excused. But it has come to a point, but all along they just intended to
slow or check Linux and the free or open software movement. No intention of
actually collecting their "$5Bn" payday from IBM. I certainly hope that the
ones orchestrating this whole scheme do not escape the "long arm of justice", so
to speak.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 07:05 AM EDT |
Pick your 2 biggest customers out of the past a sue them for selecting another
solution. Hum....
Baystar - Drop Unix product line and just sue people or we will pull your
funding?
Kill unix and leave Linux in legal trouble. Hum... No Microsoft here...
<LAUGH>
[ Reply to This | # ]
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| Authored by: gvc on Friday, April 30 2004 @ 07:06 AM EDT |
SCO is logic-challenged. In the IBM case they are trying to make all sorts of
absurd inferences, not the least of which is their expansive definition of
"derivative work."
In this case their logic is simple. Chrysler licensed the code and if any
fragment of the code (or structure, organization, whatever) shows up in their
operation, regardless of whether it was derived by Chrysler from the original
licensed distribution, it is subject to the licence.
I am not claiming that their logic makes sense. For their legal strategy, it
does not need to make sense. It merely needs resemble logic closely enough to
keep the court process churning.[ Reply to This | # ]
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| Authored by: webster on Friday, April 30 2004 @ 07:22 AM EDT |
...
---
webster[ Reply to This | # ]
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| Authored by: WhiteFang on Friday, April 30 2004 @ 08:00 AM EDT |
Any bets that it never occurred to SCOX that someone might stop using SysV?
This goes beyond stupidity and well into the realm of blind, overbearing ego.
Tsk-tsk.[ Reply to This | # ]
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| Authored by: penfold on Friday, April 30 2004 @ 08:14 AM EDT |
"It's devastating to my case!"
-Jim Carry
"Liar, Liar"
---
Blood from a turnip? That's easy! Try getting SCOX to produce evidence![ Reply to This | # ]
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| Authored by: mlinehan on Friday, April 30 2004 @ 08:16 AM EDT |
Hey, take a look at the letter DC sent to confirm compliance. (Page 35 of the
PDF)
The April 6 2004, We have not used UNIX for 7 years letter was sent to:
Unix Systems Laboratories Inc
PO Box 25000
Greensboro, NC 27240
Would SCO even recieve this letter?
Matt[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 08:20 AM EDT |
DaimlerChrysler uses Catia (http://www.ibm.com/catia) to deisgn it's entire line
of products. They run catia on SGI (Irix) and IBM RS-6000 (AIX,) both which are
(I believe) derivative works of System V. And these uses of Unix are leased from
these companies, not bought outright.
Yes, they use Unix. And they may have used System V in the past (don't know.
Wasn't there.) If there are any issues of what they are running now, shouldn't
SCO try to go after SGI and IBM in regards to these matters?
What source code do they use? Perhaps Irix or AIX. Do they use Linux source
code. Probably. Did they combine the two? Maybe for internal use only. Did any
combined code get rereleased into the kernel at large? Highly doubt it.
SCO would have to dig deeper to find out the REAL-ONCE-AND-FOR-ALL truth on the
matter. Is it worth it for SCO to do so? Don't think so. I don't think they will
find anything relevant to their case.
All SCO is doing is solidifying the case that they are a dying company. [ Reply to This | # ]
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| Authored by: brian on Friday, April 30 2004 @ 08:28 AM EDT |
"The company was going to 're-educate' people about its rights and it
expected to see the same fall in illegal usage that the RIAA has seen after its
actions."
Everyone seems to be missing the main point here....
It goes to show how our legal system is so broken and overburdened by frivilous
lawsuits such as this. It also goes to show how bad the DMCA legislation can be
abused. What really needs to happen is that poorly written piece of law needs
overturned. It has placed a huge burden on our already overtaxed legal system.
/soapbox....;-)
B.
---
#ifndef IANAL
#define IANAL
#endif[ Reply to This | # ]
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| Authored by: mhoyes on Friday, April 30 2004 @ 08:30 AM EDT |
I started thinking and I have a few questions that maybe someone here would
know.
When was the Daimler Chrysler merger? Was it before or after
1997?
The reason I ask this is just a long shot, but what else does the
SCOG have. In the agreement between AT&T and Chrysler, it says that you can
not dispose of the software. Now, a question would be, is the merger concidered
a disposal of the software to a new entity? If so, wouldn't they have needed to
relicense the software?
Thinking about it, it doesn't really matter since
the only requirements are to report exactly what the agreement specified so I
don't think SCOG would have a leg to stand on. Of course, the SCOG could be
using an overly broad definition of "can not dispose of" to mean that once you
have an agreement, you can never get out of it, but that still doesn't give them
rights to question things outside of the agreement.
As I wrote the above, I
was reminded of a movie, and I wonder if the SCOG are now reduced to biteing
their kneecaps?
meh [ Reply to This | # ]
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| Authored by: markhb on Friday, April 30 2004 @ 08:45 AM EDT |
From the memorandum:
A contract is unambiguous if the language it
uses has a "definite and precise meaning, unattended by danger of misconception
in the purport of the agreement itself, and concerning which there is no
reasonable basis for a difference of opinion."
-- Memorandum in Support
of Motion, pg. 10 (pg. 20 of PDF)
Sounds like the antithesis of
excluding all copyrights except those necessary to the business, doesn't
it? (paraphrase of Novell - Santa Cruz APA Amendment 2).---
IANAL, but
ITRYINGTOCHILLOUT... et SCO delenda est! [ Reply to This | # ]
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| Authored by: rharvey46 on Friday, April 30 2004 @ 08:46 AM EDT |
Hmm.... I was wondering about this possibility on the same day I read about SCO
suing DC. It just felt like a setup. I am not sure by whom, SCO or DC.
However, many license agreements allow/require the customer or the company to
cancel a license as far as violations/use of license agreements are concerned.
<sarcasm>
This must be the first time, however, that a 'sales' company has sued the
customer for license agreements when the customer (without notifying the 'sales'
company) terminates the usage of the product. As if that never happens ! April
fools !
I wonder if the company could/would say : Oh, by the way, you can not cancel the
use of the product because you did not contact us to cancel the license for the
product! You should have contacted us to cancel the license for the product!
</sarcasm>
SCO (and any other company that did this) would be laughed out of court! Ah, the
obsurdity of it all! Normally, the company would only sue for breach of license,
since it is a way of defending copyright/patent/IP. This would be the opposite
of IP protection. Imagine, a vender actually suing every customer that throws
out their product because they did not call the company to terminate the
license! Imagine, the use of product terminates when a company goes bankrupt,
because the license has been terminated by the vendor (so to speak). I have
pounds of CDs of software I do not use any longer. I have thrown out some
hardware (because it did not work any longer, and the service call would cost as
much as a new computer) - plus I wanted to upgrade. But much of the software
(according to the license) does not permit you to install it on another PC
(unless you remove it from the old PC - which I was unable to do) - and I lost
interest in the software (or it did not work at all - but try getting a refund
after agreeing to the EULA).
I guess SCO thinks the license is more important than the product - it
definetely looks like it!
Someone (I believe on Groklaw) once said - once a SCO customer, always an SCO
customer - and the last thing a customer wants to be is a SCO customer. I guess
thats true[ Reply to This | # ]
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| Authored by: Ruidh on Friday, April 30 2004 @ 09:13 AM EDT |
This is where all of the heavy lifting is. DC says there is no material issue of
fact and indeed no dispute. They've provided the only certification the contract
calls for. They even say they can't file for declaratory judgement because there
is no actual case or controversy.
Tough words from DC.
But I have to wonder if SCO has cards here it isn't showing. Darl says DC helped
develop Linux. Is ther evidence of that? Have any DC employees contributed to
Linux? Do they know something we don't?
[ Reply to This | # ]
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| Authored by: arch_dude on Friday, April 30 2004 @ 09:21 AM EDT |
Note that essentially all of DC's citations are to decisions of appeals courts.
Is this because appelate decisions carry more weight, or because DC legal team
needed a challenge?
It appears that the DC lawyers decided that this case was so easy that they had
to take a handicap, just to make it interesting, rather like playing basketball
on your knees when playing against a four-year-old.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 10:01 AM EDT |
What are the rules for awarding attorney fees? From what I
understand the US system does basically not allow for that
unless specifically stated? Is that correct?
E.g. on page 54 of the pdf there is reference to the
contract mentioning attorney fees. I noticed that DC
asked, in cautious terms, in its response for attorney
fees. Would they need to show any basis for that? Do they
HAVE any basis for that? [ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 10:09 AM EDT |
I don’t understand why the legal filings by IBM and other litigants against
TSCOG do not simply point out that Darl and Company seem to be living in an
alternate universe. There is nothing written in the contract transferring the
Unix SV business from Novell to the original SCO that would indicate that
copyrights to the program were transferred, yet TSCOG states that they were,
simply because TSCOG wants them to be (they paid so much money and they got so
many words, those words must have given them “IT” rights). Simply wishing it
were so doesn’t make it so. And neither copyright law nor the Novell contract
(as interpreted by AT&T) gives TSCOG control over software written by others
that was at one time packaged with UNIX SV, yet TSCOG insists it is so.
The same thing seems to be going on in the DC case. Diamler Chrysler has a UNIX
SV license and they use Linux, so therefore, they owe TSCOG money because TSCOG
says (without offering any evidence) that Linux contains UNIX SV source code to
which TSCOG claims copyrights (without actually having any evidence to that
effect).
That house of cards, that alternate universe, continues to be elaborated ad
nauseam. Perhaps if this lack of any basis in reality were pointed out more
clearly in the filings, the whole TSCOG sham would be exposed more quickly. For
instance, Novell could pretty easily puncture TSCOG’s alternate-universe balloon
with a clear statement showing that TSCOG’s case is simply imaginary. I know
they are trying to do that, but they get caught up in answering TSCOG’s busy
little motions and perhaps lose sight of the overall absurdity of TSCOG’s
position.
I know the legal style is to dot all the I’s and cross all the T’s, but a forest
of I’s and T’s hides the deformity of the TSCOG tree.
Billwww (formerly addicted to logging in)[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 10:10 AM EDT |
http://www.theregister.co.uk/2004/04/30/irish_government_open_source/
I am stunned at this level of FUD![ Reply to This | # ]
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| Authored by: mdarmistead on Friday, April 30 2004 @ 10:31 AM EDT |
| I noticed on (document Page 7) (PDF Page 17) of MOL in Support of Motion For
Summary Disposition:
This case presents no issue on which reasonable
minds might differ. The unambiguous terms of Section 2.05 of the License
Agreement are susceptible to only one reasonable interpretation and bar SCO's
claim for breach and declaratory judgement as a matter of law. Moreover, because
the License Agreement's terms are unambiguous, no amount of discovery would
enable SCO to develop a record that would leave open the issue of
breach.
and on (document Page 8) (PDF Page 19) of MOL in Support of
Motion For Summary Disposition:
In both New York and Michigan, "[t]he
fundamental, neutral precept of contract interpretation is that agreements are
construed in accordance with the parties. intent." (Greenfield vs Philies
Records cite snipped)("The cardinal rule in the tnterpretation of contracts is
to ascertain the intentions of the parties."). The best evidence to what the
parties to a written agreement intended is what they say in their
writing."
Ths sort of language seems to me to be speaking directly to
the Novell case concerning copyright transfers. Any reasonable person reading
the Asset Transfer agreement and 2nd amendment would interpret that there was no
assignment/transfer of copyrights to SCO.
IANAL (of course)
Matt. A. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 11:09 AM EDT |
The Microsoft connection is the only reason why anybody
with even half sane minds (or even completely sane lawyers)
would push this absurd set of cases this far.
By the way why hasn't anyone sued Darl McBride and Blake
Stowell for libel and slander yet? There is rock solid proof. Isn't
America supposed to be famous for libel and slander lawsuts? [ Reply to This | # ]
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| Authored by: dracoverdi on Friday, April 30 2004 @ 11:13 AM EDT |
How refreshing! Now SCO is suing non-users. At least that is a group that is
showing some growth for them.
---
Pizza is an acceptable breakfast.
Just think of it as a large pepperoni danish[ Reply to This | # ]
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| Authored by: pajamian on Friday, April 30 2004 @ 11:16 AM EDT |
SCO declined to comment on this
story. ---
Windows is a bonfire, Linux is the sun. Linux
only looks smaller if you lack perspective. [ Reply to This | # ]
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| Authored by: webster on Friday, April 30 2004 @ 11:18 AM EDT |
Did I miss it? Why isn't it there? Or did they deliberately omit it to
highlight SCO Embarassment?
---
webster[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 11:23 AM EDT |
SCO are going to look even more stupid in front of the judge:
Imagine oral arguments, with the judge asking Kevin and Mark a few questions.
There are some really obvious ones...
Judge: Why did you bring the law suit?
Kevin: Because we need the information from DCC that is specified in our
contract
Judge: Haven't they already provided all the information specified in the
contract?
Kevin: Yes
Judge: And did you acknowledge or make any use of that information
Kevin: No
Judge: So what other information are you claiming that you need?
Kevin: We need to see if they are in FULL compliance. This is why we asked them
the questions about Linux. We need them to certify that they are not donating
the product into Linux. It is fundamental to any license that the software is
not misused or disposed of or given away.
Judge: But how could they be? They haven't used the product for 7 years?
Kevin: We need discovery to confirm that
Judge: But doesn't their letter explicitly say they gave up on the product 7
years ago.
Kevin: We need discovery to confirm that
Judge: I'm not sure that I agree with that. Anyway, if I were to let the process
go forward, and you were to prevail, what remedy would you seek?
Kevin: We would like all the certifications our December letter demands?
Judge: And if they were unsatisfactory in your view?
Kevin: We'd like them to stop using the software. And certify as much.
Judge: And stop using the software 7 years ago, right?[ Reply to This | # ]
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- LOL - Authored by: Anonymous on Friday, April 30 2004 @ 12:02 PM EDT
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| Authored by: the_flatlander on Friday, April 30 2004 @ 11:29 AM EDT |
Well, no, it isn't a surprise, really is it?
But now I am wondering, (forgive me if I muse aloud here), does this but the
Bank Of America [aborted] suit in a different light?
Does Baystar have a relationship, do you suppose, with Bank of America?
Will the SCOundrels try to come up with a *new* high-profile target?
Is this the gang that couldn't sue straight, or what?
The Flatlander[ Reply to This | # ]
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| Authored by: maco on Friday, April 30 2004 @ 11:37 AM EDT |
| How did TSG get DC's name - has DC been paying royalities for 7 years? [ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 11:37 AM EDT |
| "Otherwise, why did we pay so much for all those lawyers?" [ Reply to This | # ]
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| Authored by: crs17 on Friday, April 30 2004 @ 11:43 AM EDT |
Reading through Daimler Chrysler's Memorandum of Support, I see on page 12 (page
22 of pdf) DC defines the phrase "state that" complete with dictionary
page references from Random House's dictionary. (Including: "and [page]
385 (defining 'that' as a conjunctive '(used to introduce a subordinate clause
expressing cause, purpose, result, etc.)'" )
I not that familiar with such documents but was wondering what tone this is
setting. It seems silly to me. Are they making fun of SCO or is this just what
one does in such documents?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 11:46 AM EDT |
| This is the funniest thing I have seen in any of the documents so
far:
"The phrase "stating that" is a restrictive clause with a
clear and definite meaning, and is not susceptible to alternate reasonable
interpretations. See, e.g. Webster's Modern Office Dictionary ((Random
House 1999) at 362-363 (defining "state" as "to express in speech or writing")
and 385 (defining "that" as a conjunctive "(used to introduce a subordinate
clause expressing cause, purpose, result, etc.): I'm sure that you'll like
it" (emphasis in original))" I'm guessing it's not every
day lawyers get to cite the dictionary on the definition of "that" in a
filing...[ Reply to This | # ]
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| Authored by: the_flatlander on Friday, April 30 2004 @ 11:55 AM EDT |
"Think this incredible blunder on SCO's part in choosing a victim to sue
might have something to do with BayStar's angst?"
Well, I don't think so, frankly. If [the jokers at] Baystar could not tell,
last year, that they were paying money for a pig wearing lipstick and fishnet
stockings, then this small dose of reality seems, to me, unlikely to wake them
from their dreams of avarice.
The Flatlander
I suppose it is bad karma for me to hope that Baystar and RBC lose their shirts
over this fiaSCO. (But I do, anyway.)
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 12:04 PM EDT |
http://www.onlamp.com/pub/wlg/4776
Andy Oram has written an article about SUN. It looks at PJs article in an
unfavourable light.[ Reply to This | # ]
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| Authored by: geoff lane on Friday, April 30 2004 @ 12:37 PM EDT |
Judging by the fact that TSC seems unable to keep track of it's own licenses and
licensees it would be a pretty good bet that they can't keep track of other
licensed software that they may be running internally.
Does anybody know the phone number for BSA or FAST :-)
[ Reply to This | # ]
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| Authored by: penfold on Friday, April 30 2004 @ 12:37 PM EDT |
I took a quick look at SCO's Complaint.
The first thing that occurred to me is that DC probably didn't purchase the
"perpetual" and "irrevocable" rights. I would assume that
means there would be a recurring license fee, which Novell would be getting 95%
of.
If DC ceased using the SOFTWARE PRODUCTS seven years ago, there should have been
some beancounters somewhere (Novell, OldSCO, NewSCO) would have noticed the
payments stopped coming, investigated and maybe even given them a call asking DC
to settle up. (Remember Darl ordered people to dig through the files and look
for missing revenue.) If they didn't, I wonder if that would automatically
terminate the license?
I suppose it is possible that DC has been cutting a check every year since it
was a recurring and expected expense, and never asked the IT department about
it. I wonder if DC can ask for that money back?
I also find Paragraph 29 of the complaint interesting:
"29. It would be irrational and contrary to DC’s self-interest for it to
continue to withhold the requested certification and thereby violate the
Software Agreement’s reporting requirements if DC were not also violating the
Software Agreement’s non-reporting, core substantive requirements."
This sounds like SCO is so sure that the world needs what they are selling so
badly, that it would be a BAD thing if DC lost rights to the SOFTWARE PRODUCT.
This flies in the face of their problem that people are NOT buying their
products because there are other (and better) products available that do more
for less. I wonder when they will realize they are selling BetaMax in the age of
DVDs?
Finally, looking in the "Prayer for Relief" section, they do not want
to court to prevent DC from using the SOFTWARE PRODUCT, (do they assume that
would be too cruel?) but merely comply with the licensing agreement, and certify
they are compling. Oh, and money of course. I have little wonder by that
wonderful Borg phrase "Comply", that they mean "don't use
Linux".
---
Blood from a turnip? That's easy! Try getting SCOX to produce evidence![ Reply to This | # ]
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- I Wonder.... - Authored by: Anonymous on Saturday, May 01 2004 @ 12:10 AM EDT
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| Authored by: javajedi on Friday, April 30 2004 @ 12:42 PM EDT |
| "The company was going to 're-educate' people about its rights and it
expected
to see the same fall in illegal usage that the RIAA has seen after
its
actions."
WOW! Impressive! Talk about a fall in illegal use. NO ONE is
illegally using ANY SCO Code in Linux! Darl, you should be proud.
Oh
wait.... that's because there never WAS any SCO code illegally in Linux...
nevermind.... :)
---
The Matrix is real... but i'm only visiting... [ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 12:53 PM EDT |
h++p://www.eweek.com/article2/0,1759,1581616,00.asp
learned of this from our cousins over at yahoo finance.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 01:15 PM EDT |
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SCO Still
Contends GPL Is Unconstitutional [ Reply to This | # ]
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| Authored by: tyche on Friday, April 30 2004 @ 02:32 PM EDT |
| Ames Tribune has an article IBM Issues First SCO Case Subpoenas . The
article is dated Monday, April 26, 2004, and ascribes the action to that
date.
Craig
Tyche ---
"The greatest enemy of knowledge is not
ignorance, it is the illusion of knowledge."
Stephen Hawking [ Reply to This | # ]
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| Authored by: DrHow on Friday, April 30 2004 @ 03:19 PM EDT |
Note that only one of the April 6 letters was addressed to TSG. That is the one
which says that DC has never been informed that rights under the SA had been
transferred any farther than from AT&T to USL. But just to set the record
straight, they did send to USL (the only entity for which DC has any reason to
believe that they have a contractual obligation) a statement that they had
stopped using the code 7 years ago. Ie., they still refuse to respond directly
to TSG's demand, but they are willing to show TSG a copy of the letter to USL.
This cleverly emphasizes the fact that DC believes TSG never had the right to
make any such demand in the first place. DC also points out that the original
contract did not specify any time limit for responding to such certification
requests; so the April 6 letters cannot even be regarded as late relative to the
December request from TSG.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, April 30 2004 @ 05:00 PM EDT |
YIKES!
Pages 33-35 of the Memorandum are sizzling:
First Ms. Unger says "who are you, you aren't who we signed a contract
with" and "since you insist, you little pipsqueak, here's a copy of
the certification we sent to the party we actually had a contract with".
Then she calls it a meritless lawsuit for the purposes of restraining
competition, and tells them that they should talk to DC's legal counsel to
arrange how to best drop the suit.
Then Powell says "we're not using it anymore".
[ Reply to This | # ]
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| Authored by: Steve Martin on Saturday, May 01 2004 @ 12:11 AM EDT |
In case anyone is transcribing these docs, I just sent
PJ the Memorandum, the Affidavit, and the two letters
in HTML. I didn't tackle the Westlaw documents, mainly
because they're enormous, but also because they all
sport copyright notices.
---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"[ Reply to This | # ]
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