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SCO's Answer to Novell's Counterclaims
Wednesday, September 14 2005 @ 07:13 PM EDT

Here it is at last, SCO's Answer to Novell's Counterclaims [PDF]. I haven't read it yet myself, so we can do it together. We'll try to get a chart done, so you can read it side by side with Novell's Answer to Amended Complaint, Counterclaims, paragraph by paragraph. But you'll notice they deny utterly the allegations in Novell's paragraph 41, about filings with the SEC. And as for the famous conversations where Novell claims SCO tried to get them to join in the "scheme", SCO says this:
38. Admits that in 2002, as part of the review of its intellectual property, SCO contacted Novell to confirm SCO's understanding that the UNIX and Unixware copyrights had been transferred under the APA and to ask if Novell had documents concerning the APA; admits that Novell counsel and other employees repeatedly and successively asked SCO to call again at a later time after Novell had had the opoportunity to rersearch the matter; admits that in early 2003, Novell counsel agreed to sign a letter stating that the APA transferred all right, title, and interest in and to the copyrights associated with the AT&T SVRX software agreements; admits that SCO sent Novell counsel a draft of that letter but Novell responded that it was no longer interested in UNIX and would not sign; admits that Novell did not sign the letter and ceased communications with SCO; further admits that during the aforementioned conversations Novell never asserted its purported, or challenged SCO's, ownership of the UNIX and Unixware copyrights; but denies each and every allegation of paragraph 38.

I'm sure you don't need me to point out the logical disjoints in such an account. Novell refusing to sign a letter saying that all copryights had transferred *is* a challenge to SCO's ownership, one would think. And a disinterested observer might also notice that apparently SCO was missing some documents. If they knew they owned the copyrights, and could prove it, why would they need to ask Novell for a writing, pray tell?


  


SCO's Answer to Novell's Counterclaims | 324 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO's Answer to Novell's Counterclaims
Authored by: Anonymous on Wednesday, September 14 2005 @ 07:39 PM EDT
To answer your last question.
IIRC SCO, unlike Novell, was able to dig up Amendment 2 from a filing cabinet
shortly after with some help from a paralegal.

[ Reply to This | # ]

Corrections Here
Authored by: pajamian on Wednesday, September 14 2005 @ 07:40 PM EDT
...

---
Windows is a bonfire, Linux is the sun. Linux only looks smaller if you lack
perspective.

[ Reply to This | # ]

Off Topic Here
Authored by: pajamian on Wednesday, September 14 2005 @ 07:41 PM EDT
...usual stuff about clickable links, yadda yadda, etc...

---
Windows is a bonfire, Linux is the sun. Linux only looks smaller if you lack
perspective.

[ Reply to This | # ]

SEC filing explicitly contradicts SCOX response
Authored by: stats_for_all on Wednesday, September 14 2005 @ 07:45 PM EDT
"We initiated the SCOsource effort to review the status of these licensing and sublicensing agreements and to identify others in the industry that may be currently using our intellectual property without obtaining the necessary licenses. This effort resulted in the execution of two license agreements during the April 30, 2003 quarter. The first of these licenses was with a long- time licensee of the UNIX source code which is a major participant in the UNIX industry and was a “clean-up” license to cover items that were outside the scope of the initial license. The second license was to Microsoft Corporation (“Microsoft”), and covers Microsoft’s UNIX compatibility products, subject to certain specified limitations. These license agreements will be typical of those we expect to enter into with developers, manufacturers, and distributors of operating systems in that they are non-exclusive, perpetual, royalty-free, paid up licenses to utilize the UNIX source code, including the right to sublicense that code."
Source

[ Reply to This | # ]

SCO's Answer to Novell's Counterclaims
Authored by: Anonymous on Wednesday, September 14 2005 @ 07:52 PM EDT
Looks like SCO v. Novell isn't going to be resolved any time soon either...

[ Reply to This | # ]

SCO's Answer to Novell's Counterclaims
Authored by: Steve Martin on Wednesday, September 14 2005 @ 07:53 PM EDT

"... admits that Novell counsel and other employees repeatedly and successively asked SCO to call again at a later time after Novell had had the opoportunity to rersearch the matter; admits that in early 2003, Novell counsel agreed to sign a letter stating that the APA transferred all right, title, and interest in and to the copyrights associated with the AT&T SVRX software agreements; admits that SCO sent Novell counsel a draft of that letter but Novell responded that it was no longer interested in UNIX and would not sign; [...]"

Um, perhaps I'm just naive, but I thought that the response was supposed to indicate that TSG either agreed or disagreed with the claim. What they say here that they "agree" to bears no resemblance whatsoever to what Novell actually claimed in the corresponding paragraph. Rather than responding to Novell's claim, this looks more like TSG is arguing the case. Is this normal?

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

[ Reply to This | # ]

What document transferred the copyright
Authored by: Anonymous on Wednesday, September 14 2005 @ 07:56 PM EDT

The question has been asked a million times it seems. So here it is again:

-> What document transferred the copyrights? And with specificity what
section of that document?

Novell cannot find it, the judge cannot find and SCO wont point out.

[ Reply to This | # ]

What about Paragraphs 144-153?
Authored by: Steve Martin on Wednesday, September 14 2005 @ 08:04 PM EDT
TSG's answer to Novell's counterclaims ends in paragraph 139 with the text "States that the enumerated ¶¶ 139-43 following Novell's Prayer for Relief include requests for relief as to which no response is required. To the extent a response is required, SCO denies that Novell is entitled to the requested or any relief." Now, that's all well and good, except that Novell's Prayer for Relief continues past ¶ 143, including the now-famous ¶ 145, which asks "[f]or an order imposing a constructive trust on the revenues remitted to SCO under new or amended SVRX Licenses". Since TSG did not respond to this paragraph, what is its status? Does this mean they concede it??

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

[ Reply to This | # ]

SCO's Answer to Novell's Counterclaims
Authored by: Rob_B on Wednesday, September 14 2005 @ 08:06 PM EDT
SCO seems to be attacking a basic understanding of what the IBM/Sequent SVRX
licenses were for. If I am reading everything correctly, they seem to be
claiming that the licenses that Novell retained royalites for were only related
to the UNIX binaries.

Am I misunderstanding something?

[ Reply to This | # ]

Weasels & wookies
Authored by: Anonymous on Wednesday, September 14 2005 @ 08:14 PM EDT
Whoooo, that is some convoluted reading!

I'm betting TSG is going to focus on #74, and spend a few motions and
over-length memorandums scrambling the definition of "SVRX License".


Since it appears that this definition was overlooked in the APA, that looks like
the only area they have any leeway at all. Everything else they've already shot
to pieces with the footgun, which, given the number of statements in here that
are self-contradictory, still looks to be blasting away on autofire.

Incidentally, doesn't #47 directly contradict the description of their SCOSource
license they gave to the court in the IBM case where, to counter IBM's
counterclaims, they insisted it had nothing to do with Linux?

When does Kimball get to start comparing notes?

[ Reply to This | # ]

Could someone explain just how serious the sec contradiction is please?
Authored by: ghostly on Wednesday, September 14 2005 @ 08:23 PM EDT
Ok so can someone explain to me just how serious the sec filing contradiction
is please?
Over here in the uk, in a company annual report, if revenue is a one off, or
special payment of some kind, its listed in the companies annual report
specifically as one off income. (I forget the exact terms, been a while since i
read one) So that would be pretty serious over here to list income as something
it isnt.

[ Reply to This | # ]

Six BIZARRE curiosities
Authored by: Anonymous on Wednesday, September 14 2005 @ 08:30 PM EDT
1. SCO claims the deals with Sun and Microsoft are <B>not</B>
SCOsource deals

Well I opine:

Their SEC filings say otherwise


2. SCO claims the letters they sent to IBM purportedly threatening to terminate
IBM's license (e.g. March 6th 2003 letter), and purportedly terminating IBM's
and Sequent's letter, are <B>not</B> SVRX licenses

See paragraph 84-85 for example.

Well I opine:

The text of their pleadings in SCO v IBM, their own exhibits in SCO v IBM, and
possibly other materials say otherwise.


3. SCO claims "SVRX" licenses as defined by the APA means only
pre-existing (pre APA) SVRX binary licenses

Well I think:

Aside from the on-the-face validity (or not!) of this claim, there is a possible
contradiction with point 2 here.

I suppose SCO's wiggle theory, is that the IBM royalty buyout agreement (the
three way OldSCO-Novell-IBM 1996 agreement) was signed after the APA, according
to SCO's theory, it's not a pre-existing SVRX binary license.

However, they have a problem with this theory: Their letters to IBM, and their
pleadings in SCO v IBM, don't just reference the 1996 agreement -- they also
reference the AT&T/IBM agreements -- which even under SCO's own theory, look
like they fall under "SVRX"


4. SCO claims their Linux licenses aren't "SVRX" licenses.

I opine:

I am unclear what they think they are licensing, if not SVRX.

However, perhaps the discrepency arises because they define "SVRX"
differently from what we (and I assume the rest of the world) is likely to think
it means. See point 3.


5. Novell alleges that Caldera (SCO) bought the UNIX assets from oldSCO to help
its Linux business.

SCO denies it.

I opine:

Their SEC filings, their press releases, and Ransom Love's public statements say
otherwise.



6. Even with a hammer over their heads, they can't resist flitting back into
"marketing speak".

For example:

(a) Novell says they offer qualified Novell customers Linux indemnification

SCO admits the allegation, but adds in a gratuitious, unnecessary, and
unrelated, attack on Novell's indemnification program, saying how expensive it
is, and how Novell customers have to purchase an upgrade.


(b) Novell says Caldera never made a profit from Linux.

SCO admits the allegation, but adds in a gratuitious, unnecessary, and
unrelated, comment... neither (according to SCO) has Novell.


Quatermass
IANAL IMHO etc

[ Reply to This | # ]

SCO's Answer to Novell's Counterclaims
Authored by: Anonymous on Wednesday, September 14 2005 @ 08:46 PM EDT
After reading SCO's answer can't say I was really surprised. My surprise will
be if this stops the preliminary injunction. There really is no answer to
Novell's Counterclaim that comes across reasonable as most of it was *we
disagree* with not much explanation as to why the Judge should not allow
Novell's preliminary injunction.

What happens now? Does the Judge compare Novell's counterclaims and SCO's
answer then determine whether he will grant the preliminary injunction? Or is
there more filings to be done?


[ Reply to This | # ]

Extension for response?
Authored by: LarryVance on Wednesday, September 14 2005 @ 08:52 PM EDT
I fail to see where a crack legal team needed extra time to come up with the
weasel words, lies, and general denials that were presented in this document.

I really feel that our legal system is broken when outright lies can be
published as though they were the truth in a document submitted to the legal
system. It seems to me that there should be some changes made so that when a
lawyer knowingly submits claims that are verifiably false that they should be
punished. I am not talking about sanctions of a few thousand dollars or even a
night in the cooler; I think that there should be some disbarments and some
serious consequences.

I can understand having boilerplate defenses, but when they purposely lie about
events that are undeniably refuted by the evidence, there should be some form of
incentive to be honest put back in our legal system. Crooked judges included.

---
ours is a sick profession marked by incompetence, lack of training, misconduct
and bad manners. -- Chief Justice Warren Burger

[ Reply to This | # ]

Pay attention IBM!!!!!
Authored by: Anonymous on Wednesday, September 14 2005 @ 08:57 PM EDT
The following extract is a great one for IBM....

"47. Admits that the SCOsource licensing program allows Linux end-usersto
enter into intellectual property agreements that properly compensate SCO for
it's Unix intellectual property found in Linux....."

Does the "FOUND" statement not indicate that SCO knows, and has known
since Jan 23, 2003, exactly what intellectual property of theirs was in Linux?

Moreover they are also so sure of what intellectual property was in Linux they
were able, with absolute clarity to calculate proper compensation for the
SCOsource licensing.

If I were IBM I would be entering this as an exhibt and be asking Judges Wells
& Kimball to quash any further discovery requests/extensions from SCO
relating to Linux as SCO already claims to know the purported infringements.

Furthermore should IBM not also request said Judges to, in the light of SCO
being unable or unwilling to identify with any specitivity what alleged code IBM
'put' into Linux, request discovery from SCO on all documents,calculations and
other materials relating to SCOsource. In this way IBM will be able to finally
have limits on what code is claimed to have be 'mis-appropriated' - there can't
be anymore or SCO would have included them it in it's calculations of it's
SCOsource compensation - thereby allowing IBM to finally start constructing
it's defence.

Of course, the cynic in me thinks that SCO don't even have any such calculations
or identified bits of code.

But I do think that IBM now has the opportunity to be aggressive, call SCOs
bluff and show to the Judges that the case is just a piece of fiction with no
factual basis.

Better still (for Linux) it would be nice if the alleged code was reviewed,
investigated and reported by IBMs expert witness.....nothing could be better
than a clean bill of health.

.....it's getting late and I'm beginning to waffle and I have more PDF to
read.......






[ Reply to This | # ]

What about the money claim?
Authored by: Anonymous on Wednesday, September 14 2005 @ 09:22 PM EDT
How did SCO answer Novell's counterclaim that SCO owes Novell far more money
than SCO has available?

------------------
Steve Stites

[ Reply to This | # ]

Binaries vs. Source Code
Authored by: Anonymous on Wednesday, September 14 2005 @ 09:36 PM EDT
Note that the document refers to royalties on binaries owed to Novell as opposed
to royalties on source code. It appears they intend to draw a distinction
between licenses for source code versus the production and sale of binaries. As
if you can produce binaries without source code. So it appears they are
claiming they owe no money from the Microsoft deal because they only licensed
source code and no binaries are being produced that require royalty payments.

[ Reply to This | # ]

SCO's Answer to Novell's Counterclaims
Authored by: Anonymous on Wednesday, September 14 2005 @ 09:53 PM EDT
There is a lot of discussion about SCOX attempting to define the "SVRX
agreements" as solely relating to binary licenses as they are not defined
in the APA. The APA didn't need to explicity define what the license was as it
referred to the existing contracts. SCOX, I guess, will be surprised to find
that the wording appears to grant rights to source code and the ability to
create derivative works based thereon.

mrpaul.

[ Reply to This | # ]

  • Ah, but... - Authored by: Anonymous on Thursday, September 15 2005 @ 04:21 PM EDT
SCO's Answer to Novell's Counterclaims
Authored by: rm6990 on Wednesday, September 14 2005 @ 10:07 PM EDT

From SCO/Caldera's Quarterly Report to the SEC dated June 13th, 2003:

"We initiated the SCOsource effort to review the status of these licensing and sublicensing agreements and to identify others in the industry that may be currently using our intellectual property without obtaining the necessary licenses. This effort resulted in the execution of two license agreements during the April 30, 2003 quarter. The first of these licenses was with a long-time licensee of the UNIX source code which is a major participant in the UNIX industry and was a “clean-up” license to cover items that were outside the scope of the initial license. The second license was to Microsoft Corporation (“Microsoft”), and covers Microsoft’s UNIX compatibility products, subject to certain specified limitations. These license agreements will be typical of those we expect to enter into with developers, manufacturers, and distributors of operating systems in that they are non-exclusive, perpetual, royalty-free, paid up licenses to utilize the UNIX source code, including the right to sublicense that code."

During the course of the review of our intellectual property rights, we became concerned generally about the existence of UNIX source code in the Linux operating system. We have discovered that UNIX source code and unauthorized derivatives of UNIX source code are prevalent in the Linux kernel. In March 2003, we filed a complaint against IBM alleging, in part, that it had breached its license agreement with us by, among other things, inappropriately contributing UNIX source code to the open source community and seeking to use its knowledge and methods with respect to UNIX source code and derivative works and modifications licensed to it to destroy the value of the UNIX operating system in favor of promoting the adoption by businesses of the Linux operating system, of which it has been a major backer. Unless IBM cures the breaches we have identified, we will terminate the license agreement we have with it that permitted the use of our UNIX source code in the development of its AIX operating system. In May, 2003, we sent letters to approximately 1,500 large corporations notifying them that the use of the Linux operating system may be a violation of our intellectual property rights.

From This SCO press release dated May 19th, 2003

The SCO® Group (SCO) (Nasdaq: SCOX), the owner of the UNIX® operating system, today announced it has licensed its UNIX technology including a patent and source code licenses to Microsoft® Corporation. The licensing deal ensures Microsoft's intellectual property compliance across all Microsoft solutions and will better enable Microsoft to ensure compatibility with UNIX and UNIX services.

Microsoft joins thousands of IT companies, educational institutions and customers that have licensed the UNIX source code for the benefit of their organizations. UNIX is one of the most widely used operating systems in the industry for implementing highly scalable computing solutions for high-end computing.

[ Reply to This | # ]

SCO's Answer to Novell's Counterclaims
Authored by: pfusco on Wednesday, September 14 2005 @ 10:08 PM EDT
Second Defense--- paraphrase

Protection guarenteed by the first amendment

Didnt Sco shoot down or attempt to shoot down Novell for using that?

---
only the soul matters in the end

[ Reply to This | # ]

The SCO Group Just Admitted They're NOT SANTA CRUZ
Authored by: Steve Martin on Wednesday, September 14 2005 @ 10:11 PM EDT

Novell's Counterclaims:

"20. Novell and Santa Cruz were the only parties to the APA and its Amendments. SCO was not a party to the APA or its Amendments. SCO was originally incorporated on August 21, 1998 as a company called Caldera Systems, a developer and provider of Linux-based business solutions. SCO purports to be the successor in interest to Santa Cruz under the APA and its Amendments. This dispute is about Novell's rights under the APA and whether SCO breached its obligations as the alleged successor of Santa Cruz."

The SCO Group's Response:

"20. Admits the allegations of the first three sentences of ¶ 20, but denies each and every other allegation of ¶ 20."

The SCO Group therefore have just stipulated that they were not a party to the APA nor to any amendment thereof, and therefore they are not Santa Cruz Operation.

Further, by denying the next sentence ("SCO purports to be the successor in interest to Santa Cruz under the APA and its Amendments"), in addition to admitting they were not a party to the APA, they have admitted they are not successor in interest under the APA. Doesn't this mean they've effectively said that they have no standing to be pursuing this lawsuit?

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

[ Reply to This | # ]

SCO's Answer to Novell's Counterclaims
Authored by: wvhillbilly on Wednesday, September 14 2005 @ 10:16 PM EDT
10. Admits that in 1995, Novell ("Seller") and The Santa Cruz Operation, Inc. ("Santa Cruz") entered into negotiations resulting in the transfer to Santa Cruz of "all of the Seller's right, title and interest in and to the assets and properties of Seller relating to the [UNIX and Unixware] business," including the copyrights in UNIX and Unixware; ... [my bold]
Well, that's a bald faced lie. The APA specifically excluded copyrights. How can they say that when the evidence directly contradicts them? Or is this another case where they can say anything they want to and they're protected because it's privileged?

---
What goes around comes around, and the longer it goes the bigger it grows.

[ Reply to This | # ]

So will we see them
Authored by: Tufty on Wednesday, September 14 2005 @ 11:11 PM EDT
Will the Microsoft and Sun licenses have to be produced in court?


---
There has to be a rabbit down this rabbit hole somewhere!
Now I want its hide.

[ Reply to This | # ]

SCO's Answer to Novell's Counterclaims
Authored by: Anonymous on Wednesday, September 14 2005 @ 11:39 PM EDT
"47.Admits that the SCOsource licensing program allows Linux end-user to enter into intellectual property agreement that property compensate SCO for its UNIX intellectual property found in Linux;”

What exactly is the “intellectual property found in Linux”? Why they do not ask for injunction to remove the property from Linux, if it is true? Why they do not tell the court what is the property allegedly found in Linux and on what basis they think they own the enigmatic unspecified intellectual property? Why they attempt to charge end-user for something which they are unable to define? It surely looks to me that they are trying to sell (extort) money for hot air using threat of suing, or I am missing something here?

.

[ Reply to This | # ]

SCO's Answer to Novell's Counterclaims
Authored by: Anonymous on Wednesday, September 14 2005 @ 11:54 PM EDT
It comes down to rights and responsibilties -- everyone wants rights, but no one
wants to take responsibility and the obligation that comes along with it. SCO
is no different. In some warped way they are playing both sides here. Will be
interesting to see how this plays out in front of a judge.

[ Reply to This | # ]

D-
Authored by: Anonymous on Thursday, September 15 2005 @ 12:55 AM EDT
Very Poor work. Entertainment value almost zero.

This lacked the good old wordy double speek gobblygook of the good old days.

Very little subtle truth twisting.

Almost no lies told with such a straight face that even though you KNOW it is
untrue you ALMOST want to believe it.

This looks like BSF is letting the interns finish this case.



[ Reply to This | # ]

  • D- - Authored by: Anonymous on Thursday, September 15 2005 @ 02:39 AM EDT
  • D- - Authored by: Anonymous on Thursday, September 15 2005 @ 11:03 AM EDT
Some thoughts
Authored by: Anonymous on Thursday, September 15 2005 @ 05:01 AM EDT
para 14

SCO again claim the copyrights to Unix:

'[i]ncluding (among other things) the copyrights in UNIX'

para 21

SCO again claim the copyrights to Unix:


para 31

Linux is not profitable.

- Ask IBM. Ask Red Hat

Please not thay have this listed as being on information and belief - not
knowledge so this looks likey to be struck from the record as hearsay and indeed
false hearsay.

para 32

Claims that SCO UNIX code was used in Linux.
Also that other protected material were used in Linux

- This is curious. So far SCO have failed to identify a single line of SCO owned
protected code in Linux. They have admitted that there are no trade secrets.
There are no patents. There are no trade marks.

SCO fail to specify what other protected materials are in Linux that are owned
by SCO

para 37

SCO claim the copyrights again

para 43

Refers to a letter by Mr LaSala from Novell to SCO dated 4th August 2003

- This is not I think in the GL collection (yet) but seems to be relevent here.


para 50

*Very* interesting. The SCO source licence revenue stream now does not include
the payments from Sun and Microsoft. So were SCO not telling the truth in thier
accounts?

Heaven help the auditors. Yes I *know* these accounts were Andersons - who are
now defunct - but the audits themselves were done by natural persons
(accountants) who it has been alleged were engaged in attempting to mislead the
SEC. Thats personal professional 'death' if it is true and a federal offense.

Someone is not being honest here.

para 85

Terminated an irrovacable royalty buyout.

para 86

Admits SCO breached the agreement with Novell.

- Combined para 85 & 86 are the end for SCO contract claism with IBM. SCO
admit here they did not have the power to terminate IBM's buyout without
Novell's say so which they did not have. In short SCO were attempting to act in
an ultra vires fashion here.

Please note that SCO has had a lot of press releases claimin gthe IBM dispute
was not a copyright one but a contract one. The contract dispute in so far as
one existed never had any legal basis according to these two paragraphs. Unless
SCO can find another contract with IBM - that we have yet to see - to wriggle
around on this part of SCO's case is over.

para 91

Tricky work - watch the wording here: are SUN and MS being included as Linux end
users here or not? Both are end users. This is trick of the English language -
an 'inclusive' or an 'exclusive' listing.

Rest assured SCO will try to wriggle around on this.

+++++++++++++++++++++++++++

In short

(1) The claims to have a contract dispute with IBM seem to be over now. Paras 85
& 86 seem to finish this off.

(2) It is begining to look like the judge will have to rule whether or not the
copyrights were or were not actually transfered to SCO. SCO claim they were.
Novell say they were not. Japser (the controling case here) seems to suggest
they were not.

But we shall have to see what the judge does.

(3) The SEC will have to take an interest in this unless SCO change thier story.
Misclassifing revenue streams is a big 'no-no' after Enron.

I expect Novell will ask that the details of the contract be placed upon the
record - if necessary for attournies eyes only. Given the right Novell have to
audit the Unix revenue stream and that this was orginally advertised and indeed
filed in the SEC accounts as a Unix related revenue stream this would suggest
that Novell have some right to at least read the contracts to ensure that these
are not related to the Unix revenues.

My take:

IBM will use paras 85 and 86 to dismiss any remaing SCO contract complaint
leaving this down to a case of copyright infringment.

Novell will request the right to inspect the contracts with Sun and MS - if
necessary under 'attournies eyes only.' If there is any Unix related revenue
stream there then this will have to be debated befre the court what part if any
is due to Novell.

The copyright issue will have to be ruled on at some point. SCO claim and
continue to claim they own the copyrights. There is IMHO no adequete record of
them being transfered to Santa Cruz and then from Santa Cruz to SCO.

Please recall no one has yet seen the Santa Cruz => SCO transfer document
yet. The transfer of the Unix divisions - this we do have and this did NOT list
any copyrights so any transfer must be documented seperately and in all
likelyhood after the transfer of the divisions.

--

MadScientist

[ Reply to This | # ]

Blatantly obvious lies.... I bet the useles legal system does nothing about it
Authored by: Anonymous on Thursday, September 15 2005 @ 05:09 AM EDT
Hi,

As pointed out above, some statements in SCO's latest legal document are
blatant, unexcusable lies. It took groklaw readers all of about 5 minutes to
disprove some of the statements.

They go so far as to contradict their own sharemarket filings.

Isn't this a sworn statement? Isn't this perjury?

I would hope that the court give SCO (and their lawyers) some SEVERE sanctions.
A fine of at least $50,000,000 sounds appropriate to me (thats only 1% of Unix's
value according to SCO).

As for the slimy lawyers, this is not the first time they disrespected the
court. Everyone remembers when they "accidently" read out the
protected email. Since they are getting paid $30 million, a 10% fine would be
perfectly reasonable. $3 million dollars and they will learn the lesson.

Some people here will whinge that a large fine would send SCO broke, and we
won't get a definitive legal precedent. I however think thats a good outcome.
When its proved beyond doubt they lied in their legal filings, it becomes
obvious they lied about their Linux claims.

Of course none of this will happen, the US legal system is a sick joke where
perjury will be permitted with no consquences.




[ Reply to This | # ]

Paragraph 15
Authored by: atul on Thursday, September 15 2005 @ 05:30 AM EDT

In paragraph 15, SCO admits that "Novell retained the right to conduct audits, and direct Santa Cruz to take certain actions, to protect that future binary royalty stream".

Novell used this right to direct SCO to waive its "license terminations" and oher claims against IBM and SGI. SCO admits Novell had the right to do this, and yet they failed to comply.

I'd be interested to see their reasoning for why this is ok.

Perhaps they're going to argue that since they're not OldSCO, this provision doesn't apply to them, while at the same time arguing that certain other APA provisions that they like better *do* apply.

Or perhaps they're going to argue that they aren't obligated to comply with a direct order from Novell if they feel it doesn't "protect the future binary royalty stream" in quite the manner they're inclined to go with.

Either way, I'd be fascinated to see SCO try to explain this one.

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SCO's Answer to Novell's Counterclaims
Authored by: Anonymous on Thursday, September 15 2005 @ 07:32 AM EDT
Now I know why the insane don't stand trial. They
make know logical sense and may only speak incoherent
ramblings that can lead to no possible conclusion.

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Next SCO conference call could someone please?
Authored by: Anonymous on Thursday, September 15 2005 @ 10:24 AM EDT
Could someone please ask SCO where this supposed identified linux code is?

like:
You keep saying in media and in court that you have found the infringing code,
could you give us even one example please and thank you?

It'd be great to get them on record on one of their own conference calls
admitting they have no idea ;)

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Game Over Man!
Authored by: Anonymous on Thursday, September 15 2005 @ 02:09 PM EDT

78. Admits that SCO has not remitted royalties from it's licenses from Sun and Microsoft;

So they know that they owe the money. Based upon SCO last quarter results .... Novell has reason to freeze up their assets. Game over - SCO is gone .....

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Admits what?
Authored by: Superbiskit on Thursday, September 15 2005 @ 02:12 PM EDT
(setf lawywer-p nil)

Two things stick right out:
  • By admitting the claims related to the "UNIX SysV Revenue Stream," SCOX appears to leave themselves with little defense against Novell taking all the marbles as their due;
  • SCOX repeatedly sticks their claim to the copyrights in as part of what they "admit" took place at the asset purchase sale. That's pretty dubious if Novell didn't state it in their claims, but rather the exact opposite. I suppose it's just lawyer-eese.

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doesn't make sense SCO's Answer to Novell's Counterclaims
Authored by: Anonymous on Thursday, September 15 2005 @ 02:47 PM EDT
I can't line up SCO's response with Novells filing. For example to start
Novell's paragraph one, to the best of my knowledge has two sentences:

"1. Novell admits that it entered into an Asset Purchase Agreement with
SCO's alleged predecessor in interest dated September 19, 1995. Each and every
other allegation in paragraph 1 is denied."

But SCO'S response denies knowledge sufficient to form a belief as to the truth
of the allegations of the third sentence.

And it goes on from there. I must be reading the whole thing wrong.

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Lack of Definitions
Authored by: Anonymous on Thursday, September 15 2005 @ 04:31 PM EDT
We all speak english but who can remeber cases that depended on the definitions
of words like "sex" or "is".

Why are there not more efforts in these cases put into defining exactly what is
meant by a term. I would expect any lawyer to work hard at making sure the terms
of debate for a question were very exact.

Where sex is descibed as .... Did you have sex?
Where SCOsource is described as .... Did you sell that to Sun?

How many years and who knows
a) what SCOsource is, what it licenses
b) what IP SCO owns
c) what SCO UNIX is
d) what copyrights SCO own

It looks pretty clear that SCO is going to argue that SCOsource is different for
revenue reporting purposes than for licensing purposes. That is internal
sloppyness/squirming, but why does it continue to infect the legal cases.

Pin it to the ground. Scribe the edges. Then we can start to talk about it.
Until something is concrete two people can believe they are talking about the
same thing while actually be discussing something very different. I would think
coming to a legal decision point would require a very rigid and structured
definition process.

Why does this appear so lacking in this case? And is this a general problem or
only when used by people trying to be evasive? Of course it is only a problem
when people try and be evasive, which would suggest the legal process would have
developed a very efficient process for getting good solid definitions. Again,
why do we not see good definitions?

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If Google would only Create a Linux Distro
Authored by: Anonymous on Thursday, September 15 2005 @ 05:12 PM EDT
A distro with all the search tools built in, with photo sharing built in,
desktop search built in. they could really take it to Microsoft.
GoogleOS, it would rock.

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Blake Stowell's alternate reality.
Authored by: Jaywalk on Thursday, September 15 2005 @ 08:02 PM EDT
Blake Stowell explained SCO's theory to PC-Pro magazine:
SCO's PR Director Blake Stowell explains it thus: 'When AT&T and Novell owned the UNIX business, they licensed UNIX to thousands of entities. Some of these entities chose to pay an up front one-time fee, while others chose to pay a quarterly royalty fee over time.

'At the time that the Santa Cruz Operation purchased the UNIX business from Novell, they weren't in a position to pay Novell multiple hundreds of millions of dollars. Novell a few years previously had paid AT&T more than a billion dollars for the UNIX business, so in order to make it possible for the Santa Cruz Operation to acquire the business, both parties (Novell and the Santa Cruz Operation) agreed that any companies that had entered into licensing agreements to that point (the end of 1995) and had agreed to pay quarterly royalty fees rather than a lump sum payment, that the Santa Cruz Operation would agree to pass those quarterly royalties on to Novell and keep a 5 per cent processing fee. Any licensing agreements that the Santa Cruz Operation entered into after the UNIX property was fully acquired would be the property of the Santa Cruz Operation and would not be subject to quarterly royalty fees.'

The filing also says that 'in 2002, as part of the review of its intellectual property, SCO contacted Novell to confirm SCO's understanding that the Unix and Unixware copyrights had been transferred under the [Asset Purchase Agreement] and to ask if Novell had documents concerning the APA'. It adds that an agreement was prepared to confirm that all such assets had been transferred but that Novell never signed it. However, SCO points out that Novell did not question SCO's ownership of Unix during this process. Yet, the fact that SCO asked perhaps shows some uncertainty as to the effect of the transaction.

SCO also argues that Novell had the right to receive royalties from existing SVRX Unix licencees but, claims that Novell's lack of action on this matter means it forgoes the right to claim retrospective payment.

I can't see how SCO possibly expects a judge to read the contract that way. It looks more like another ploy to try and get the case out of the hands of the judge by creating an issue of fact, however thin the theory required to get there

---
===== Murphy's Law is recursive. =====

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