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Judge Wells' Order Denying SCO's Motion for Protective Order - as text
Wednesday, June 23 2004 @ 12:19 AM EDT

Here is the Order Denying SCO's Motion for Protective Order, as text. This was SCO's 11th-hour attempt to postpone depositions. We knew about the order, but note the third of the three reasons Judge Wells gives for not agreeing to postpone the depositions SCO asked to postpone. It wasn't listed on Pacer in the clerk's brief notes.

If you recall, in their motion asking to postpone the depositions, SCO argued like this:

"Second, the depositions scheduled for Tuesday, June 8th, directly conflict with the hearing date for the parties' argument on the Motion to Amend the Scheduling Order. The Court scheduled the hearing after IBM noticed the depositions. SCO submits that this intervening change in scheduling itself warrants the rescheduling of the deposition. It is true that both parties could simultaneously provide counsel to cover the June 8th hearing in Utah and what are likely to be trial depositions in North Carolina and California. However, SCO would be best represented if senior counsel with experience on this matter could attend both the hearing and the depositions. Under the current schedule, that is not possible."

So, Judge Kimball, who didn't just fall off a turnip truck, said he'd reschedule the hearing, which had been set for the same day as the deposition of David Frasure, if necessary, in order to get the deposition accomplished. That indicates that Judge Kimball is interested in getting this show on the road. SCO did not accept the offer, and the hearing went on as scheduled, so evidently they do have more than one attorney they can use in a pinch, despite their fervent pleas.

Lamlaw has an interesting theory about SCO's DaimlerChrysler suit, by the way. He points out that you can't be sued for slander or libel if you say things in court documents. He conjectures that SCO is just filing away for the PR benefits, even though they likely know they can't win:

"You have to keep in mind that statements made before in the court in pleadings, declarations and indeed testimony is privileged.  That means that no matter what is said or alleged in the court proceeding, DCC can not sue SCO or any of the witnesses for Libel, Slander, etc.  So if you are going to publicly claim that someone such as DCC has violated your so-called copyrights by taking SCO property and contributing it to Linux, you can safely make that public accusation provided it is conducted solely within the boundaries of the official court documents.

"This is the purpose of the DCC law suit. . . .SCO wants to publicly claim that SCO licensees have illegally contributed SCO property to Linux.  Of course this fellow is not in any position to testify to that conduct anyway unless he somehow has information far beyond what he disclosed here.  But the process of putting up a rather long Declaration complete with the suggestion that DCC is somehow making those contributions to Linux discloses SCO true intent with the law suit.

"Why is that?

"The court couldn't care less about accusations or suggestions that may be contained in this Declaration unless they relate directly to the issue before the court.  And here the issue before the court is whether DCC was obligated to provide the certification or whether or not they actually did provide an adequate certification.   SCO has not sued DCC for making any such contributions as this Declaration suggests.  And the portions of this declaration where Mr. Broderick says 'SCO claims this or claims that' is not something that a 'witness' could testify to anyway.  If SCO wants to make claims against DCC, their lawyers can draft the appropriate pleadings and the court can decide for itself what it is that SCO may believe or think.  Mr. Broderick's statements here are of no value to the issue before the court.  Yet they are presented here in leu of SCO actually filing a cause of action against DCC on those issues.  SCO could do that if they thought they had any evidence to back it up.  They have not. And that strongly suggests they have no such evidence.

"But you see, SCO really wanted to public accuse at least one Linux customer (former SCO customer) of making illegal contributions to Linux.  A public claim under the protection of legal papers in another case.  That is why the DCC case was filed. "Why  do I conclude that?

"Do you really think that SCO was damaged in any way shape or form by DCC not submitting that certification after having discontinued the use of SCO products for 7 years?  I mean you have got to be kidding.  The judge has to be asking 'Why is this case even here?'.    Even if SCO is legally correct the damages are nil.   Corporation just do not go around filing meaningless law suits showing nil damages.  This is a joke.  DCC knows it.  SCO knows it.  And no doubt the judge knows it too.

"So the real question is what SCO thought it would gain by filing it.  And the answer is making a public claim that DCC has violated SCO copyrights by making contributions to Linux without being held responsible for false public claims.   If SCO thought that the claim was valid they could have sued DCC directly based upon that claim.  But they have not.  What SCO wants is to make the public slur but be protected from law suits by doing so in the process of another law suit.  Any meaningless law suit will do."

So when SCO tells the court something, according to this theory, it may not be because they expect it to fly in the courtroom. In their motion to expedite, Judge Kimball called their bluff, cutting them off from being able to appeal that they didn't get a fair shake. They didn't postpone the hearing, even though he gave them the opportunity. What does that tell you? Me too.

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

_________________________________

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant, vs.

INTERNATIONAL BUSINESS MACHINES CORPORATION

Defendant/Counterclaim-Plaintiff.

_______________________________

ORDER DENYING SCO'S MOTION FOR
PROTECTIVE ORDER

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

______________________________

Plaintiff and Counterclaim Defendant The SCO Group, Inc.'s ("SCO's) Expedited Motion for Protective Order came before the Court for a telephonic hearing on June 7, 2004. SCO was represented by Brent Hatch. Defendant Counterclaim Plaintiff International Business Machines Corporation ("IBM") was represented by Todd Shaughnessy.

The Court, being fully advised, hereby concludes as follows: (i) SCO's attempt to postpone depositions scheduled for the week of June 7, 2004 was undertaken too late; (ii) granting SCO's motion would cause undue inconvenience to the third party witnesses and other participants in the depositions, and (iii) to the extent SCO's motion is premised on its need to have the same attorney appear both at the deposition of David Frasure and at the hearing scheduled for June 8, 2004, before the Honorable Dale A. Kimball, Judge Kimball is willing to reschedule that hearing to accommodate SCO's counsel.

Based on the foregoing, and for good cause shown, IT IS HEREBY ORDERED that SCO's Expedited Motion for Protective Order be and hereby is denied.

DATED this 15th day of June, 2004.

BY THE COURT:

______[signature]_______
United States District Court
Magistrate Judge Brooke Wells

APPROVED AS TO FORM:

SNELL & WILMER LLP
Alan L. Sullivan
Todd M. Shaughnessy

CRAVATH, SWAINE & MOORE
Evan R. Chesler
David R. Marriott

BY ________[signature]_______
Counsel for Defendant International
Business Machines Corporation

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

By________[signature]_______
Counsel for Plaintiff


United States District Court
for the
District of Utah
June 17, 2004

CERTIFICATE OF SERVICE OF CLERK

Re: 2:03-cv-00294

True and correct copies of the attached werre either mailed, faxed or emailed by the clerk to the following:

Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]

Scott E. Gant, Esq.
BOIES SCHILLER & FLEXNER
[address]

Frederick S. Frei, Esq.
ANDREWS KURTH
[address]

Evan R. Chesler, Esq.
CRAVATH, SWAINE & MOORE
[address]

Alan L. Sullivan, Esq.
Snell & Wilmer LLP
[address]

Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]

Mr. Kevin P. McBride, Esq.
[address]

Robert Silver, Esq.

BOIES SCHILLER & FLEXNER
[address]

Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]


  


Judge Wells' Order Denying SCO's Motion for Protective Order - as text | 307 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: PJ on Wednesday, June 23 2004 @ 02:56 AM EDT
Pls collect all my errors here, so I can find them easily. Thank you.

[ Reply to This | # ]

OT stuff and links here
Authored by: red floyd on Wednesday, June 23 2004 @ 03:03 AM EDT
so they won't mess up the other threads

---
The only reason we retain the rights we have is because people *JUST LIKE US*
died to preserve those rights.

[ Reply to This | # ]

Public slur
Authored by: john82a on Wednesday, June 23 2004 @ 03:10 AM EDT

Although oldSCO has been able to slur DC "safely", what does it then
gain? No-one with a shred of credibility or integrity would repeat the slur and
no-one with a brain cell would believe it.

[ Reply to This | # ]

Judge Wells' Order Denying SCO's Motion for Protective Order - as text
Authored by: GJ on Wednesday, June 23 2004 @ 03:18 AM EDT
Anyway to confirm if one of SCO's Lawyer does actually attend both ?

[ Reply to This | # ]

Perjury
Authored by: maroberts on Wednesday, June 23 2004 @ 03:27 AM EDT
Whilst slander and libel may not apply in court documents, perjury certainly
does, and it's a criminal as opposed to civil offence.

If it could be proved SCO or its lawyers are knowingly making false statements
to the court, then one could be in a position to have them arrested and jailed.

I'm well aware however, that lawyers have a great deal of leeway, so the above
scenario is unlikely to happen.

[ Reply to This | # ]

Lamlaw's theory
Authored by: Anonymous on Wednesday, June 23 2004 @ 03:39 AM EDT
Lamlaws theory about the privileged status of the court documents would fit
nicely with the idea that TSG selected DaimlerChrysler as its target to
circumvent the German gag order. Attacking the largest German manufacturing
corporation creates at least some presence in the press and those would spread
the FUD without actually violating the court order.

[ Reply to This | # ]

The Good, The Bad & The Fugly
Authored by: MikeA on Wednesday, June 23 2004 @ 03:55 AM EDT
I am pleased to see that Judge Kimball seems to be wise to what SCO is up to: by offering to reschedule the hearing, he was (IMO) clearly calling SCO's bluff. 'Never mind' they replied, sighed, and walked away to clone attorneys.

I had previously thought that the filings in the SCO vs. DC case were an appetizer to their changing their claim to be one similar to the AutoZone case. (i.e.: drop the certification nonsense, and bring up the stolen IP in Linux nonsense.) However, reading the alternative theory on it does make some sense, though I don't see them getting much mileage out of it. How much would SCO really stand to gain by making such a claim in court documents, even if it is protected from libel? There aren't many people reading the court documents, and I haven't seen any media coverage of the 'IP in Linux' statements taken from the SCO/DC court papers.....and wouldn't everyone ignore it when the case dissolves? I'm not sure I buy it.

Instead, I would argue that SCO thought the certification nonsense was a good idea, and when they got hosed and embarrased by the fact that DC hasn't used Unix in seven years, they had to provide a reply of some sort. Since the case is going down in flames, they figured they would make one last stab, and threw in the "IP in Linux" statements at the last minute to distract the issue and take a swing while going down. That makes a lot more sense to me.

But to file a lawsuit against Bank of America DaimlerChysler just for the purpose of getting the opportunity to make a 'safe libelous claim' in documents very few people are going to read makes no sense, even for SCO. If that was the case, why not make that claim in the original lawsuit?

I am still waiting for SCO to morph their claim into another AutoZone arguement. But then again, that would make things simpler, wouldn't it? That CAN'T be what will happen. ;)

---
Change is merely the opportunity for improvement.

[ Reply to This | # ]

Blow away his roof!!!
Authored by: Anonymous on Wednesday, June 23 2004 @ 04:24 AM EDT
cool now McBride cant pull the "I whish I could show you the code it is in
our court documents but sealed under the protective order, you will see we have
millions" line anymore on journalists now that they have started asking
pointed questions!!!jippee, go tux!!!

[ Reply to This | # ]

I think LamLaw should come with a tinfoil hat ;)
Authored by: Anonymous on Wednesday, June 23 2004 @ 04:43 AM EDT
SCO may have added this in to spread the FUD a bit more, but I doubt it was the purpose initially.

IIRC, DC only sent the "we haven't used the software for 7 years, dopes" letter after they had been sued.

They pointed out to SCO it was none of their business anyway.

SCO are just trying to keep the case going any which way, since dropping it is major bad news.

[ Reply to This | # ]

Judge Wells' Order Denying SCO's Motion for Protective Order - as text
Authored by: blacklight on Wednesday, June 23 2004 @ 06:10 AM EDT
"Based on the foregoing, and for good cause shown, IT IS HEREBY ORDERED
that SCO's Expedited Motion for Protective Order be and hereby is denied."
Judge Kimball

As they say on Broadway: "ladies and gentlemen: the show MUST go on!"

[ Reply to This | # ]

Somebody please correct me if I am wrong...
Authored by: Anonymous on Wednesday, June 23 2004 @ 06:13 AM EDT
Yes, SCO can say what they want to in a court room and in court documents, but
are there not public quotes of the same? I looked quickly in the quoteDB and
didn't find anything, but when I get to work I will search around. Darl has NOT
kept his mouth shut about Daimler has he, how about Blepp. What about in the
quarterly financial statements?

[ Reply to This | # ]

Judge Wells' Order Denying SCO's Motion for Protective Order - as text
Authored by: blacklight on Wednesday, June 23 2004 @ 06:34 AM EDT
I think it is clear to us that SCOG is gaming the legal system. If the SCOG
legal team keeps this up, the only points of interest to me about SCOG's legal
strategies will be in the "how" as in how SCOG is doing the gaming,
and the "why" as in what short-term gain or gains SCOG is aiming for.


In the meantime, every key motion that our corporate allies win incrementally
helps shape the various battlefields in our favor. At this point, only the
ponderousness of our legal system is keeping SCOG from being steam rolled. In
this context, I think as extremely funny SCOG's claim that Novell "has
nowhere to run" after SCOG lost its motion to remand: would anyone of us
step into a ring with a heavyweight contender in it, while cheerfully
proclaiming to the rest of the world that the other guy "has nowhere to
run"?

[ Reply to This | # ]

what happens if its a frivolous case?
Authored by: Anonymous on Wednesday, June 23 2004 @ 06:35 AM EDT
Suppose the final result is not just a dismissal but a finding that the case was
frivolous? Does that provide any option to remove the libel protection from
statements made to the court?

Is that protection an absolute right or can it be lost in some circumstances?

[ Reply to This | # ]

Judge Wells' Order Denying SCO's Motion for Protective Order - as text
Authored by: phrostie on Wednesday, June 23 2004 @ 07:51 AM EDT
i thought lying in a court document was called purgery.
isn't that a crime?

---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/snafuu

[ Reply to This | # ]

Best Dilbert ever ... Darl's job interview
Authored by: Anonymous on Wednesday, June 23 2004 @ 08:14 AM EDT
http://dilbert.com/comics/dilbert/archive/images/dilbert2004067340623.gif

[ Reply to This | # ]

OT. Think Tanks
Authored by: Anonymous on Wednesday, June 23 2004 @ 08:36 AM EDT
Good piece on think tanks etc.here

[ Reply to This | # ]

  • Great article - Authored by: Anonymous on Wednesday, June 23 2004 @ 10:09 AM EDT
SCO's affirmative defenses
Authored by: Anonymous on Wednesday, June 23 2004 @ 08:55 AM EDT
One of SCO's affirmative defenses to IBM's Lanham Act charges is judicial
immunity. I think they are claiming the priviledge court documents can't be used
against them.

I think the original plan was to simply make accusations in the court documents,
and provide copies of them, e.g. on their web site. And they perhaps theorized
this would make them safe from counterclaims.

Of course nobody read the court documents. so Darl started doing conference
calls (from May 2003? remember they filed in March), not to mention making
different/new claims outside of the documents, and giving interviews to Mozilla
Quest and elsewhere beginning in May 2003 (and as they got more press they
managed to rise up thru the news hierarchy from Mozilla Quest to CNET to
Business Wire to Forbes + Fortune).

One other thing is if you read SCO's earliest pleadings in this light it is
quite revealing.

Go back to March 2003, and re-read the original SCO complaint.

There are all sorts of SCO paragraphs which are frankly irrelevant to SCO v IBM,
and never were relevant, to SCO's case against IBM. A quick way to spot all
these is to re-read IBM's original answer to SCO's original complaint. The
number of times where IBM says it doesn't have information about any entity
except itself (i.e. in response to every SCO irrelevant paragraph), is frankly
amazing.

[ Reply to This | # ]

Judge Wells' Order Denying SCO's Motion for Protective Order - as text
Authored by: Hop on Wednesday, June 23 2004 @ 09:04 AM EDT
What was said in the Lamlam article may be true. It's just not a primary
motivation for the case. Call it "icing on the cake." SCO said they
were going to sue 2 linux users so they did. They had to or lose face. Once they
chose DC, they had to pursue a case, but try their best to prolong the process
without actually going to trial.

There are two things that are important here. Everything SCO does is to create
fud about linux, and everything SCO does relating to court matters is done to
create delay because they know they can't win. Once you look at the events with
those two points in mind, everything else fits neatly into place.

[ Reply to This | # ]

Lamlaw's Theory - No it is about discovery
Authored by: QTlurker on Wednesday, June 23 2004 @ 09:06 AM EDT
I am more cynical about SCO motives.

SCO is dangerous because they really believe they own valuable IP and are being
persecuted and deprived.

They seem to be seeking the right to discovery and the ability to rumage through
DC's files. DC uses embedded linux in some automated tools and engineers might
have contributed to linux kernel development.

Remember Canopy's history and the successul MS lawsuit. Canopy laims to have won
by patiently scrutinizing and organizing the tons of discovery.

[ Reply to This | # ]

SCOX's legal maneuver
Authored by: GLJason on Wednesday, June 23 2004 @ 09:47 AM EDT
Of course the motion to delay the depositions was nothing but a legal maneuver
by SCOX. They could easily have had attorneys attend both the deposition and
the court hearing. You can't argue with a straight face that you can't do that
when 14 lawyers have made appearances in court on your behalf. I believe it was
just an attempt to get another delay or give more credence to their motion to
change the scheduling order. Apparently Kimball fell for it. I agree with his
decision though. Just looking at SCOX's court pleadings and you can tell the
bungling dolts would need an extension just to figure out how to tie their own
shoes.

[ Reply to This | # ]

The Linux Killer *LOL*
Authored by: SilverWave on Wednesday, June 23 2004 @ 09:53 AM EDT

The Linux Killer

"They call him Microsoft's sock puppet, the most hated man in high tech. SCO's Darl McBride is fighting a war for the future of free software. And he wants to make you pay." By Brad Stone

Snip--------

At Silicon Stemcell, McBride and Anderer polished the strategy they'd repeat at SCO: turning intellectual property into a revenue stream. Anderer, McBride, and four managers who had served with them at Ikon's technology services division pooled their ideas for products, then attempted to patent them. It was 1999, and they were in the business vanguard, devising a new way to create wealth. Something as intangible as a claim to owning an idea, they realized, could be used to extract money from innovators in related fields. Even if Silicon Stemcell's patents weren't finalized, it might still be cheaper for startups to pay licensing fees to Anderer's group than to fight protracted legal battles. Silicon Stemcell wouldn't even have to create businesses, it could thrive just by collecting these fees. Stanford law professor Mark Lemley, who specializes in patent law, calls this "the business model of the new millennium."

Yeah... loads of FUD as usual but also some interesting background ...

Know Your Enemy!

---
Linux used ideas from MINIX
MINIX|UNIX
UNIX|MULTICS
MULTICS|CTSS
CTSS|FMS
In science, all work is based on what came before it.
Andy Tanenbaum, 6June04

[ Reply to This | # ]

When will we see the depositions?
Authored by: mflaster on Wednesday, June 23 2004 @ 10:20 AM EDT
Obviously SCO is afraid of these depositions. which should have taken place
already.

When will we see them? Will we only see them when they are filed as exhibits to
some motion? Or are the depositions themselves filed with the court, in which
case we'd be able to see them much sooner?

Mike

[ Reply to This | # ]

Judge Wells' Order Denying SCO's Motion for Protective Order - as text
Authored by: Anonymous on Wednesday, June 23 2004 @ 10:28 AM EDT
Darl to Judge: DC changed their name and address without telling us! They must
have something to hide!

[ Reply to This | # ]

OT: Amendment 2 explained *completely* in terms of Amendment X
Authored by: Anonymous on Wednesday, June 23 2004 @ 10:31 AM EDT
I posted some of this last night in several disjointed posts. This is all put together was one item and also includes some new material. IANAL.


FIRST OBSERVATION

Amendment 2 to Novell-SantaCruz appears to be signed on the same day as IBM Amendment X.

Amendment X to (Novell-SantaCruz-IBM relating to AT&T license) is dated 16 October 1996 (see below)

Amendment 2 begins:

As of the 16th day of October, 1996,

I would say that is a bit of a stunning coincidence!

Furthermore, section D of Amendment 2, contains explicit references to the IBM Agreements including Amendment X.

I would say that is a bit more than a stunning coincidence!

Could it be that Amendment X and Amendment 2 are related, or relate to the same underlying events.


SECOND OBSERVATION

Novell sold a royalty buy-out to Sun in 1994 for many millions.

Novell was obviously very keen on getting more royalty buy-outs, as they probably thought it was money for old rope. However, subsequent to the SantaCruz-Novell APA, any such royalty-buy-outs require both SantaCruz and Novell to be involved. Furthermore it's not entirely clearly that the APA defined all the necessary terms for any such future/potential royalty-buy-outs.

So Novell and Santa Cruz (presumably especially Novell as the royalty-buy-outs don't compete with anything that they are selling, although Santa Cruz might be concerned about fueling competitors to UnixWare) would need to sort out two things:

1. What to do about the current pending IBM royalty buy-out ("Amendment X")

2. How any future royalty-buy-out deals should be handled between Novell and Santa Cruz.

I therefore believe that Amendment 2 was created to achieve these two objectives - and what's more can be explained entirely in terms of these two objectives.

This also explains why neither Novell or Santa Cruz thought it particularly important at the time (Santa Cruz didn't revise their SEC statements to suddenly say "we own UNIX copyrights", or even at all on this matter). It is simply clarifying how potential future sales deals might be handled.


THIRD OBSERVATION - INDEMNITIES TO IBM

In Amendment X, both Novell and Santa Cruz indemnify IBM and give warranties (section 10 - 10.1 for Novell, 10.2 for Santa Cruz)

The indemnities relate back to section 5 (5.1 for Novell, 5.2 for Santa Cruz)

This is rather odd, to put it mildly, as the warranty primarily relates to whether Novell and Santa Cruz have the power to enter the agreement at all!

My thought is that maybe IBM had some concerns over whether Novell and Santa Cruz had the right (copyrights?) to enter the agreement, perhaps because of the BSD settlement

Novell being a party to the BSD case would presumably know

Santa Cruz might however have had some doubts about giving this warranty... particularly since they (a) didn't have the copyrights from original APA which specifically excluded all copyrights, and (b) weren't a party to the BSD case.

Hence if you view Amendment 2 as a cleanup between Novell and Santa Cruz related to the IBM royalty buy-out and future SVRX royalty buy-outs, it would make sense for Santa Cruz to get an assurances from Novell that they could get any necessary copyrights, if they were required, for Amendment X, or perhaps royalty-buy-out transactions in general. [in a moment you will see this generates clause A of Amendment 2]

Furthermore it would make sense for Santa Cruz to get an assurance from from Novell that Novell won't sue them over the warranty/indemnity. And vice-versa (Santa Cruz assures Novell that they won't sue them either). [in a moment you will see this generates clause D of amendment 2]


FOURTH OBSERVATION - EXPLAINING ALL 4 CLAUSES OF AMENDMENT 2

There are 4 clauses (A,B,C,D) in Amendment 2 between Santa-Cruz and Novell, and I believe all of them can be explained in the light of the above observations.


EXPLAINING EACH CLAUSE - CLAUSE A

Item A of Amendment 2 reads:

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

All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. However, in no event shall Novell be liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks.

There are are two parts to this:

Everything apart from the last sentence, can be explained, as I said earlier: Santa Cruz to get an assurances from Novell that they could get any necessary copyrights, if they were required, for Amendment X, or perhaps royalty-buy-out transactions in general.

The last sentence "However, in no event shall Novell be liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks." - relates to clause D (see below). Here Novell is saying if we give you those copyrights to exercise your rights, you can't turn round and ask us to pay for liabilities that you incur as a result. When you read section D which is a more general assurance in both directions between Novell and Santa Cruz, this should make even more sense.

One other point, is although it says "any third party", clearly the third party uppermost in both Novell's and Santa Cruz's mind is IBM. Because they are signing a multi-million dollar royalty buy-out with IBM that very day (and it's the first royalty buy-out Novell had for more than 2 years).

So an additional way to look at the last sentence, is Novell is saying, if we give Santa Cruz copyrights in future, for Santa Cruz to be okay with some potential future claim with respect to 5.2 and 10.2 of Amendment X (Santa Cruz's warranty and indemnity to IBM), then Santa Cruz can't then turn round and say 5.1/10.1 (Novell's warranty and indemnity to IBM) should apply instead.


EXPLAINING EACH CLAUSE - CLAUSE B

Clause B reads:
B.Except as provided in Section C below, and notwithstanding the provisions of Article 4.16, Sections (b) and (c) of the Agreement, any potential transaction with an SVRX licensee which concerns a buy-out of any such licensee's royalty obligations shall be managed as follows:

(etc)

The (etc) part which I've omitted is a slightly detailed list of how potential future SVRX royalty-buy-outs should be handled.

Obviously it makes sense to sort out how any potential future SVRX royalty buyouts might be handled. Santa Cruz and Novell decide to clear this up, because they just succeeded in getting IBM to do a royalty buyout, and they (especially Novell) hope for more in future.


EXPLAINING EACH CLAUSE - CLAUSE C

Clause C reads:

C.Novell may execute a buy-out with a licensee without any approval or involvement of SCO, and will no longer be bound by any of the requirements stated in Section B. above, if: (i) SCO ceases to actively and aggressively market SCO's UNIX platforms; or (ii) upon a change of control of SCO as stated in schedule 6.3(g) of the Agreement.

Novell really wants to get more royalty buy-outs (after all they realize this stuff is of diminishing value and its a big whack of money each time). So Novell wants an assurance that they can continue to seek them, even if Santa Cruz loses interest in pursuing more of these.

I think but am not sure, schedule 6.3(g) companies are:

Sun Microsystems
Microsoft
Hewlett-Packard
IBM
Digital
Fujitsu

Why would Novell list these as allowing them to proceed with royalty-buy-outs even without Santa Cruz's cooperation? Answer - because Novell thinks that these companies might want to prevent Novell from giving royalty-free licenses to others (e.g. Sun would have a competitive advantage if the number of companies able to offer UNIX with no royalties payable was kept to a minimum).


EXPLAINING EACH CLAUSE - CLAUSE D

Clause D reads:

Novell and SCO agree to indemnify and hold harmless the other from and against any and all losses, liabilities, judgments, and costs incurred ("Liability") if either causes the other to incur Liability under Section 10 of Amendment No. X to Software Agreement SOFT-00015 as amended, Sublicensing Agreement SUB-00015A as amended, Software Agreement SOFT-00015 Supplement No. 170 as amended, and Substitution Agreement XPER-00015B ("Amendment No. X")

The numbers of the agreements (SOFT-0015, SUB-00015A etc.) are of course the numbers of the IBM Agreements.

Here we get Novell saying that Novell's warranty/indemnity to IBM (section 5.1 and 10.1 of Amendment X etc.) doesn't incur any liability on Santa Cruz.

Similarly we get Santa Cruz saying that Santa Cruz's warranty/indemnity to IBM (section 5.2 and 10.2 of Amendment X etc.) doesn't incur any liability on Novell.

In short Santa Cruz and Novell are saying to each other, we won't sue each other over this liability if IBM sues one of us.

As stated earlier, Novell also gained an additional assurance (in Clause A - see above), that should Novell transfer some copyrights to Santa Cruz in future, that Novell won't be liable to Santa Cruz as a result of these copyrights or the transfer.


IANAL
Quatermass

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Malfeasance?
Authored by: Anonymous on Wednesday, June 23 2004 @ 10:40 AM EDT

Judge Kimball has ruled that, so far, SCO has not produced any 204(a) writing.
And, of course, they never will because it doesn't exist.

David Boies and every other lawyer who has represented SCO knew or should have
known, from the start, that there is no 204(a) writing transferring copyrights
to SCO.

Grounds for sanctions?


[ Reply to This | # ]

  • Malfeasance? - Authored by: Anonymous on Wednesday, June 23 2004 @ 10:47 AM EDT
    • Nonsense - Authored by: Anonymous on Wednesday, June 23 2004 @ 02:15 PM EDT
Judge Wells' Order Denying SCO's Motion for Protective Order - as text
Authored by: Anonymous on Wednesday, June 23 2004 @ 10:53 AM EDT
SCO's tricks

How SCO does not realize that this does not work anymore.
The Judge, (IMO), is looking at the reasons why SCO neglects
to bring evidence to the case; by SCO's re-organization of their
case as an opportunity to buy time.
SCO fails to see what this Judge and most everyone else knows.

[ Reply to This | # ]

Judge Wells' Order Denying SCO's Motion for Protective Order - as text
Authored by: Anonymous on Wednesday, June 23 2004 @ 11:04 AM EDT
This is a good indicator of SCO's true intention. They have been trying to delay
the case left and right since it started. There can only be one of 2 possible
reasons for this:

1) They want more time to comb through IBM source code to try and link it to
Linux. This tells me, if it is the reason for the delay attempts, that any
infringement isn't obvious and may not exist at all (go figure).

2) They know they will not win because there is no real evidence to support
their claim. They've shifted the bulk of the claim against IBM into a copyright
case over IBM shipping AIX and no longer a case about IBM contributing trade
secrets to Linux that SCO has rights to, depite what they continue to blab about
in their pleasings. If this is the cause of the delay attempts, then SCO's true
purpose is to rake in money. They figured IBM would just buy them to make it all
go away and when that didn't happen, they had to engineer this entire escapade
of lawsuits and public bantering about Linux infringement to keep themselves
alive. I'm sure back in 2003 they were keenly aware that Linux was on the verge
of destroying their business as they watched customer after customer convert to
other Linux distro's and cancel their licensing of SCO UNIX. This therefore
their final death throw, a last ditch attempt to salvage money from an operation
that looks to cost Canopy over a hundred million in losses because they spent a
ton on a near worthless business.

I would assert that based upon everything else SCO is doing, item #2 is the more
logical fit. If #1 were the case, they would be trying to move as expeditiously
as possible against everyone (except RedHat) to get some positive flow their
way, court rulings in their favor to scare people into buying licenses. However,
that is clearly not the case. SCO wants to banter around publicly about how
Linux infringes and everyone is guilty of copying their code into Linux, make a
huge scene for all to see.

They have to know the tech world is done with their company at this point, look
at the decline in revenue from UNIX. 50% in one year? That's not losing business
to Linux, that's people running from your lawsuit happy company because they
don't want to be associated with you any longer. Their only hope is to get
bought because I think it's pretty obvious at this point that they aren't going
to win any of the litigation they are involved in.

[ Reply to This | # ]

SCO's Damages
Authored by: Anonymous on Wednesday, June 23 2004 @ 12:04 PM EDT
>>>
"Do you really think that SCO was damaged in any way
shape or form by DCC not submitting that certification after
having discontinued the use of SCO products for 7 years?
I mean you have got to be kidding.
<<<

As has been pointed out earlier a contract may or may not
end with the termination of usage; termination being
determined by state law and the wording of the contract.

So under which set of state laws is the contract?
Is that the same state as the law suit was filed?
Does the state law governing the contract designate that
the contract terminates on non usage?

More important does DM still owe SCO for the contract for
a set period of time even if DM is not using the product?

[ Reply to This | # ]

Judge Wells' Order Denying SCO's Motion for Protective Order - as text
Authored by: billmason on Wednesday, June 23 2004 @ 12:05 PM EDT
SCO is trying to show to investors that it is suing end users for using Linux
without a SCO license, even though when you look at the trial details, none of
them have to do with using Linux without a SCO license. It was a PR ploy.

They're also trying to show to end users considering Linux that they can be held
legally liable. No better way to show that than to sue a few end users.

These are the reasons for the DCC and AZ cases. They had no problem accusing
DCC and others publicly before they ever sued them, so I doubt the only purpose
for this trial is to avoid a slander lawsuit.

[ Reply to This | # ]

Judge Wells' Order Denying SCO's Motion for Protective Order - as text
Authored by: fxbushman on Wednesday, June 23 2004 @ 12:15 PM EDT
What SCO wants is to make the public slur but be protected from law suits by doing so in the process of another law suit. Any meaningless law suit will do."

A somewhat less speculative reason for the DC lawsuit is SCOG's repeated promises over the months and weeks previous to filing that they were going to sue end users by date certain, many end users (be afraid, very afraid). So they had to sue at least two Linux users. Agreed that they never expected to win the DC suit, which is clearly a nuisance suit and may come back as such to bite them.

[ Reply to This | # ]

On DC :: Paying into Court
Authored by: darkonc on Wednesday, June 23 2004 @ 02:06 PM EDT
In Canada, at least, there's a concept known as "paying into court", where an accused can offer a specific sum in damages in lieu of going to court. If SCO has, in fact, only accused DC of not filing the proper papers 8 years after halting their use of the licensed Unix sources, then they might be able to pay into court the princely sum of $1.

Under Canadian law, SCO would then be liable for costs if they refused the offer and the cout award to them didn't go beyond that.

Is there something similar in the US (Michigan) system?

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

In court statements have no immunity out of court
Authored by: darkonc on Wednesday, June 23 2004 @ 02:43 PM EDT
Although claims made in court documents have immunity, those same statements, if taken to the courthouse steps and repeated to reporters as fact, do not have the same immunity. A case like that went to the Supreme court of Canada, and they ruled against (in that case) The Chruch of Scientology (and their lawyer), citing some US precedents. I'll try and look up the precise case when I have more time, or you can hunt around for it on the SCC site.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Do Private NFP groups reveal their funding sources?
Authored by: MikeA on Wednesday, June 23 2004 @ 03:54 PM EDT
I was just reading some of the rhetoric on the Citizens Against Government Waste
Web site, and I was wondering if not-for-profit groups are required to reveal
where their money is coming from, or if there is some way to request a release
of the information. They had articles about how Microsoft is being unfairly
attacked by the government, and how switching to open-source would elliminate
computer competition and raise prices, effectively harming proprietary computer
companies. They also said that if the government (like the state of
Massachusetts) were to switch to open-source, they would have to pay lots more
money on outside consultants to come in and fix things when there was a problem.
That sort of thing.

---
Change is merely the opportunity for improvement.

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Immune to libel or slander, because it's perjury?
Authored by: Anonymous on Wednesday, June 23 2004 @ 05:20 PM EDT
The reason you are immune to claims of libel or slander is because a deposition
is presumed to be true. If it can be show to be false, it's much more serious
than libel, correct? It becomes perjury.

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So far Boies looks like a 1st year intern
Authored by: Anonymous on Thursday, June 24 2004 @ 01:41 AM EDT
Almost EVERY SINGLE pleading or memo from the SCO camp looks to be written by a
High School Debate Class. Where is this "talented" and
"brilliant" IP lawyer that everyone has hypped up. Honestly if I were
SCOG I'd like my money back. I just call 'em like I see 'em.
"Wired" REALLY REALLY needs to get FACTS and then provide them
dilligently before sending anything to print. Today is "Orange" looks
like there's plenty of FUD to go around. All the way from the White House on
down.

Get the FACTS. Research. Investigate. Think. For YOURSELF.

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So can they be done for contempt of Court
Authored by: Anonymous on Thursday, June 24 2004 @ 07:59 AM EDT
The court couldn't care less about accusations or suggestions that may be contained in this Declaration unless they relate directly to the issue before the court. And here the issue before the court is whether DCC was obligated to provide the certification or whether or not they actually did provide an adequate certification.
Can you be done for Contempt of Court for deliberately filing irrelevant stuff with the intent of getting it on the public record with immunity?

[ Reply to This | # ]

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