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| SCO's Amended Complaint in SCO v. Novell - If At 1st You Don't Succeed . . . |
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Tuesday, July 13 2004 @ 06:18 PM EDT
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Here is SCO's Amended Complaint in the SCO v. Novell case. The clerk's notation about a Second Amended Complaint was inaccurate. It's their first Amended Complaint. It just *feels* like their second. This is the one that they had 30 days to fix as per Judge Kimballs' instructions, to list special damages the right way. Their second try begins on page 8. The judge practically wrote it for them. But I think they may have failed again.
To remind you of what they were told to do, and so you can see if they have done it, here is the Special Damages section of Judge Kimball's Order. At this point, no one's opinion matters but Judge Kimball's, because Utah is fairly squishy about what is required, and so he presented how he viewed the requirements. It will be his call if he thinks they succeeded. They mention that potential UNIX customers have told them they won't license UNIX from them, due to the cloud over their ownership: "At the present time SCO is pursuing claims against third parties for infringement of SCO's intellectual property and contractual rights in UNIX. Defendants in those cases have relied on Novell's claims of ownership in UNIX as a defense to SCO's claims, thereby hindering SCO's ability to protect its copyrights and causing SCO to incur significant additional attorneys' fees and costs..." Who has used it as a defense? I can't think of any defendant who has done so. Can you? IBM hasn't used it, even if they were a third party. And DaimlerChrysler has defenses related to the Novell contract, mentioning Novell's waiver, but they don't mention a copyright cloud. AutoZone has yet to list any defenses. It's all been motions. It mentions Novell in its Motion to Stay in its list of prior litigation, but that isn't a defense that caused SCO extra expense to respond to. For one thing, it isn't a defense. For another, SCO sued AutoZone, not the other way around, so that was an optional expense and they had to go to Nevada anyway, or chose to. Red Hat sued SCO, so they are not defendants. I think this is a major gaffe on SCO's part. They keep wanting attorneys' fees to be special damages.
And why didn't SCO just tell the potential UNIX customers that they definitely do have the authority to license, regardless of Novell's copyright claims? There is no cloud over that, that I've heard about. So I think that excuse makes no sense. I note they don't list the names of any such customers. That seems an odd thing to mention, anyway, instead of mentioning that they can't get anyone much to sign up for SCOSource licenses regarding Linux because of Novell. If I were a company approached to take a SCOSource license, I'd definitely want to ask them why they didn't mention such losses in this document. I would ask them, why, if they have the right to demand it, why aren't there any losses listed in this document? Might it be that they have no right to demand such monies and they are afraid to list it in a court of law? They talked about Novell costing them SCOSource business at the last financial teleconference. Where is the allegation here in the courts? Once again, we see the two faces of SCO, one in the media and one in the courts.
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B. Special Damages
Novell also argues that SCO's slander of title claim should be dismissed because SCO has pleaded only general damages and has failed to plead special damages with specificity as is required under Rule 9(g) of the Federal Rules of Civil Procedure. Valley Colour, Inc. v. Beuchert Builders, Inc., 944 P.2d 361, 364 (Utah 1997). Because special damages are an essential element to a slander of title claim, Novell asserts that SCO has failed to state a cause of action and asks this court to dismiss the claim. SCO argues that Novell has overstated the Rule 9(g) pleading requirement and that it has specifically pleaded special damages by setting forth its loss of pecuniary advantage resulting from customer confusion as to copyright ownership and from its accrual of legal fees.
Rule 9(g) of the Federal Rules of Civil Procedure states that "when items of special damage are claimed, they shall be specifically stated." Fed. R. Civ. P. 9(g). Special damages "are a particular type of damages which are a natural consequence of the injury caused but are not the type of damages that necessarily flow from the harmful act." Hodges v. Gibson Products Co., 811 P.2d 151, 162 (Utah 1991). In Bass v. Planned Mgt Servs. Inc., 761 P.2d 586, 568 (Utah 1981), the court explained the difference between a slander of title claim and a slander or defamation claim as they relate to damages. The court distinguished the types of claims by recognizing that the tort of slander of title is "based on an intentional interference with economic relations. They are not personal torts; unlike slander of the person, they do not protect a person's reputation." Id. The court further explained that "[s]lander of title actions are based only on palpable economic injury and require a plaintiff to prove special damages, whereas injury to personal reputation may be based on both tangible and intangible losses and give rise to presumed and general damages. There are no general or presumed damages in slander of title actions." Id.
A slander of title action requires a plaintiff to establish special damages that consist of "a realized or liquidated" pecuniary loss. Hodges, 811 P.2d at 162. "Special damages are ordinarily proved in a slander of title action by evidence of a lost sale or the loss of some other pecuniary advantage. Absent a specific monetary loss flowing from a slander affecting the saleability or use of the property, there is no damage." See Bass, 761 P.2d at 569. "It is not sufficient to show that the [property]'s value has dropped on the market, as this is general damage, not a realized or liquidated loss." Valley Colour, 944 P.2d at 364.
Although a realized or liquidated pecuniary loss must be established at trial, that does not necessarily answer the question as to the amount of detail a plaintiff must use in pleading such loss in its Complaint. "In Utah there does not seem to be an inflexible rule regarding the pleading of special damages." Cohn v. J.C. Penney Co., 537 P.2d 306, 311 (Utah 1975). Rather, it is simply "a question of whether the pleadings contain such information as will apprise the defendant of such damages as must of necessity flow from that which is alleged." Id. Therefore, "the law does not require that the exact dollar amount of special damages be specifically pleaded." Hodges, 811 P.2d at 162.
However, a "plaintiff must present the circumstances giving rise to the special damages and the elements of injury [it] allegedly suffered." 5 Charles A. Write & Arthur R. Miller, Federal Practice and Procedure, § 1311, at 706 (2d ed. 1990). Commentators have noted that there is no reducible formula for the requirements of Rule 9(g), rather "it will depend upon the nature of the claim, the type of injury sustained, and the causal connection between defendant's conduct and the damage." Id.
SCO alleges in its Complaint that
Novell's wrongful claims of copyrights and ownership in UNIX and UnixWare have caused, and continue to cause, irreparable harm to SCO, in the following particulars:
a) Customers and potential customers of SCO are unable to ascertain the truth of ownership in UNIX and UnixWare, and make decisions based thereon; and
b) SCO's efforts to protect its ownership of UNIX and UnixWare, and copyrights therein, are subject to a false cloud of ownership created by Novell.
Compl. ¶ 21. The Complaint then states that as a consequence of Novell's conduct, SCO has incurred special damages in an amount to be proven at trial. Compl. ¶ 26.
Although the Complaint alleges harm, it does not specifically set forth any type of realized pecuniary loss. To the extent that SCO's Complaint can be read to allege that Novell has caused irreparable harm to SCO's reputation, such damages are general damages. At the oral argument on this motion, SCO argued that because of the alleged customer confusion, customers did not want to enter into license agreements with it. This is a natural consequence of the alleged cloud of ownership and customer confusion and would amount to a realized pecuniary loss. However, SCO did not make such allegations of special damages in its Complaint. In addition, SCO has argued that it is entitled to attorney fees as special damages. However, regardless of whether attorney fees would be available as special damages in this case, SCO did not allege attorney fees as special damages in its Complaint. Rather, SCO alleged only generally that there is a cloud of confusion and that "as a consequence of Novell's conduct alleged herein, SCO has incurred actual and special damages in an amount to be proven at trial."
If this court were to find SCO's pleading of special damages sufficient, it would turn Rule 9(g)'s requirements into mere notice pleading. This court cannot conclude that SCO has given Novell enough information to apprise Novell of the types of damages that flow fromthe alleged cloud of confusion--such as lost sales, lost licenses, attorney fees, or any other it may be seeking. Although a specific amount of damages is not necessary and a specific identification of customers may be impossible, SCO has not given Novell or this court any information as to the scope of customer confusion, its lost business, or made any allegation that there, in fact, has been a realized pecuniary loss as a result of Novell's statements. Accordingly, Novell's motion to dismiss SCO's slander of title claim for failure to specifically plead special damages is granted without prejudice. The court grants SCO thirty days leave to amend its Complaint to plead special damages specifically in accord with Rule 9(g) of the Federal Rules of Civil Procedure.
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| Authored by: Anonymous on Tuesday, July 13 2004 @ 06:33 PM EDT |
For PJ to find more easily
--Bill P[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, July 13 2004 @ 06:34 PM EDT |
So no one has to see them.
--Bill P[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, July 13 2004 @ 06:36 PM EDT |
| --Bill P [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, July 13 2004 @ 06:42 PM EDT |
and wants it to get dismissed on a technicality. That is the only explanation
for an amanded filing that does not amand at all.
If nothing else they can at least try hard to upset the judge, hoping for stupid
mistakes on his part.
[ Reply to This | # ]
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- SCO regrets to have filed that stupid suit - Authored by: WhiteFang on Tuesday, July 13 2004 @ 07:05 PM EDT
- Why bother? - Authored by: Jude on Tuesday, July 13 2004 @ 07:22 PM EDT
- Why bother? - Authored by: Anonymous on Tuesday, July 13 2004 @ 07:41 PM EDT
- Why bother? - Authored by: Paul Shirley on Tuesday, July 13 2004 @ 09:03 PM EDT
- Why bother? - Authored by: Anonymous on Tuesday, July 13 2004 @ 09:33 PM EDT
- But they can't drop it - Authored by: Anonymous on Tuesday, July 13 2004 @ 10:03 PM EDT
- Why bother? - Authored by: Einhverfr on Tuesday, July 13 2004 @ 10:03 PM EDT
- Why bother? - Authored by: Anonymous on Wednesday, July 14 2004 @ 12:15 AM EDT
- Why bother? - Authored by: Anonymous on Wednesday, July 14 2004 @ 04:26 AM EDT
- SCO regrets to have filed that stupid suit - Authored by: Anonymous on Wednesday, July 14 2004 @ 03:58 AM EDT
- SCO regrets to have filed that stupid suit - Authored by: Anonymous on Wednesday, July 14 2004 @ 04:23 AM EDT
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| Authored by: Anonymous on Tuesday, July 13 2004 @ 06:44 PM EDT |
So, Novell will probably again ask for this to be dismissed due to failure to
plead special damages. Question is, is it time for Novell to ask for dismissal
with prejudice?
MSS[ Reply to This | # ]
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| Authored by: overshoot on Tuesday, July 13 2004 @ 06:51 PM EDT |
| Looks to me as though SCOX is doing its best to get this dismissed sua
sponte as soon as His Honor sees it. That way, they can claim that the
Court dismissed it on a technicality. They won't appear to lack
confidence in their claims (regardless of actual confidence or lack
thereof.)
Most important, there's no danger of the Court actually ruling on
a 204 conveyance of copyright. [ Reply to This | # ]
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- Dismissed, - Authored by: rsteinmetz70112 on Tuesday, July 13 2004 @ 07:03 PM EDT
- Dismissed, with predjudice, /sua/ /sponte/ - Authored by: sphealey on Tuesday, July 13 2004 @ 07:20 PM EDT
- Dismissed, with predjudice, /sua/ /sponte/ - Authored by: Ruidh on Tuesday, July 13 2004 @ 09:34 PM EDT
- Talk about painting one's self into a corner - Authored by: Anonymous on Tuesday, July 13 2004 @ 09:42 PM EDT
- Dismissed, with predjudice, /sua/ /sponte/ - Authored by: DrStupid on Wednesday, July 14 2004 @ 04:01 AM EDT
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| Authored by: Weeble on Tuesday, July 13 2004 @ 06:56 PM EDT |
...try to do essentially the same thing over again and see if it works this
time.
There's a popular definition of insanity that goes along that line;
"Insanity is doing the same thing over and over again, each time expecting
to get different results than before."
Sound like anybody we SCO?
---
MS Windows doesn't HAVE security holes--it IS a security hole.
[ Reply to This | # ]
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| Authored by: dmscvc123 on Tuesday, July 13 2004 @ 07:10 PM EDT |
This was probably done in such an apparently poor effort in order to get the
judge/Novell to get the case dismissed rather than with summary judgment or with
a countersuit. Novell should accept the filing and then spank SCO by getting a
clear ruling that there was no 204A copyright transfers to SCO's alleged
predecessor. By not having the copyright ownership actually ruled on, this will
still give Microsoft FUD.[ Reply to This | # ]
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| Authored by: Pres on Tuesday, July 13 2004 @ 07:13 PM EDT |
Ken Brown and ADTI on The Linux Show tonight !!!
See http://www.thelinuxshow.com/ for details.
Pres[ Reply to This | # ]
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| Authored by: whoever57 on Tuesday, July 13 2004 @ 07:14 PM EDT |
PJ wrote:At the oral argument on this motion, SCO argued that
because of the alleged customer confusion, customers did not want to enter into
license agreements with it. This is a natural consequence of the alleged cloud
of ownership and customer confusion and would amount to a realized pecuniary
loss. However, SCO did not make such allegations of special damages in its
Complaint.
Doesn't para. 21 of the amended complaint make this
claim? It's not specific to the amount but it says:
Potential
customers of [sic] have informed SCO that they will not enter into agreements to
license SCO's UNIX technologies at this time....
SCO and their
lawyers are still putting in typos to their documents -- can't they find a
proofreader? [ Reply to This | # ]
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| Authored by: Dastardly on Tuesday, July 13 2004 @ 07:24 PM EDT |
SCO sur eputs a lot of weight on the first paragraph of schedule 1.1(a).
Is that first paragraph of schedule 1.1(a) a legally binding description of the
transferred assets, especailly given that it is immediately followed by a list?
Or, is it more of an introduction, and the asset list is the real legally
binding description of the transferred assets?
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| Authored by: malkerie1 on Tuesday, July 13 2004 @ 07:25 PM EDT |
This seems to be just another case of SCO decided that they don't actually have
to show anything till they get into a courtroom. Whether or not they actually
have anything to show it seems that this strategy is going to wind them up
losing to summary judgement requests.
IANAL so i could be wrong.
-Malkerie1
---
--------
I See Penguins![ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, July 13 2004 @ 07:29 PM EDT |
Can't any and all Linux distributors bring a 'Slander of Title' suit against SCO
for casting aspersions on the ownership of Linux?
And claim damages on the 'lost revenue' based on vagaries - e.g. unspecified
'customers', unspecified dollar amounts, and no supporting documentation?
I mean, if I am Joe J Linux Distributor, and I say that I was expecting (based
on nothing) to sell a billion dollars worth of Linux products to, say, Microsoft
- can I sue SCO because that didn't happen - since according to SCO I can pass
the baseless assumption that Microsoft didn't want to buy Linux because of SCO's
IP claims off to the court as undisputed fact?
Isn't that utterly ludicrous on it's face?
And don't they actually have to prove that Novell *doesn't* own Linux before any
'Slander of Title' case is even contemplated?
They have done nothing to address the judges concerns that this suit is
predicated on the unfounded assumption that they do have title to UNIX Sys V
copyrights.
This will get thrown out of court sooner rather than later, I think.
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| Authored by: Jude on Tuesday, July 13 2004 @ 07:31 PM EDT |
If this goes to trial, does SCO have to prove special damages, as opposed to
merely claiming them?
The reason I ask is that SCO seems to be telling the court that Novell's alleged
slander is what's costing them lost SCOsource sales, but I think a more likely
reason is SCO's persistent failure to demonstrate that Linux contains any SCO
IP.
[ Reply to This | # ]
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| Authored by: julian on Tuesday, July 13 2004 @ 07:35 PM EDT |
There is a good chance SCO is trying to end this on a technicallity rather than
risk a ruling on the copyrights.
Based on Kimballs order Novell might take a chance and leave out of their reply
the lack of special damages. This could force Kimball into ruling on the lack of
a 204a. Then again they might not want to add any risk when they have nothing to
gain except the good will of the geeks.
---
John Julian[ Reply to This | # ]
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| Authored by: ChrisP on Tuesday, July 13 2004 @ 07:39 PM EDT |
PJ wrote: "Who has used it as a defense? I can't think of any defendant who
has done so. Can you? IBM hasn't used it, even if they were a third
party."
Although perhaps not strictly a defence, what about IBMs Tenth Counterclaim in
the Second Amended Counterclaims?
"172. An actual controversy exists between SCO and IBM as to the
noninfringement ofSCO' s copyrights and the validity of any purported SCO
copyrights concerning UNIX.
173. IBM is entitled to a declaratory judgment pursuant to 28 U. C. 9 2201 that
IBM does not infringe, induce the infringement of, or contribute to the
infringement of any SCO copyright through its Linux activities, including its
use, reproduction and improvement of Linux, and that some or all of SCO' s
purported copyrights in UNIX are invalid and unenforceable."
And Novell's letters about copyright are attached as exhibits. I think TSG can
argue this one.
---
SCO^WM$^WIBM^W dammit, no-one paid me to say this.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, July 13 2004 @ 07:44 PM EDT |
I am reasonably certain that Novell has never claimed to own the copyrights.
What they have said is that SCO DOES NOT own the copyrights. Perhaps Novell
knows that any such copyrights have passed into the public domain and that the
settlement between ATT & UC Berkeley prevents such disclosure.
David R[ Reply to This | # ]
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| Authored by: Brian S. on Tuesday, July 13 2004 @ 07:49 PM EDT |
I don't think they will ever be able to name a specific customer who was put off
by the confusion over ownership.
Surely, that customer could be called to court by Novell?
Surely, that customer would in effect be saying "I want to pay additional
license fees"?
Surely, that customer would be helping the entity demanding the extra licencing
fees?
Surely, that customer would not want to incur the wrath of the FOSS community?
Surely, that customer would have to agree to be named and quoted by SCOG to be
of any use?
Will any aspiring customer of SCOG "Please stand up".
It's quiet at this time of night in the U.K. countryside.
I've just heard a cow moo.
Brian S. [ Reply to This | # ]
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- Surely that customer has call-display.n/t - Authored by: Anonymous on Tuesday, July 13 2004 @ 08:26 PM EDT
- Naming the customers. - Authored by: AntiFUD on Tuesday, July 13 2004 @ 08:27 PM EDT
- Good point - Authored by: Jude on Tuesday, July 13 2004 @ 08:37 PM EDT
- Easy - Authored by: Anonymous on Wednesday, July 14 2004 @ 12:47 AM EDT
- Good point - Authored by: ihawk on Wednesday, July 14 2004 @ 12:51 AM EDT
- Good point - Authored by: Anonymous on Wednesday, July 14 2004 @ 01:15 AM EDT
- But - Authored by: MadScientist on Wednesday, July 14 2004 @ 07:52 AM EDT
- Every customer they name is a Lanham violation - Authored by: Anonymous on Tuesday, July 13 2004 @ 09:15 PM EDT
- Naming the customers. - Authored by: rsteinmetz70112 on Tuesday, July 13 2004 @ 09:21 PM EDT
- Naming the customers. - Authored by: Anonymous on Wednesday, July 14 2004 @ 12:08 PM EDT
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| Authored by: bobn on Tuesday, July 13 2004 @ 07:50 PM EDT |
| TSG knows that Kimball will hand then their head if he is given a chance to rule
on whether the copyrights were transferred. So they intentionally did a crap
job on refiling , (not that doing a crap job requires a lot of effort from them,
it just comes naturally). ---
IRC: irc://irc.fdfnet.net/groklaw
the groklaw channels in IRC are not affiliated with, and not endorsed by,
either GrokLaw.net or PJ. [ Reply to This | # ]
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| Authored by: BlueSmurf on Tuesday, July 13 2004 @ 08:13 PM EDT |
I don't understand why SCO filed basically the same document with the two items
the judge stated they mentioned orally but were not in the original filing.
IANAL but even I think I could have done a better job. If as they allege other
cases are mentioning the "cloud" Novell's statements have made, I
would have cited them specifically, and quoted their text. If however as PJ
suggests that no other case has used Novell as a defense then it becomes obvious
(to me and the judge) as to why they didn't cite the other cases.
Also, if businesses have declined to license your Unix technology because of the
Novell cloud, couldn't you mention at least ONE specifically? And couldn't you
think of any other way this slander has damaged you? When everyone said the
judge had did SCO's work for them (by telling them what they did wrong), I
thought they were kidding. I'd expect a little detail or legalese to go along
with the judge's "insert two sentences at point b and resubmit it within 30
days".
To me, its kind of like turning in a book report of the "Scarlet
Letter" to a teacher, and having the teacher say, "That was an E
paper, but if you tell what "scarlet" means, and what the letter was,
and resubmit it within 30 days, I'll give you a passing mark". The
students adds two sentences at the bottom of the report "The letter was
A." and "Scarlet is red in color". Naturally the teacher has a
quandary. Do I give this idiot a "D" because he did what was asked
(and only), or do I return the paper to him with the same grade and say,
"I'm sorry, you didn't understand what I said to do, and you made no
attempt to find out what I meant, I cannot give you a passing grade".
IANAJ but this "vague" filing thing would drive me batty. I suspect
the judge will give SCO the "D" and let the trial continue.[ Reply to This | # ]
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| Authored by: blacklight on Tuesday, July 13 2004 @ 09:06 PM EDT |
I understand that the differences between SCOG's original pleading and its
amended pleading amount to no more than several unremarkable, nondescript and
vague added sentences. In my opinion, these added sentences are so vague that
the SCOG amended pleading should not meet the general damages treshold, let
alone the special damages treshold - And within these added sentences, SCOG is
asking for special damages to the very judge who wrote the book on special
damages. Overall, I am skeptical of SCOG prevailing on special damages at this
point.[ Reply to This | # ]
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| Authored by: PolR on Tuesday, July 13 2004 @ 09:27 PM EDT |
SCOG can't let this suit dismissed. It would mean they don't have clear
ownership of System V and their FUD would loose its bite. It also means they
would have to resort to a breach of contract suit to get the copyright assigned
to them with all the damage this will bring to their multiple causes.
So they try a last ditch attempt to salvage this SoT suit. Forget the
machiavelian theories. They try the same thing again only because they have
nothing better in hand.[ Reply to This | # ]
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| Authored by: Ruidh on Tuesday, July 13 2004 @ 09:54 PM EDT |
PJ asks
Who has used it as a defense? I can't think of any
defendant who has done so. Can you? IBM hasn't used it, even if they were a
third party.
In
IBM's Second
Amended Counterclaims Against SCO
, paragraph 96:
In addition
to its waivers of SCO's purported rights with respect to IBM Novell has
additionally asserted publicly that it owns the copyrights for UNIX, and that
SCO's registration of copyrights for UNIX was improper.
Now I
don't know if this is sufficient to meet Kimball's requirements, but I suspect
Novell won't challange it, but ask for summary judgement on other grounds.
[ Reply to This | # ]
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| Authored by: lightsail on Tuesday, July 13 2004 @ 10:36 PM EDT |
I just noticed the address of BSF....
Bank of America Tower -Suite 2800
BSF"s landlord?[ Reply to This | # ]
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| Authored by: micheal on Tuesday, July 13 2004 @ 10:39 PM EDT |
| Earlier, when I thought there was a 1st and 2nd Amended complaint, I did a
conparison with the original complaint posted here
Comparision
The only
substantive change I found was this inserted paragraph:
"27. SCO has also
incurred significant attorneys' fees and costs in its attempt to remove the
cloud that Novell has placed on SCO's title to UNIX and UnixWare, including but
not limited to attorneys' fees incurred in researching and reviewing Novell's
improper copyright registrations, attempting to mitigate damages by correcting
and responding to Novell's false representations to third parties, and in
prosecuting this and other actions to protect SCO's title to UNIX and
UnixWare."
---
LeRoy -
What a wonderful day. [ Reply to This | # ]
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| Authored by: RedBarchetta on Tuesday, July 13 2004 @ 10:42 PM EDT |
I tuned in on The Linux Show tonight, and I was able to catch intermittent clips
of the interview (the RealPlayer kept resetting every few minutes).
The discussion was quite vigorous, and remained professional throughtout. Ken
Brown had a tendency to interrupt the people posing questions, and would go off
in tangents. It was quite evident that Ken Brown was losing the verbal battles,
and when ESR would kick in with good arguments, he would divert the discussion
elsewhere.
There were many good points being made; and some that should have, but weren't.
It seemed like they had a hard time keeping the upper hand because Ken Brown has
obviously mastered the art of diversion. Overall, the gang kept him on track
and honest. His speaking skills weren't the greatest. In fact, it reminded me
of Darl, although Ken seems to have mastered the diversion-tactic better.
There was a point where some gentleman from Florida came online and greeted Ken,
having met him before. In a semi-serious way, he offered Ken Brown to be a
spokesman / lobbyist for the open source lobby (?), or something. It seemed
quite cordial, and Ken Brown actually seemed receptive to helping out if the
price is right. He doesn't seem like a bad guy... to the contrary, he seemed
like quite a nice person, but he just happens to be in the pocket of Microsoft,
open source's greatest nemesis.
Overall, the discussion was lively and interesting. Ken Brown had some good
points, but the people he was debating had better points.
(oh, and he offered to buy everyone dinner if they could prove IBM has made a
profit from Linux)
---
Collaborative efforts synergise.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, July 13 2004 @ 11:05 PM EDT |
SCO wants to file another over length memo in response to
186 IBM Response to [163-1] SCO's Memorandum re: Discovery
Exhibit A: Declaration of Joan Thomas - June 23,
2004
Exhibit B: SCO exhibit from February hearing
Here is what they say (apologies for typos), filed July 12th
The discovery issues raised in the present briefing go to the very heart of the
issues in this case. Nearly a year ago, SCO requested the most basic discovery
in this case from IBM, including versions of AIX and Dynix code. IBM, in large
part, has refused to provide the requested discovery which, as described in
SCO's Opening Memorandum is essential to the development of SCO [typo is
correct] claims and defenses. IBM's Responsive Memorandum is 19 pages in length
and raises several issues as to why IBM should not have to produce the
requested, essential information even under the liberal discovery rules. Given
the importance of the issues to SCO, it is necessary for SCO to fully address,
clarify and rebut IBM's arguments and explain to the Court the importance of the
requested discovery.
To address these issues and place them in context for the Court, SCO
respectfully requests leave to file an over-length memorandum. SCO's Memorandum
now contains 28 pages of argument exclusive of statement of facts, face sheet
and table of contents. SCO respectfully submits that the excess length is
necessary to address the issues.
Enjoy!
Quatermass
P.S.
Maybe it's just me but it seems excessive that SCO is filing a Memo regarding
discovery, a Motion and supporting Memo requiring discovery, reply briefs in
support of both, a rule 56(f) motion requesting further discovery (that's 5
memos and 2 motions so far in total), and all or virtually all are overlength.
The less they have to say, the more words they seem to use...[ Reply to This | # ]
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| Authored by: kawabago on Tuesday, July 13 2004 @ 11:33 PM EDT |
Opening shot a person jumps out of a plane and plummets straight into the
ground. Next shot, same person jumps out of plane and plummets straight to the
ground. Next shot, same person jumps out of plane but this time remembers to
open parachute. Message, keep trying even when you fail. It sure is a good
allegory for SCO except they don't seem to know what a parachute is.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, July 14 2004 @ 01:40 AM EDT |
I hear a lot of talk about making the IBM case appeal proof.
Does this really matter? I mean, if IBM wins, can't they get a judgement worth
more than SCO? Further, can't they get the judgement money set aside so SCO
can't spend it all on lawyers?
In that case, once Judge Kimball rules, its all over for SCO. they don't have
the cash to pay IBM and hence don't have the cash for an appeal.[ Reply to This | # ]
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| Authored by: ihawk on Wednesday, July 14 2004 @ 01:43 AM EDT |
I notice, over the months, that this community can be characterized as having a
tremendous sense of injustice over the apparent behavior of SCO and Microsoft
and their puppets.
A more generous man than I might give give some
benefit of some doubt to SCO, thinking that perhaps they really believe that
they have been wronged in some way.
But I don't believe that. I believe
rather that the architects of this juisprudent abomination are driven by the
utmost avarice and cynical malice. I believe that there is a will to
disenfranchise freedom of thought and creativity and innovation in the interest
of narrowly defined personal benefit and to the exclusion of the greater
community good. For with community, there is power and without it there is only
subjugation.
This sounds like an appeal for some communistic ideal, but
it is not. I am more of a cowboy and a loner than is healthy or productive, but
I do have a well honed sense of justice. And I do seek affiliation of
like-minded people. And we speak here of an Open Source community and a
Linux community. And we don't have the power of PIPE millions to fund
extortion and abuse of the legal system in pursuit of money for nothing.
We do, however, have the power of ideas.
We are the
implementors. We are the writers of music and prose, the artists, the sculptors,
the programmers, the inventors. We create because we must and because it
fulfills us.
And to sit by and watch someone like SCO or Microsoft or
Baystar or the RIAA or anyone defile that effort, that instinct, with their
obsessive antisocial greed, with their putrescent malice, fills me (perhaps us)
with an ineffable, eruptive disgust.
I am old enough and experienced
enough to know that the American justice system is not necessarily either just
nor systematic. It does, more often than not, I think, approach some measure of
consistency and balance which might be the best we can hope for.
My
sense of justice calls for SCO and its patrons to be made to suffer to the exact
extent that they have defiled truth and honesty in their pursuit of unearned
wealth and power. But I know that my sense of justice is not what reality is
made of.
Let me then ask only that I be allowed to pursue my life, my
art, my development without hindrance by those who would extort unearned tribute
from my efforts for their own soul-less greed.
I no longer care what
happens to Darl or Bill or their sycophantic minions. I just want them to go
away and leave me to my life and my arts.
Sorry for the polemic, but I
needed to vent a little.
..m..
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| Authored by: Daddio on Wednesday, July 14 2004 @ 03:24 AM EDT |
Um we had to sue becuz we need to recuvver the cost of sueing
And theres this cloud...
---
Joshua A Clayton
~Salt Lake City UT[ Reply to This | # ]
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| Authored by: minkwe on Wednesday, July 14 2004 @ 04:07 AM EDT |
Lets not forget that SCO's sued was preemptive of what Novell would do. Remember
they had been taking systematic steps in preparation of nuking SCO before SCO
suid them for slander.
I think Novell will reply to SCO's amended complain, with its own set of claims
about SCO's violation of the APA, as well as a claim for summary judgement on
the 204 status of the APA as ammended.
Novell will not let SCO off so easily. I think Novell would have refiled on the
contract violation as soon as this case was dismissed, if it was. SCO knows
this, that is why they brought Bob Silver on.
---
SCO: Your honor, they are trying to confuse us with the facts![ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, July 14 2004 @ 04:19 AM EDT |
| At the present time SCO is pursuing claims against third parties for
infringement of SCO's intellectual property and contractual rights in UNIX.
Defendants in those cases have relied on Novell's claims of ownership in UNIX as
a defense to SCO's claims, thereby hindering SCO's ability to protect its
copyrights and causing SCO to incur significant additional attorneys' fees
and costs...
We all have got a pretty good feel of what SCOG means when
they talk about "protecting copyright". It's not preventing the distribution of
SCOG's copyrighted material. It's actually: pay SCOG for SCOG's material in
Linux, material that does not exist, or be sued.
This is SCOG saying "Please
judge, do not dismiss, for a dismissal will derail our racketeering
campaign.
Peter [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, July 14 2004 @ 05:42 AM EDT |
Out of curiosity, has anyone looked into the transfer from oldSCO to newSCO.
A quick browse threw up a newspaper report which is probably incorrect but:
http://www.dqindia.com/content/special/200092201.asp
"
The deal
The deal that SCO struck with Caldera is as complex as they come. SCO sold the
server software and professional services division to Caldera, but retained the
intellectual property rights to the software.
In return, SCO will receive 28% of Caldera stock, plus $7 million and two seats
on the Caldera board. Caldera will be the exclusive distributor for SCO’s
products. SCO will also continue to receive from Caldera, revenues on SCO
OpenServer, after expenses. ...
"[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, July 14 2004 @ 10:31 AM EDT |
That's incorrect. The chance of winning with a consistent switch strategy is
2/3. It can be shown many ways, but probably the easiest is for you to just
play the game. You'll quickly realize that a stay strategy wins when you picked
correctly initially (1/3) and fails the rest of the time, and the switch
strategy always wins when you picked incorrectly initially (2/3) and fails the
rest.
It's very non-intuitive. Last time I tried to explain this to people, they got
very very upset with me since the correct answer "felt" wrong to them,
but they couldn't argue the math or logic.[ Reply to This | # ]
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| Authored by: darkonc on Wednesday, July 14 2004 @ 02:41 PM EDT |
SCOX can't afford to have this tossed out on it's merrits, given that it's now a
copyright case. If the question of copyright transfer has to be answered, it's
pretty clear that Novell will win, and everybodt will know that SCO has
no copyrights behind their bluster and lawsuits.
bad (for SCOX).
Very bad.
On the other hand, just backing out on the case would make
it pretty clear to the world, that SCOX knows that their copyright
clzaims are invalid. This means that their only other real choice is to go
forward with the flawed special damages section, and hope that the lawsuit gets
thrown on that.
If the suit gets tossed on a technicality, then
that's pretty easy to spin to the press with plausable deniability... "It
wasn't thrown out on the merrits; the judge didn't understand how much this is
costing us; We're appealing' etc.
I agree with the other poster who said
that the best thing that Novell could do in this case would be to ignore
the flawed special damages and go for the throat on the copyright question. --
that copyright was never transferred, and so SCO has no title to be sullied.
This would mean that there were no 'improperly registered copyrights' and no
damages (special or otherwise).
amen.
---
Powerful, committed
communication. Touching the jewel within each person and bringing it to life.. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 11:10 PM EDT |
Has anyone comapared the ATT/USL/Novell and IBM contract with the Novell and Old
SCO contract?
One last thing - if the intent was tranfer of copyright to Santa Cruz Operations
I would think it would show up in the Old SCO to Caldera to whatever since that
document cant be found I doubt the intent was to transfer copyright to Old SCO,
since that is the case SCO group cant prove copyright was tranfered.
Ron[ Reply to This | # ]
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