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| A Day to Celebrate and PUBPAT Wins Another: MS FAT Patent to be Reexamined |
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Friday, June 11 2004 @ 09:39 PM EDT
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I slept in and took the whole day off, went clothes shopping, ate some junk food and had some fun. It was a day for celebrating yesterday's victories. Then, when I got back on my horse, what do I read but considerable nonsense about SCO "winning" some things in court. Like a delay. I laughed so hard, I almost fell off my horse. These mainstream media dudes will find out when the case is over that they were wrong, and, if and when the investigations begin, that they were party to something they may not be so proud to tell the kids and grandchildren. You don't win the Pulitzer Prize for being duped.
Some of them don't know any better. SCO talks to them, they don't understand the law, and so they print it. That's not real journalism, but it isn't a sin against humanity either. But some of them, and they know who they are, know better. They let themselves be used, whether for money or to have good contacts they think they need for their careers or to hang on to their jobs, to push a Microsoft agenda.
There. I've said it. What else can we conclude when, after all the stories SCO has told that later proved to be untrue, they dutifully write down the latest SCOHash as if it were gospel? Today was a very good day for noticing who is who, so we know which journalists not to take too seriously any longer.
As for the journalist who droolingly predicted that the open source community would be sad today because SCO wasn't tossed out of the ring completely yesterday and was merely pressed, staggering, against the ropes, I have news for you. We celebrated and enjoyed ourselves all day long.
We had worried SCO might win the remand motion and seriously thought they might win both motions, not because they are in the right on the merits, but just because of the way the law is written and the cases have played out, and so we are ecstatic today. That was, in our opinion, SCO's strongest shot. It's looking pretty bad for SCO when their best shot gets shot down, and it did. Don't believe me? Try this attorney on for size, Michael R. Graham, intellectual property attorney and partner with the Chicago-based law firm Marshall, Gerstein & Borun LLP. He gets what happened yesterday, and he explained it to eWeek's Steven J. Vaughan-Nichols, who writes that the issue before the court now, thanks to Kimball's ruling, is, does SCO actually own *any* UNIX IP?: "Graham tells me, 'Judge Kimball's decision is a serious loss for SCO. Not only in its slander of title case against Novell, but in SCO's case against IBM. The threshold issue in both cases is whether SCO owns copyright in the Unix software code.'
"'SCO wanted the case remanded so that the only issue would be contractual: whether the APA [Asset Purchase Agreement] and Amendment No. 2 transferred ownership of the Unix code,' Graham says.
"'But Judge Kimball concluded that a more fundamental issue is whether the APA and Amendment No. 2 constitute the type of 'writing' required under the federal copyright law to effect a transfer of copyright. This federal analysis could prove fatal to SCO's claim.'" He explains plenty more, including noticing that the judge said that although he denied part of the motion to dismiss, it might be appropriate for either trial or for summary judgment. When a judge says that, it means he thinks there's no there there. Graham notes one other thing, on page 3 of the article: "Graham comments, 'Judge Kimball wisely notes that even if the APA/Amendment No. 2 documents are held to be a valid transfer of copyright, the question remains what version of the Unix code might have been assigned by it. SCO could only claim copyright in that particular code, and perhaps not in other Unix versions or code. So, this could raise additional issues for SCO.'" And, of course, that's if they win. If they lose, the ball game is over. So totally, blessedly over. Except for the counterclaims, which will multiply like mushrooms from coast to coast. But that's the fun part. Want a second attorney opinion? OK. Robert McMillan talked to Jeff Norman, an intellectual property partner with the Chicago law firm of Kirkland Ellis LLP, who told him this: "'The fact that the judge took this case and decided to keep it is an indication that there is a real dispute about whether the copyrights were transferred,' said Jeff Norman . . .If there are legitimate questions about who owns Unix, it will make it much harder for SCO to prove its slander case against Novell, he said. 'I don't see how SCO is going to prove that there is a slander of title here,' he said. "The Novell case could have major implications for SCO's lawsuit with IBM Corp., said Norman, if Kimball eventually rules that Novell and not SCO owns the Unix copyright. 'If SCO doesn't own the copyright, then that's it for SCO. The only claim they have then is the contract claim against IBM and related claims.'" Another PubPat Victory Something else happened yesterday, but I was too carpal tunneled to tell you about it, so I'll do it now. PubPat has achieved another victory. The Patent Office has issued an order granting their request for reexamination of MS's patent on the FAT file system on the grounds that they had raised "a substantial new question of patentability" regarding that patent claim. Naturally, PubPat is pleased. "This is the first step towards
ending the harm being caused to the public by this patent that should have
never been issued," said Dan Ravicher in the press release. Here it is in full: *******************************
MICROSOFT PATENT TO BE REEXAMINED AT PUBPAT'S REQUEST:
NEW YORK -- The United States Patent and Trademark Office has issued an
Order granting the Public Patent Foundation's Request for Reexamination of
Microsoft's patent on the FAT file system, which Microsoft concedes is "the
ubiquitous format used for interchange of media between computers, and,
since the advent of inexpensive, removable flash memory, also between
digital devices." In its Order, the Patent Office found that PUBPAT's
request raised "a substantial new question of patentability" regarding every
claim of the patent.
Microsoft now has the opportunity to make an opening statement to the Patent
Office, to which PUBPAT has the right to make a response. After opening
statements, if any, the Patent Office will proceed to determine whether the
patent is indeed invalid in light of the new questions raised by PUBPAT's
request. Third party requests for reexamination, like the one filed by
PUBPAT, are successful in having the subject patent either narrowed or
completely revoked roughly 70% of the time.
"We are obviously very pleased with the Patent Office's decision to grant
our request to reexamine Microsoft's FAT patent," said Dan Ravicher,
PUBPAT's Executive Director and Founder. "This is the first step towards
ending the harm being caused to the public by this patent that should have
never been issued."
More information about the Request for Reexamination, including a copy of
the Patent Office's Order Granting the request, can be found at
http://www.pubpat.org/Protecting.htm.
Contact:
Daniel Ravicher, Executive Director, Public Patent Foundation: 212-545-5337;
info at pubpat.org; www.pubpat.org.
About PUBPAT:
The Public Patent Foundation ("PUBPAT") is a not-for-profit legal services
organization working to protect the public from the harms caused by the
patent system. PUBPAT provides the general public, particularly those
persons or businesses otherwise deprived of access to the system governing
patents, with representation, advocacy, and education. To be kept informed
of PUBPAT News, subscribe to the PUBPAT News List by sending an email with
"subscribe" in the subject line to news-request@pubpat.org. To be removed
from the PUBPAT News List, send an email with "unsubscribe" in the subject
line to: news-request at pubpat.org.
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| Authored by: Anonymous on Friday, June 11 2004 @ 09:41 PM EDT |
Go here for PJ to find.
__Bill P[ Reply to This | # ]
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| Authored by: Anonymous on Friday, June 11 2004 @ 09:43 PM EDT |
| --Bill P [ Reply to This | # ]
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- OT McDonalds going to linux in Germany - Authored by: LarryVance on Friday, June 11 2004 @ 11:07 PM EDT
- Slashdot story yesterday - Authored by: Anonymous on Saturday, June 12 2004 @ 01:06 AM EDT
- M$ tells UK Linux is Free as in Beer again... - Authored by: Anonymous on Saturday, June 12 2004 @ 05:05 AM EDT
- SCO stock traded in Germany - Authored by: Brian S. on Saturday, June 12 2004 @ 06:07 AM EDT
- Unwilling to repent - Authored by: Vaino Vaher on Saturday, June 12 2004 @ 09:33 AM EDT
- Unwilling to repent - Authored by: Anonymous on Saturday, June 12 2004 @ 01:36 PM EDT
- Yes, but... - Authored by: Anonymous on Saturday, June 12 2004 @ 02:57 PM EDT
- OT, URLs, and such - Authored by: midow on Saturday, June 12 2004 @ 11:59 AM EDT
- patenting TODO ? - Authored by: Avenger on Saturday, June 12 2004 @ 01:07 PM EDT
- OT: Ballmer 'fesses up to Linux/Windows cost FUD - Authored by: Anonymous on Saturday, June 12 2004 @ 04:11 PM EDT
- Oh boy, just what Billy wanted: - Authored by: Jude on Saturday, June 12 2004 @ 09:40 PM EDT
- OT, URLs, and such - Authored by: NastyGuns on Sunday, June 13 2004 @ 02:05 AM EDT
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| Authored by: Anonymous on Friday, June 11 2004 @ 09:46 PM EDT |
For a new red dress, for the celebration? Shoes and purse to match? Good on
you, for getting a day to play.
--Bill P[ Reply to This | # ]
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- 'went clothes shopping' - Authored by: Anonymous on Friday, June 11 2004 @ 09:56 PM EDT
- 'went clothes shopping' - Authored by: surak on Friday, June 11 2004 @ 10:23 PM EDT
- I dunno ... - Authored by: IrisScan on Friday, June 11 2004 @ 10:48 PM EDT
- I dunno ... - Authored by: surak on Friday, June 11 2004 @ 11:03 PM EDT
- I dunno ... - Authored by: PJ on Friday, June 11 2004 @ 11:38 PM EDT
- I dunno ... - Authored by: Anonymous on Saturday, June 12 2004 @ 02:18 AM EDT
- I dunno ... - Authored by: PJ on Friday, June 11 2004 @ 11:35 PM EDT
- I do - Authored by: Anonymous on Saturday, June 12 2004 @ 02:05 AM EDT
- Here's a portrait - Authored by: gleef on Saturday, June 12 2004 @ 11:14 AM EDT
- 'went clothes shopping' - Authored by: Anonymous on Sunday, June 13 2004 @ 10:06 AM EDT
- Have Patience - Authored by: Anonymous on Monday, June 14 2004 @ 12:18 PM EDT
- red dress in due time - Authored by: pcoady on Saturday, June 12 2004 @ 02:02 PM EDT
- 'went clothes shopping' - Authored by: The_Pirate on Saturday, June 12 2004 @ 02:45 PM EDT
- PJ mystery - Authored by: tizan on Saturday, June 12 2004 @ 03:03 PM EDT
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| Authored by: Anonymous on Friday, June 11 2004 @ 09:51 PM EDT |
These are not small battles being won. These are a break in the dam. Enough and
maybe the system will have to respond to the obvious ms monopoly and its reach.
Sort of like a computer finding out it has a virus . There are various programs
that are run to set the system straight. I think the virus has been located and
Groklaw has done its part to alert the system and monitor it. cool stuff keep
this up and someday we will have a system that works for all. Marty ps thanks
for the hours of interesting content[ Reply to This | # ]
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| Authored by: Anonymous on Friday, June 11 2004 @ 10:03 PM EDT |
Yes - for you've earned it!
With respect to the authors who believe that TSG won something yesterday,
perhaps they should have taken the time to read the rulings. TSG received a
partial win and a partial loss on motion to delay the IBM case, they lost on the
motion to bifurcate (IBM), they lost on the motion to remand to state court
(Novell), and they have a partial win / partial loss on Novell's motion to
dismiss. So, let's see, two win/lose, and two lose... I don't see much of a
"win" here for SCO...[ Reply to This | # ]
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| Authored by: wepprop on Friday, June 11 2004 @ 10:06 PM EDT |
I'll tell you who was celebrating today - whoever wrote Novell-20,
"Memorandum in Opposition of Motion to Remand." I remember thinking
at the time that it was well written and persuasive. Well, today I went back
and compared it to Judge Kimball's opinion and obviously Judge Kimball found it
persuasive also!
:)[ Reply to This | # ]
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| Authored by: Anonymous on Friday, June 11 2004 @ 10:16 PM EDT |
eWeek - Stephen Vaugh Nichols - within last couple of hours or so - seems the
only major press source who got this story right
I would really think this would be the story to point people at explaining
yesterday's events, especially since much of it is attorney quotes (and a
favorable mention of Groklaw)
Paul Rooney, Internet News, Deseret News etc., are so bad in their reporting as
to be laughable. I laughed particularly hard at the stories which claimed (1)
Novell transfered the copyrights under the APA and claimed they got them back
under Amendment 2, and (2) that SCO "won" their motion for Federal
jurisdiction.[ Reply to This | # ]
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| Authored by: icebarron on Friday, June 11 2004 @ 10:18 PM EDT |
Congrats PJ, your work as usual is impecable. You deserve to have a day to
yourself. Now the battle continues. Keep up the good work, I am a fan....
Dan
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, June 11 2004 @ 10:25 PM EDT |
I have not read the patent, but I am curious how any of it can be patentable at
all. Was the USPTO asleep at the wheel - or were there really some novel and
non-obvious claims?
The FAT format dates back to c.1981. FAT32 and other variants are somewhats
more recent (maybe 10 years instead of 20+). But both have been widely
distributed in products and documented in numerous manuals including manuals by
Microsoft Press
Is "implement the same thing" in Flash memory instead of on a disk
(which I assume but don't know the patent to be) really a novel and non-obvious
invention?
Actually I have to ask whether a data format (FAT) is even an invention at all?
I can understand that software may qualify as patentable invention (even though
we would prefer that patent rules were changed to make them not qualify) - but a
data format?
Could I get a patent on a laying out deck chairs a certain way? That's not an
invention I think!
Why is this different when it happens to involve Flash memory?[ Reply to This | # ]
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| Authored by: ray08 on Friday, June 11 2004 @ 10:34 PM EDT |
Oh wait, I guess that would be SCO/M$. Never mind
---
Caldera is toast! And Groklaw is the toaster! (with toast level set to BURN)[ Reply to This | # ]
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| Authored by: Anonymous on Friday, June 11 2004 @ 10:44 PM EDT |
2003, SCO buy Vultus, from Canopy, using SCO's inflated stock for about $3m
2004, SCO suddenly discover Vultus ain't worth much if anything, and pretty much
write off the entire investment.
Let's be fair, $3m is a big chunk of change to SCO in company terms by any
measure. It's close to 10% of their cash. It's close to 10% of their annual
revenue (based on the most recent quarter)
So even on the most charitable explanation, somebody at SCO made a serious
mistake acquiring Vultus, and SCO shareholders (except Canopy!) got the short
end of the stick
Who is responsible for this serious mistake?
Shouldn't somebody in SCO's management team carry the can and resign for this
serious mistake.
If I wasted 10% of my company's money all in one stupid mistake, I know I'd feel
honor-bound and obligated to resign.
Why doesn't Darl? (rhetorical question, I know he won't)
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, June 11 2004 @ 11:34 PM EDT |
I thought this case was all about slander of title. The judges ruling makes
that impossible. So why is the case proceeding? I know we would all like to
see the question of who owns the copyrights resolved but I did not think that
that was the primary issue here.
What are possible scenarios if SCO
sees that the slander of title case is impossible to win and tells the court
"never mind, we give up"? Can Novel ask the court for a ruling on who owns the
copyrights? If they can do this, would they?
[ Reply to This | # ]
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- What is left to do in the Novell case? - Authored by: PJ on Friday, June 11 2004 @ 11:44 PM EDT
- What is left to do in the Novell case? - Authored by: wepprop on Friday, June 11 2004 @ 11:58 PM EDT
- A little jumpy? - Authored by: Anonymous on Saturday, June 12 2004 @ 12:47 AM EDT
- What is left to do in the Novell case? - Authored by: telamonides on Saturday, June 12 2004 @ 01:14 AM EDT
- Isn't this a bit silly? - Authored by: Anonymous on Saturday, June 12 2004 @ 03:21 AM EDT
- What is left to do in the Novell case? - Authored by: Anonymous on Saturday, June 12 2004 @ 05:00 AM EDT
- Please point me to amendments of Groklaw manifest - Authored by: BJ on Saturday, June 12 2004 @ 05:34 AM EDT
- What is left to do in the Novell case? - Authored by: Anonymous on Saturday, June 12 2004 @ 11:41 AM EDT
- What is left to do in the Novell case? - Authored by: bruce_s on Saturday, June 12 2004 @ 12:52 PM EDT
- What SCO has to do now... - Authored by: Jude on Saturday, June 12 2004 @ 03:51 PM EDT
- Ken Brown? May not be about SCO. Think bigger. - Authored by: Einhverfr on Saturday, June 12 2004 @ 08:06 PM EDT
- A Reality Check - Authored by: a_dreamer on Sunday, June 13 2004 @ 12:28 AM EDT
- I am the OP. - Authored by: rao on Sunday, June 13 2004 @ 10:07 PM EDT
- What is left to do in the Novell case? - Authored by: blaisepascal on Friday, June 11 2004 @ 11:57 PM EDT
- What is left to do in the Novell case? - Authored by: Trepalium on Saturday, June 12 2004 @ 12:39 AM EDT
- What is left to do in the Novell case? Nothing. - Authored by: tintak on Saturday, June 12 2004 @ 06:37 AM EDT
- I am amused - and a personal note - Authored by: Night Flyer on Sunday, June 13 2004 @ 01:30 AM EDT
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| Authored by: brian on Friday, June 11 2004 @ 11:57 PM EDT |
The more I think about the IBM case the more I have come
to appreciate Novell's role in it. This case would be
loads harder if Novell had done as SCO had wanted them to
do and "abide by the APA" sitting in the sidelines. I was
re-reading the letters between SCO and Novell when their
dialog began and have come to the conclusion that the
Novell of yesterday (of whom the current SCOundrals come
from) would have sat in the sidelines or worse, would have
transfered the copyrights SCO doesn't own. I am
considering purchasing Suse from them solely to support
them.
I would hate to see where Linux would be if companies that
are taking up Linux like IBM and Novell didn't and instead
decided to support a closed source model. I doubt the
community could survive such an assult if these high power
companies didn't lend their support. So with that, I would
like to thank those companies for taking the fire, biting
the bullet and seeing this through to the end. Even though
this decision wasn't what I wanted it still is devistating
to SCO. So all I can say is, "GO IBM AND NOVELL!"
Just my .02
B.
---
#ifndef IANAL
#define IANAL
#endif[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, June 12 2004 @ 12:51 AM EDT |
<"The question remains what version of Unix code might have been
assigned by it.">
If this remains a problem, it means SCO's derivative works theory is destroyed.
SCO would argue that the version is irrelevant because all versions of Unix are
simply derivatives of the same thing. And if different Unix versions are not
derivatives, then Linux certainly isn't.
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, June 12 2004 @ 02:24 AM EDT |
Of course, it's my birthday today :D
And the court could not have given me a nicer present. And the patent thing is
the cherry on top.
:D[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, June 12 2004 @ 02:32 AM EDT |
This has the chance to undermine their public relations campaign and destory
their stock value, not to mention pushing the IBM case even closer to summary
judgement. If they had just ignored Novell none of this would be an issue.
That brings the question: why did they sue Novell? At best they would clarify
their ownership (not really, but at least enough for a PR push). At worst they
lose everything. Am I wrong or was this poorly thought out?[ Reply to This | # ]
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| Authored by: zapyon on Saturday, June 12 2004 @ 02:33 AM EDT |
Good to hear that. :-) But say, isn't reading those nonsensical articles
real fun by now -- knowing they will not succeed!? Have a nice weekend
IRL.
Cheers, Andreas [ Reply to This | # ]
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| Authored by: Jack Hughes on Saturday, June 12 2004 @ 02:53 AM EDT |
The thing that has made me the angriest in all this isn't
really Caldera/The SCO Group. Anybody can make ridiculous
allegations, as The SCO Group has been doing. The natural
response to those should have been five minutes of
laughter and then to move on.
The real problem is that way that the "media" has handled
this issue. And that the outrageous allegations have time
and time again been picked up and reported as fact. It
should not have taken any responsible journalist more than
five minutes to realise that there were some fundamental
problems with The SCO Group's initial allegations, talk to
a range of sources and come up with a view that is much
more balanced.
I just can't really understand the bias. I would have
expected "conseratives" to naturally consider IBM as the
party with most standing, and SCO to be the party
attacking the establishment. I would have thought that the
"radicals", those that naturally favour the new and
challenges to orthodoxy, would view The SCO Group's
struggle as the last feeble attempts of the old way of
doing things - and be behind the likes of Red Hat and
Linux.
What I'm trying to say is that there are enough
organisations and players (IBM, Daimler Chrysler through
to the FSF) on the "anti-sco" side to cover all the
traditional sources of bias that I would expect to see. If
you lean towards a conservative side you have the blue
chip solid companies like IBM as your reference point. If
you lean towards the more radical progressive side of
things then your sympathies would be attached to Red
Hat/Linux.
I can't see why the journalists have attached themselves
to the SCO camp - other things equal, given the range of
biases, I would expect SCO to have been treated with a
degree of scepticism by all shades of the media. It is
very difficult to come up with some hypothesis that
explains the reporting of this case without introducing
some hidden factor. Has the SCO PR really been so
effective that it can overcome traditional biases and
cause all journalists to regard SCO as the source of
authority in this matter? Are all journalists capable of
no more than cutting and pasting a press release and
changing a font? Is there some strange consipracy that all
the media are part of?
I would love for someone to investigate this aspect of the
story. Once SCO Group has disappeared, their claims will
soon be forgotten - but the legacy will be the issue of
how easily manipulated the media are by a single party.
Time for journalists to stand up and defend their
profession! Or are journalists just the dregs that failed
to get into PR, advertising etc and incapable of actually
standing up??? [ Reply to This | # ]
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| Authored by: tangomike on Saturday, June 12 2004 @ 04:44 AM EDT |
You're going to be astounded at this:
Brent Hatch, one of SCO's
attorneys, described the ruling as a "big, big win" for SCO. "It shows we've
adequately pled our case and there's sufficient evidence at this stage to allow
the matter to go to trial."
Here is
the article from the local paper.
---
To The SCO Group - please
come back when you pass a Turing test.
[ Reply to This | # ]
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- But he also says... - Authored by: Anonymous on Saturday, June 12 2004 @ 05:30 AM EDT
- Perhaps in insight into what SCO will do next? - Authored by: Jack Hughes on Saturday, June 12 2004 @ 06:02 AM EDT
- "big, big win" for SCO - Authored by: Anonymous on Saturday, June 12 2004 @ 08:23 AM EDT
- Meanwhile in another universe, Brent Hatch calls it a win - Authored by: Anonymous on Saturday, June 12 2004 @ 08:54 AM EDT
- Meanwhile in another universe, Brent Hatch calls it a win - Authored by: Anonymous on Saturday, June 12 2004 @ 09:55 AM EDT
- "Big, big win" translated from SCOgSpeak - Authored by: jbb on Saturday, June 12 2004 @ 07:45 PM EDT
- Meanwhile in another universe, Brent Hatch calls it a win - Authored by: blacklight on Saturday, June 12 2004 @ 09:19 PM EDT
- Meanwhile in another universe, Brent Hatch calls it a win - Authored by: Anonymous on Saturday, June 12 2004 @ 09:56 PM EDT
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| Authored by: blacklight on Saturday, June 12 2004 @ 05:53 AM EDT |
"We had worried SCO might win the remand motion and seriously thought they
might win both motions, not because they are in the right on the merits, but
just because of the way the law is written and the cases have played out, and so
we are ecstatic today. That was, in our opinion, SCO's strongest shot."
I didn't worry, and for that matter neither did the many if not the overwhelming
majority of the groklaw regulars. Our analysis was sound, and it held because it
was sound. Frankly, there is no point in executing a sound analysis only to have
no faith in it - in fact, having no faith in oneself is probably the most
effective a way of talking oneself into powerlessness that I know of.
The results - and only results matter, are conclusive: the groklaw community has
called it right on everyone of SCOG's motions so far, not to mention IBM's and
the other litigants. I don't expect us to win all the time iuf only because the
laws of probability are against it, but for every instance where our analysis
would call it wrong, I expect us to go back and make a straightforward
determination as to where and in what ways our analysis went wrong. In general,
fools ignore the thinking of the groklaw community at their own peril.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, June 12 2004 @ 06:19 AM EDT |
That SCO can just *ask* Novell for the rights to be assigned (as opposed to
demanding that a court declare that they already have been)? Even if they lose
the case, they still get the rights.
Or am I misreading the APA?[ Reply to This | # ]
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- No. - Authored by: pogson on Saturday, June 12 2004 @ 06:28 AM EDT
- No. - Authored by: blacklight on Saturday, June 12 2004 @ 06:36 AM EDT
- Um, but isn't it still the case - Authored by: arch_dude on Saturday, June 12 2004 @ 06:43 AM EDT
- They already asked, and were refused - Authored by: PeteS on Saturday, June 12 2004 @ 06:47 AM EDT
- Um, but isn't it still the case - Authored by: seanlynch on Saturday, June 12 2004 @ 10:27 AM EDT
- Agreement was non-transferrable - Authored by: Anonymous on Saturday, June 12 2004 @ 07:45 PM EDT
- The APA didn't say WHO gets to determine what is required - Authored by: Anonymous on Saturday, June 12 2004 @ 08:34 PM EDT
- They don't want to do that! - Authored by: pscottdv on Sunday, June 13 2004 @ 12:58 AM EDT
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| Authored by: Anonymous on Saturday, June 12 2004 @ 07:23 AM EDT |
| I can't draw this:
SCO as the black knight in Monty Python - armless,
legless, screeching threats.
IBM black suited lawyer on a steam roller,
looking over the side, inexorably easing toward SCO.
Red Hat lawyer sitting
on a bench outside a closed door covered in cobwebs.
DaimlerChrysler lawyer
facing away from SCO, back-kicking with feet like a cat covering.
AutoZone
in a fuel dragster, pointed at SCO, flames from the headers, waiting for the
light to turn green.
Novell tossing paperwads and law books at SCO, trying
to stop that mouth.
-- a not-logged-in
grouch
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| Authored by: Trithemius on Saturday, June 12 2004 @ 07:36 AM EDT |
At the risk of being a bit of a downer here, I do have a question: Is this
going to allow the FUD about 'stolen code' to continue?
How often have we
heard that 'the GPL has never been tested in court' - when Moglen contends that
is simply a product of nobody wanting to challenge it. Is this going to become
another one of those - an issue that is soundly decided except that a judge
didn't write it down?
Perhaps my pre-coffee brain isn't quite up to speed
yet, but if (when?) SCO loses this, their other cases are going to fall apart,
and anyone that wants to can claim that Linux 'dodged a bullet' because SCO's
case fell apart before they could prove the dirty work that they say has been
going on?
IMHO (IANAL &c.) it may be better to get cases like RedHat's
determined - that Linux is free of supposed stolen code - as it would finally
put a muzzle on morons like Brown and the other ADTI lackeys. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, June 12 2004 @ 08:27 AM EDT |
The mere fact that the word 'ubiquitous' was used in the description should have
been a tip-off to the USPTO inspectors, if any. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, June 12 2004 @ 08:35 AM EDT |
Okay SCO need to find some special damages (e.g. a specific lost sale) if they
want to continue
Now from the conference call, you'd think they will say it's a lost SCOsource
sale of a particular Linux license
But wait a moment, what is a Linux license a sale of?
They are going to have to define this eventually if they want to prove special
damages
Unfortunately for SCO if it's a Linux license = some form of System V license it
puts SCO *deeper* in the hole
(i) What if there's no System V in Linux (as we all know) - oops they just made
Lanham Act violations against Novell/SuSE
(ii) If a Linux license = a license for JFS etc - even if derivative of System V
(which is doubtful), those still belong to IBM. Another copyright violation by
SCO
(iii) And oh yeh.... SCO has NO RIGHT TO ENTER ANY NEW SYSTEM V LICENSES WITHOUT
NOVELL'S PERMISSION
Expect this to be the trigger for counterclaims[ Reply to This | # ]
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| Authored by: mossc on Saturday, June 12 2004 @ 09:37 AM EDT |
I like this quote from the Daily Herald article:
"We're pleased with the ruling. As our second-quarter earnings call
(Wednesday) showed, we have examples of customers not buying SCOsource licenses
from us because of claims made by Novell that we have no copyrights," said
Bert Young, SCO's chief financial officer.
I love it, Bert Young is saying that what they said another time is evidence
supporting their claims.
there is obviously a basis for our unsubstantiated claims because someone else
from our company has made supporting unsubstantiated claims in another venue.
;-)
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, June 12 2004 @ 09:50 AM EDT |
SCO's strategy against Novell appears to be something like this:
I own the Brooklyn Bridge (one of the few no-tolls major NYC bridges). I erect a
toll plaza. Everyone must pay to cross from Brooklyn to Manhattan and/or
viceversa. Very, very few uninformed people decided to pay or are coerced to
pay just to avoid delays at crossing. The majority decided not to pay knowing
the toll collectors have no right to do so. NY Metropolitan Transit Authority
for Bridges and Tunnels (MTA B&T)intervene and tell the toll collectors they
don't own the bridge. I sue MTA B&T because I am loosing revenue because
people are refusing to pay tolls based on MTA B&T saying I don't own the
bridge. I must be desperate by going to the judge and making such a claim.
Monetary or no monetary pleadings, SCO's problem is that they will have to prove
they own the copyrights. I think the allegation of Novell's malice in claiming
copyrights for SVr4 code is to me of more significance. In this lawsuit Novell
doesn't have to prove they own the copyrights, all they need to raise or prove
is that they were not malicious because there are significant doubts that SCO
got the copyrights transfered to them. The judge in its ruling appears to agree
with Novel already in that regard. That will deflate the monetary pleadings
balloon, making them irrelevant. [ Reply to This | # ]
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| Authored by: josmith42 on Saturday, June 12 2004 @ 11:22 AM EDT |
You know, if I were to write that same line in something I
wrote, I would be criticized for taking a sentence from the
Department of Redundancy Department. One of the marks of a
good writer is breaking all those rules that we were all
taught to follow in grade school, and breaking them
effectively.
(Red) hats off to you, PJ! And to your mandrakes too! May
your writing always be slack(ware)! And good health to
your sister SuSE, (or is she Debian?).
---
Forty-two: the answer to the question of life, the universe, and everything.[ Reply to This | # ]
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| Authored by: PolR on Saturday, June 12 2004 @ 03:14 PM EDT |
They can't continue their charade with a cloud on their alleged ownership of
System V. Without a clear title the lawsuits don't have any bite, and without
the lawsuits the company is doomed.
SCO will do somehing to force the resolution of the copyrigth issue because this
is their only hope to have a future. Anything else kills the company right
away.
They have two avenue left: plead special damages and continue with the SoT suit,
or let the SoT die and initiate a separate breach of contract suit based on the
APA and amendment 2.
In both cases their perspectives are pretty bleak. The judge has hinted that the
SoT suit is an uphill battle for SCO. If they drop the SoT and go for breach of
contract, they admit having sued everybody without a clear title and this has
dire consequences for SCO.
Of the two, keeping the SoT suit alive is the lesser evil because it doesn't
kill the other suits right away. But then they will delay as uch as they can't
avoid the inevitable.
IANAL
[ Reply to This | # ]
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| Authored by: moogy on Saturday, June 12 2004 @ 07:02 PM EDT |
We've heard a lot about whether there was a written
Instrument of Transfer for copyrights between Novell
and SCO, but there also has to exist a written
Instrument of Transfer between SCO and Caldera (SCOG)
I cannot find one. Can anyone help me out?
I would have thought that this would have been one
of the first things SCOG pulled out and waved around
all over the place. BOTH transfer instruments must
exist to have clear title.
----Disclaimer----
Channel #Groklaw is not associated with, nor
endorsed by www.groklaw.net or Pamela Jones.
---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win -Gandhi[ Reply to This | # ]
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| Authored by: codswallop on Saturday, June 12 2004 @ 07:02 PM EDT |
I counted 7 posts below suggesting SCO would sue Novell for breach of contract
or specific performance under the APA.
So, though I've posted this before, the APA is not an assignable contract by
operation of law or other means.
That means not by sale, takeover, merger, bankruptcy or inheritance, to name a
few.
Novell's contract is with Santa Cruz - Tarantella. On top of this, the
Tarantella-Caldera agreement covers only those copyrights Tarantella owned at
the time. So, if Novell didn't ransfer them, even if it should have, Caldera
didn't buy them. Thus, even if they were a successor in interest to Tarantella,
they wouldn't have bought the copyrights.
I'm beginning to think we need a FAQ page or something. The same stuff turns up
over and over. It looks like there's too much detail for people to learn all the
background. There must be well over 100,000 posts and 1000s of documents.[ Reply to This | # ]
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| Authored by: Totosplatz on Saturday, June 12 2004 @ 07:50 PM EDT |
This lawyer really does -get- it. To quote from the article by Vaughn-Nichols
which P.J. referred to (see page
3):
http://www.eweek.com/article2/0,1759,1611245,00.asp
Even
if SCO wins some copyrights to Unix from the federal court, the Lindon, Utah,
company still isn't out of legal hot water. Graham comments, "Judge Kimball
wisely notes that even if the APA/Amendment No. 2 documents are held to be a
valid transfer of copyright, the question remains what version of the Unix code
might have been assigned by it.
"SCO could only claim copyright in that
particular code, and perhaps not in other Unix versions or code. So, this could
raise additional issues for SCO."
Such a result, I think, would be almost
as bad for SCO as not having any copyright. If the court rules that way, then
Novell and SCO would both have Unix copyrights, and the mind boggles at what
this would do to SCO's case against IBM.
Amendment 2 says that
Novell is willing to transfer copyrights which it owns. It's not so much
a matter of which version of UNIX could have copyrights transferred, but exactly
which files within some version of UNIX could have copyrights
transferred.
And remember Ransom Love's comment about not being able to
open-source Sys-V UNIX because there were too many copyright holders. Almost
certainly the reason why Novell excluded copyright transfer in the APA amendment
is because of the near impossibility of figuring out who owns what. So the
SCOundrels would still have an up-hill battle even if they were to win
thir point about Amendment 2.
Hopefully the judge will follow the
relatively simple path of finding that Amendment 2 fails the required legal
tests of a real copyright transfer and allow amendment 1.1 to hold - namely that
all copyrights are excluded in the APA.
---
All the best to one and
all. [ Reply to This | # ]
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| Authored by: NastyGuns on Saturday, June 12 2004 @ 09:42 PM EDT |
| Ok, seeing all of the various patents being issued recently (double-clicking and
to-do lists) and various M$ issues:
1) Japanese gov't raiding offices for
anti-trust violations (or whatever they called those trade practices with the
hardware vendors)
2) EU finding of guilt for anti-trust violations
3) Korean
gov't raiding offices for illegal practices
4) Mike Anderer e-mail suggesting
link to M$
5) Baystar confirming that it was not just some ex-M$
employee but some top officials at m$ that suggested their funding of
TSCOG
Those are just a couple of the latest issues. However, my question is, is
there any legal avenue that can be taken to present all of these issues to Judge
Kollar-Kotelly to take an in-depth look at her rulings in the M$ anti-trust
case in light of this information. Along with giving this information over to
the SEC and FTC and whatever other gov't bodies. I know that there is some body
formed that's supposed to monitor M$'s activities, but the head of that
group is a former M$ employee and how does the public ever know what they
are even actually reporting to the judge? ---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back,
please keep me here." Unknown. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, June 12 2004 @ 10:30 PM EDT |
From software to medicine:
"An
open-source shot in the arm?"
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, June 12 2004 @ 11:22 PM EDT |
Perhaps the Patent Office should take a more open source approach to patent
review. Considering the number of them that get stricken down on re-review, it
might save us from having bad patents granted in the first place.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, June 13 2004 @ 12:04 AM EDT |
I thought I would take a look at Tarantella's (Santa Cruz Operation) SEC
filings.
I thought it might enlighten us whether, if at the time, Santa
Cruz Operation thought they were getting the System V copyrights. Frankly based
on what I found, I find it hard to believe that they did or that they thought
they did. To be fair their are same words in the filings, but it looks rather
different to me than the picture that Darl paints.
First I found this
in a number of 10-Q's (example page 6 (using numbers at top of page in tag
rather than numbers at the bottom of each page) of
http://www.sec.gov/Archives/edgar/data/851560/0000891618-97-000435.txt
In December 1995, the Company acquired certain assets related to
the
UnixWare business including the core intellectual property from
Novell. The
consideration consisted of 6,127,500 shares of newly issued
non-registered
common stock. Additionally, cash payments to Novell with a
present value of
$84 million will be paid periodically by SCO to Novell
provided certain
unit volumes of UNIX distribution is achieved. Such
payments terminate at
the end of calendar year 2002. The acquisition has
been accounted for using
the purchase method of accounting and, therefore,
the accompanying
financial statements include the UnixWare business since
the date of the
acquisition. The Company incurred non-recurring charges
including $36.0
million of purchased research and development for
UnixWare product which
have not yet reached technological feasibility and
other charges including
severance and acquisition related
costs.
Now this interesting "the core intellectual
property" is related to the "Unixware business" (a specific variant of Unix).
So the plain reading suggests to me that it is probably the core intellectual
property for Unixware, rather than the core intellectual property for all
variants of Unix. It is interesting as well that if you look elsewhere in the
same SEC filings, Santa Cruz says there are Unix operating systems (note:
the plural Darl) and that Unixware is based on a particular System V
version.
Admittedly the sentence is a little vague. So I suppose it's
possible that core intellectual property might include the copyright for the
version of System V upon which Unixware is based. I don't see how other
unrelated versions of System V would fall under "Unixware business" though.
Okay let's leave that argument as the sentence is probably still not 100%
clear.
Let's have a look at the dates when this first appears. Guess
what - it appears in SEC filings that both pre-date and post-date
Amendment 2. Now if you consider the period between the APA and Amendment 2,
all copyrights were excluded. That's interesting don't you think? Whatever
Santa Cruz thought they got, it wasn't significantly affected by Amendment
2.
Another interesting part is page 23 of this annual report
http://www.sec.gov/Archives/edgar/data/851560/0000891618-97-005047.txt
UNIX ASSETS In December 1995, the Company acquired from Novell
certain assets
related to UnixWare including the core intellectual
property. The consideration
consisted of 6,127,500 newly issued shares of
non-registered common stock.
Additionally, cash payments to Novell with a
present value of $84 million will
be paid periodically by SCO to Novell
provided certain unit volumes of UNIX
distribution are achieved. To date,
distribution unit volume of UNIX has not
reached levels which have required the
Company to make cash payments to Novell.
Such payments terminate at the end of
calendar year 2002. Non-recurring charges
of $38.4 million were incurred in
fiscal 1996 for costs allocated to in-process
research and development. The
Company also purchased core intellectual property
totaling $5.8 million,
software technology licenses totaling $5.5 million and
intangibles of
$1.7 million.
Once again we find this limiter on
intellectual property - "related to UnixWare" (not to mention it doesn't say
copyright anywhere)
And it's interesting that they value "core
intellectual property" at $5.8 million. If that was for all of System V,
it's rather a bargain wouldn't you say? (Considering Sun licensed System V for
close to $100m over several years). It also undermines Darl's arguments
that "SCO [I know he means Santa Cruz not SCO/Caldera] paid
$100m"
*BTW I find it most amusing that Santa Cruz pervasively uses
the vague and ill-defined term "intellectual property" to define whatever they
bought, but never says "copyrights". I wonder if Santa Cruz were trying to look
better equipped than they knew they were (hey we got the source code and the
rights to develop this stuff!), and this idea that Santa Cruz had certain
intellectual property rights some how seeped into Darl's brain, mutating into
the Darl-created monster that is now is.
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, June 13 2004 @ 09:27 AM EDT |
PJ, please take care on your horse, this is no time to be laid up in hospital.
And, get plenty of rest. You do a great job, no point overdoing it and making
yourself ill. And, watch the carpal tunnels, they are the only ones you have
got.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, June 14 2004 @ 04:38 AM EDT |
The FAT patent simply patents one way of overcoming the file name size
limitation of FAT with longer filenames. The FAT filesystem itself couldnot be
patented because of the massive amount of prior art in the design and
implementation of file systems.
The 'invention' disclosed by the patent is obvious to any competetent engineer
who faced this filename issue along with a few other possible solutions. This
should invalidate the patent although from what I have seen of US SW patents
obviousness is almost mandatory.
What is paticularily concerning about this patent is the iteraction of the
patent with a de facto standard. The patent itself is worthless. It describes an
inelegant solution to a problem that only arises through bad filesystem design.
Anyone designing a new filesystem will have no need for the 'invention'
described because no one will design a new filesystem that has such a stupid
filename size limit. The value of the patent is only because the FAT filesystem
has become a de-facto standard. In order to comply with the standard the method
in the patent must be used which transforms a worthless patent into a means to
control/tax a segment of the computer market.
This is something which is mor eor less specific to software. There is a very
strong tendancy for the creation of de facto interfacestandards through the need
for users to easily exchange information. There is the possibility in the US at
least to create patents which do not describe generally useful inventions but
simply describe paticular interfaces whose only value is that they are a
standard and may as in the FAT case overcome a problem which only exists because
of poor design. The patent then becomes a tool to control access to an
interface.
This is a complete peversion of the pointof the patent system. The point was to
encourage the disclosure of usefulinventions to benefit society as a whole. The
use of patents described above describes a pointless invention in order to
benefit a single company to the detriment of society.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, June 16 2004 @ 04:04 PM EDT |
When do we organize to outlaw software patents altogether? PUBPAT cannot
possibly attack all the crap patents being generated by the powers that be. For
every one successfully challenged, how many more are created to replace it?
What we need it to outlaw software patents completely and invalidate any
existing software patents. Software patents encourage litigation, not
innovation! [ Reply to This | # ]
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