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Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Thursday, June 10 2004 @ 06:39 PM EDT

Judge Kimball, as he promised, has issued his order* on the Novell case. The big news is that SCO lost its fight to get the case sent back to state court. SCO's entire theory of the case as a contract issue only went out the window, and they are now squarely in a pure copyright fight, which is the last thing they wanted. They will now have to prove that they own the copyright they are using to threaten end users like AutoZone. Kimball agrees with Novell that there are serious questions about whether the agreement even as amended by Amendment 2 is sufficient to be a copyright conveyance, and that means it stays in federal court. He retains jurisdiction. Remember all the experts who told us SCO might win this? They were mistaken.

Judge Kimball says he can't grant Novell's motion to dismiss at this stage, but he clearly has a leaning, and it isn't in SCO's direction. It's just that on a motion to dismiss, the judge is required to construe all facts in the light most favorable to the party whose case might be dismissed, the non-moving party, and on the Motion to Dismiss, that would be SCO, and as a matter of law, he can't grant the motion to dismiss in totality, because while "Novell has raised persuasive arguments as to whether a sufficient writing exists" without more evidence, he can't rule on the sufficiency of the agreement yet.

As we expected, he says SCO didn't plead the damages part adequately and he gives them 30 days to try, try again. I doubt they will be able to do it.

The conclusion is this:

"For the reasons stated above, Plaintiff's Motion to Remand is DENIED, and Defendant's Motion to Dismiss is DENIED as to Plaintiff's pleading of falsity and GRANTED as to Plaintiff's pleading of special damages. Plaintiff is granted 30 days from the date of this Order to amend its Complaint to more specifically plead special damages."

This is a huge loss for SCO. It's the kind of ruling that normally gets the plaintiff settling, out of fear of what the judge might do next, like in the BSDi case, when Debevoise's ruling on a motion got the parties working things out fast. I love this judge.

This just isn't SCO's day.

*Note it may take a few minutes for the PDF to make it to ibiblio's servers. I didn't want you to have to wait to hear the news.


  


Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time | 394 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Novell Wins Remand - Case Stays in Federal Court as a Copyright Case
Authored by: Anonymous on Thursday, June 10 2004 @ 07:01 PM EDT


Please put any and all corrections here... so PJ Harvey can find them in rapid fashion! Thanks!

[ Reply to This | # ]

Corrections here please
Authored by: Anonymous on Thursday, June 10 2004 @ 07:01 PM EDT

[ Reply to This | # ]

Novell Wins Remand - Case Stays in Federal Court as a Copyright Case
Authored by: Anonymous on Thursday, June 10 2004 @ 07:02 PM EDT
Yippie!!!

[ Reply to This | # ]

Novell Wins Remand - Case Stays in Federal Court as a Copyright Case
Authored by: Anonymous on Thursday, June 10 2004 @ 07:03 PM EDT
Whahooo!!!!!!!!!!!!!!!!!Go on Novell!!

[ Reply to This | # ]

Monday Monday
Authored by: dmscvc123 on Thursday, June 10 2004 @ 07:05 PM EDT
This is dedicated to Darl and the Bagholders:
Every other day, every other day
Every other day of the week is fine, yeah
But whenever Monday comes, but whenever Monday comes
A-you can find me cryin' all of the time

[ Reply to This | # ]

Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: seeks2know on Thursday, June 10 2004 @ 07:08 PM EDT
I wonder if SCO knew before their conference call this morning.

They really tried to blame the shortfall (vs. the expectations that they created
with investors) in SCOsource revenue on Novell.

Based on their comments this morning, I believe that they will use this logic in
their reply to Judge Kimball: "We can't sell SCOsource licenses because
Novell has slandered our title."

---
There is but one straight course, and that is to seek truth and pursue it
steadily."
-- George Washington

[ Reply to This | # ]

Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: sa on Thursday, June 10 2004 @ 07:08 PM EDT
I'm relieved that we finally have a court judgement PRIOR to SCO going bust.

[ Reply to This | # ]

Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: Anonymous on Thursday, June 10 2004 @ 07:08 PM EDT
Not a good day for SCO. First their silly little conference call today now
this. Special thanks to the Linux community and also a job well done goes out
to Novell's lawyers.

[ Reply to This | # ]

Wonderful news , but how will this affect other cases ...
Authored by: IrisScan on Thursday, June 10 2004 @ 07:14 PM EDT
If copyright wasn't transferred by the APA , which appears to be the likely end
ruling in this case , surely most of the other cases fall apart . Would it not
be sensible for everyone to wait till this case is finalised ? Is there any
point trying the other cases if SCO do not own the copyrights they claim ? SCO v
IBM may be a contract case but how can a company licence something it doesn't
really own ?

[ Reply to This | # ]

Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: Anonymous on Thursday, June 10 2004 @ 07:17 PM EDT
I didn't think the lawsuit was about contracts or copyrights at all, just a
slander of title claim, and a sneaky request for the registered copyrights to be
transferred to SCO as part of the relief.

The big question is if SCO has standing to bring a contract lawsuit against
Novell since SCO doesn't have a direct relationship with them. SCO bought the
rights from Santa Cruz Operation, now Tarantella. Some posters on the Yahoo!
board have stated the Novell-Santa Cruz contract is not transferrable.

[ Reply to This | # ]

There goes SCOX
Authored by: Anonymous on Thursday, June 10 2004 @ 07:23 PM EDT
The judge has basically dismissed the slander of title suit as unwinnable, and
has serious doubts about the copyright issue. Darl must be freaking out.

Reading the order is like reading through the last few months of Groklaw, but
with *gravitas* ;)

Great news!

DS

[ Reply to This | # ]

  • There goes SCOX - Authored by: Anonymous on Thursday, June 10 2004 @ 08:30 PM EDT
Judge is doing everyone a favor by making SCO argue copyrights
Authored by: Anonymous on Thursday, June 10 2004 @ 07:25 PM EDT
If the judge dismissed the case, SCO would have to bring a new case for breach
of contract against Novell to try win the copyrights.

The Judge is doing them a favour by having them argue copyrights right now.

[ Reply to This | # ]

Doubting Experts?
Authored by: Ed L. on Thursday, June 10 2004 @ 07:27 PM EDT
Well, I remember Webster and Paradox giving us reasons why SCO might win this one, but no firm predictions that they actually would win it. And I for one was glad for their explanations. There would have been a lot more upset these parts if Judge Kimball had ruled otherwise and we hadn't been thus prepared. Thanks guys!

---
"Proprietary software is harmful, not because it is a form of competition, but because it is a form of combat among the citizens of our society." (RMS)

[ Reply to This | # ]

Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: Anonymous on Thursday, June 10 2004 @ 07:30 PM EDT
Autozone must be dancing with joy to hear a judge's opinion like this:

There is enough ambiguity in the language of Amendment No. 2 that, at this point
in the litigation, it is questionable whether Amendment No. 2 was meant to
convey the required copyrights or whether the parties contemplated a separate
writing to actually transferer the copyrights after the "required"
copyrights were identified. Therefore, this is not a case where the court can
immediately conclude that there is a writing under Section 204(a).

"Your Honor, how can we be sued when there's question as to whether they
even have the copyrights?"

I wonder if SCO will be adding this little setback in their SEC filings?

[ Reply to This | # ]

Page 8, footnote 1
Authored by: overshoot on Thursday, June 10 2004 @ 07:30 PM EDT
"SCO argues that the <i>Jasper</i> court had an incentive to
find federal jurisdiction because a full bench trial on the merits had occurred
below. However, there is no reason to believe that the court would have raised
the issue and analyzed it as it did in order to merely affirm jurisdiction.
Moreover, this court does not believe that on an issue that can be raised and
decided at any time, a court of appeals would be so influenced by the
circumstances at the district court level that it would render a decision
analyzing the issue incorrectly."

Do I misunderstand, or did the Law Professor just majorly diss the paper handed
in by the class idiot? His Honor seems to have sharpened his scalpel for the
bozo law firm that sent him a memorandum which tried to argue that an appellate
decision was not only rendered wrongly, but for trivial reasons.

[ Reply to This | # ]

Kimball gets it
Authored by: danb35 on Thursday, June 10 2004 @ 07:31 PM EDT
Haven't made it all the way through the opinion yet, but one thing stands
out--Judge Kimball understands the relationships of the parties. Specifically,
he understands that newSCO was not a party to the APA--he consistently refers to
"SCO's predecessor" as the party to that document. This is a Very
Good Thing(tm), IMO.

[ Reply to This | # ]

TOT (Totally Off Topic) - Poor poor SCO
Authored by: spinky on Thursday, June 10 2004 @ 07:33 PM EDT
All those lawyers can't be cheap now, can they? I'd like to think that SCO would
run out of money soon but it seems that people are hedging their bets with SCO
and keep investing in them. The swines :-). Meant nicely of course and stated
purely as an opinion.

I've been reading Groklaw for about 9 months now and it's fascinating. Somedays
it's overwhelming and 300+ posts appear and I skim read some of them before I
remember that I'm at work and I'm supposed to be doing some. PJ is doing an
amazing job and I'm on tender hooks waiting for the next installment. At times I
forget this is a real legal drama and not a Grisham novel but I forget sometimes
and I want to turn over the next page and it isn't written yet.

Hmm. Patience is a virtue it seems. I realise that I'm totally off topic and I
apologise for that to all regular Groklaw fans. I've only just registered and
I'd just like to say how in awe I am of what PJ is doing and has already done
and also the incredible work that the community has done too.

If I wore a hat I'd take it off and eat it.

So there

:-)

PS PJs always meant pyjamas to me
PPS Please keep up the good work, it's wonderful
PPPS If I post again then I promise to be relevant!

[ Reply to This | # ]

Question about cited cases
Authored by: Anonymous on Thursday, June 10 2004 @ 07:33 PM EDT
Does anyone remember off-hand if all the cited cases were mentioned in SCO's
& Novell's filings? Or has the judge done research/thinking on his own? Is
he allowed to under american law?

Thanks,
*T

[ Reply to This | # ]

His Honor has a sense of humor
Authored by: overshoot on Thursday, June 10 2004 @ 07:39 PM EDT
Page 13, he cites Grossman v. Novell, Inc.!

If I understand correctly, that case held against Novell on a dismissal plea, using the same grounds that he shows Novell meets this time.

[ Reply to This | # ]

Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: Glenn on Thursday, June 10 2004 @ 07:40 PM EDT
I think that NOVELL missed one bet when it moved to dismiss, and that is on
the malice angle. Whatever the out come, even if Judge Kimball does rule that
the APA and admendment are sufficient to qualify as a copyright transfer
instrument, Novell, by its letters and public statements obviously believes that
it still owns the copyrights. But this may be something that a jury would
determine.
However, if Judge Kimball rules eventually that there is no actual copyright
transfer instrument in the APA at al, then everything else is moot and the
SCOG's house of cards comes crashing down (sooner rather than later).

Glenn

[ Reply to This | # ]

One Line Summary
Authored by: dmscvc123 on Thursday, June 10 2004 @ 07:40 PM EDT
SCO doesn't stand a snowball's chance, but since it's theoretically possible,
the judge can't dismiss the case yet.

[ Reply to This | # ]

Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: hbo on Thursday, June 10 2004 @ 07:45 PM EDT
If I were advising SCO, (IANAL, already) I'd tell them to not even try to come up with a better special damages pleading. This is not the case they want to try, and they have an escape hatch. I predict they will try to spin this as best they can, and then fold. This is still terrible news for them on several fronts. If their very survival didn't depend on them keeping the ball rolling as long as possible, I'd predict they would fold all their hands soon.

Come to think of it, now would be a very good time to sell out to Microsoft. Billy Boy could fold in SCO vs IBM, AutoZone and Daimler Chrysler, leaving only the Red Hat case alive with a chance to definitively prove that SCOs claims are bunkum. (Some of the IBM counter-claims do too, and it might well be in Big Blue's interest to persue those. But then again, it's hard to say.) The point is, this would seem to bolster Microsoft's IP position WRT Unix, if only by the merest smidgen, as long as the substance of SCO's claims isn't ruled against in Federal Court.

Of course, these jokers have done lots of stupid things before now, so maybe they'll hang in there. For once I find myself cheering them on. 8)

---
"Even if you are on the right track, you'll get run over if you just sit there" - Will Rogers

[ Reply to This | # ]

Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: lanthus on Thursday, June 10 2004 @ 07:45 PM EDT
Personally I'd have preferred that the judge hadn't dismissed the case. SCO
could get smart and simply forget novell and leave the copyright ownership
question up in the air.

[ Reply to This | # ]

Juge Kimball says no copyrights were transferred
Authored by: seeks2know on Thursday, June 10 2004 @ 07:53 PM EDT
The court seems to agree with many of Novell's arguments regarding the APA. If
I read this right, the judge says that copyrights have not transferred. Here is
what I read.

The court says on pages 8-9:

"It is undisputed that the APA did not transfer any copyrights."

"The Amendment does not mention which copyrights are required... and
provides no date for transfer"

"The Amendment also contains no transfer language..."

If I am correct, this only leaves TSG with the argument that Novell should
transfer some copyrights.

Following that line of logic, TSG's case against IBM goes out the window. After
all, if they do not currently own the copyrights, what right do they have to any
derivative works? Therefore, goodbye $5B from IBM and goodbye to AutoZone
cash and RedHat gets its declaratory judgement.

IANAL. Some of you are. Am I reading this right or not?

---
There is but one straight course, and that is to seek truth and pursue it
steadily."
-- George Washington

[ Reply to This | # ]

Special Damages
Authored by: mrsam on Thursday, June 10 2004 @ 07:54 PM EDT
The way I read the last page of the ruling (page 19 in the PDF) is that all that
SCOX needs to do is allege that they've lost customers, and they've met Rule
9(g)'s requirement for special damages.

I'm sure that they can do this easily simply by adding a statement to that
effect when they re-plead.

However, how is this different from the argument referenced by the first
sentence on page 19? Quote:

"If this court were to find SCO's pleading of special damages sufficient,
it would turn Rule 9(g)'s requirements into mere notice pleading."

And this the court rejected.

But now, what the ruling says, in the rest of the paragraph, is that all the
plaintiff needs to do is to allege that they've lost customers, without the need
to be any more precise than that. In other words, a mere notice pleading.

[ Reply to This | # ]

30 Day Wonder
Authored by: overshoot on Thursday, June 10 2004 @ 07:55 PM EDT
So here's the real fun part: will SCO refile with a repaired special-damage claim? It sounded as though they were headed that way this morning, after all.

It's a huge gamble, though, because the Court hinted rather strongly that if SCO does refile, they'll lose. If they're lucky, they'll lose on the malice requirement (if the Court isn't dead certain of the copyright ownership, Novell also has a right to some doubt it.)

If they're not lucky, the Court will rule in summary judgment that the APA as amended was not a conveyance and, adding insult to injury, award Novell legal fees as well.

The upside for SCOX right now isn't looking very likely, and the downside is decidedly nasty. On the other hand, their PR play may leave them no choice but to go for it if only to keep the stock scam in play a few more months.

Decisions, decisions.

[ Reply to This | # ]

I don't share the optimism
Authored by: Anonymous on Thursday, June 10 2004 @ 07:55 PM EDT
Sorry, I don't see how this helps all that much.

The APA seems to obligate Novell to transfer the copyrights at some point; it
just doesn't say when.

This seems to mean that SCO could still compel Novell to transfer the
copyrights. If that happens, we're right back to Square One.

People, you now have to persuade me that Novell is under no obligation to make
the copyright transfer.

[ Reply to This | # ]

Transcribers
Authored by: PJ on Thursday, June 10 2004 @ 07:56 PM EDT
I have from 1-3 and from 16 to the end. Help!! If you can, leave a message
here so we don't duplicate effort. Don't post your transcript here, though,
please send to me by email. Thanks.

[ Reply to This | # ]

Dismiss granted
Authored by: _Arthur on Thursday, June 10 2004 @ 07:58 PM EDT
The motion to dismiss on grounds of missing Special Damages plea
has been granted -- without prejudice.

SCO has 30 days to re-file a correct complaint. --Dummies.

I think SCO will be able to find some trumped-up Special Damages,
like a letter from a would-be SCOsource "customer", saying he will
NEVER pay the SCOgeld, because Linux is free, SCO are a bunch of liars,
and THEY MAY NOT EVEN OWN THE UNIX COPYRIGHTS!

With such a letter, SCO can prove a lost sale of $699.

They would be fools to re-file a lawsuit that they now know they cannot
possibly win. But then, they ARE fools.

The Novell lawsuit, Take Two, will allow Novell to expose Urbi and Orbi
SCO's legal and moral shortcomings.

SCO will never be able to convince Judge and Jury of any Malicious Intent
from Novell. Novell has always been forthright and business-like.

_Arthur

[ Reply to This | # ]

Motion to dismiss *granted*
Authored by: reuben on Thursday, June 10 2004 @ 08:04 PM EDT
PJ:
Judge Kimball says he can't grant Novell's motion to dismiss at this stage, but he clearly has a leaning, and it isn't in SCO's direction. It's just that on a motion to dismiss, the judge is required to construe all facts in the light most favorable to the moving party, and that would be SCO, and as a matter of law, he can't grant a motion to dismiss, because while "Novell lhas raised persuasive arguments as to whether a sufficient writing exists" without more evidence, he can't rule on the sufficiency of the agreement yet.

Wait a second, PJ - the ruling says that the other motion to dismiss (for lack of special damages) is granted, it's just that it's without prejudice, so SCO has 30 days to present claims that will satisfy the special damages requirement. This doesn't make their case go away, but there is no way SCO can spin this as a victory.

Judge Kimball:
Accordingly, Novell's motion to dismiss SCO's slander of title claim for failure to specifically plead special damages is granted without prejudice. The court grants SCO thirty days leave to amend its Complaint to plead special damages specifically in accord with Rule 9(g) of the Federal Rules of Civil Procedure. [Page 19]

I also think the important result is that the case stays in Federal court, but the dismissal (for now) is also pretty nice.

[ Reply to This | # ]

Judge Leaves Door Open
Authored by: maco on Thursday, June 10 2004 @ 08:05 PM EDT
I thought the judge went to great lengths to leave the door open for SCO - he
laid out exactly what they need to say to meet the criterium and gave them 30
days to do it.

He didn't seem to dis-allow attorneys' fees. I don't see why PJ thought it
would be so difficult for SCOX to meet the requirements - again, especially
since he gave them a step by step outline on how to do it.

SCOX problem is now, if they drop the Slander of Title and instate a general
contract dispute (as they should have done in the first place), Novell will push
that too directly back to Kimbell.

Or maybe SCOX will do like they did with IBM, just mutate the case as they go
along, looking for any target where they think they have a chance.

[ Reply to This | # ]

Thanks, Judge
Authored by: webster on Thursday, June 10 2004 @ 08:11 PM EDT
It is so blasted frustrating when decisions come down on one aspect of a case
that really don't help in resolving the case. This judge is downright helpful.
He is telling them where to go if they try at all.

This could have been such a helpless decision. In fact this decision is more
important for what it didn't decide, but the judge went out of his way to
elucidate the situation and possibly save some time and guide the parties.

He dismissed it for no specific damages. Big deal. He gave them a month to
amend and come up with an articulation of specific damages. SCO can amend and
say that EV47 refused to sign and bought something else for 7 figures. They are
back in the case.

But his going on to say that the contracts raised a substantial doubt that they
satisfied section 204 was gratuitous and helpful and more important than the
actual dismissal. He is saying don't bother unless you can show something else.
These documents don't cut it. If you don't have better evidence, testimony or
documents, this fails. He didn't have to do that and many judges wouldn't.

No doubt SCO will keep plowing.

Evidenciarilly [?] speaking the judge laid it out. Suppose Novell has a few
hundred copyrights. Amendment 2 says to convey those that are necessary. Which
one's were conveyed? Which ones were necessary? There is no evidence this
was ever done. They still have the problem of showing their rights to the
copyrights since there is no 204 instrument confirming their acquisition from
old SCO.

He blew the falsity issue. There could be no falsity if it is yet undetermined
who has the copyright. But I will read it again.


---
webster

[ Reply to This | # ]

SCO Group has other problems with the slander of title claim
Authored by: rigorist on Thursday, June 10 2004 @ 08:25 PM EDT
Slander of title requires that the statements be made with malice. It is very
clear from Judge Kimball's order that there is a legitimate dispute over what
Amendment 2 means (at least a dispute from Novell's perspective). Novell now
has in its pocket a ruling that the language is at best ambiguous. This is a
good thing fro Novell. If Novell in good faith interprets the language
differently than SCO Group, then its statements regarding the meaning of that
language were not made maliciously.


Expect a new motion for summary or dismissal Real Soon Now. Judge Kimball
practically invited it.

[ Reply to This | # ]

Next up...
Authored by: Anonymous on Thursday, June 10 2004 @ 08:45 PM EDT

TSG files for an extension to the time to refile.

[ Reply to This | # ]

Ya gotta love this part:
Authored by: Jude on Thursday, June 10 2004 @ 09:07 PM EDT
"Moreover, the fact that SCO cites federal case law, rather than state case
law, to give this court the proper standard underscores that the issue turns on
federal law."

Holy cow, did SCO's lawyers screw that up, or what?

[ Reply to This | # ]

  • Ya gotta love this part: - Authored by: Anonymous on Thursday, June 10 2004 @ 09:39 PM EDT
    • Yes. - Authored by: Anonymous on Thursday, June 10 2004 @ 11:53 PM EDT
Declaratory Judgement
Authored by: Anonymous on Thursday, June 10 2004 @ 09:58 PM EDT
Instead of filing an amended slander of title suit, I wonder if SCOG might take
a different tack: file a request for a declaratory judgement that SCOG owns the
copyrights to System V.

They would file this request in state court, and Novell would move it to Federal
court. Then SCOG would move for remand back to state court, on the grounds that
the suit merely involved contract law. In all likelihood they would lose
(again) on the remand, and find themselves in front of Judge Kimball again.

The eventual result would almost certainly be the same, but asking for a
declaratory judgement would waste more time, and provide more billing for SCOG's
legal team.

Perhaps SCOG could pursue both courses -- refile for slander of title, and also
file for a declaratory judgement. Then they could ask that each case be stayed
until the other is decided.

Scott McKellar
http://home.swbell.net/mck9/sco/

[ Reply to This | # ]

Where this case is going
Authored by: AllParadox on Thursday, June 10 2004 @ 10:01 PM EDT
This case will stay in front of this judge. Time and again, this judge is
demonstrating that he is neither patsy nor fool. The TSG logic in criticizing
the earlier court opinion was nearly contemptuous. Might even have been
contemptuous. Suggesting such motivations on the part of an appellate court is
unethical (for a licensed attorney). It is one thing to suggest that an
appellate court erred, and to point out the error in their logic. Appellate
courts err all the time, and smart lawyers catch them at it, else there would be
not need for higher appellate courts. Instead of throwing TSG in jail, this
judge politely points out that they are not making a very persuasive argument.


From now on, watch for the underdog rulings. Judges often do this. Judges have
a very keen feel for how a case is going to go, after only a few contacts with
the attorneys, and a hearing or two. In order to deliver un-reversible final
judgments, they rule often for the little guy. This is not kindness, nor
sympathy, nor even favorable to the little guy. It is a curse. Every case
involves many motions. Most of the rulings are, for real and practical
purposes, pointless, and the attorneys and judge know it. This judge is going to
grant most of the pointless rulings to TSG. This conduct will have two effects:
first, the number of possible errors by the court will drop drastically; second,
it will create strong ammunition for IBM to defend this judge before the court
of appeals on a claim of bias (think Thomas Penfield Jackson).

TSG now has a big problem with filing an amended complaint. They should have
addressed this prior to filing. I always had the book open to the statute and
quoted liberally and directly when drafting pleadings. Now they can redraft and
refile. You can be very sure that TSG will not list the special damages or how
they came about, because they are just too speculative and difficult to pin
down. IBM will once again file for dismissal or in the alternative a clear and
definitive statement, and the judge will grant it again. Look for procedural
steps similar to the Jones v. Clinton case, with the exception of the sex
depositions.

IMHO this case has reached the point where delaying motions are going to be
mostly turned down. This judge is ready for things to start happening, like
depositions, and is going to be politely intolerant of any further motions to
delay or extend deadlines or to change scheduling.

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: Steve Martin on Thursday, June 10 2004 @ 10:04 PM EDT

Okay, I absolutely love this part (from Judge Kimball):

"Moreover, the fact that SCO cites federal case law, rather than state case law, to give this court the proper standard underscores that this case turns on federal law."
Hey, Darl... can you say "OOPS"??

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

Prediction: SCO will NOT replead and will acquiese in dismissal by no special damages
Authored by: Anonymous on Thursday, June 10 2004 @ 10:19 PM EDT
I predict SCO will NOT replead

They will NOT replead because if they re-open the case, as Kimball has said,
there's a strong indication that they will lose on falsity (Novell still own the
copyrights)

For SCO's purposes, no determination is better than a determination against
them

An additional benefit for SCO is this disposes of the Novell case without the
"threshold" issues relating to AutoZone ever being heard.

So SCO use this to argue AutoZone should not be stayed for Novell.

The above assumes "rational evilness" on the part of SCO. However I've
been surprised by the number of times we get irrational evil aggressiveness by
Kevin and Mark - so I could be wrong because of that.

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The Judge gave SCOG an easy out
Authored by: Glenn on Thursday, June 10 2004 @ 10:26 PM EDT
Judge Kimball gave the SCOG an easy way out. It is not being counter sued by
Novell so no settlment is required. If the SCOG's lawyers reads this ruling the
way most of us are doing, they will understand that they have a real uphill
battle in proving that copyrights were indeed transferred by any of the
documents the SCOG has presented.
The SCOG can just slink away from this one quietly. This ruling will not
impact the other cases significantly because of the reason for dismissal. But if
the SCOG refiles and Judge Kimball rules adversely on the Copyright transfer
deal, then the show is over.
Now let's see just how smart Boies is.
(I am still singing the IANAL song.)

Glenn

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OT-MS/SCO wayback machine
Authored by: scott_R on Thursday, June 10 2004 @ 10:57 PM EDT
Scrubbing the net for random items, I found this. I'm sure others have probably
touched on it before, but just in case, I'm dropping it
in.

http://www.darwinsys.com/history/mslies.html

Specifically:

Once Microsoft
got the idea that they could write Windows NT and stop paying royalties to
AT&T, the Xenix project was cancelled. However, it was taken over by a
smaller company that had begun as its largest dealer. The Santa Cruz Operation,
later shorted to SCO, continued to sell UNIX software and systems until around
2001, when it was acquired by Caldera.

I know it's OldSCO, but it's still kind
of interesting if you like "circle of life" items. It also sorta, kinda ties MS
in with SCO at the most tangent level. :)

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Kimball is THE expert on special damages?
Authored by: arch_dude on Thursday, June 10 2004 @ 11:06 PM EDT
If I recall correctly, We discovered some time ago that Judge Kimball wrote the
definitive rulings on special damages. Therefore, when Kimball granted dismissal
on these grounds and told SCOGto try again, SCOG had better listen.

Am I remembering this correctly?

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"I love this judge. "
Authored by: ray08 on Thursday, June 10 2004 @ 11:40 PM EDT
So do I PJ, so do I. He's expediotious (read his profile). Knows what's going on
in the case and isn't bamboozled by anyone!

Thank you Judge Kimball!

---
Caldera is toast! And Groklaw is the toaster! (with toast level set to BURN)

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Please allow to predict...
Authored by: ray08 on Thursday, June 10 2004 @ 11:44 PM EDT
After SCO loses their case(s), someone at SCO, Darl, Blake, whoever, will give
attribution to Groklaw as a major reason they "lost" their case!

"If only Groklaw hadn't been there to screw everything up, we would have
won!" <yea, right <snickers>>

---
Caldera is toast! And Groklaw is the toaster! (with toast level set to BURN)

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For Giggles...
Authored by: scottm on Friday, June 11 2004 @ 12:36 AM EDT
A fun thought experiment would be to imagine what kind of tripe Laura iDiDiot
...er... DiDio ...nope... Laura iDiDiot, would spew forth on this matter.

-Scott

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  • Easy - Authored by: Anonymous on Friday, June 11 2004 @ 03:11 AM EDT
    • Easy - Authored by: Anonymous on Friday, June 11 2004 @ 05:21 AM EDT
Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: blacklight on Friday, June 11 2004 @ 01:44 AM EDT
The fact that Judge Kimball has denied SCOG's motion to remand vindicates once
again the groklaw community's analysis. While we were not totally correct at the
moment on the fate of Novell's motion to dismiss, we may have missed getting an
ultimately satisfactory conclusion by only thirty days. I can live with that.
Overall, I'd say we are pretty good, even though I say so myself.

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C language and "obvious to those who work in the discipline"
Authored by: andy314159pi on Friday, June 11 2004 @ 04:10 AM EDT
Hi All,
In programming operating systems, there are some essential tasks that are really
already done by the language itself. That is to say, there might not be several
ways to do some essential things. When you consider what an operating system has
to do in a unix environement, it should be clear that programming these tasks
doesn't require a massive amount of innovation. There probably aren't a million
ways to set up code that does tasks like allocating physical memory and
organizing a file system. Some of these tasks will be directed by the hardware
itself. I am not sure how someone can claim that they own an operating system
that is as essential as UNIX. There reallly isn't so much to it that it should
be thought of as property. It is more of an agreed on standard than a real
product. Claiming UNIX would be similar to claiming the entire C language as
your intellectual property! Sure, code may look different on the surface, but
you should look at separate pieces of code that accomplish a given task from
algorithmic standpoint. Often it becomes clear that the algorithm that is used
is the only one that could possibly work for the task.
Patents are to protect innovation, not to delegate ownership of things that all
programmers should be able to take for granted. If the OS is freely available,
that enables programmers to do something more important, like programming ACTUAL
APPLICATIONS.

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Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: Anonymous on Friday, June 11 2004 @ 02:57 PM EDT

I get lost in who does what where.
Can someone draw up (a) diagram(s) showing:


a/ Which cases where (SCO vs IBM in which state, SCO vs Novell...)

b/ Which judge for which case (I'm lost between federal and state for example)

c/ Which attorneys/judges... where (including clear reference to the ones who play in several courts, if any)

d/ Which trial started where and is expecting to end where

e/ Who paid what to whom and how much for what (SCO to Groklaw [joke], ...)

f/ Where is everyone located (HQ) on a US map (I'm in Europe, I don't know US geography by heart)


Graphs, if they can be used, would really help me, rather than just text. A picture speaks a thousand words...

Thanks

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Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: Anonymous on Friday, June 11 2004 @ 03:00 PM EDT

Now this explains how Microsoft "lost" their lawsuit...

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Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: Anonymous on Friday, June 11 2004 @ 03:01 PM EDT

Now this explains how Microsoft "lost" their lawsuit...

Just ensure the opposition "hire" the right man for the job...

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What does transfer of copyright mean?
Authored by: Anonymous on Friday, June 11 2004 @ 03:16 PM EDT
Just something that puzzles me. If the contract to sell Sys V to SCO was about
transfer of ownership to SCO, then how could it have been missed out of the
contract or rather expressly excluded and required amendment 2 to be added as an
afterthought? Doesn't make sense does it?

So what could transfer of copyright mean? Transfer of rights to copyright
protection for SCO's derivative works of Sys V in SCO's Unix products and
sublicensing thereof in a non-exclusive basis perhaps? The no-compete agreement
certainly suggests there is more than one party who can license Sys V code.
There would be no need for it if SCO owned exclusive rights to the copyrights.
Also if SCO exclusively owned the copyrights, why the clause giving Novell the
final say in copyright disputes with third parties who entered into a contract
with Novell or AT&T prior to the sale of rights to SCO?

How does the agreement under which SCO is operating with Novell, where SCO acts
as an agent to collect licensing fees for Novell, paying 95% to Novell and
keeping 5% as an administration fee fit into this? This doesn't seem to make
sense if SCO owned the copyrights.

I presume that the sale is actually is a non-exclusive transfer of copyright but
the conditions of the sale is that Novell retains all rights to pre-existing
contracts before SCO's purchase including rights to decide and administer the
contracts (including IBM's) and SCO acts as a money collector for Novell on
these contracts. SCO would then only have contractual rights to new contracts it
initiated for it's SCO Unix products or SyS V code - like what it sold to
Microsoft and Sun. If this is the case, as seems likely, then the only claim SCO
can make is that they haven't been treated fairly under the no compete clause.
However besides the fact that Linux doesn't seem to have any Sys V code (based
on the fact that SCO hasn't managed to find any yet for the court case), I doubt
the no-compete clause could help SCO, since Linux existed and presumably had the
alleged code (which can't be found) in it before the deal, and if Linux is a
competitor, SCO knew it when they signed the deal and they contributed to Linux
afterwards, and in fact did more to contribute code to it so it could be a
competitor than did Novell. Whether Linux is good with or without Sys V code
makes no difference to SCO, unless people buy Linux specifically to get hold of
the SCO code in it resulting in lost SCO license sales. The fact is that Linux
is good and SCO knew this full well when it signed the deal with old SCO. SCO
didn't buy any rights over previous contracts - these remain with Novell. They
only bought rights to sell new licenses (like to Sun and Microsoft) for whatever
they can get in connection with their. The other things that don't help SCO is
that old SCO signed the contract with Novell, not the cuttent SCO. Can they now
ask for the copyrights to be transferred to them, given that old SCO didn't ask
for it.


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SCO's spin--surprise, surprise
Authored by: Anonymous on Friday, June 11 2004 @ 06:33 PM EDT
It should come as a shock to no one that the local Salt Lake press spins this in SCO's favor. The reporter obviously researched this thoroughly by calling up SCO personnel and getting their opinion.

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Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: Anonymous on Friday, June 11 2004 @ 11:43 PM EDT
I know this is slightly off topic so forgive me... But as I remember (and my
memory may be flawed), when the announcement was made way back when about Santa
Cruz operation getting Novell's "Unix Rights" the deal was describe as
Santa Cruz Operation merely becoming administators of Novell's Unix contracts
and they got a percentage of the fees and passed the rest on to Novell...
does anyone else remember this as well.....?

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Novell Wins Remand Contest- Case Stays in Federal Court - It's Copyright Proof Time
Authored by: keds on Saturday, June 12 2004 @ 01:45 PM EDT

Quoth the author:

This is a huge loss for SCO. It's the kind of ruling that normally gets the plaintiff settling, out of fear of what the judge might do next, like in the BSDi case, when Debevoise's ruling on a motion got the parties working things out fast. I love this judge.

Right on, and it usually causes the Plaintiff's counsel to have a "come to Jesus" talk with his client. Well, in the real world anyway. In the real world, though, Microsoft isn't bankrolling the litigation as a FUD campaign against a competitor that's making significant inroads into its only really profitable and growing business.

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Novell and Santa Cruz Operations entered into a longterm, arms length cooperation
Authored by: Anonymous on Saturday, June 12 2004 @ 01:51 PM EDT
Novell never intended to sell all its rights in AT&T Unix distributions.
The original APA in 1995 states this in clear terms. I infer that Novell did
not entirely trust Santa Cruz Operations because there were several two and
three year long probations placed on Santa Cruz Operations with clear
recourses defined for Novell to take in order to recover those rights being
assigned to Santa Cruz Operations. Novell intended to team with Santa
Cruz Operations for an unlimited time into the future, and Novell intended
to benefit financially from Santa Cruz Operations indefinitely.

The 1996 Amendment is vague and merely identifies the possible need for
Santa Cruz Operations to use copyrights in order to *acquire* UNIX
technology. We all know that acquiring UNIX technology involves nothing
more than copying and then distributing UNIX documents and code on the
part of Santa Cruz Operations for the benefit of the UNIX licensees.

Historically, both Novell and Santa Cruz Operations actually worked as a
team starting with the original signing in 1995 until Santa Cruz Operations
sold their AT&T UNIX business to Caldera in 2001.

The most important historical and legal observation is that Santa Cruz
Operations NEVER NEEDED to ask Novell for any rights in the few and sparse
copyrights in AT&T UNIX because they already had Novell's approval to
license, copy, distribute, and create derivative AT&T UNIX works.

Novell was party to the secret agreement between AT&T USL and BSDi.
When signing the APA and later Amendment 2, I infer that Novell knew
that BSDi was free of AT&T copyrights, that AT&T had few copyrights
that sparsely covered System V (SVRx), that AT&T USL had lifted large
amounts of BSD 4.x code because Bill Joy and Co. at UC Berkeley were
several years ahead of USL, that HW device drivers were usually written by
the HW vendor, that POSIX and ANSI C standards placed the APIs (including
what some incorrectly call ABIs) in the public domain, and that many
versions of UNIX free of AT&T copyrights existed since the early 1980s.

The only currently relevant copyrights that Novell retained after 1993 were
few and sparse in System V (SVRx), and it is just too darn difficult to legally
establish those copyrights.

UNIX is a brand. The Open Group owns the UNIX trademark and uses it to
brand particular Operating System distributions as UNIX (e.g., AIX, HP-UX).
The Open Group runs well defined tests in order to certify each distribution.
The Automotive industry similarly certifies engine oils with the Energy
Efficient Starburst trademark, and any consumer is well advised to look for
this starburst when purchasing their engine oil.

The SCO Group (TSG) is Caldera, the World Wide Linux developer and
distributor, with global Linux marketing channels. TSG has paid their
employees to develop Linux code and become Linux experts. TSG has
founded Linux International in order to standardize Linux distributions, like
the Automotive industry has for engine oil and replacement parts. Every
Linux distribution since 1994 has contained the imprint of TSG activities.
There is NO infringing UNIX SVRx code in Linux, but even if there were it
would likely be due to conscious TSG actions because there is proof that
TSG freely mixed their open Linux and proprietary UNIX distributions to the
advantage of their proprietary UNIX distributions because HW vendors would
not write drivers for TSG. AT&T's SVRx is extinct but new HW appears
weekly.

Who could possibly support TSG today? Compromised press do for the
right price. Rats who get a percentage of the unethical or illegal action do!
Microsoft does as part of their infamous strategy of embrace, extend, and
extinguish. Observe the heavy doses of FUD from TSG and Microsoft.

The truth is simple and the truth is consistent. Contrarily, TSG must
constantly modify their claims to hide the truth as the truth becomes
commonly known. See, TSG's story becomes more complicated and self
contradictory over time. Similarly, Microsoft's story suffers a similar fate.
I laugh out loud when I read TSG or Microsoft contradicting what they have
previously public stated. They cannot keep their story straight and the
American people can see that. The rats can also see that and are willing to
help undermine American society for some of the action.

The fate of the American software community weighs in the hands of the
legal system...and the viability of the American economy is pivotally tied to
this software community in a competitive global information society. TSG
and Microsoft would kill this goose for selfish reasons and would blame the
legal system if they succeeded.

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