|
|
| SCO's Memo in Opposition to DC's Motion to Dismiss |
 |
|
Monday, June 28 2004 @ 06:33 PM EDT
|
Finally, we have the missing Memorandum of Law that the Michigan court didn't have on file last week in the SCO v. DaimlerChrysler case, SCO's
Memorandum of Law in Opposition to DaimlerChrysler's Motion to Dismiss. This is the document that William Broderick's Affidavit is attached to. Here's Exhibit A [PDF], the AT&T-Chrysler Motors license. There are also a number of cases attached, but I don't have them scanned yet. Our thanks to eggplant37 for once again stopping by the courthouse for us and helping me transcribe this lengthy document. DC's Motion for Summary Disposition and Memorandum in Support are here. As you can imagine, SCO has to dance mighty fast to make it seem like DaimlerChrysler's not answering their certification letter as fast as they unilaterally demanded caused SCO serious damage. Why, they say in mock indignation, should such conduct spread to licensees around the world, there's no telling how many of them SCO will be "forced" to sue. It's hilarious -- unless you are DaimlerChrysler, of course, poor things, who must feel like they've fallen down the rabbit hole. It highlights an important issue. SCO has accused Novell of costing them business by raising doubts about their ownership of copyrights on UNIX. That isn't SCO's real problem. No one can read this document and not understand why any company in its right mind would think twice before entering a business relationship with a company that treats its customers like this. That's the real reason everyone is running screaming for the exits. Who wants to deal with Javert?
Here's an example. DC has told the court and SCO that it didn't answer the letter from SCO because they haven't used the software in question for almost a decade. SCO acknowledges that the license doesn't set any time period within which a licensee must answer. Nevertheless, SCO writes:
"In any event, Daimler did not offer to provide any certificate of compliance -- even in the brief form it claims was appropriate. It refused to do so, even though according to what it now tells this Court, it should have been exceptionally easy to provide such a certification within a matter of a few days -- not more than 100 days. Finally, it refused to do so because -- it now tells this Court -- it unilaterally decided it no longer had the obligation to do so. The question here is whether a licensee may make that unilateral determination, thereby eliminating the licensor's express contractual rights and suggesting to licensees around the world that they may do the same." What they really seem to want, since they must know this is all truly silly, is to prolong this agony and get to do discovery: "Indeed, to the extent the provision is ambiguous, discovery would shed further light on the technological context in which the License Agreement was executed, the uses of UNIX at the time of contracting, the uses of UNIX now, and the advent of the commercialization of Linux based on UNIX. Such discovery would further demonstrate why an empty certification is insufficient and is not what is required under the License Agreement." Another thing they want is found in footnote 1: "In asking the Court to determine the requisite timing and scope of that required certification, SCO has plainly presented a case and controversy. SCO is entitled (for example) to a declaration that sets forth the parties' rights and obligations related to the certification requirement under the License Agreement." They apparently hope the court will rewrite the contract, by interpreting it to set forth the obligations of companies that drop SCO's UNIX like the hot potato it now is and switch to Linux. They need an interpretive rewrite because it doesn't at all say what SCO wants it to. Here is the relevant clause [page 12 of the PDF) about certification:
"Section 2.05 - On AT&T-IS'S request, but not more frequently than annually, LICENSEE shall furnish to AT&T-IS a statement, certified by an authorized representative of LICENSEE, listing the location, type and serial number of all DESIGNATED CPUs hereunder and stating that the use by LICENSEE of of SOFTWARE PRODUCTS subject to this Agreement has been reviewed and that each such SOFTWARE PRODUCT is being used solely on DESIGNATED CPUs (or temporarily on back-up CPUs) for such SOFTWARE PRODUCTS in full compliance with the provisions of this Agreement." See anything in there about certifying you didn't export or you taught your employees how to protect the IP, etc.? That's because it's not in there. But SCO insists that is what it means. From that simple clause, SCO has constructed this entire house of cards. They argue 30 days is a reasonable time period, and they want the court to say so too. That's the first rewrite they would like. Then I suppose they could use that to attack their other previous customers. Of course the overarching purpose appears to be to harass and annoy users of Linux, so others will quake in their boots and decide not to switch and will set up policies forbidding employees to use it, blah, blah. They can say whatever they want in the court pleadings, and they probably hope all the other licensees, who no doubt rue the day they ever started using UNIX, will be terrified. Getting what you want by means of terror is called what, again? As for DC telling them that they aren't using the software on any CPUs currently, so there are no designated CPUs to report, SCO says that isn't good enough. DC didn't tell them the right way. The contract sets forth a procedure for letting SCO know you aren't using the software any more. You're supposed to certify by letter that you have destroyed or returned all copies of UNIX and state that you are no longer using the software, etc. You're supposed to certify that you didn't export it to forbidden places, that you instructed your employees on how to preserve the sanctified most holy IP, etc. Your obligations under the contract, they point out, extend beyond discontinuing use, because licensees agree to maintain the confidentiality of UNIX to time indefinite, even forever. This seems to indicate that if you ever used UNIX, in SCO's universe that means they can continue to send you certification letters every year until you die or go out of business, even if you never use UNIX again in any way. Actually, there seems to be no Death Do Us Part. Once cloven to SCO by contract, it's eternal torment. In other words, they are holding this licensee not to common practice in the industry, not to what they always did before, but to the literal wording of a noxious contract that no one in the history of UNIX probably ever tried to enforce this way before or even imagined it could be stretched to mean what they now claim it means. What normal humans would do is send the certification request and follow up with a friendly phone call to find out why there was no response. Instead they promptly sued. And why do they do this elaborate verbal dance with all the mock horror at DC's dillydallying? Because on a motion to dismiss, if there is even one fact in dispute, you can't grant the motion. We just saw that in the Novell hearing, and here SCO stands on its head to present facts "in dispute" and to present issues that they claim are not clear in the contract. The underlying common sense truth is that there is no damage and nothing to sue about in any rational universe. But if they get a stickler judge with no common sense, they might just prevent the motion to dismiss from being granted. That is the goal, to keep this annoyance going as long as possible. As Gregory Blepp has reportedly said, the idea is to annoy sufficiently that IBM will cave and buy SCO out. Of course, DC gets to respond to this, and perhaps they will certify that they didn't sell any UNIX secrets to the enemy, that they gave classes to their employees on preserving the holy IP confidentiality, and snooped in their lockers and desks to make sure no one was transferring UNIX into Linux. That ought to do it. I think they've forgotten something, though. In the section where they answer DC's point that the UNIX license doesn't mention Linux and didn't mean Linux, SCO says that is simply because Linux wasn't in existence at the time of the license signing. So they ask the court to extrapolate the terms of the UNIX license broadly enough to cover Linux. But they forget that earlier in this remarkable pile of viciousness, they mentioned that DC twice upgraded the license. It surely behooved SCO, or its predecessor in interest, to write in some words about Linux if they wanted it included, and that never happened. It's not up to the licensee to do that; it's the licensor who must tell everyone that new terms are being added or to make clear how they are interpreting things in light of new developments. Contracts are supposed to be a meeting of the minds, so both sides know what is expected. Courts aren't fond of rewarding sudden ambushes of decent folks who had no idea in the world that there was anything dubious about their conduct. SCO has unilaterally altered its definitions under this license, by my reading, and now they'd like the court to say DC should be punished for not reading their mind. Watch out what you agree to sign. That's the lesson. No one should ever have signed such an awful contract. I know now where the UNIX curse came from. It came from trying to extort one-sided and malevolent terms from those needing to use the software. Now, there is an alternative. Is it any wonder the world is switching? You know what I suggest? Companies can learn an important lesson. They need to rethink the so-called viral properties of the GPL. At least with the GPL, no one can ever swing back around with new terms or try to invent new ways to get you. No greedo IP swashbuckling new management team can ever show up at your door demanding payments or reminding you of decades' old proprietary contract terms nobody thought anyone would ever use in a desperate, new way. Such proprietary software license terms do not have your welfare in mind. If UNIX had been distributed under the GPL, SCO would be up a creek without a paddle, and they would be entirely unable to go after anyone like this. Think about it. And for any out there who think licenses don't matter and you should choose software strictly on the basis of which is technically the best for your needs, you might want to revisit that concept in the light of current events. If the license you accept is oppressive in its terms, that means you can be oppressed. All it takes is someone willing to enforce every last blessed comma, and your goose can be cooked.
***********************************
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
___________________________
THE SCO GROUP, INC.,
Plaintiff,
v.
DAIMLERCHRYSLER CORPORATION,
Defendant.
__________________________
Civil Action No. 04-056587-CK
Honorable Rae Lee Chabot
__________________________
Joel H. Serlin (P20224)
Barry M. Rosenbaum (P26487)
SEYBURN, KAHN, GINN, BESS AND SIRLIN, P.C.
Attorneys for Plaintiff
[address, phone]
James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
DYKEMA GOSSETT PLLC
Attorneys for Defendant
[address, phone]
__________________________
THE SCO GROUP, INC.'S MEMORANDUM OF LAW
IN OPPOSITION TO DAIMLERCHRYSLER
CORPORATION'S MOTION FOR SUMMARY DISPOSITION
_________________________
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . ii
PRELIMINARY STATEMENT . . . . 1
COUNTER-STATEMENT OF MATERIAL FACTS . . . . 4
ARGUMENT . . . . . . 5
I. DAIMLER'S MOTION MUST FAIL BECAUSE THERE ARE DISPUTED ISSUES OF MATERIAL FACT AND NO DISCOVERY OF THOSE ISSUES HAS BEEN CONDUCTED . . . . . . 5
II. DAIMLER"S UNTIMELY CERTIFICATION CREATES A GENUINE ISSUE OF MATERIAL FACT PRECLUDING SUMMARY DISPOSITION . . . . . . . . 7
III. DAIMLER'S FAILURE TO PROVIDE A LIST OF DESIGNATED CPUs CREATES A DISPUTED ISSUE OF MATERIAL FACT PRECLUDING SUMMARY DISPOSITION . . . . . . . . . 11
IV. DAIMLER'S REFUSAL TO CERTIFY ITS COMPLIANCE WITH ALL OF ITS OBLIGATIONS UNDER THE LICENSE AGREEMENT CREATES A GENUINE ISSUE OF MATERIAL FACT PRECLUDING SUMMARY DISPOSITION . . . . . . . . . . . 14
CONCLUSION . . . . . . . . . 20
TABLE OF AUTHORITIES
CASES
76 North Associates v. Thell Management Corp., 132 A.D.2d 695, 518 N.Y.S.2d 174 (2d Dep't 1987) . . . . . . . . . 9
Abkco Music, Inc. v. Westminster Music, Ltd., 838 F.Supp. 153 (S.D.N.Y. 1993) . . . . . . 17
Allied Clove Lakes Co. v. Demisay, 74 A.D>2d 466, 428 N.Y.S.2d 460 (1st Dep't 1980) . . . . . 14
Colista v. Thomas, 241 Mich. App. 529, 616 N.W. 249 (2000) . . . . . . . . . 6
D'Avanza v. Wise & Marsac, PC, 223 Mich. App. 314, 565 N.W.2d 915 (1997) . . . . . . . . 15, 19
Gaines v. Shell Oil Co., No. 218659, 2001 WL 689910 (Mich. App. Apr. 10, 2001) . . . . . . 6
Kammerer v. Meadowbrook, 456 Mich. 945, 616 N.W.2d 168 (1998), reversing on basis of dissenting opinion, No. 193261, 1997 WL 33353302 (Mich. App. Mar. 11, 1997) . . . . . . . . . 6
Konik v. Anesthesia Associates, 128 A.D.2d 933, 512 N.Y.S.2d 739 (3d Dep't 1987) . . . . . . 15
Laba v. Carey, 29 N.Y.2d 302, 327 N.Y.S.2d 633, 277 N.E.2d 641 (1971) . . . . . . . 12
Lake Steel Erection, Inc. v. Egan, 61 A.D.2d 1125, 403 N.Y.S.2d 387 (4th Dep't 1978) . . . . . . 8, 9
Loctite VSI Inc. v. Chemfab N.Y. Inc., 268 A.D.2d 869, 701 N.Y.S.2d 723 (3d Dep't 2000) . . . . . . . 12
Manchester Techs., Inc. v. Didata Inc., 303 A.D.2d 726, 757 N.Y.S.2d 439 (2d Dep't 2003) . . . . . . . 15
Marlo Beauty Supply, Inc. v. Farmers Insurance Group, 227 Mich. App. 309, 575 N.W.2d 324 (1998) . . . . . 5
Michaels v. Amway Corp., 206 Mich. App. 644, 522 N.W.2d 703 (1994) . . . . . . 15
Muzak Corp. v. Hotel Taft Corp., 1 N.Y.2d 42, 150 N.Y.S.2d 171, 133 N.E.2d 688 (1956) . . . . . 12
Nesbitt v. America Community Mutual Insurance Co., 236 Mich. App. 215, 600 N.W.2d 427 (1999) . . . . . . 5
Pellot v. Pellot, 305 A.D.2d 478, 759 N.Y.S.2d 494 (2d Dep't 2003) . . . . . . 15, 19
Portable Spas Plus, Inc. v. Integrated Software System, Inc., No. 242400, 2003 WL 22976523 (Mich. App. Dec. 18, 2003) . . . . . 14
Progressive Timberlands, Inc. v. R & R Heavy Haulers, Inc., 243 Mich. App. 404, 622 N.W.2d 533 (2000). . . . . . . 5
QQC, Inc. v. Hewlett-Packard Co., 258 F.Supp.2d 718 (E.D.Mich. 2003) . . . . . . . 7
Saldana v. Smith, No. 214282, 2000 WL 33417387 (Mich. App. July 11, 2000) . . . . . . . . 7
Savasta v. 470 Newport Associates, 82 N.Y.2d 763, 603 N.Y.S.2d 821, 623 N.E.2d 1171 (1993) . . . . . . 8
Spry v. The Grand Hotel, No. 181447, 1996 WL 33348731 (Mich. App. Oct. 25, 1996) . . . . . . 6, 7
Suttman v. Nedow, No. 204421, 1999 WL 33454999 (Mich. App. Feb. 2, 1999) . . . . . .9
Townsend v. Chase Manhattan Mortgage Corp., 254 Mich. App. 133, 657 N.W.2d 741 (2003) . . . . 6
Universal Underwriters Group v. Allstate Insurance Co., 246 Mich. App. 713, 635 N.W.2d 52 (2001) . . . . . . 5
Vitale v. Buffalino, No. 230560, 2002 WL 1011761 (Mich. App. May 17, 2002) . . . . . 5, 6, 14
Whitmer v. Johnston, No. 239953, 2003 WL 21958213 (Mich. Ap. Aug. 14, 2003) . . . . . . . 5
Young v. Whitney, 111 A.D.2d 1013, 490 N.Y.S.2d 330 (1st Dep't 1985) . . . . . . . . 8
Zev v. Merman, 73 N.Y.2d 781, 536 N.Y.S.2d 739, 533 N.E.2d 669 (1998) . . . . . . . . 8, 9
STATE STATUTES
N.Y.U.C.C. Section 2-609(4) . . . . . . . . . . 9
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
___________________________
THE SCO GROUP, INC.,
Plaintiff,
v.
DAIMLERCHRYSLER CORPORATION,
Defendant.
__________________________
Civil Action No. 04-056587-CK
Honorable Rae Lee Chabot
__________________________
Joel H. Serlin (P20224)
Barry M. Rosenbaum (P26487)
SEYBURN, KAHN, GINN, BESS AND SIRLIN, P.C.
Attorneys for Plaintiff
[address, phone]
James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
DYKEMA GOSSETT PLLC
Attorneys for Defendant
[address, phone]
__________________________
THE SCO GROUP, INC.'S MEMORANDUM OF LAW
IN OPPOSITION TO DAIMLERCHRYSLER
CORPORATION'S MOTION FOR SUMMARY DISPOSITION
_________________________
Plaintiff The SCO Group, Inc. ("SCO") respectfully submits this Memorandum of Law in Opposition to DaimlerChrysler Corporation's ("Daimler") Motion for Summary Disposition under Michigan Court Rule 2.116(C)(10).
PRELIMINARY STATEMENT
SCO licenses its UNIX computer operating system software and technology to Daimler under a License Agreement that indisputably requires Daimler to provide SCO with a certification of its compliance with the terms of this Agreement. When SCO requested such a certification from Daimler, Daimler failed to provide any response of any kind for 110 days. Indeed, Daimler failed to respond in any way until SCO was forced to bring the present action in an effort to protect its rights. SCO here seeks to hold Daimler to its obligations to timely certify its compliance with the Agreement.
SCO's complaint presents the issue of whether Daimler may unilaterally decide no longer to comply with even the most basic terms of its license -- contractually agreed-upon terms of its license that allow SCO to protect its intellectual property from misuse. If every licensee followed Daimler's course of conduct in declining to provide a timely or adequate certification of compliance, SCO would be required to sue numerous licensees individually just to receive its bargained-for assurances of compliance. The precise purpose of the License Agreement's certification provisions is to avoid that necessity. Daimler's course of conduct thereby eviscerates the very certification rights the License Agreement seeks to protect.
The License Agreement limits Daimler's use of SCO's intellectual property and permits SCO to obtain a certificate of compliance to ensure that Daimler is not misusing that intellectual property. SCO alleges that Daimler breached the License Agreement in the following specific respects: -
Daimler failed to provide a certification within a reasonable period of time and provided its inadequate certification only after SCO had filed this lawsuit -- 110 days after SCO's written request that Daimler provide a certification.
- Daimler still has failed to identify the computers on which Daimler is entitled to use SCO's intellectual property; and
-
Daimler still has failed to certify its full compliance with all of the provisions of the License Agreement.
In response, Daimler in effect contends not only that it can unilaterally determine whether, when, and to what extent it may respond to a certification request, but also that it has no continuing certification obligations -- general or specific -- merely because it alleges that it has unilaterally found a good reason for no longer complying with the License Agreement (in this case, Daimler's claim that it is not using UNIX). If any of Daimler's positions were credited, SCO's thousands of licensees around the world would be entitled to avoid SCO's contractual protections simply by determining that, in their view, there is no longer any need for them to comply with their contractual obligations.
Moreover, Daimler's proffered excuse for non-compliance only highlights why compliance should have been easy, why there was no reason for compliance to have taken 110 days, and why there is no colorable basis for forcing SCO to sue to obtain the simple certification of compliance that Daimler agreed to provide when it entered into the License Agreement. If indeed Daimler is not using UNIX technology, and has not in the past violated the License Agreement's limits on the permitted use of UNIX technology, then Daimler certainly should have had no difficulty producing its contractually required certification sooner than almost four months after SCO's request for certification, and without requiring SCO to commence this action.
Daimler also argues that it should not have been required to provide a "detailed" certification of compliance. However, if Daimler were in compliance, it would be no more difficult to provide a "detailed" certification than any other. In any event, Daimler did not offer to provide any certificate of compliance -- even in the brief form it claims was appropriate. It refused to do so, even though according to what it now tells this Court, it should have been exceptionally easy to provide such a certification within a matter of a few days -- not more than 100 days. Finally, it refused to do so because -- it now tells this Court -- it unilaterally decided it no longer had the obligation to do so. The question here is whether a licensee may make that unilateral determination, thereby eliminating the licensor's express contractual rights and suggesting to licensees around the world that they may do the same.
Daimler nevertheless argues -- before any discovery has been taken -- that it is entitled to summary disposition. The motion lacks any basis under the standards governing summary disposition. The question of whether Daimler's certification was untimely raises issues of fact for the jury. Moreover, although SCO submits that the plain language of the Agreement unambiguously shows that Daimler's certification was also incomplete, that question at the very least presents a fact issue precluding summary disposition in Daimler's favor.
Accordingly, for the foregoing reasons, the Court should deny Daimler's motion.
COUNTER-STATEMENT OF MATERIAL FACTS
The counter-statement of material facts and the factual background to this motion are set forth in the accompanying Affidavit of William Broderick, Director of Software Licensing at SCO, sworn to on June 15, 2004.
ARGUMENT
I. DAIMLER'S MOTION MUST FAIL BECAUSE THERE ARE DISPUTED ISSUES OF MATERIAL FACT AND NO DISCOVERY OF THOSE ISSUES HAS BEEN CONDUCTED
Under Michigan Court Rule ("MCR") 2.116(C)(10), the Court must consider the pleadings, depositions, affidavits, admissions and other documentary evidence submitted by the parties in the light most favorable to the non-moving party. Vitale v. Buffalino, No. 230560, 2002 WL 1011761, at *1 (Mich. App. May 17, 2002) (attached hereto as Appendix A); Progressive Timberlands, Inc. v. R & R Heavy Haulers, Inc., 243 Mich. App. 404, 407, 622 N.W.2d 533, 535 (2000) (the court "must examine all relevant documentary evidence in the light most favorable to the nonmoving party and determine whether there exists a genuine issue of material fact on which reasonable minds could differ.") The Court may not grant summary disposition unless the affidavits or other documentary evidence demonstrate that there is no genuine issue with respect to any material fact. See Universal Underwriters Group v. Allstate Ins. Co., 246 Mich. App. 713, 720, 635 N.W. 2d 52, 56 (2001).
The Court must be "liberal in finding a genuine issue of material fact." Marlo Beauty Supply, Inc. v. Farmers Ins. Group, 227 Mich. App. 309, 320, 575 N.W.2d 324, 329 (1998); Whitmer v. Johnston, No. 239953, 2003 WL 21958213, at *3 (Mich. App. Aug. 14, 2003)(attached hereto as Appendix B). Further, "a trial court must not make findings of fact or weigh credibility." Nesbitt v. Am. Community Mut. Ins. Co., 236 Mich. App. 215, 225, 600 N.W.2d 427, 429 (1999). That is, "when the truth of a material factual assertion depends on credibility, a genuine factual issue exists and summary disposition may not be granted." Id.
In addition, "Generally, a motion for summary disposition under MCR 2.116(C)(10) is premature when discovery on a disputed issue has not been completed." Colista v. Thomas, 241 Mich. App. 529, 537, 616 N.W.2d 249, 254 (2000); see also Spry v. The Grand Hotel, No. 181447, 1996 WL 33348731, at *1 (Mich. App. Oct. 25, 1996) (attached hereto as Appendix C). If further discovery stands a fair chance of uncovering factual support for the opposing party's position, summary disposition cannot be granted. Colista, 241 Mich. App. at 537, 616 N.W.2d at 254; accord Gaines v. Shell Oil Company, No. 218659, 2001 WL 689910 (Mich. App. Apr. 10, 2001) ("In this case, there had been essentially no discovery at all and under the circumstances, there stood a fair chance that the completion of discovery might result in factual support for the plaintiff.") (attached hereto as Appendix D). As the Court of Appeals has held under the circumstances similar to those presented here: In the absence of discovery, we conclude that it was premature to grant summary disposition for plaintiffs' failure to carry this burden. Plaintiffs are entitled to at lease [sic] a modicum of discovery to attempt to oppose summary disposition.
Vitale, 2002 WL 1011761, at *1 (emphasis added).
Accordingly, Michigan courts routinely deny motions for summary disposition made before discovery has begun. See, e.g., Kammerer v. Meadowbrook, 456 Mich. 945, 616 N.W.2d 168 (1998), reversing on basis of dissenting opinion, No. 193261, 1997 WL 33353302, at *6 (Mich. App. Mar. 11, 1997) (attached hereto as Appendix E); Townsend v. Chase Manhattan Mortgage Corp., 254 Mich. App. 133, 140-141, 657 N.W.2d 741, 745-46 (2003); Gaines , 2001 WL 689910, at *3; Saldana v. Smith , No. 214282, 2000 WL 33417387, at *2 (Mich.App.July 11, 2000)(attached hereto as Appendix G): Spry, 1996 WL 3348731, at *1.[1}
Damiler filed its motion for summary disposition with its answer. There has been no discovery in this case. As demonstrated below and in the accompanying Affidavit of William Broderick, Daimler has breached the License Agreement by (i) not responding in a timely manner; (ii) not providing a list of Designated CPUs; and (iii) not certifying its compliance with all provisions of the License Agreement. None of the foregoing issues can be resolved in Daimler's favor on summary disposition.
II. DAIMLER'S UNTIMELY CERTIFICATION CREATES A GENUINE ISSUE OF MATERIAL FACT PRECLUDING SUMMARY DISPOSITION.
The License Agreement does not specify a time period in which certification must be made. Section 2.05 provides: On [SCO's][2] request, but not more frequently than annually, LICENSEE shall furnish to [SCO] a statement, certified by an authorized representative of LICENSEE, listing the location, type and serial number of all DESIGNATED CPUs hereunder and stating that the use by LICENSEE of SOFTWARE PRODUCTS subject to this Agreement has been reviewed and that each such SOFTWARE PRODUCT is being used solely on DESIGNATED CPUs (or temporarily on back-up CPUs) for such SOFTWARE PRODUCTS in full compliance with the provisions of this Agreement. License Agreement, Section 2.05. Based on the absence of any express period in the License Agreement, Daimler argues that, as a matter of law, it did not breach the License Agreement by responding to the SCO Letter after 110 days. Under the well-established law, genuine issues of material fact preclude summary disposition of Daimler's argument.
Where a contract is silent regarding the time for performance, New York law implies a duty to perform within a reasonable time. See Savasta v. 470 Newport Assoc., 82 N.Y.2d 763, 765, 603 N.Y.S.2d 821, 623 N.E.2d 1171 (1993) ("When a contract does not specify time of performance, the law implies a reasonable time.").[3] "What constitutes reasonable time of performance depends upon the facts and circumstances of the particular case." Id. The inquiry requires consideration of (1) the nature and object of the contract, (2) the previous conduct of the parties, (3) the presence or absence of good faith, (4) the experience of the parties, and (5) the possibility of prejudice or hardship to either one. Zev v. Merman, 73 N.Y.2d 781, 536 N.Y.S.2d 739; 533 N.E.2d 669 (1988); accord Lake Steel Erection, Inc. v. Egan, 61 A.D.2d 1125, 112, 403 N.Y.S.2d 387, 389 (4th Dep't 1978). The question of what is a reasonable period of time for performance in a particular contract is a question of fact for the jury. See Young v. Whitney, 111 A.D.2d 1013, 1014, 490 N.Y.S.2d 330, 331 (1st Dep't 1985) ("What is a reasonable time [for performance] is for the jury to determine considering the subject matter of the contract, what the parties contemplated at the time it was entered and the circumstances surrounding performance."); Lake Steel, 61 A.D.2d at 1126, 403 N.Y.S.2d at 389 ("The question of whether performance has been delayed beyond a reasonable time is for the jury.")
Moreover, where "there is no contractual provision making time of the essence, either party may subsequently give notice to that effect so long as the notice is clear, distinct and unequivocal and fixes a reasonable time within which to perform." 76 N. Assoc. v. Theil Mgmt. Corp., 132 A.D.2d 695, 696, 518 N.Y.S.2d 174, 176 (2d Dep't 1987) (finding breach of contract where party failed to perform after receiving notice of 32-day extension of time within which to perform). Thirty days is a commercially reasonable amount of time: the Uniform Commercial Code requires merchants responding to requests for further assurances to do so within thirty days. N.Y.U.C.C. Section 2-609(4). Accordingly, by demanding that Daimler respond to the SCO letter in thirty days, SCO fixed thirty a reasonable time within which Daimler had to perform.
Daimler has proffered no evidence to show that it performed within a reasonable time or that SCO's request to respond within thirty days was unreasonable. The absence of any evidence that Daimler's delay was reasonable precludes a finding that its performance complied with the agreement as a matter of law. See Suttman v. Nedow, No. 204421, 1999 WL 33454999 (Mich. App. Feb. 2, 1999)("In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence.")(attached hereto as Appendix F).
Daimler argues only that the absence of a specific time in the contract allowed it to respond at any time it wanted. Daimler Mem. at 14 n.5. The absence of a specific time period in the License Agreement itself, however, does not mean that Daimler could respond at any time; at a minimum the law required Daimler to respond within a reasonable time. Furthermore, the applicable law permits SCO to specify a time for performance (as it did), provided that its request is reasonable. In light of the law and facts, any argument that thirty days was unreasonable as a matter of law must fail.
If accepted, Daimler's argument would require a party in SCO's position to institute lititgation every time it sought to receive a certification to which it was contractually entitled. Thirty days is more than sufficient time for a licensee to provide the certification requested by SCO if a licensee is in compliance with all the requirements of the License Agreement, there is a policy in place at the licensee that tracks and controls the handling of third-party software, and the licensee's employees are kept informed of the License Agreement's requirements. See Broderick Aff. Paragraph 35.
In addition, SCO acted in good faith in seeking to secure Daimler's compliance with the License Agreement. Daimler complains that SCO never called Daimler after sending the SCO letter, see Daimler Mem. at 5, but the more notable omission was Daimler's failure to make a good-faith attempt to comply with the SCO Requests in a timely fashion. Daimler never even confirmed its receipt of the SCO Requests, much less sought more time to respond.
Daimler's refusal to respond in a timely manner is prejudicial to SCO. There are thousands of UNIX licensees. SCO had made good-faith attempts to contact over 750 of those licensees to secure assurances of their compliance with the terms of their licenses. If each licensee were to disregard the request or unilaterally determine that it may respond whenever it wants, SCO would have to spend extraordinary resources and potentially commence hundreds of court actions to enforce its rights. It would be impracticable and costly for SCO to have to sue each licensee to obtain basic assurances of performance. See Broderick Aff. Section 39. In contrast, Daimler can identify no prejudice in having to respond to SCO's reasonable requests within thirty days. It is undisputed that Daimler did not respond to the SCO Letter within the thirty days requested by SCO. Because the reasonableness of SCO's requested time in which to certify is a question of fact for the jury, summary disposition is inappropriate.
III. DAIMLER'S FAILURE TO PROVIDE A LIST OF DESIGNATED CPUs CREATES A DISPUTED ISSUE OF MATERIAL FACT PRECLUDING SUMMARY DISPOSITION
Daimler's motion is further premised on its claim that it provided a full and adequate certification in compliance with section 2.05 of the License Agreement. Daimler's own admissions and documents, however, demonstrate that it failed to provide a certified list of Designated CPUs as required by Section 2.05.
Section 2.05 provides, in part, that Daimler "shall furnish to [SCO] a statement certified by an authorized representative of Licensee, listing the location, type and serial number of all Designated CPUs hereunder."[4] Daimler admits that it was required to provide a certified list of Designated CPUs. See Daimler Mot. at 10, 11 n.3. However, instead of certifying such a list, the Daimler Response states that
there is no DESIGNATED CPU, or any CPU, on which the SOFTWARE PRODUCT licensed under the subject Agreement is being used. This has been the case for more than seven years. As a result, no list of the location, type and serial number of any DESIGNATED CPU is relevant or possible. Daimler now simply argues that it "provide[d] SCO with the required information about Designated CPUs (explaining that none are in use)." Daimler Mem. at 14.
No language in Section 2.05 allows Daimler to avoid its obligation to certify a list of Designated CPUs by stating that none are currently in use, see Broderick Aff. Paragraph 44, and Daimler provides no evidence for such an interpretation. Daimler's interpretation runs counter to the language of Section 2.05, its own admissions of what it required under Section 2.05, and the overall structure of the License Agreement.
Daimler's interpretation of Section 2.05 is unreasonable because there is a separate provision of the License Agreement that expressly provides for a certification of non-use. Section 6.02 provides a mechanism for Daimler to terminate the License Agreement if it certifies that it has discontinued use of UNIX and has returned or destroyed all copies of UNIX. Daimler made no attempt to comply with the requirements of Section 6.02. See Broderick Aff. Paragraphs 45-46. Accordingly, if Daimler wanted to terminate its obligation to certify a list of Designated CPUs based on discontinued use of UNIX, it was required to follow the procedures specified in Section 6.02.
Were Daimler allowed to respond to Section 2.05 by merely asserting its non-use of UNIX, Section 6.02 would be rendered meaningless. Daimler's interpretation contravenes well-established rules of contract interpretation that require a contract to be construed so as to give meaning to all its provisions and to avoid interpretations that render particular provisions meaningless. See Muzak Corp. v. Hotel Taft Corp., 1 N.Y.2d 42, 46, 150 N.Y.S.2d 171, 174, 133 N.E.2d 688, 690 (1956); Laba v. Carey, 29 N.Y.2d 302, 308, 327 N.Y.S.2d 613, 618, 277 N.E.2d 641, 644 (1971); see also Loctite VSI Inc. v. Chemfab N.Y. Inc., 268 A.D.2d 869, 871, 701 N.Y.S.2d 723, 725 (3d Dep't 2000) ("courts should adopt an interpretation of a contract which gives meaning to every provision of the contract, with no provision left without force and effect.")
Although the plain meaning of Section 2.05 should end the issue in SCO's favor, Daimler is incorrect in asserting that no purpose would be served by its compliance with its obligation to provide SCO with a list of Designated CPUs. One of SCO's most important assets is the intellectual property consisting of its UNIX technology. SCO implements significant measures to ensure its control over the dissemination of that intellectual property and its ability to generate revenue from such intellectual property. One such measure is requiring that licensees identify the specific computer on which they will install and use the UNIX technology. See Broderick Aff. Paragraphs 47-58.
By requiring licensees to identify CPUs running UNIX, the License Agreement seeks to ensure that licensees themselves control the use and dissemination of UNIX technology. If a licensee does not know which computers are licensed for UNIX technology, it is difficult, if not impossible, for that licensee to ensure that the technology was properly maintained and controlled, rather than copied, transferred, or removed by a departing employee in violation of the terms of the License Agreement. In addition, part of the UNIX license fee is based on the number of CPUs on which a licensee installs SCO's UNIX technology. By imposing additional costs per Designated CPU, the License Agreement provides further incentives for licensees to control the dissemination of UNIX technology. Finally, requiring licensees to track and notify SCO of the Designated CPUs also permits SCO to properly earn a fair revenue stream from a licensee's use of UNIX technology. See Broderick Aff. Paragraphs 50-53. Apparently, Daimler was fully aware of its responsibility to maintain current and accurate identifications: it twice updated its Designated CPUs through supplements to the License Agreement. See Broderick Aff. Paragraphs 54-57 & Exhibits D and E.
Daimler's failure to certify a list of Designated CPUs is independently sufficient proof to defeat Daimler's motion for summary disposition. Construing all the evidence in SCO's favor, as is required, see Vitale, 2002 WL 101176 at *1, the Court cannot find that Daimler fully complied with Section 2.05.[5]
IV. DAIMLER'S REFUSAL TO CERTIFY ITS COMPLIANCE WITH ALL OF ITS OBLIGATIONS UNDER THE LICENSE AGREEMENT CREATES A GENUINE ISSUE OF MATERIAL FACT PRECLUDING SUMMARY DISPOSITION.
Daimler further incorrectly argues that the License Agreement did not authorize SCO to require Daimler to certify its compliance with the several specific items listed in the SCO Requests. See Daimler Mem. at 8-13. SCO submits that the language of the Agreement unambiguously precludes Daimler's interpretation. See Broderick Aff. Paragraphs 59-61. At a minimum, because the License Agreement does not unambiguously support Daimler's interpretation, the Court must deny Daimler's motion.
The primary goal in the interpretation of contracts is to determine the intention of the parties. See Allied Clove lakes Co. v. Demisay, 74 A.D.2d 466, 468, 428 N.Y.S.2d 460, 461 (1st Dep't 1980); accord Portable Spas Plus, Inc. v. Integrated Software Sys., Inc., No. 242300, 2003 WL 22976523, at *5 (Mich. App. Dec. 18, 2003) (attached hereto as Appendix H). Ambiguous contractual language precludes the Court from determining the parties' intent on summary disposition. That is,
in the context of a summary disposition motion, a trial court may determine the meaning of the contract only when the terms are not ambiguous. A contract is ambiguous if the language is susceptible to two or more reasonable interpretations. In an instance of contractual ambiguity, factual development is necessary to determine the intent of the parties and summary disposition is inappropriate.
D'Avanzo v. Wise & Marsac, PC, 223 Mich. App. 314, 319, 565 N.W.2d 915 (1997) (internal citations omitted); see also Michaels v. Amway Corp., 206 Mich. App. 644, 649, 522 N.W.2d 703, 706 (1994) ("If the terms are ambiguous, a factual development is necessary to determine the intent of the parties, and summary disposition is inappropriate.") The same rules apply under New York law. See Manchester Techs., Inc. v. Didata Inc., 303 A.D.2d 726, 757 N.Y.S.2d 439 (2d Dep't 2003)("While the meaning of the contract is ordinarily a question of law, when a term or clause is ambiguous and the determination of the parties' intent depends upon the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence, then the issue is one of fact.") That is, "where the language used is ambiguous and admits of different reasonable interpretations, it creates a factual question that cannot be determined on a motion for summary judgement." Konik v. Anesthesia Assoc., 128 A.D.2d 933, 934, 512 N.Y.S.2d 739 (3d Dep't 1987)); see also Pellot v. Pellot, 305 A.D.2d 478, 481, 759 N.Y.S.2d 494 (2d Dep't 2003)("Where the language of a contract is susceptible to varying but reasonable interpretations, the parties may submit extrinsic evidence as an aid in construction, and the resolution of the ambiguity is for the trier of fact.")
Daimler goes to great lengths to argue that Section 2.05 is unambiguous and that it did not compel Daimler to certify compliance with the License Agreement. SCO submits that Section 2.05 is indeed unambiguous -- but not in favor of Daimler's motion. Section 2.05 (quoted in full in Part II, above) requires Daimler to certify that "each such SOFTWARE PRODUCT is being used solely on DESIGNATED CPUs (or temporarily on back-up CPUs) for such SOFTWARE PRODUCTS in full compliance with the provisions of this Agreement." License Agreement, Section 2.05 (emphasis added). Section 2.05 thus plainly requires a certification that Daimler is in full compliance with "the provisions" of the License Agreement. Such provisions include the requirement that Daimler not export UNIX to certain countries (Section 4.01), that Daimler not assign UNIX (Section 7.08), that Daimler maintain the confidentiality of UNIX (Section 7.05(a)), that Daimler appropriately notify its employees about the confidentiality requirements (Section 7.05(a)), and that Daimler not transfer UNIX in any manner (Section 7.08).
Daimler acknowledges that it must provide a certification that its use of UNIX technology is in "full compliance with the contract." Daimler Mem. at 11. Nonetheless, instead of unconditionally certifying its full compliance with the provisions of the License Agreement, the Daimler Response states that Daimler has not used UNIX in seven years "and as a result [Daimler] is in full compliance with the provisions of the subject Agreement." Broderick Aff. Paragraph 42 & Exhibit C (emphasis added). By this self-limiting premise, the Daimler Response fails to certify compliance either with the License Agreement's restrictions on export, transfer, and assignment of UNIX, or with its confidentiality provisions. See id. Paragraph 66. Daimler has not certified its full compliance with the License Agreement; it has merely substituted an inadequate conditional statement.
It does not -- and cannot -- follow that because Daimler (allegedly) has discontinued using UNIX, it is in full compliance with the License Agreement. Indeed, Daimler's obligation to maintain the confidentiality of UNIX survives the discontinued use and even termination of the Agreement. See Broderick Aff. Paragraphs 45-46 & Exhibit A, Sections 6.09, 7.06. Thus, regardless of its current use of UNIX, Daimler must abide by the confidentiality provisions of Section 7.05(a) and must certify that it is currently doing so.
The SCO Requests each track a provision of the License Agreement or are directly derived from a provision of the License Agreement. For example, SCO Requests 1 and 2 directly track the confidentiality obligations of Section 7.05(a). Request 2 also seeks evidence of the compliance with the confidentiality obligations and suggests, but does not demand, what types of evidence may be available. Requests 3 and 4 track and combine the obligations of Sections 2.01, 2.02, 2.06 and 7.07. Because SCO believes UNIX technology is being used in Linux, it specifically asks Daimler about such use. Request 5 directly tracks Section 4.01. Request 6 directly tracks Section 7.09, and Request 7 directly tracks Section 7.08. Because the transfer of UNIX source code to Linux is relevant to the crucial issue of the unauthorized use of SCO's intellectual property, SCO asks Daimler directly about Linux.[6] See Broderick Aff. Paragraph 61.
Compliance with the certification provisions of the License Agrement and specifically the SCO Requests has taken on particular significance because of SCO's licensees' conduct. Daimler and its employees, engineers and technicians have had access to and gained an understanding of UNIX and of inner workings. In doing so, they have obtained intimate knowledge of the UNIX source code and the methods and concepts contained therein -- the intellectual property that the License Agreement seeks to protect. See Broderick Aff. Paragraphs 62-63. For over fifteen years, Daimler employees have used this knowledge to modify UNIX to meet Daimler's commercial needs. Id. Paragaph 64. Daimler and numerous other licensees have publicly stated that they now use (and have been using) Linux, a product that SCO contends wrongfully incorporates its property rights in UNIX. Id. Paragraphs 64-65.
Section 2.05 is precisely the type of vehicle that enables licensors such as SCO to secure assurances that their property rights are being protected in accordance with the terms of their license agreements. It is the most practical way for SCO to monitor and to ensure that its numerous licensees are complying with the terms of their licenses. Id. Paragraph 38. When SCO believes that there has been a specific breach, such as that related to Linux, it must be able to inquire about it. To allow Daimler merely to assert that is has complied with Section 2.05 without certifying compliance with the restrictions on the permitted use of UNIX technology would deprive SCO of the meaningful assurances to which it is entitled under the License Agreement.
Daimler's certification that it is not currently using UNIX says nothing about whether it exported UNIX, whether it assigned UNIX, whether it transferred UNIX or any derivation of UNIX, or whether it properly maintained the confidentiality of UNIX and provided the appropriate notification to its employees regarding these confidentiality obligations. See Broderick Aff. Paragraph 66. All of these obligations arise from provisions of the License Agreement -- to which Daimler must certify its compliance. SCO contends that the intent of Section 2.05 is to allow the licensor adequate assurances and certifications that the licensee is performing "in full compliance" with the contract. The language of Section 2.05 is not so clear and plain as to allow only for Daimler's interpretation -- and SCO submits that the plain language provides otherwise. In no event is summary disposition warranted.
Indeed, to the extent the provision is ambiguous, discovery would shed further light on the technological context in which the License Agreement was executed, the uses of UNIX at the time of contracting, the uses of UNIX now, and the advent of the commercialization of Linux based on UNIX. Such discovery would further demonstrate why an empty certification is insufficient and is not what is required under the License Agreement. See D'Avanzo, 223 Mich. App. at 319, 565 N.W.2d 915; Pellot, 305 A.D. 2d at 481, 759 N.Y.S.2d 494.
Construing all facts and inferences in SCO's favor, the Court cannot conclude that Daimler's self-limited certification complies as a matter of law with its obligations under Section 2.05. Instead, the final interpretation of the parameters of Section 2.05 must await further factual development through discovery. Because no such discovery has yet been conducted, summary disposition on this issue is particularly inappropriate.
CONCLUSION
For the foregoing reasons, SCO respectfully requests that the Court deny Daimler's motion in all respects.
Dated: June 16, 2004
Respectfully submitted,
SEYBURN, KAHN, GINN, BESS AND SERLIN, P.C.
By: ____[signature]______
Joel H. Serlin (P20224)
Barry M. Rosenbaum (P26487)
Attorneys for Plaintiff
[address, phone]
Stephen N. Zack, Esq.
Mark J. Heise, Esq.
Co-Counsel for Plaintiff
Boies, Schiller & Flexner LLP
[address, phone]
Robert Silver
Boies, Schiller & Flexner LLP
Co-Counsel for Plaintiff
[address]
1. Daimler argues that there is no case or controversy because, in Daimler's view, there is no breach. See Daimler Me. at 16. Daimler is mistaken. In Daimler's hypothetical, the case would fail for want of an element of the claim. But even Daimler does not contest its obligation to provide a certification. In asking the Court to determine the requisite timing and scope of that required certification, SCO has plainly presented a case and controversy. SCO is entitled (for example) to a declaration that sets forth the parties' rights and obligations related to the certification requirement under the License Agreement. See QQC, Inc. v. Hewlett-Packard Co., 258 F.Supp.2d 718, 724-25 (E.D. Mich. 2003)("'where there is controversy as to the meaning and effect of a written contract, interpretation may be sought from and made by the declaratory judgment'" (quoting Panhandle E.Pipe Line Co. v. Mich. Consol. Gas Co., 177 F.2d 942, 944 (6th Cir. 1949)); Allstate Ins. Co. v. Hayes , 442 Mich. 56, 70, 499 N.W.2d 743, 749 (1993) (federal precedent on declaratory judgments relevant to declaratory judgments in state court).
2. "SCO" is substituted for "AT&T" throughout the quotations of the Licensing Agreement herein because SCO is AT&T's successor-in-interest to the license as well as the intellectual property rights protected therein. See Broderick Aff. at 3 n.1.
3. Section 7.12 of the Licensing Agreement provides that New York law governs its construction as well as issues relating to performance under the Agreement. Daimler does not suggest otherwise.
4. The License Agreement defines CPUs as computer central processing units identified for the use of UNIX under the License Agreement. The Daimler Response expressly adopts this definition. See Broderick Aff. Paragraphs 40-42.
5. At a minimum, Daimler's failure to fulfill the CPU listing requirement presents a question of fact as to whether a licensee's repudiation of that requirement can ever be justified and was justified in this case. Further factual development through discovery may assist the trier of fact in resolving this issue.
6. Daimler argues that if the parties to the License Agreement had intended to require certification regarding the use of UNIX technology in Linux, they would have included such language in Section 2.05. Daimler Mem. at 12. This is mistaken. It was not until well after 1988, when the License Agreement was signed, that Linux came into existence and even later that Linux became a commercial platform capable of replacing UNIX. Broderick Aff. Paragraph 26. Neither Daimler nor SCO drafted the License Agreement, and neither party, nor the original licensor and licensee, could have contemplated the use of Linux at that time.Id. Where the parties did not contemplate the use of the new technology at the time of executing the contract, their intent must be gleaned from a broader reading of the contract and from the natural implications of the language. See, e.g., Abkco Music, Inc. v. Westminster Music, Ltd., 838 F. Supp. 153 (S.D.N.Y. 1993) (whether contract providing licensee "all rights" in copyrighted songs applied to newly developed technologies was question of fact for the jury).
The SCO Requests that relate to Daimler's use of Linux are the natural outgrowth of the requirement that Daimler comply with the other provisions in the License Agreement and certify that adherence. Daimler has agreed not to assign, transfer, or dispose of UNIX, or to use it for the benefit of others. See Broderick Aff. Paragraph 18 & Exhibit A, Sections 2.06, 4.01, 7.08 and 7.09. Daimler has agreed to maintain the confidentiality of UNIX and notify all of its employees of their confidentiality obligations. See Broderick Aff. Paragraph 16. Therefore, the SCO Requests do not seek to impose new obligations, but merely request that Daimler certify that it has complied with its existing obligations in connection with Linux. See Broderick Aff. Paragraphs 31-32 & Exhibit C.
|
|
|
|
| Authored by: Anonymous on Tuesday, June 29 2004 @ 04:44 AM EDT |
Did you mean "Javert", the obsessed detective from Les Miserables, in
the last line of paragraph 3? I could find no relevant reference to
"Jauvert" - your spelling, however "Javert" fits.[ Reply to This | # ]
|
- Corrections here - Authored by: Anonymous on Tuesday, June 29 2004 @ 05:24 AM EDT
- credability - Authored by: Anonymous on Tuesday, June 29 2004 @ 05:28 AM EDT
- credability - Authored by: Anonymous on Wednesday, June 30 2004 @ 02:47 PM EDT
- Corrections here - Authored by: moonbroth on Tuesday, June 29 2004 @ 05:35 AM EDT
- Corrections here - Authored by: moonbroth on Tuesday, June 29 2004 @ 05:37 AM EDT
- Corrections here - Authored by: Anonymous on Tuesday, June 29 2004 @ 05:38 AM EDT
- Corrections here - Authored by: moonbroth on Tuesday, June 29 2004 @ 05:46 AM EDT
- Corrections here - Authored by: moonbroth on Tuesday, June 29 2004 @ 05:49 AM EDT
- Corrections here - Authored by: Anonymous on Tuesday, June 29 2004 @ 08:02 AM EDT
- Greedo - Authored by: Anonymous on Tuesday, June 29 2004 @ 09:04 AM EDT
- Corrections here - Authored by: Maserati on Tuesday, June 29 2004 @ 10:01 AM EDT
- cloven - Authored by: Anonymous on Tuesday, June 29 2004 @ 09:29 AM EDT
- cloven - Authored by: ebacon on Tuesday, June 29 2004 @ 09:49 AM EDT
- cloven - Authored by: archonix on Tuesday, June 29 2004 @ 11:45 AM EDT
- Javert - Authored by: Anonymous on Tuesday, June 29 2004 @ 09:52 AM EDT
- Javert - Authored by: moonbroth on Tuesday, June 29 2004 @ 10:11 AM EDT
- Javert - Authored by: Anonymous on Wednesday, June 30 2004 @ 01:37 AM EDT
- Javert - Authored by: Anonymous on Tuesday, June 29 2004 @ 03:42 PM EDT
- Javert - Authored by: bpmann on Tuesday, June 29 2004 @ 07:39 PM EDT
- Corrections here - Authored by: Anonymous on Tuesday, June 29 2004 @ 10:07 AM EDT
- Corrections here - Authored by: Anonymous on Tuesday, June 29 2004 @ 10:54 AM EDT
- Corrections here - Authored by: PJ on Tuesday, June 29 2004 @ 10:58 AM EDT
- PJ, I'm surprised... - Authored by: jbeadle on Tuesday, June 29 2004 @ 01:08 PM EDT
| |
| Authored by: moonbroth on Tuesday, June 29 2004 @ 04:53 AM EDT |
So they're all handy in the same place. Try to make clickable links:
<a href="http://www.groklaw.net>GrokLaw</a>, using the HTML
Formatted post mode. [ Reply to This | # ]
|
- Story about indemnification, PJ quoted at the end. - Authored by: Anonymous on Tuesday, June 29 2004 @ 04:56 AM EDT
- Off-Topic - SuSe Linux - Authored by: Anonymous on Tuesday, June 29 2004 @ 06:11 AM EDT
- Off-Topic - SuSe Linux - Authored by: Greebo on Tuesday, June 29 2004 @ 07:04 AM EDT
- Off-Topic - Buying SuSe Linux - Authored by: Anonymous on Tuesday, June 29 2004 @ 09:47 AM EDT
- Off-Topic - Buying SuSe Linux - Authored by: Anonymous on Tuesday, June 29 2004 @ 10:50 AM EDT
- Off-Topic - Buying SuSe Linux - Authored by: moonbroth on Tuesday, June 29 2004 @ 12:00 PM EDT
- Good luck with 9.1 Pro, you'll need it! - Authored by: ray08 on Tuesday, June 29 2004 @ 12:22 PM EDT
- Good luck with 9.1 Pro, you'll need it! - Authored by: Philip Stephens on Tuesday, June 29 2004 @ 01:50 PM EDT
- Good luck with 9.1 Pro, you'll need it! - Authored by: Philip Stephens on Tuesday, June 29 2004 @ 01:51 PM EDT
- Good luck with 9.1 Pro, you'll need it! - Authored by: jbeadle on Tuesday, June 29 2004 @ 02:36 PM EDT
- Good luck with 9.1 Pro, you'll need it! - Authored by: Anonymous on Tuesday, June 29 2004 @ 05:25 PM EDT
- Good luck with 9.1 Pro, you'll need it! - Authored by: oldgreybeard on Tuesday, June 29 2004 @ 06:24 PM EDT
- Good luck with 9.1 Pro, you'll need it! - Authored by: Anonymous on Wednesday, June 30 2004 @ 11:00 AM EDT
- Off-Topic - SuSe Linux - Authored by: bb5ch39t on Tuesday, June 29 2004 @ 09:40 AM EDT
- Off-Topic - SuSe Linux - Better Than Novell's Link - Authored by: Weeble on Tuesday, June 29 2004 @ 12:21 PM EDT
- Mandrake does the job for me - Authored by: Anonymous on Wednesday, June 30 2004 @ 12:12 PM EDT
- OT - BoiseWatch - Authored by: Anonymous on Tuesday, June 29 2004 @ 07:19 AM EDT
- Off-Topic [OT] URLs and comments here, please - Authored by: rmorrish on Tuesday, June 29 2004 @ 10:08 AM EDT
- Nope, like this: - Authored by: Anonymous on Tuesday, June 29 2004 @ 11:27 AM EDT
- SCO doesn't agree with Solaris Open Sourcing - Authored by: Anonymous on Tuesday, June 29 2004 @ 10:45 AM EDT
- OT -- COPA blocked by SCOTUS - Authored by: surak on Tuesday, June 29 2004 @ 11:45 AM EDT
- OT - Court issues order to port non-portable IP space? - Authored by: Arker on Tuesday, June 29 2004 @ 11:58 AM EDT
- Was Off-Topic: for the budding webmasters - Authored by: Anonymous on Tuesday, June 29 2004 @ 02:10 PM EDT
- Australian politicians repeating Gates 'addiction' comments - Authored by: Anonymous on Tuesday, June 29 2004 @ 02:23 PM EDT
- Eweek has lots on Sun's future plans, a must-read - Authored by: ray08 on Tuesday, June 29 2004 @ 02:29 PM EDT
- Sun's schedule - Authored by: Anonymous on Tuesday, June 29 2004 @ 02:59 PM EDT
- Sun's schedule - Authored by: Anonymous on Tuesday, June 29 2004 @ 07:42 PM EDT
- [OT] - Sun's Real Intentions - Authored by: Anonymous on Tuesday, June 29 2004 @ 02:29 PM EDT
- Time Lines - Authored by: Anonymous on Tuesday, June 29 2004 @ 06:09 PM EDT
- Bloor Research - Linux will be dominant server OS - Authored by: Anonymous on Wednesday, June 30 2004 @ 05:37 AM EDT
- eBay - Authored by: Anonymous on Wednesday, June 30 2004 @ 07:53 AM EDT
- ..."but George W, how _could_ you?" ;-) - Authored by: Anonymous on Wednesday, June 30 2004 @ 11:53 AM EDT
- MA court of appeals castrates wiretap law - Authored by: gdeinsta on Wednesday, June 30 2004 @ 12:20 PM EDT
- EFF lists patents it will challenge - Authored by: gdeinsta on Wednesday, June 30 2004 @ 12:32 PM EDT
- Off-Topic [OT] URLs and comments here, please - Authored by: Anonymous on Wednesday, June 30 2004 @ 01:05 PM EDT
- MS antitrust appeal denied - where do we find ruling - Authored by: Anonymous on Wednesday, June 30 2004 @ 05:24 PM EDT
- Off-Topic [OT] URLs and comments here, please - Authored by: Anonymous on Wednesday, June 30 2004 @ 07:54 PM EDT
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 04:54 AM EDT |
| Ta. [ Reply to This | # ]
|
| |
| Authored by: jobsagoodun on Tuesday, June 29 2004 @ 04:55 AM EDT |
"But we believe 2+2=5 - so there is a dispute of fact."
I do hope this gets dismissed. Even if they can appeal, dismissal will knock
some wind out of them.
[ Reply to This | # ]
|
| |
| Authored by: Tomas on Tuesday, June 29 2004 @ 05:27 AM EDT |
*twitch*
I'm sorry, but I got to the following from SCO in the document:
"No language in Section 2.05 allows Daimler to avoid its obligation to
certify a list of Designated CPUs by stating that none are currently in
use..." *twitch*
and could go no further. *twitch*
There appears to some sort of, uh, "gap" in the logic function that
came up with that statement. My mind is unable to comprehend *twitch* this
statement and could determine no way to attempt *twitch* understanding of other
statements from such a mind.
I do hope the judge puts this suit out of it's misery as soon *twitch* as
possible.
---
Tom
Engineer (ret.)
"Friends don't let friends use Microsoft."[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 05:32 AM EDT |
Er... Am I the only one thinking that this motion
is propably the most
surreal we have seen yet?
I mean... just look at this :
Section 2.05 provides, in part, that Daimler "shall
furnish to [SCO] a
statement certified by an authorized
representative of Licensee, listing the
location, type and
serial number of all Designated CPUs hereunder."[4]
Daimler admits that it was required to provide a certified
list of
Designated CPUs. See Daimler Mot. at 10, 11 n.3.
However, instead of
certifying such a list, the Daimler
Response states that
there is no DESIGNATED CPU, or any CPU, on which the
SOFTWARE PRODUCT licensed under the subject Agreement is
being used. This
has been the case for more than seven
years. As a result, no list of the
location, type and
serial number of any DESIGNATED CPU is relevant or
possible.
SCO : give me the list
of all the CPUs!
DC : okay : there is none
SCO : "none" is not
a list! Me want a list!
Ah Ah Ah! This is a disputed fact! He He!
Am I still dreaming or what? How can lawyer reasonnably
write such nonsense? And even worse : how can a judge
take this seriously?
NNP
[ Reply to This | # ]
|
- Car analogy - Authored by: gibodean on Tuesday, June 29 2004 @ 05:52 AM EDT
- Reality check - Authored by: Anonymous on Tuesday, June 29 2004 @ 06:02 AM EDT
- Reality check - Authored by: Anonymous on Tuesday, June 29 2004 @ 06:05 AM EDT
- Reality check - Authored by: Anonymous on Tuesday, June 29 2004 @ 06:12 AM EDT
- Reality check - Authored by: jmc on Tuesday, June 29 2004 @ 07:15 AM EDT
- Reality check - Authored by: VivianC on Tuesday, June 29 2004 @ 12:55 PM EDT
- Reality check - Authored by: Anonymous on Wednesday, June 30 2004 @ 08:21 AM EDT
- Reality check - Authored by: Anonymous on Tuesday, June 29 2004 @ 09:17 PM EDT
| |
| Authored by: Trithemius on Tuesday, June 29 2004 @ 06:15 AM EDT |
Quick thought/question:
Section 2.05 - On AT&T-IS'S request,
but not more frequently than annually, LICENSEE shall furnish to AT&T-IS a
statement, certified by an authorized representative of LICENSEE, listing the
location, type and serial number of all DESIGNATED CPUs hereunder and stating
that the use by LICENSEE of of SOFTWARE PRODUCTS subject to this Agreement has
been reviewed and that each such SOFTWARE PRODUCT is being used solely on
DESIGNATED CPUs (or temporarily on back-up CPUs) for such SOFTWARE PRODUCTS
in full compliance with the provisions of this
Agreement.
Might that last bit give them a loophole to jump
through? They can interpret the rest of the "agreement" any way they like, then
use this snippet of sentence to make sure that everyone is marching in line? [ Reply to This | # ]
|
| |
| Authored by: Totosplatz on Tuesday, June 29 2004 @ 06:19 AM EDT |
Just replace the text
unilaterally decide no longer to comply with
even the most basic terms of its license
with the
text
unilaterally decide no longer to use the licensed
product
and I think you'll agree there's now no remaining reason for
outrage. To me this case is by far the most Wonderland-ish of them
all! ---
All the best to one and all. [ Reply to This | # ]
|
| |
| Authored by: blacklight on Tuesday, June 29 2004 @ 06:35 AM EDT |
I don't see anywhere in SCOG's pleading that they sent their letters to the
wrong address, but mentioning that would degrade their stream of b.s.
SCOG is pursuing their loser of a suit, mainly because they want to see if they
are going to get anything from their crapshoot: if they expect to get terms
beyond the current terms of their license, they'll continue. On the other hand,
I expect SCOG to drop their lawsuit like a hot potato the minute they think they
are not getting anything they want and the judge starts saying something
negative. I don't expect SCOG's interpretation of its license to stand up in
court, because it is so unreasonable that it needs to be struck down.[ Reply to This | # ]
|
| |
| Authored by: blacklight on Tuesday, June 29 2004 @ 06:42 AM EDT |
This pleading is a useful reminder to me as to who the bad guys are, and as to
why we want them out of business, and they and their sponsors destroyed.[ Reply to This | # ]
|
| |
| Authored by: jacks4u on Tuesday, June 29 2004 @ 06:48 AM EDT |
If DC quit using UNIX 7 or more years ago, Why hasn't SCO or it's predicessors
in intrest pursued certification from DC in the past?
IMHO, this is estoppel by latches - that is, SCO is trying to claim, at a late
date that DC has not lived up to it's end of the contract, 7 years after
abandoning the product covered by that contract. If there was a problem, surely
they would have let DC know about it prior to this. And so, DC's possition has
been compromised by SCO (or predicessors) inaction and lack of due diligence?
In some ways, this would be like the guy that knows you built part of your house
on his property, and does nothing about it for 7 years, then when the price of
land goes up, sues you in court.
Only it can be re-worded like this:
for 7 years SCO knew about DC's lack of certification, and did nothing. Only
when they calculated they could gain financial, contractual, or legal advantage,
did they pursue administrative and ultimately legal relief.
jacks4u
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 07:05 AM EDT |
| We know there are Operating Systems of Mass IP Violation at
Daimler-Chrysler. It is not sufficient that they claim to have dismantled or
destroyed all their OSMIVs seven years ago; they must provide a complete
and verifiable statement of exactly when and how to our inspectors.
Any errors or omissions will have Serious Consequences. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 07:07 AM EDT |
"And for any out there who think licenses don't matter and you should
choose software strictly on the basis of which is technically the best for your
needs, you might want to revisit that concept in the light of current
events."
This is why I think most TCO studies are flawed. Unless your freedom is worth
nothing, the cost of a non-free licence (think BSA, SCO, Microsoft upgrade
licencing schemes, etc) is rather more than the purchase price.
Indeed, some people would argue that freedom is priceless, which makes un-free
software an absolute non-starter on TCO grounds alone.
[ Reply to This | # ]
|
| |
| Authored by: Greebo on Tuesday, June 29 2004 @ 07:12 AM EDT |
| Maybe i'm not as well read as PJ...
Who wants to deal with
Jauvert?
Who is PJ refering too here? The first hit in Yahoo for
this name is for a Ms Tatiana
Jauvert, Professional Conference Interpreter, but somehow i don't think she
is who PJ is refering too
here!
Greebo. ---
-----------------------------------------
Recent Linux Convert and Scared Cat Owner [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 07:15 AM EDT |
Okay, now I am not a lawyer, but EVEN I can see that the following paragraph is
absolute rubbish. I mean, you can bend logic, but claiming that 1+1 = 4.7 !??
Maybe the real explanation for this is that they would rather be in a mental
institute than in prison?
"In any event, Daimler did not offer to provide any certificate of
compliance -- even in the brief form it claims was appropriate. It refused to do
so, even though according to what it now tells this Court, it should have been
exceptionally easy to provide such a certification within a matter of a few days
-- not more than 100 days. Finally, it refused to do so because -- it now tells
this Court -- it unilaterally decided it no longer had the obligation to do so.
The question here is whether a licensee may make that unilateral determination,
thereby eliminating the licensor's express contractual rights and suggesting to
licensees around the world that they may do the same."[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 07:15 AM EDT |
What an evil malicious piece of noxious nastiness this is. It makes me angry
just reading it. This document should be handled at all times with thick gloves
and long handled tongs and examined only through a welding visor. The sheer
maliciousness of it all is just oozing out of every paragraph.
Question:
Isn't there something in the APA that lets Novell step in and tell SCO to do
stuf with UNIX licensees, and if SCO refuses to do so, to directly deal with
them directly? I seem to remember something like this came up with regard to
SCOs purported `cancellation' of IBMs irrevocable license.
Could this be used with regard to DC? DC just plain don't deserve to be ambushed
like this by vile scum like SCO.[ Reply to This | # ]
|
| |
| Authored by: codswallop on Tuesday, June 29 2004 @ 07:22 AM EDT |
DCs certification is in full compliance with the old form. There is nothing in
the agreement that requires DC to notify AT&T about the removal of a CPU
from the list. There is nothing that says the list can't have 0 members.
The only flaw is saying "as a result", but this isn't grounds for a
lawsuit. Absent a request for clarification, this has to be constured in DC's
favor. So section III is vacuous.
Section IV is no better. The agreement contains this section:
4. This Agreement and its Supplements set forth the entire agreement and
understanding between the parties as to the subject matter hereof and merge all
prior discussions between them, and neither of the parties shall be bound by any
conditions, definitions, warranties, understandings or representations with
respect to such subject matter other than as expressly provided herein or as
duly set forth on or subsequent to the date of acceptance hereof in writing and
signed by a proper and duly authorized representative of the party to be bound
thereby. No provision appearing on any form originated by LICENSEE shall be
applicable unless such provision is expressly accepted in writing by an
authorized representative of AT&T.
This makes the agreement an integrated contract, which is fairly immune from
parol evidence. SCO can't undertake their testimony circus. Even more important,
it says that the parties shall not be bound by conditions or definitions outside
the written agreement. SCO's changed certification fits the bill.
The only case SCO have is the delay in responding. The judge may decide it's de
minimis if the rest of the claims get trashed. In any case this only entitles
them to discovery regarding customary delays in response in the automobile and
software industries, not regarding DC's use of Linux. There's no controversy.
SCO's copyrights are now under a cloud. Any action on Linux will have to wait
for SCO v. Novell (and a much better lawsuit).
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 07:37 AM EDT |
| because you *know* you are one. [ Reply to This | # ]
|
| |
| Authored by: Powerin on Tuesday, June 29 2004 @ 07:37 AM EDT |
PJ wrote: Watch out what you agree to sign. That's the lesson.
The problem is with a lot of consumer grade software you supposedly
agree to the license just by breaking the seal on the box. You don't even get to
see the license before you agree to it let alone sign it...it's inside the
box!
Has this practise ever been tested in court? Can someone really say
you legally agree to a license you haven't seen by you doing a certain action? [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 07:37 AM EDT |
Surely if you do some action (or inaction) for some while
and although the
(in)action is spotted nobody tells you to
correct it. e.g say you start work 1
hour late every day
and your boss see's you come in but ignores it, then the
(in)action becomes part of "standard working
practice".
Typically it
means that if several years later your boss
wanted to sack you, they cannot
give the primary reason as
"turning up late for work everyday for X
years".
In this case, although SCOG wishes the licencee to reply
in
30 days, what happened during the certification
anniversary for each of the
last 7 years?
I think we can assume that DC has not regularly replied
"we have 0 (zero) CPU's running your OS" to SCO every
year?
[ Reply to This | # ]
|
| |
| Authored by: Thomas Downing on Tuesday, June 29 2004 @ 07:42 AM EDT |
| If only SCO was Javert!
Javert had a religious respect for and dedication to
the law - SCO sees the law as a device to be abused to grab unearned
money.
Javert, when faced with irreconcilable contradictions in his own
life, ended it by his own hand. Anybody think SCO will do the
same? ---
Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 07:55 AM EDT |
PJ said:
If UNIX
had been distributed under the
GPL, SCO would be up a creek
without a
paddle..."
Sorry, PJ, but I have to disagree with your
hyperbole again. If the UNIX(R) operating system had been
distributed under the
GPL (or perhaps even a BSD-style
license), SCO would
NOT be up a creek without a
paddle. Rather,
in my
inexpert opinion,
all other things being more or less
equal (e.g.,
assuming that
the company currently calling itself SCO would be
distributing
the UNIX operating system today, but not necessarily under
current
management), it is more
likely that SCO would be a viable company with
a different
business model than
it is using today. And
there probably would never
have been a need for the LINUX(R)
operating system to
ever have been created. (Or any WINDOWS(R)
software, for
that matter.)
[ Reply to This | # ]
|
| |
| Authored by: Pogue Mahone on Tuesday, June 29 2004 @ 08:12 AM EDT |
| Why hasn't DC argued that it did not respond because it is not the
licensee?
In the license agreement, part II, 2.01, the wording is "ATT-IS
grants to LICENSEE a personal, nontransferable and nonexclusive right
to ..."
So the license could not have transferred to the new corporation
DaimlerChrysler from the old Chrsler Motor Corp. when DB and CMC merged a couple
of years back. [ Reply to This | # ]
|
| |
| Authored by: Aim Here on Tuesday, June 29 2004 @ 08:26 AM EDT |
I don't get this. What exactly is SCO suing Daimler-Chrysler FOR, precisely? I
know it's a Breach of Contract for not sending SCO a blank piece of paper every
year, but does SCO expect damages to the tune of it's monetary losses caused by
this 'breach'? If DC does get found to be in violation of this contract, will
the judge make them write a cheque to SCO for $0.00 to reimburse it for 100% of
SCO's monetary losses caused by them not telling SCO about all the times it
didn't use SCO's software? Or do we have to factor in the irreperable
psychological harm caused to Darl by these people rejecting Unix and turning
into commie unamerican terrorist Linux users?
I know SCO just wants to terrify all it's ex-customers by pointing out that
they'll never escape from those contracts they foolishly signed years and years
ago, but what is the law going to do to DC in the unlikely event that this suit
isn't just laughed straight out of court?
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 08:26 AM EDT |
What happened to "failure to state a claim upon which releif may be
granted"?
As in - SCOX hasn't mentioned what it is they expect DC to do to rectify the
'problem'.
Even if SCOX is correct, the *only* thing they're entitled to is a certification
letter, which they don't need, because DC is replying via court document.
What, exactly, do they hope the court will grant them?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 08:31 AM EDT |
Since anything put in court papers is not regarded as
slanderous DC can't sue
Right. But if this is really just a
nuisance lawsuit
(and you bet ity is!) can't DC just attack SCO for
bringing such a useless lawsuit? I maybe wrong, but
I thought lawyers were
responsible if they engaged in
a lawsuit they know has absolutely no
grounds...
NNP [ Reply to This | # ]
|
| |
| Authored by: tintak on Tuesday, June 29 2004 @ 08:54 AM EDT |
"SCO implements significant measures to ensure its control over the
dissemination of that intellectual property and its ability to generate revenue
from such intellectual property."
Is the DC licence old enough, so that 95% of the revenue is due to Novell, or is
it a fully paid up licence?
If nothing has been paid to SCOG for at least the last seven years why were they
not interested to find out why?
---
Darl's folly.
"Somebody said it couldn't be done, and he knew it. So he tackled this thing
that couldn't be done,... and he found that he couldn't do it!"[ Reply to This | # ]
|
| |
| Authored by: Jude on Tuesday, June 29 2004 @ 09:01 AM EDT |
Never in our wildest dreams could we have possibly come up with a "when
proprietary software agreements go bad" nightmare scenario like this. If
we had, everyone would have laughed at us for contriving unrealistic fantasies.
SCO is doing the FOSS community's PR work better that we ever could have done it
ourselves. Thanks, SCO.
[ Reply to This | # ]
|
| |
| Authored by: micheal on Tuesday, June 29 2004 @ 09:10 AM EDT |
| "On [SCO's][2] request, but not more frequently than annually, LICENSEE shall
furnish to [SCO] a statement, certified by an authorized representative of
LICENSEE, listing the location, type and serial number of all DESIGNATED CPUs
hereunder and stating that the use by LICENSEE of SOFTWARE PRODUCTS subject to
this Agreement has been reviewed and that each such SOFTWARE PRODUCT is being
used solely on DESIGNATED CPUs (or temporarily on back-up CPUs) for such
SOFTWARE PRODUCTS in full compliance with the provisions of this
Agreement."
My emphasis. SCO seems to think that this means that DC can
not stop using using UNIX!
---
LeRoy -
What a wonderful day. [ Reply to This | # ]
|
| |
| Authored by: mhoyes on Tuesday, June 29 2004 @ 09:27 AM EDT |
First a question. If I remember correctly, wasn't the letter from SCOG sent
to the wrong address so it took a while to reach the appropriate
individuals?
Second, I noticed in section IV, SCOG has the following
statement:
Because SCO believes UNIX technology is being used in
Linux, it specifically asks Daimler about such use.
Just
because SCOG believes something, that does not make it fact. Wouldn't this have
to be first proven before it could be used? I can make any wild claim I wanted
to and I have the right to sue based on that belief, but until such time as I
have had the belief tested in a court of law, my belief is not fact. If I can
find some poor shmuck (not too poor mind you) that will pay me for that belief,
then all the better for me (at least in the world that investors and SCOG seem
to inhabit), but that does not alter the fact that my belief has not been
esstablished as fact. In the License Agreement, the SOFTWARE PRODUCT is clearly
defined, and DC used that same definition in its response. That should be the
only thing permitted until such time as the SCOG's belief of Linux is proven,
which the SCOG seems to be very reluctant to have come to court.
meh [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 09:30 AM EDT |
There seems to be a fondness for some to say the GPL is viral, if it is, the GPL
is a mild cold compared to the ebola like nature of the SCO contract.
Certainly there is more consistancy in the Mad Hatter's lunatic Tea Time
conversations than in any of the SCO ordeals now passing through our courts.
I feel sorry for anyone that has signed a contract with
NewSCO,OLDSCO,Novell,USL,ATT. Linux User Groups, and for profit businesses,
perhaps should set up a web site with discussion groups talking about how people
have successufly switched, helpful documents such as; a Hell no we don't use
your software anymore form letter with a blank space for writing in the number
of years. And the site could offer good deals on switching from SCO.
The site would be less of a commercial site and something more akin to sites and
programs aimed at helping battered wives leave an abusive spouse.
We have to remember there is nothing wrong with someone who is using sco, they
are just in an abusive relationship and could use our help.
(also and more importanly if you can donate to real programs that help people in
abusive relationships so much the better, they can use your help)
Hopefully soon, the current court cases will drive a stake through the heart of
this vampire called SCO, before it's viciousness spreads throughout the tech
world. SCO and other's of thier ilk have made the tech world so much less fun.
Ahh; so many metaphors, so little time..... [ Reply to This | # ]
|
- Good analogy - Authored by: Anonymous on Wednesday, June 30 2004 @ 12:34 PM EDT
| |
| Authored by: mhoyes on Tuesday, June 29 2004 @ 09:35 AM EDT |
Wasn't it Chrysler that had the agreement with SCO, and the merger has occured
inside the last seven years? I imagine the Dymler (SP?) had their own systems,
and during the merger, the old equipment from Chrysler may have been dropped.
If you don't use the machines anymore, and it's never been an issue because you
have not received any request before now to "certify" your usage, then
how can thirty days be sufficent? And if it came to the wrong address as well
(which would also show that they haven't been getting requests before this one),
then how can DC be held as responding too slow?
meh[ Reply to This | # ]
|
- Another question - Authored by: Anonymous on Tuesday, June 29 2004 @ 01:59 PM EDT
| |
| Authored by: winnetuxet on Tuesday, June 29 2004 @ 09:35 AM EDT |
I've been following this fiasco for some time now, but this is by far the most
ridiculous twist in this bizarre campaign. I found myself disbelieving that SCO
could actually allege non-compliance with a contract that were never a party to,
for an activity that ceased long before they cared about it.
Then I started thinking, what does this tell us about their motivations? I
believe this is the clearest indication yet that SCO has no intention of winning
this or any case; that they only wish to delay to keep the doubt alive (even
though the doubt is on life-support at this point).
It is also telling that they don't drop the DC lawsuit and sue somebody who just
migrated from SCO Unix to Linux. Maybe they realize that to file any more
lawsuits could end them up in jail. Merely losing a suit or the money to
prosecute it is not a problem for them, but any new actions in light of what we
know now could bring major sanctions, from the SEC if not from the courts.
IMHO, IANAL, etc[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 09:37 AM EDT |
If this doesn't get dismissed, I wonder if we will see old certifications and
the letters requesting certification from AT&T. They would shed light on
what AT&T thought certification should be (original intent maybe?).
It would also be interesting to know if AT&T ever requested any
certification from its licenees. What about Novell? Did they ever request
certification?
While none of this changes the contract, could it have an impact on the case?
Is it possible to get copies of some of these old letters and certifications
from other companies now? If they exist, of course. I would enjoy seeing what
AT&T asked for and what the response was.
Pugs
[ Reply to This | # ]
|
| |
| Authored by: frk3 on Tuesday, June 29 2004 @ 09:46 AM EDT |
I just read about the first page or two of the document.
One of the
funniest things to me is that TSG is actually pushing for a jury to decide the
issue of DC's response being "untimely".
I mean, they eventually got their
precious certification, and there is not "response time" stipulation in the
license agreement.
I hope they get laughed out of the court room. [ Reply to This | # ]
|
| |
| Authored by: blacklight on Tuesday, June 29 2004 @ 10:05 AM EDT |
The time of the year is fast approaching, where we have to cut off at the knees
SCOG's rantings about the interpretation of the AT&T contract and the
AT&T UNIX licenses. Can we get David Fasure and his AT&T pals to do a
couple of depositions? [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 10:12 AM EDT |
One issue not dealt with is DC's question: Who is this SCOG and why should I
certify to them? I suspect that they may argue that the delay to SCOG is
irrelevant because they don't have a contract with SCOG.
This, of course, raises the issue of whether SCOG got the UNIX business from
Tarantella[ Reply to This | # ]
|
| |
| Authored by: clark_kent on Tuesday, June 29 2004 @ 10:27 AM EDT |
Off the beaten path, thought you might like this new article....
Internet Explorer Is Too Dangerous to Keep Using
By Steven J. Vaughan-Nichols
June 28, 2004
Opinion: Although Linux & Open Source Editor Steven J. Vaughan-Nichols once
used IE on his Windows machines, he now finds Microsoft's browser seriously
insecure and endorses open-source ones instead.
http://www.eweek.com/article2/0,1759,1617927,00.asp[ Reply to This | # ]
|
| |
| Authored by: maco on Tuesday, June 29 2004 @ 10:44 AM EDT |
I don't think SCOG believes it can win this. All SCOG is trying to do is get it
to discovery, and then make it cost DM millions. Look at SCOG's latest requst
from discovery from IBM. Look at SCOG at AZ - "until we have
discovery...".
This is standard shakedown. Here they are using courts as their bully, each
"discovery", costing the victim tens or hundreds of thousands of
dollars.
Sales pitch: "You really don't want to pay me off? Only $11,000. Think of
what it would cost you to get every version of every program your staff has
written (whether or not actually deployed), all programming notes, and all
documentation, whether in electronic or hand written form. Now, doesn't that
$11,000 sound awfully cheap?"[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 10:51 AM EDT |
I went back to find the reference, but could not. Am I incorrect in remembering
a phrase that said the list to licensor (SCO) would be on a form designed by the
licensee? If I am correct how can SCO now claim that the design - no form for
no CPUs - be challenged?
BTW might it be possible to provide a search facility to the documents - to
assist us in finding such comments.[ Reply to This | # ]
|
| |
| Authored by: MplsBrian on Tuesday, June 29 2004 @ 11:06 AM EDT |
The way I read the contract, the following restricts SCO such that their only
remedy is license termination:
6.02 LICENSEE may terminate its
rights under this Agreement by written notice to AT&T-IS certifying that
LICENSEE has discontinued use of and returned or destroyed all copies of
SOFTWARE PRODUCTS subject to this Agreement.
6.03 If LICENSEE fails to
fulfill one or more of its oblicgations under this Agreement, AT&T-IS may,
upon its election and in addition to any other remedies that it may have, at any
time terminate all the rights granted by it hereunder by not less than two (2)
months' written notice ot LICENSEE specifying any such breach, unless within the
period of such notice all breaches specified therein shall have been remedied;
upon such termination LICENSEE shall immediately discontinue use of and return
or destroy all copies of SOFTWARE PRODUCTS subject to this
Agreement. Is there a reason the judge cannot 'sua sponte' on this
& DC's letter certifying non-use of the software & just toss this thing
out? Or maybe just grant the motion of dismissal.
[ Reply to This | # ]
|
| |
| Authored by: blacklight on Tuesday, June 29 2004 @ 11:12 AM EDT |
OT - It would be cool to have David Frasure's June deposition published on
groklaw. Is that doable?[ Reply to This | # ]
|
| |
| Authored by: IdleTime on Tuesday, June 29 2004 @ 11:19 AM EDT |
If you currently have a license with SCO and no longer is using their products,
here is what you need to do:
1. Round up all media with SCO products
2. Write a letter to SCO stating that you no longer use their product, that you
have no copies of their products and get your lawyer to look over the language
etc.
3. Send media and letter to SCO
If you do so, SCO should not be able to drag you before a court, not that I
expect them to win any of the cases, but it will save your company time and
money.
[ Reply to This | # ]
|
| |
| Authored by: walth on Tuesday, June 29 2004 @ 11:22 AM EDT |
IANAL
TSG is crying because DC met the conditions of the contract, but not what TSG
wanted. Sorry, TSG, but that does not give you grounds for a lawsuit -
specifically not a suit for Breach of Contract.
Just a reminder, TSG sent their demand for certification of facts not required
to be divulged to 1) the wrong person 2)at the wrong company, 3)at the wrong
address in the wrong city and wrong state.
I. DAIMLER'S MOTION MUST FAIL BECAUSE THERE ARE DISPUTED ISSUES OF MATERIAL FACT
AND NO DISCOVERY OF THOSE ISSUES HAS BEEN CONDUCTED
Wrong.
Damiler filed its motion for summary disposition with its answer.
Correct, but irrelevent.
There has been no discovery in this case.
correct, but irrelevent.
As demonstrated below and in the accompanying Affidavit of William Broderick,
Daimler has breached the License Agreement by
(i) not responding in a timely manner;
Wrong. Nothing in the contract spelled out a time limit for response. Response
is required by the terms of the contract, response was made, so no breach
occured here.
(ii) not providing a list of Designated CPUs;
Wrong. According to the letter of certification dataed April 6, 2004, the CPUs
designated to run "the SOFTWARE PRODUCT" are nonexistant. "I
hereby certify that, as of the date indicated above, there is no DESIGNATED CPU,
or any CPU, on which the SOFTWARE PRODUCT licensed under the subject Agreement
is being used. This has been the case for more than seven years. As a result, no
list of the location, type and serial number of any DESIGNATED CPUs is relevant
or possible."
and (iii) not certifying its compliance with all provisions of the License
Agreement.
Wrong. Same letter of certification dated April 6, 2004 - "I further
certify that DaimlerChrysler Corporation's use of the SOFTWARE PRODUCT licensed
under the subject Agreement has been reviewed. No SOFTWARE PRODUCT licensed
under the subject Agreement is being used or has been used for more than seven
years, and as a result DaimlerChrysler Corporation is in full compliance with
the provisions of the subject Agreement."
II. DAIMLER'S UNTIMELY CERTIFICATION CREATES A GENUINE ISSUE OF MATERIAL FACT
PRECLUDING SUMMARY DISPOSITION.
Irrelevent. No times are specified in the contract, so timeliness of response is
immaterial in a breach of contract suit.
III. DAIMLER'S FAILURE TO PROVIDE A LIST OF DESIGNATED CPUs CREATES A DISPUTED
ISSUE OF MATERIAL FACT PRECLUDING SUMMARY DISPOSITION
Wrong. "I hereby certify that, as of the date indicated above, there is no
DESIGNATED CPU, or any CPU, on which the SOFTWARE PRODUCT licensed under the
subject Agreement is being used. ... As a result, no list of the location, type
and serial number of any DESIGNATED CPUs is ... possible."
As far as I know, you can not be contractually obligated to do the impossible.
IV. DAIMLER'S REFUSAL TO CERTIFY ITS COMPLIANCE WITH ALL OF ITS OBLIGATIONS
UNDER THE LICENSE AGREEMENT CREATES A GENUINE ISSUE OF MATERIAL FACT PRECLUDING
SUMMARY DISPOSITION.
Wrong on the face of it. See the certification letter dated April 6, 2004.
"I further certify that DaimlerChrysler Corporation's use of the SOFTWARE
PRODUCT licensed under the subject Agreement has been reviewed. No SOFTWARE
PRODUCT licensed under the subject Agreement is being used or has been used for
more than seven years, and as a result DaimlerChrysler Corporation is in full
compliance with the provisions of the subject Agreement."
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 11:28 AM EDT |
| Section 2.05 is precisely the type of vehicle that enables licensors such as SCO
to secure assurances that their property rights are being protected in
accordance with the terms of their license agreements. it is the most practical
way for SCO to monitor and to ensure that its numerous licensees are complying
with the terms of their licenses. Id. Paragraph 38. When SCO believes that
there has been a specific breach, such as that related to Linux, it must be able
to inquire about it. To allow Daimler merely to assert that is has complied
with Section 2.05 without certifying compliance with the restrictions on the
permitted use of UNIX technology would deprive SCO of the meaningful assurances
to which it is entitled under the License Agreement.
Maybe not a good
trap, but a trap. This has (almost) nothing to do with the use of Unix and
everything to do with Linux. They want a list of DC's LINUX
servers, because Linux is a derivitive (yes THAT again) of Unix, so DC
owes SCO a Unix source license fee for every Linux server.
"Indeed, to the extent the provision is ambiguous, discovery would shed
further light on the technological context in which the License Agreement was
executed, the uses of UNIX at the time of contracting, the uses of UNIX now, and
the advent of the commercialization of Linux based on UNIX. Such
discovery would further demonstrate why an empty certification is insufficient
and is not what is required under the License Agreement."
If this does
not get tossed then the first SCO will ask for in discovery is a list of
ALL CPU's with Linux
[ Reply to This | # ]
|
| |
| Authored by: moogy on Tuesday, June 29 2004 @ 11:42 AM EDT |
SCOG claims again everything will come out after
exhaustive discovery from DC. This is an obvious witch
hunt, it doesn't even have the pretenses of need that
the IBM case had.
The complaint filed is about alledged non-compliance
of certification terms of a license. Not about whether
SCOG's purported UNIX copyrights have been violated
by using Linux.
There was no due diligence on the part of SCOG nor any
good faith effort to resolve before filing their case.
Did SCOG confirm that all customers received the new
license terms and agreed to those terms?
Did SCOG follow-up on on their single letter to DC,
which was actually sent to a company name DC has not
used in years, and mailed to a building that DC has
not occupied for years.
A clip from a humorous post I previously had made
to demostrate these points...
----
COURT: Where is SCOG's good faith effort to first
seriously try to resolve this?
SCOG: Well, we sent demands for certification, within 30
days, to 1500 companies, and almost none of them responded.
DC's letter appears to have been sent to an address they
haven't occupied for many years but we're *sure* they
got it.
COURT: That's a demand. Where's your attempted contact
to resolve the dispute before filing?
SCOG: But, your honor, we were under pressure to sue
someone, and made our decission to sue DC rather than
someone else on the very last day before filing. There
simply wasn't time to try to find this little
fly-by-night DC company.
---
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 | # ]
|
| |
| Authored by: Tim Ransom on Tuesday, June 29 2004 @ 11:48 AM EDT |
I stumbled across. Link (warning!
PDF)
P.S. there is a copyright on the paper (it's academic), so I was
loath to quote it - I'm not sure if we can.
---
Thanks again,
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 12:10 PM EDT |
The major controversy here is that SCO claims DC never properly severed the
agreement when they stopped using UNIX. Given that is likely the case, that DC
didn't comply with the requirement to certify they destroyed all copies of UNIX
and whatever else they were supposed to, SCO has at least 1 legitmate arguement
that the UNIX license is still in force. I'll bet DC hasn't actually done that.
The real question, and it sucks because we'll have to go to trial on this unless
the Judge wants to rule on the merits of the licensing language right here, is
whether SCO can stipulate all of these rediculous requirements for certification
that aren't in the original contract, which has never been modified.
My guess is SCO can't and the Judge simply won't allow SCO to hold DC to this
standard, but we might go through a prolonged discovery fight to get to that
point and that would suck big time for DC, costing them quite a bit of money.
And they probably can't countersue and prevail because of the technicality that
the UNIX license was never properly terminated.
I'll give SCO a bit of credit, they chose their target well. It looks to me like
SCO is starting their court-paper FUD again saying all over the place they will
show Linux infringement when it doesn't have anything to do with the litigation
at hand. What a crock.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 12:26 PM EDT |
IANAL, but it seems to me that DC executed the contracts with AT&T, not with
SCO. DC is certainly not required to provide a certification to just anyone who
asks for it, I assume. Presumably, although I have not read it in detail, the
contract sets out some provisions for Seller transferring its interests to
another party. Presumably that other party would have to notify Buyer in some
formal way. Otherwise, DC has no way of knowing that it is now required to make
that certification to SCO. Did SCO in fact make the required notification to
satisfy DC that it, SCO, did in fact have the right to demand such
certification?
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 12:41 PM EDT |
Is it possible that TSG changed the lawsuit from Bank of America to DC because
BoA provided their certification at the last minute, thus invalidating this sort
of argument as grounds for fishing?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 01:11 PM EDT |
First, the danger:
There is wide belief that SCO is directly controlled and manipulated by
Microsoft. The bizarre terms that SCO is claiming, namely, that licensees must
inform their masters when they no longer use software, is ripe for Microsoft to
use in attacks against millions of people.
The judge would be well advised that, under this expansive reinterpretation
of contracts and law, that *HE* is also probably in violation of dozens of
EULAs. Even if he is using Windows (poor guy!), these terms, taken at face
value, would mean that EVERY licensee of EVERY software program and EVERY major
version, would have to inform their masters when they decide not to use a
specific package anymore. The good judge himself likely used DOS (though you
could argue that if he's running Windows, he still is ;-), and perhaps Windows
1.x, 2.x, 3.x, Windows for Workgroups, Windows Server (at the courthouse),
Windows '95, W'98, W'2000, IIS, and perhaps now XP. The poor guy could wind up
putting billions of people in the position of having to find every copy of every
old program they ever used, finding the appropriate company (including those put
out of business by Microsoft), try to file a statement, follow up and look up
the names, addresses, and contact info for every executive or board member who
might be able to take their statement about not using CrapX 1.0, etc., and if
they fail, at any point, leave themselves open to vicious lawsuits by any of
those people at any time. Only a moron would agree to such terms - let's hope
the judge isn't one.
There is, of course, no end to that. I don't use my old bathroom scale anymore
either, the one that promised "new technology" and that had a sticker
saying I shouldn't open it or try to reverse engineer it. Ditto for CD players,
DVD players, and many other "IP" devices. Ditto for millions of
pieces of software.
I hope this judge realizes the Pandoras Box he would open with a poor ruling in
this case, including the impact on himself and his family, who would likely
instantly become "criminals" in SCO-land.
As for the lies, try these:
I. DAIMLER'S MOTION MUST FAIL BECAUSE THERE ARE DISPUTED ISSUES OF MATERIAL
FACT AND NO DISCOVERY OF THOSE ISSUES HAS BEEN CONDUCTED . . . . . . 5
Uh, how do you KNOW there are facts if there has been no discovery, and you
haven't produced them here. Lie #1: fishing == disputed facts.
II. DAIMLER"S UNTIMELY CERTIFICATION CREATES A GENUINE ISSUE OF MATERIAL
FACT PRECLUDING SUMMARY DISPOSITION . . . . . . . . 7
Same reasoning. How does failure to produce something that isn't required and
has no applicability, for things that no longer exist, create a material fact?
Even if such a "fact" existed, how does it give SCO any rights except
harassment? And even if it exists, how does it show any damages? With no
damages, how and why does SCO have any reason to pursue DC and torment them?
What is next, will they sue the kid down the street because he once
dumpster-dived into SCO "coffers" in the parking lot? If they do,
will Seattle Computer execs sue Gates for the same thing?
III. DAIMLER'S FAILURE TO PROVIDE A LIST OF DESIGNATED CPUs CREATES A DISPUTED
ISSUE OF MATERIAL FACT PRECLUDING SUMMARY DISPOSITION . . . . . . . . . 11
BS. How does one provide a list of things that haven't been around for years,
perhaps well past the statutory requirements for things like tax records too?
Only a moron judge would buy this.
IV. DAIMLER'S REFUSAL TO CERTIFY ITS COMPLIANCE WITH ALL OF ITS OBLIGATIONS
UNDER THE LICENSE AGREEMENT CREATES A GENUINE ISSUE OF MATERIAL FACT PRECLUDING
SUMMARY DISPOSITION . . . . . . . . . . . 14
BS. Same points. By not using the software anymore, how is anyone bound by the
terms of the related extortion license? If such a thing is to be granted, you
damn well better read the "Danger" section at the top of this email
again, and be prepared to chop down every tree on the planet so people can send
billions of "certifications" for unused hardware and software to
millions of missing companies or individuals.
This has the smell of Yarrow and Gates all over it. Now we can only hope the
judge is either smart enough to see through it, or wise enough to realize the
exploitive implications including those on his own workers and family. And that
he hasn't been bought, or muscled by Orrin Hatch and the Judiciary Committee.
[ Reply to This | # ]
|
| |
| Authored by: seeRpea on Tuesday, June 29 2004 @ 01:43 PM EDT |
While I find thenewSCO as noxious as anybody, I do think they have a valid point
about DC (or any other customer) being negligent in not responding at all to the
certificate demand.
The contract does state that customer must comply with request to certify where
and how the software is running, even if the answer is no.
I can understand that if a customer returns the software that then the request
could be ignored but otherwise ...
This would only apply to the software itself. The rest of the request/demand in
regards to IP protection clearly seems to be out of bounds.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 01:49 PM EDT |
make the TCO of Linux too high. The bottom line is M$ needs Linux to be too
expensive with the SCOG Linux tax. That way M$ will not have to slash prices
and be the market dominator once and for all. Then M$ will buy SCOG and have
Linux by the... you know.... My take is Longhorn will be very expensive. So,
Linux will have to cost more. [ Reply to This | # ]
|
| |
| Authored by: QTlurker on Tuesday, June 29 2004 @ 01:53 PM EDT |
I don't recall seeing this point before, but DC, like AZ, is an IBM/Red Hat
customer.
There nust be a connection between all these cases. I suspect
SCO might have us looking at the wrong things.
"Chrysler
Group is using a Linux
cluster computer for crash simulation testing and
analysis. The system is
expected to improve simulation performance by 20%, while
saving about 40% in
costs compared with the Unix-based hardware used
previously.
"IBM
built the system, which has been running since
August, using 108 IBM
IntelliStation M Pro 6850 workstation PCs - each equipped
with dual 2.2-GHz
Intel Xeon processors and Red Hat
Linux." (emphasis
mine)
"Chrysler adopts
Linux
for vehicle crash testing", computerweekly.com, Oct 22, 2002
[ Reply to This | # ]
|
- Hmmm... - Authored by: Anonymous on Tuesday, June 29 2004 @ 05:26 PM EDT
| |
| Authored by: betheball on Tuesday, June 29 2004 @ 02:08 PM EDT |
So, if I understand correctly, the only reasonable "issue of material
fact" is that DC did not respond in a timely manner, and SCOG asserts that
30 days is "timely", and not 100 days. So what?
Let say, SCOG hits a home run with the jury and they find DC "Guilty"
of not responding in a timely manner. How in the world could they actually
award $25,000 or more for that?
Also, if the timely manner of the response is the issue, then would discovery be
limited to answering that question? I can just see interrogatories like
"Please provide all clocks, calendars and other time measurement devices in
use at DC during the period in question". Then can't ask about Linux,
since that's not at issue.
- betheball[ Reply to This | # ]
|
| |
| Authored by: Steve Martin on Tuesday, June 29 2004 @ 03:18 PM EDT |
I'm intrigued by this part:
"Daimler's interpretation
contravenes well-established rules of contract interpretation that require a
contract to be construed so as to give meaning to all its provisions and to
avoid interpretations that render particular provisions
meaningless."
Now, the Asset Purchase Agreement between Novell and
(old) SCO clearly indicates in Schedule 1.1(b) that all copyrights are excluded
from the purchase. Amendment 2 supposedly then opens the way for some copyrights
to be transferred under certain circumstances. If we must interpret a contract
(and yes, TSG is referring to the Software Agreement as both a license and a
contract, but let's not open that can o' worms again at this point) in this way,
then we must conclude that Amendment 2 does not and cannot invalidate the
original language and intent of Schedule 1.1(b)'s explicit copyright exclusion.
We are left to conclude that the original copyright exclusion is still at least
to some extent in force, and thus TSG did not automatically receive "all
copyrights" under the APA as amended.
Just a
thought...
---
"When I say something, I put my name next to it." --
Isaac Jaffee, "Sports Night" [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 03:31 PM EDT |
SCO argues the 30 days thing is a reasonable time
One the face of the contract, I would say it's unreasonable
The certification is annual at most
And no certification was requested for 7 years
So why the sudden rush for 30 days?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 04:12 PM EDT |
| SCO says that since the contract places no explicit time limit on the
requirement for DC to continue certifying its proper use of Unix, there is no
time limit, and DC must continue providing certification in the prescribed form
forever, even many years after it has stopped using Unix.
The contract also
places no explicit time limit on how long DC may take to respond to a request
for certification. It seems logically inconsistent to assert that there is an
implied time limit on this, while simultaneously arguing that there is no time
limit on the continuing certification.
Obviously, IANAL. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 04:15 PM EDT |
http://news.com.com/
look for (high impact)
"Pop-up program reads keystrokes, steals banking data"
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 04:51 PM EDT |
SCO's biggest problem is they gloss over 2.05 says "stating that"
DC made this point very strongly in their initial memo
1. "stating that" means "make a statement"
e.g, "I am in full compliance" is a statement which is stating that I
am full compliance
2. "stating that" means *only* "make a statement" and not
anything broader (one thing excludes another)
Otherwise the original contracting parties would have used a different word or
phrase instead of "stating that".
For example if the original contracting parties had meant verifying compliance
with clauses selected by the licensor, they could have said "verifying
compliance with clauses selected by the licensor"
For example if the original contracting parties had meant show evidence, they
could said "stating that, and showing evidence that"
3. Yes SCO's Linux certifications requests may (in SCO's view) track parts of
the agreement. But certification that tracks the agreement is not required by
the agreement. The agreement simply requires a "stating that"
4. Given's SCO's Linux certification requests are so far from the express terms
of the agreement (and in fact include none of the items specified in the
certification part of the agreement, many items outside the certification part
of the agreement, and misquote DC's contract [see the intro to SCO's letter]) -
I'd be surprised if DC had an obligation to respond at all, even if SCO is the
successor of USL.[ Reply to This | # ]
|
| |
| Authored by: George_Wa_State on Tuesday, June 29 2004 @ 05:11 PM EDT |
When was the last time that DC signed a License Agreement?
And what was the length of time that it was for? Or is/was
there an experation date?
If the said License Agreement had expired, and DC did not
renew it. Would one not assume that they had stopped using
the product? And at that point would one not expect that
TSCOG would at least inquire as to why DC had not renewed?
And at that time request that if DC had stopped using the
product, that they certify at that point, that they had
complied?
I for one would notice when a company as large as DC, with
the number of cpus that they must have, had stopped sending
me their check. And would ask ...
" Where is your check for $X million?"
But hey. That's just me.
George[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 05:31 PM EDT |
Is it usual/typical for a lawsuit to be this vague (or deliberately unclear) as
to what it's about? And when the defendant complains that it's too vague, is it
normal for the filer to say, "Never mind what it's about for now, we'll get
clearer during discovery"? Is it normal for a court to allow this kind of
baloney?
MSS[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 05:36 PM EDT |
Total BS throughout! But I actually hope it isn't dismissed, that would be
doing TSG a favor by getting them out of the clearly idiotic situation they have
gotten themselves into.
Let this thing go to trial... I think even a mediocre lawyer could poke several
hundred holes in the complaint.
I'd love to hear them explain how their licenses are to vigorously monitor and
enforce the intellectual property rights they don't have by failing to even ask
about them for over 7 years, then suddenly needing certification in 30 days or
they are "forced" to sue because if they don't they'll have to sue
everyone else too, and oh, by the way, the names on that license just happen to
be 2 different corporations, and the license also happens to be
non-transferable, but that shouldn't stop them from requiring certification that
a list of computers that no longer exist aren't running software that used to be
covered by said license back before the records were purged and the statute of
limitations ran out.
No amount of discovery is going to get around the fact that this is a purely
nuisance lawsuit with no factual basis in reality. D-C doesn't use the
software, hasn't used it since before TSG even existed, and was perfectly
entitled to give TSG the finger for their overbearing and ludicrous request.
[ Reply to This | # ]
|
| |
| Authored by: Tim Ransom on Tuesday, June 29 2004 @ 05:56 PM EDT |
Now they want to be gatekeeper and keymaster to online services:
'If
Microsoft and Sun can come up with a way to bridge .Net and Java-based
infrastructure and allow single sign-on for users across the Web--no matter
which platform is running on the back end--it may solve some of those problems,
Governor said.'
McNealy also invites MS and Redhat to join the JCP,
saying he thinks MS could really help Java!
Link
---
Thanks again,
[ Reply to This | # ]
|
| |
| Authored by: gray_eminence on Tuesday, June 29 2004 @ 05:57 PM EDT |
I can't believe this is a patent.
USPTO: Patent #: 6,393,479
It
covers using javascript and cookies to embed an image file into a webpage that
will track visitors in realtime. The URL of the image includes information on
the visitor's environment--browser, screen size, time, etc--which is extracted
by the server to create real-time statistics, even if the page is served to
visitors indirectly via proxy or cache server.
It's offensive to read
stuff like this. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 06:05 PM EDT |
SCO says in this memo and in their complaint, that they were forced to sue, by
DC's action
However it seems rather at variance with that claim, that they (sort of)
threatened litigation from the beginning. Quoting from SCO's December letter:
SCO will not allow UNIX licensees to make improper use of the Software Products,
including the use of the Software Products to assist development of Linux. If
you fail to make, or are unable to make, a full and completion certification as
required above within 30 days of receipt hereof, SCO may purse all legal
remedies available to it including, but not limited to, license termination
rights.
(And this is aside from the fact they unilaterally redefine Software Product on
page 1 of this letter)
[ Reply to This | # ]
|
| |
| Authored by: Glenn on Tuesday, June 29 2004 @ 06:13 PM EDT |
The SCOG's memo once again is its own undoing:
"Under Michigan Court Rule ("MCR") 2.116(C)(10), the Court must
consider the pleadings, depositions, affidavits, admissions and other
documentary evidence submitted by the parties in the light most favorable to the
non-moving party. Vitale v. Buffalino, No. 230560, 2002 WL 1011761, at *1 (Mich.
App. May 17, 2002) (attached hereto as Appendix A); Progressive Timberlands,
Inc. v. R & R Heavy Haulers, Inc., 243 Mich. App. 404, 407, 622 N.W.2d 533,
535 (2000) (the court "must examine all relevant documentary evidence in
the light most favorable to the nonmoving party and determine whether there
exists a genuine issue of material fact on which reasonable minds could
differ.") The Court may not grant summary disposition unless the affidavits
or other documentary evidence demonstrate that there is no genuine issue with
respect to any material fact. See Universal Underwriters Group v. Allstate Ins.
Co., 246 Mich. App. 713, 720, 635 N.W. 2d 52, 56 (2001)."
All of those who have advanced arguments where the SCOG could possibly have a
case are in reality "straining at gnats while swallowing a camel". Is
there any material fact that any reasonable mind would dispute here? I would
really like to know the psychiatrist of anyone who does.
Glenn[ Reply to This | # ]
|
| |
| Authored by: BigDave on Tuesday, June 29 2004 @ 06:20 PM EDT |
Why doesn't DCC just point out to the judge that there is a remedy for
violations of the contract that is spelled out in section 6.05, and that they
agree to that remedy 100%. If DCC violated the license, then SCO has a right to
terminate the license.
That would be fun to watch SCO explain why they are wasting the courts time when
the rights of SCO in this matter are quite clear (unless you consider that
Novell might force them to waive those rights too).
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 06:45 PM EDT |
I think that SCO (and manyl of us on Groklaw) are mostly ignoring two obvious
questions (especially the 2nd one) that the judge will ask about the designated
CPUs part. Shown in bold below.
I can imagine the conversation will go
something like this (although of course with SCO's lawyers being a lot less
articulate):
SCO: We believe DC's certification is inadequate for 3
reasons. First, they didn't certify inside 30 days. Second they didn't provide
the SCO Request on Linux certifications, and Third they didn't answer properly
on the Designated CPUs
Judge: Is 30 days in the contract?
SCO:
No, but we believe it's a reasonable time, and the jury should decide whether 30
days or 110 days is reasonable.
Judge: Hmmm. . Are the Linux
certifications in the contract? Doesn't the contract simply require a simple
statement of compliance.
SCO: No the Linux certifications are not in
the contract. Yes the contract requires only a simple statement of compliance.
But our requests track the other provisions of the agreement
Judge;
Hmmm. So you aren't contending these are violations of the express terms of
the contract?
SCO: No we're not. But we're saying they're being
unreasonable by not responding on these issues within 30 days.
Judge:
Hmmm. So is any violation of the express terms terms alleged?
SCO: Yes,
they didn't respond properly with regard to the express terms about listing
designated CPUs
Judge: But they say there aren't any designated CPUs
anymore?
SCO: Right, and that's why their response is
deficient
Judge: So, in your view, what would be a correct response
on the designated CPUs?
SCO: (blank stare)
[ Reply to This | # ]
|
| |
| Authored by: jccooper on Tuesday, June 29 2004 @ 06:48 PM EDT |
Man, these guys are bad news. Their follow-up to a crazy scattershot demand sent
by unregistered letter (and probably to an old address) is a lawsuit. Most bill
collectors are laid-back by comparison, and they have actual money involved.
If Darl called me, I wouldn't even answer the phone.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 07:03 PM EDT |
So SCO wants to hold D-C to the letter of the wording in the license on
termination, yet on the other hand request certification of things that aren't
in the license at all.
They want call D-C's certification that they don't have any CPUs running
SCO-Unix and haven't for 7 years a failure to comply since it wasn't delivered
in 30 days, yet the forget that the license mentions nothing about 30 days, they
haven't even asked about it in over 7 years and the request was delivered to a
wrong address.
They want to accuse D-C of unilaterally ignoring their responiblity to certify
compliance, yet ignore the fact that the last registered administrator of the
license was USL since SCO failed to ever notify them otherwise.
They state "SCO submits that the plain language of the Agreement
unambiguously shows that Daimler's certification was also incomplete...",
while overlooking that the same plain language unambiguously never mentions
Linux at all...
This is the same "unambiguously" that they refer to regarding the
language in Amendment 2 to the Novell APA...
[ Reply to This | # ]
|
| |
| Authored by: GLJason on Tuesday, June 29 2004 @ 07:08 PM EDT |
Since the contract doesn't specify a deadline for certification after a request
is made, let's look at the language of the contract:
On
AT&T-IS'S request, but not more frequently than annually
...
There are two ways of looking at this. One (SCOX's method)
would look at the "On AT&T-IS's request". Certainly "on request" wouldn't
mean immediately. If they wanted that, they should have visited DC's office and
waited while someone put together the certification, or faxed them the request
and demanded an immediate response. I don't know how SCOX could pick 30 days
out of thin air. The "On AT&T-IS's request" language would however seem to
support their claim that it should be timely.
The other way is to look at
the word "annually". That signifies that certification can at most be requested
once a year. That can easily been interpreted that the licensee has 12 months
to respond.
In either case, the contract has a stipulation for termination
where AT&T would give the licensee 60 days notice prior to termination and a
chance to cure the alleged breeches within those 60 days to avoid termination.
No where does SCOX say they took this step. In addition, they sued DC without
even attempting to contact them ONCE after they sent their certification
request. I think the fact that the termination clause in the contract has a
specified 60 day notice to alert and cure any alleged breech means that they
should have at least contacted DC and told them they have breeched the contract
before filing suit, and then given them an additional 60 days to comply to avoid
termination.
It makes me laugh (and almost cry at the same time) when I read
over and over in SCOX's memorandum how big bad DC forced them to file
suit. They didn't even make an attempt to remedy the alleged breech. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 07:31 PM EDT |
These UNIX licenses are for Crays
DC is in the business of building cars, not operating systems
I think it is most likely that DC simply bought some Crays. In order to make
use of the Crays they needed an operating system. Cray probably told DC, the
operating system is a version of UNIX, but before we can give it you, you need
to sign these AT&T agreements.
So DC signed these AT&T agreements
There is a good chance, I think, that DC never examined the UNIX sources or the
methods, let alone modified them. I think the likelihood is DC simply used
UNIX on the Cray.
So now we get Broderick (SCO's director of licensing) and SCO asserting that DC
examined the sources, learned methods, blah blah, etc. But how do they have
personal knowledge of this? To me it doesn't even sound likely.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 29 2004 @ 07:46 PM EDT |
Two points worth making:
1) Regretfully, and it hurts me to say this, SCO
may actually have a point. When DC stopped using the designated CPU it should
have told the Licensor at the time (if anyone of then had informed DC that they
now owned it) that it had been removed from the designated CPU and was not being
transferred. The precedent for this comes from DC upgraded their systems and
notified AT&T/USL that they had removed it from one CPU to another. This
means that when they stopped using UNIX (and presumably the CPU) the designated
CPU went from Cray whatever to none. This doesn't mean that DC don't want to
never use UNIX again, just that they don't want to use it at the moment. As
soon as they want to use UNIX again they just have to tell the Licensor, who
apparently is SCO, but they aren't quite sure, the new CPU and SCO can't
complain. This would make DC's letter that there is no designated CPU correct.
Without that letter there is a designated CPU even if it has been recycled
somewhere. If DC could come up with a letter to AT&T/USL saying that they
have taken UNIX of the designated CPU and not put it on any other
CPU then the SCO case is blown out of the water as DC's certification
is accurate.(Processer=none, if not being used then it cannot be used
incorrectly or IP misused). There is a get out for DC, see the next
point
2)A get out for DC is possible if the Judge is willing to do what SCO
wants - adhere to the very letter of the contract and not the spirit. Look very
carefully at 2.05..."SOFTWARE PRODUCT is being used solely on
DESIGNATED CPUs". Note the use of the present tense. If DC is not using UNIX
but does not want to terminate its licence then the Certificate of compliance
meets this definition. If it is not being used then all DC have to say is that
they are not using UNIX. No need to mention how long they stopped using UNIX or
what processor or what the staff did with UNIX. They could have stopped using
UNIX when SCO sent the letter and still produced this certification.
Here's
hoping that the Judge gives SCO the rope to hang itself and point SCO in the
direction of its feet so it can shoot itself in the foot. Given the quality
the lawsuits going on SCO probably dowsn't know where its' feet
are!
Apologies for the long post, reading all the SCO documentation
has given me the tendency to waffle![ Reply to This | # ]
|
| |
| Authored by: whoever57 on Tuesday, June 29 2004 @ 07:54 PM EDT |
| See if you can spot to what
this
listing on eBay is referring! [ Reply to This | # ]
|
| |
| Authored by: battyman on Tuesday, June 29 2004 @ 08:09 PM EDT |
| Watch out what you agree to sign. That's the lesson. No one should ever have
signed such an awful contract. I know now where the UNIX curse came from. It
came from trying to extort one-sided and malevolent terms from those needing to
use the software.
If you think the AT&T UNIX license is bad, it
looks positively benevolent compared to the Imperial EULA, yet people "agree" to
that every day, usually without reading it. You don't actually sign anything,
either, all you have to do is open up the box your laptop computer comes
in.
Anybody who IAL is invited to explain how such nonsense actually gets
upheld in court, because it does.... [ Reply to This | # ]
|
| |
| Authored by: Khym Chanur on Tuesday, June 29 2004 @ 08:23 PM EDT |
| The DaimlerChrysler Letter attached a letter from Norman A. Powell, Senior
Manager of Tech Services for DaimlerChrysler, which provided SCO with the
following certification: "No SOFTWARE PRODUCT licensed under the subject
Agreement is being used or has been used in more than seven years, and as a
result there is full compliance with the provisions of the subject Agreement."
Id.
As a certification letter, this seems to be poorly stated. IANAL,
but it seems to me that they should have phrased it along the lines of "You
wanted certification, so here it is: SOFTWARE PRODUCT is running on no
CPUs". But the way DC phrased it, it seems to say "We are no longer using
SOFTWARE product, so we don't need to send you any certification".
Of
course, if SCO is suing simply because DC didn't phrase the certification
properly, the judge might not take too kindly to that. ---
Give a man a
match, and he'll be warm for a minute, but set him on fire, and he'll be warm
for the rest of his life. (Paraphrased from Terry Pratchett) [ Reply to This | # ]
|
| |
| Authored by: Nick Bridge on Tuesday, June 29 2004 @ 08:38 PM EDT |
"Daimler's course of conduct thereby eviscerates the very certification
rights the License Agreement seeks to protect."
This is misleading, if not outright falsehood.
There are no rights that a copyright holder has that involves licensees to
certify their activities.
The license in question is also a contract, and it is the contract which creates
the obligation to certify. The contract (or license) is not
"protecting" this obligation. And it is NOT a RIGHT, merely a
contractual obligation.
The question in my mind is - how does the contract terminate?[ Reply to This | # ]
|
| |
| Authored by: ChrisP on Tuesday, June 29 2004 @ 08:43 PM EDT |
From the response:-
"Daimler and its employees, engineers and technicians have had access to
and gained an understanding of UNIX and of inner workings. In doing so, they
have obtained intimate knowledge of the UNIX source code and the methods and
concepts contained therein -- the intellectual property that the License
Agreement seeks to protect. See Broderick Aff. Paragraphs 62-63. For over
fifteen years, Daimler employees have used this knowledge to modify UNIX to meet
Daimler's commercial needs. Id. Paragaph 64."
Just how many ways is this wrong?
DC bought a multi-million dollar Cray super-computer in September 1988, and
needed a SysVr3 source license to run UNICOS on it legally. Did they get a
support contract with the Cray? Were Cray about to let a bunch sys progs with no
experience on the Cray muck around with UNICOS? I think not! I doubt that anyone
at DC ever even bothered to read the tape to see what was on it, or read the
SVR3 manuals. There was just no need. They had Cray support and UNICOS manuals.
"Understanding... intimate knowledge..."? No.
In April 1992, before USL was sold to Novell, it was time for DC to replace the
now out-of-date Cray with a new one, but can't seem to decide which model or
where to keep it. Perhaps they bought both. I suspect that by now UNICOS or
whatever OS the new Crays were running no longer needed a SysV source code
license to be legal, and when DC found that out, they told USL that they no
longer needed the license.
The fact that none of USL, Novell or Santa Cruz Operation informed DC of the
change of license ownership, and with TSG knowing that DC were not a current
licensee when they initiated the lawsuit, strongly indicates to me that DC
formally or informally terminated the license in 1992, and probably destroyed or
returned the out-of-date, useless, unnecessary and unread source code at the
same time, assuming that they got it in the first place.
"Fifteen years..." modifying UNIX SysVr3 for a single Cray? No. What
for?
---
SCO^WM$^WIBM^W dammit, no-one paid me to say this.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 12:26 AM EDT |
SCO is simply delaying the dismissal of the case until after some discovery.
Delay delay delay and be a pain is there only plan here..
If IBM buys SCO out. I will never do business with IBM again! EVER! And I think
they know there a lot of people like me out there.
SCO's plan is finished..... They never counted on the rath of the Open Source
movement....
Now they have to play the game to the end... Or explain to the stock holders how
they runed there investments.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 12:32 AM EDT |
| It seems TSG is back to UNIX is LINUX is UNIX. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 12:32 AM EDT |
I've been thinking about the idea that SCO wants DC to list CPUs with Linux on
them as part of the UNIX certification.
This won't fly because it's against the express terms of the license agreement
(even if in some fantasy world Linux include UNIX)
In Broderick's affidavit and SCO's memo, they are arguing that the license is
for UNIX technology, etc.
However the AT&T license is explicitly for the products on the schedule, and
ONLY those products, i.e. the particular AT&T version of UNIX listed
In some fantasy world, where Linux include copied bits of SCO's purported UNIX
technology, the license simply wouldn't cover it. In this same fantasy world,
there might be a copyright infringement by Linux, but it still wouldn't be
covered by the license.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 01:34 AM EDT |
"...A Utah artist who won a five-year legal battle with Mattel Inc.
over his photographs of Barbie dolls sometimes naked and paired with kitchen
appliances on Tuesday said the court decision cleared the way for other parodies
of iconic American brands..."
Ref:
http://www.reuters.com/newsArticle.jhtml?type=entertainmentNews&
storyID=5546448
Mattel:
"...A Mattel spokeswoman said on
Tuesday the company would continue to defend its Barbie copyright.
"We
have more than 40 years equity in Barbie and we are very committed to protecting
our various trademarks," she added..."
t_t_b ---
Release the
missing Exhibits! [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 01:44 AM EDT |
They should offer to turn over thier list of designated CPU's in open court.
Just hand them a blank piece of paper. If it ever by some miricle get to a jury,
give them the same list.
After reading this I almost though my new laptop through the wall. Some idiot
either here or on /. actually said one day the rest of the world would wake up
to them selfs and adopt the SUPERIOR American legal system. And yes it was a
serious comment.
Down Under in .au this case would last about 5 minutes, sorry make that 10
minites, it would take that long atleast for the judge,gallery and the real
criminals waiting for thier case to be heard to stop laughing.
They would then be arrested for extortion.[ Reply to This | # ]
|
| |
| Authored by: john82a on Wednesday, June 30 2004 @ 02:19 AM EDT |
I must be kind of stupid, but since SCOG sent the letter demanding certification
to the wrong address, how did DC eventually get it?[ Reply to This | # ]
|
- As an exhibit? - Authored by: Anonymous on Wednesday, June 30 2004 @ 02:32 AM EDT
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 02:43 AM EDT |
The judge should not dismiss. Here's why:
The US legal system and employees use millions of computers, and hundreds of
millions of pieces of software every day.
After the judge refuses to dismiss, he must, of necessity, command the entire US
legal system and all it's employees to conform to the weird new licensing
concepts SCO suggests, or he is a complete hypocrite.
As a result, the US legal system will be shutdown for the next 10 years or so,
while it finds the lists of every software program it has ever used, every
machine it was ever used on, verifies the license types, verifies the CPU id's,
verifies their EXACT whereabouts and dispositions (In the dump? Not good
enough! We want GPS coordinates of every last damn grain of sand!), verifies
software was removed (prior to crushing! There might be residual IP!)
destroyed, reduced to quantum rubble, the owners were notified, their
certifications were given, the agency doing the crushing was certified, the
agency certifying the crushing agency was certified, the agency certifying the
agency ...........
God help them if the software authors died. They will have to replace every one
of the machines, going through the same idiotic (but legally logical) infinite
destruction and certification process, since it's unlikely they'll get a waiver
from the author. Or, the wise judge can just wait until copyrights run out - in
90 to 150 years (thanks to Bono-headed politicians) - before he restarts his
court. Oh, yeah: Orrin wants to make copyrights perpetual minus one day. No
wonder Darl says this could destroy the software industry - we have to wait for
the Second Coming (or your equivalent) to find those authors and get their
approval.
But look at the bright side: with the legal system shutdown, justice can
prevail. SCO won't have any moronic judges to listen to them wax poetic on the
beauty of the back end of Darl's cows.
If companies are forced to go to such ridiculous lengths to prove they are *NOT*
guilty of a "crime" (Orrin-speak), and US laws are flipped so there is
a presumption of guilt, then SCO has done well and Bill's payments to senators
and judges have worked.
This should be reason enough to go Linux and GPL - tracking costs could run to
trillions of dollars, money wasted on worn out and worthless old material, all
to make a madman monopolist happy.
No wonder people say their heads hurt over this stuff - the stupidity boggles
the mind, and the judges are impotent and unable to end the stupidity.
Caramba!
[ Reply to This | # ]
|
| |
| Authored by: DMF on Wednesday, June 30 2004 @ 02:49 AM EDT |
"Daimler still has failed to identify the computers on which Daimler is
entitled to use SCO's intellectual property"
Huh?? What??? DC has to identify all the computers on which it is
"entitled"? Since it's not running on any, that would be a list of
all computer on which Unix *can* run. Supposedly since Unix can run on them,
Linux might be running on them.
Once they get this pist of computers, the next step for SCOG is to require a
certification that an infringing OS in not running on them.
My brain hurts.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 03:44 AM EDT |
I'am offline for i month because of holiday so I asked my self what could
happen in July with Sco?Any Ideas?
jvi[ Reply to This | # ]
|
- This month - Authored by: DBLR on Wednesday, June 30 2004 @ 04:44 AM EDT
| |
| Authored by: jkondis on Wednesday, June 30 2004 @ 03:56 AM EDT |
some reason to believe a Motion to Dismiss will be granted. This one's a slam
dunk. The closest they come to reasonability in this memorandum is their
statement that even though SCO didn't call DC, DC didn't call SCO either!
But, DC ain't the one suing, so it's irrelevant! Any reasonable person would
conclude that the sue-er should have made at least some extra effort to contact
sue-ee before filing the lawsuit.
So, the judge is going to say: "OK children, all of you are here so go
ahead and discuss what you need to get the Unix licensing stuff squared away and
get out of my courtroom. Dismissal Granted." SCOG will be lucky if the
judge doesn't call this frivolous or a nuisance suit.
---
Don't steal. Microsoft hates competition.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 04:16 AM EDT |
This is what the agreement says
Section 2.05 - On
AT&T-IS'S request, but not more frequently than
annually, LICENSEE shall furnish to AT&T-IS a statement, certified by an
authorized representative of LICENSEE, listing the
location, type and serial
number of all DESIGNATED
CPUs hereunder and stating that the use by
LICENSEE
of of SOFTWARE PRODUCTS subject to this Agreement has been
reviewed and that each such SOFTWARE PRODUCT is being used solely
on
DESIGNATED CPUs (or temporarily on back-up CPUs)
for such SOFTWARE
PRODUCTS in full compliance with
the provisions of this Agreement.
SCO wants to gloss over
that "is being used" and turn it into "has always been used and otherwise help
in confidence, not exported, not disposed of, etc."
The point is the
certification requirement only relates to current usage: is (current
tense), being used (currently in use)
There is no required
certification about anything in the past or any past activities. Even if DC were
not compliant in the past with the whole agreement, if the DC states the
software is [currently] being used in compliance the agreement, this is
all the certification required.
[ Reply to This | # ]
|
| |
| Authored by: DBLR on Wednesday, June 30 2004 @ 04:35 AM EDT |
If we are to believe SCO, somehow modern Linux has some of the same 1988 UNIX
source code in it that DC use to use. If that were true, then why does SCO still
need all AIX code from 1984 or was it 1985 to 2003. Also please tell me how old
1988 UNIX code works so well in Linux. Also why would any one want to use
outdated code?
Charles
---
United we stand, Divided we fall.[ Reply to This | # ]
|
| |
| Authored by: DeepBlue on Wednesday, June 30 2004 @ 06:40 AM EDT |
I got a bit worried reading this, thinking that SCOX might have a glimmer of a
chance, so I went back to DC's motion . It seems to me (IANAL) that SCOX just
ignore the cases DC cite and go off on their own sweet path - no doubt the judge
will notice that too.
---
30 days SCOX tick, tock
........[ Reply to This | # ]
|
| |
| Authored by: brian on Wednesday, June 30 2004 @ 07:42 AM EDT |
"2. "SCO" is substituted for "AT&T" throughout the
quotations of the Licensing Agreement herein because SCO
is AT&T's successor-in-interest to the license as well as
the intellectual property rights protected therein."
This is footnote 2 in this document and I have noticed it
in other documents Caldera/SCO has filed. It amazes me
that neither DC nor Autozone has challenged this. If I was
an attorney representing DC (Good thing I'm not since
IANAL) I would challenge this entire section forcing
Caldera/SCO to prove they indeed are the "successor in
interest" to AT&T and what steps they took to inform their
licensees PRIOR to any lawsuit. I would want to see the
instrument of conveyances for every step in the process
from AT&T to Novell to Santa Cruz Operation to Caldera to
SCOX. Then I would challenge them to produce proof that
they informed "licensees" of this change in their license.
In short, I would make SCO prove they took due dilagence
in enforcing the license PRIOR to the IBM suit as they
should have. It seems strange that in 7 years DC heard
nothing from AT&T,Novell, Santa Cruz, Caldera, or
Caldera/SCO until the IBM counter-claims forced the issue
of due dilagence on Caldera/SCO. That is the only reason
Caldera/SCO sent out those letters to show they were
trying to "protect their precious IP" yet prior to the
letter there was nothing. If the judge allows this
silliness to continue, then our (US) justice system is
even more broken than I ever imagined.
B.
---
#ifndef IANAL
#define IANAL
#endif[ Reply to This | # ]
|
- Beats me, too - Authored by: Anonymous on Wednesday, June 30 2004 @ 08:10 AM EDT
- Beats me, too - Authored by: Anonymous on Wednesday, June 30 2004 @ 09:48 AM EDT
- Any ideas? - Authored by: micheal on Wednesday, June 30 2004 @ 10:02 AM EDT
- Any ideas? - Authored by: Anonymous on Wednesday, June 30 2004 @ 03:46 PM EDT
- But DC *has* raised the issue - Authored by: Jude on Wednesday, June 30 2004 @ 10:22 AM EDT
- Successor in interest - Authored by: Anonymous on Wednesday, June 30 2004 @ 10:39 AM EDT
- Successor in interest? - Authored by: rsteinmetz70112 on Wednesday, June 30 2004 @ 11:49 AM EDT
- Minor correction - Authored by: Anonymous on Wednesday, June 30 2004 @ 03:14 PM EDT
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 12:29 PM EDT |
Any ideas here please. My first hypothesis is that Baystar is marking there
position at month end.
Thank you.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 01:57 PM EDT |
Sorry about the formatting. If anybody has IBM188, please post a link
187-1
Filed: 06/25/04
Entered: 06/28/04
Certificate of service
certif
svc -/-/- - -
tsh
1509580
Docket Text: Certificate of service by SCO Grp re: Pla's Amended
Responses to Dft's Fourth Set of Interrogatories
188-1
Filed: 06/28/04
Entered: 06/29/04
Memorandum in opposition
mem opp
-/-/- - -
tsh
1509925
Docket Text: <B>SUPPLEMENTAL Memorandum by Intl Bus Mach Inc in
opposition to [144-1] amended motion to Dismiss, [144-2]
amended motion or to Stay Count Ten of Counterclaim-Pla Ibm's Second
Amended Counterclaims Against SCO,</B>[ Reply to This | # ]
|
| |
| Authored by: blacklight on Wednesday, June 30 2004 @ 03:28 PM EDT |
I am not sure whether the UNIX licenses are paid for on a subscription model or
as one one-time buy. The weight of the evidence is that it's a subscription,
because IBM bought itself a perpetual license for $10 mil.
Let's assume - and it's the most reasonable assumption at this point, that the
UNIX licenses are paid on the subscription model. Then if DC stopped paying,
then the license relationship ended. Whoever was the licensor at the time DC
stopped paying had the responsibility of making sure at that time that DC had
already destroyed the UNIX tapes. And since the licensor at the time did not
complain, SCOG really has no grounds to complain because the preponderance of
evidence is that the relationship was properly terminated - I am making the
reasonable assumption here that seven straight years of silence from the
licensor should constitute a preponderance of evidence.
In summary, regardless of what SCOG says, the UNIX licensing relationship with
DC is dead and gone. And frankly, I doubt that DC was even under any obligation
to answer any of SCOG's letters in the first place.[ Reply to This | # ]
|
| |
| Authored by: olly on Wednesday, June 30 2004 @ 05:47 PM EDT |
Modulo p arithmetic is a field
And (as any group) it is
also a module over Z :-)[ Reply to This | # ]
|
| |
| Authored by: Asynchronous on Wednesday, June 30 2004 @ 05:52 PM EDT |
As you know a few years ago, a congressional aide named Mitch Glazier, with
the support of the RIAA, added a "technical amendment" to a bill that defined
recorded music as "works for hire" under the 1978 Copyright Act.
Now,
Affinity Engines has filed suit against Google for similarities between Google's
orkut.com features and their own products. Orkut Buyukkokten, a cofounder of
Affinity Engines, did some code development work for Google and had alledgedly
signed or indicated he was not working on similar software at Google.
Now...
there are a lot of convolutions to this, but if it goes to court, does the
"works for hire" addition to the 1978 Copyright Act come into play?
Ars Techica
article Google sued over alleged Orkut code theft . [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 06:08 PM EDT |
From the New England U.S. Circuit Court of Appeals. First link is to a
"Wired" story. Second link is PDF of the opinion itself.
E-
mail snooping ruled permissible
1st Circuit
Court of Appeals opinion
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 06:29 PM EDT |
Our favorite DiDio is back at it:
http://www.sitepoint.com/blog-post-view.php?id=177177&ct=1
The only thing that seems to have changed is that now her name is left out![ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 30 2004 @ 08:24 PM EDT |
6. Daimler argues that if the parties to the License Agreement had
intended to require
certification regarding the use of UNIX
technology in Linux, they would have included such
language
in Section 2.05. Daimler Mem. at 12. This is mistaken. It was not until well
after
1988, when the License Agreement was signed, that
Linux came into existence and even
later that Linux became
a commercial platform capable of replacing UNIX. Broderick Aff.
Paragraph 26. Neither Daimler nor SCO drafted the License Agreement, and
neither party,
nor the original licensor and licensee,
could have contemplated the use of Linux at that
time.Id.
Where the parties did not contemplate the use of the new technology at the time
of executing the contract, their intent must be gleaned from
a broader reading of the
contract and from the natural
implications of the language. See, e.g., Abkco Music, Inc. v.
Westminster Music, Ltd., 838 F. Supp. 153 (S.D.N.Y. 1993) (whether contract
providing
licensee "all rights" in copyrighted songs
applied to newly developed technologies was
question of
fact for the jury).
I have not found the text of the case
online
You can find a brief reference to it on page 37 of
www.rosettabooks.com/casedocs/RB_Response.pdf
I don't think it's
likely a very good analogy for SCO to use, as it's well, a completely different
type of case, and completely different type of precedent (of
course)
The quick summary is:
1. the licensee was granted "all
rights" for music (Rolling Stones as it happens)
2. The court decided
whether "all rights" included video rights was for the jury
3. As far
as I can tell the decision for the jury to make was whether "all rights" meant
"all rights at the time of the agreement" (i.e. pre-video), or "all rights
including new technologies that might be invented in future".
As you
can see there is a thread to hang this jury question on, i.e. what "all rights"
meant at the time it was signed.
That is hardly the same as adding new
contract clauses de novo (which is what SCO wants to do), just because new
technologies happen to have been invented by somebody.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 02 2004 @ 09:41 AM EDT |
You know what I suggest? Companies can learn an important lesson. They
need to rethink the so-called viral properties of the GPL. At least with the
GPL, no one can ever swing back around with new terms or try to invent new ways
to get you.
PJ, the same would be true of other licences, such as
the BSD license, which don't have "viral properties". The GPL is not the
light at the end of every tunnel, please stop suggesting that it
is. Disclaimer: I know I mentioned BSD and GPL in the same sentence.
Please everyone, don't take that as an invitation to start trolling or
ranting.[ Reply to This | # ]
|
|
|
|
|
