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SCO Asks to Amend Complaint in Novell Litigation
Tuesday, January 03 2006 @ 09:43 PM EST

SCO is asking the court [PDF] to allow it to file a Second Amended Complaint [PDF]. The court doesn't have to say yes, but I expect it will.

I guess SCO felt it had to do something, Novell's Answer with Counterclaims [PDF; text] being such a killer document. And in fact, SCO says it "seeks leave to file a Second Amended Complaint in significant part in consideration of the counterclaims that Novell asserted in its Answer and Counterclaims."

And so we see SCO asking the court to let it amend its complaint to up the ante on its side by adding four new claims, in addition to the original slander of title claim. They are finally asking for specific performance of the contract, which is what most lawyers I know thought they should have asked for in the beginning, as alternative relief, part of one breach of contract claim, but what they really ask for is an injunction to block Novell "from copying, reproducing, modifying, sublicensing, and/or distributing SCO's UNIX and UnixWare," by which they mean they are alleging their Most Holy UNIX IP is in SuSE Linux. On that foundation SCO's places its new claims of breach of contract based on Novell allegedly violating a clause that said Novell couldn't compete with SCO's Unix offerings and a claim of unfair competition.

SCO also claims copyright infringement, "based on, among other things, Novell's' unauthorized distribution, in its Linux offerings, of UNIX technology outside of the limited license by which SCO's predecessor licensed back to Novell the UNIX technology it transferred to SCO pursuant to the APA." Yeah, right. So two breach of contract claims, one copyright infringement, and one unfair competition.

Of course, they still claim slander of title, which is what they soooo wanted to stick with. SCO has done everything in its power to avoid a straight-up copyright decision. They didn't originally file any copyright infringement claim against IBM either, if you recall, despite their trash talk to the press. And as Lewis Mettler has repeatedly pointed out on Lamlaw, they only wanted to talk copyright with folks who were not in a position to prove in a court of law one way or the other who owned the copyrights, like poor AutoZone, a car parts company that surely had no way to know if SCO was the copyright owner or not.

Novell is the right party to settle that issue, an issue SCO has spent years, literally, trying to avoid settling, but Novell aggressively forced them to by their counterclaims, and so here we are, off to the races at last. In SCO's legalese: "These claims thus essentially relate to the same subject matter as Novell's counterclaims." Amen, brother.

If IBM wins, this all dies, of course, but hey, it doesn't hurt to try. Even a jockey who knows his horse doesn't stand a chance still has to ride the nag around the track when the bugle sounds.

Here's how the proposed Second Amended Complaint explains the part about the noncompetition clause:

118. In addition, under the specific terms and conditions set forth in the TLA and for the limited purpose of the TLA, SCO granted Novell a non-exclusive license to the technologies covered by SCO's copyrights in UNIX and UnixWare. Novell expressly covenanted not to use those technologies in a general-purpose operating system that competes with SCO's core application server products or in a product wherein that intellectual property constitutes a primary portion of the value of the product. Novell has infringed and is infringing SCO's copyrights by unsing, copying, reproducing, modifying, sublicensing, and distributing SCO's copyrighted intellectual property outside of the limited license provided by the TLA.

We have the Motion transcribed, thanks to the wonderful Steve Martin, but if anyone has time to do Exhibit A, the proposed Second Amended Complaint, that would be greatly appreciated. The most interesting part of it is Exhibit B:

EXHIBIT B

Novell's unauthorized copying in its use and distribution of SuSE Linux includes but is not limited to the appropriateion of the following data structures and algorithms contained in or derived from SCO's copyrighted material:

1. SuSE's implementation of the "Read/Copy/Update" algorithm
2. SuSE's implementation of NUMA Aware Locks
3. SuSE's implementation of the distributed lock manager
4. SuSE's implementation of reference counters
5. SuSE's implementation of asynchronous I/O
6. SuSE's implementation of the kmalloc data structure
7. SuSE's implementation of the console subsystem
8. SuSE's implementation of IRQs
9. SuSE's implementation of shared memory locking
10. SuSE's implementation of semaphores
11. SuSE's implementation of virtual memory
12. SuSE's implementation of IPC's
13. SuSE's implementation of load balancing
14. SuSE's implementation of PIDs
15. SuSE's implementation of numerous kernel internals and APIs
16. SuSE's implementation of ELF
17. SuSE's implementation of STREAMS
18. SuSE's implementation of dynamic linking
19. SuSE's implementation of kernel pre-emption
20. SuSE's implementation of memory mapping
21. SuSE's implementation of ESR
22. SuSE's implementation of buffer structures
23. SuSE's implementation of process blocking
24. SuSE's implementation of numerous header files

ELF again. Sheesh. How many times do we have to explain that to them? Anyway, time to go over the list with a fine-toothed comb, guys. Even if the judge were to refuse to allow them to amend their complaint, which at this early stage is unlikely, this list is very likely the same list we'll find in IBM.

Meanwhile, here's the heart of what they are hoping to ask for, followed by the Motion as text:

Alternative Breach of Contract Claim Seeking Specific Performance ...

107. In light of these continuing claims by Novell, SCO is entitled (as an alternative to its other claims for relief) to an order directing Novell to specifically perform its obligations under Sections 1.7(c), 4.9, and 4.12, by taking the actions necessary to effectuate the intended purposes of the APA and consummate the transactions contemplated therein.

108. In particular, SCO is entitled to an order directing Novell to execute documents (and take any other actions) necessary to transfer to SCO (a) the copyrights, and (b) the UNIX and UnixWare business, without subjecting any portion of that business, other than the SVRX binary royalty stream, to Sections 4.16, 1.2(b), and 1.2(f) of the APA....

116 Novell has infringed and continues to infringe SCO's copyrights by copying, reproducing, modifying, sublicensing, and/or distributing Linux products containing unauthorized contributions of SCO's copyrighted intellectual property.

117. Novell's unauthorized copying in its use and distribution of SuSE Linux includes but is not limited to the appropriation of numerous data structures and algorithms contained in or derived from SCO's copyrighted material. A partial listing of these data structures and algorithms is provided at Exhibit B.

V. PRAYER FOR RELIEF

Wherefore, Plaintiff SCO prays this Court enter judgment for SCO and against Novell: ...

3. granting preliminary and permanent injunctive relief (a) requiring Novell to assign to SCO any and all copyrights Novell improperly registerd in UNIX and UnixWare following the Asset Purchase Agreement: (b) preventing Novell from representing in any forum that it has any ownership interest whatsoever in those copyrights; and (c) requiring Novell to retract or withdraw all representations it has made regarding its purported ownership of the copyrights;

4. granting preliminary and permanent injunctive relief preventing Novell from copying, reproducing, modifying, sublicensing, and/or distributing SCO's UNIX and UnixWare;

5. ordering Novell, as an alternative, to specifically perform its obligations under the APA by taking the actions necessary to effectuate the purposes of the APA and consummate the transactions contemplated therein....

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stuart Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for Plaintiff, The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION


THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff,

v.

NOVELL, INC.,
a Delaware corporation,

Defendant.

PLAINTIFF'S MOTION FOR
LEAVE TO FILE SECOND
AMENDED COMPLAINT

Case No. 2:04CV00139

Judge: Dale A. Kimball

1

Plaintiff, The SCO Group, Inc. ("SCO"), respectfully moves for leave to file a Second Amended Complaint (attached hereto as Exhibit A) pursuant to Federal Rule of Civil Procedure 15(a).

Under Rule 15, which governs the amendment of pleadings, "leave shall be freely given when justice so requires." "The liberal granting of motions for leave to amend reflects the basic policy that pleadings should enable a claim to be heard on its merits." Calderon v. Kansas Dep't of Soc. and Rehab. Servs., 181 F.3d 1180, 1185-86 (10th Cir. 1999) (citing Foman v. Davis, 371 U.S. 178, 182-83 (1962)). The liberal standard governing amendments is intended to "safeguard a plaintiff's opportunity to test" its "claims on the merits." Bauchman v. W. High Sch., 132 F.3d 542, 559 (10th Cir. 1997) (citing Foman, 371 U.S. at 182). The Court should grant leave to amend unless the non-moving party shows that the proposed amendment is unduly and inexplicably delayed, prompted by bad faith, would unduly prejudice the opposing party, or would be futile." Foman, 371 U.S. at 182; accord Las Vegas Ice and Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir. 1990).

Where, as here, the motion to amend is filed even before any discovery has been produced, there is no undue delay, bad faith, or undue prejudice to the other side. See, e.g., FDIC v. Grant, 8 F.Supp. 2d 1275, 1288 (N.D. Okla. 1998) (granting motion to file second amended complaint "at a time when no discovery has taken place"); Mask v. Johnson, No. 96 Civ. 6167 (DC), 1997 WL 662337, at *2 (S.D.N.Y. Oct. 22, 1997) (attached hereto as Exhibit B)(granting motion where "no discovery has yet commenced in the case"); Taylor v. Florida State Fair Auth., 875 F. Supp. 812, 815 (M.D. Fla. 1995)(granting motion to amend where "[a]lthough the parties have completed the case management report, discovery has not yet commenced" and trial was not scheduled for over a year). See generally Atiya v. Salt Lake County, 988 F.2d 1013, 1018 (10th

2

Cir. 1993)(affirming district court's decision granting leave to amend where the amendment "did not occur on the eve of trial and did not delay a determination of the dispute").

In addition, during the course of their negotiation of the Attorneys' Planning Report that the parties submitted to the Court and which provided the basis for the Magistrate Judge's Case Management Order (Dec. 6, 2005) (attached hereto as Exhibit C), counsel for SCO informed counsel for Novell that SCO intended to file a second amended complaint (and counsel for Novell did not object). Indeed, the parties agreed in their Attorneys' Planning Meeting Report (Dec. 1, 2005) (attached hereto as Exhibit D) that "the cutoff date for amending pleadings is March 7, 2006." The Case Management Order provides that each party shall have until March 7, 2006, to file a motion to amend pleadings. Trial is scheduled for June 2007 almost eighteen (18) months from now.

SCO seeks leave to file a Second Amended Complaint in significant part in consideration of the counterclaims that Novell asserted in its Answer and Counterclaims (July 29, 2005) (attached hereto as Exhibit E). In that pleading, Novell brings seven causes of action: a claim for slander of title, two claims for breach of the Asset Purchase Agreement ("APA") between the parties, two claims for declaratory relief pursuant to the APA, a claim for restitution/unjust enrichment relating to the APA, and a claim for accounting under the APA. Novell's counterclaims thus significantly expand the scope of the litigation, such that it is sensible for SCO to add the new claims in the Second Amended Complaint, relating primarily to the APA and to Novell's conduct in connection with the parties' differing interpretations of that Agreement.

SCO's proposed Second Amended Complaint reasserts SCO's slander-of-title claim. In addition, in keeping with the expanded scope of the litigation, the Second Amended Complaint asserts the following claims:

3

  • Breach of contract based on Novell's violation of the non-compete provisions and covenant of good faith and fair dealing in the APA and related agreement with SCO, by, among other things, making unauthorized distributions of SCO's UNIX technology in competition with SCO's own UNIX offerings.

  • An alternative breach-of-contract claim seeking specific performance of Novell's obligations under the APA (which transferred the UNIX business and technology to SCO, including the associated copyrights) to take any action necessary to effectuate the purposes of that Agreement and consummate the transactions contemplated therein.

  • Copyright infringement based on, among other things, Novell's' unauthorized distribution, in its Linux offerings, of UNIX technology outside of the limited license by which SCO's predecessor licensed back to Novell the UNIX technology it transferred to SCO pursuant to the APA.

  • Unfair competition based on, among other things, Novell's' false claims of copyrights and ownership in UNIX; misappropriation of UNIX technology in Linux; and wrongful attempts to thwart SCO's claims and rights to enforce its UNIX intellectual property.

These claims thus essentially relate to the same subject matter as Novell's counterclaims. See, e.g., LeaseAmerica Corp. v. Eckel, 710 F.2d 1470, 1474 (10th Cir. 1983) (no prejudice where te amended complaint referred "to the same chattels, the same consideration, and the same transaction" already at issue in the case); Kreinik v. Showbran Photo, Inc., No. 02 Civ. 1172 (RMB)(DF), 2003 WL 22339268, at *10 (S.D.N.Y. Oct. 14, 2003) (attached hereto as Exhibit F) (plaintiff's amendment would not cause the defendant any prejudice where those claims relate to the defendant's counterclaims). SCO respectfully submits, moreover, that all of the previous and new claims in its Second Amended Complaint are well pleaded, not futile.

4

SCO respectfully submits that, under the circumstances, the Court should grant SCO's motion for leave to file the Second Amended Complaint.

Dated this 30th day of December, 2005.

By: (signature of Mark F. James)
HATCH JAMES & DODGE
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Robert Silver
Stuart Singer
Edward Normand

Attorneys for Plaintiff

5

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 30th day of December, 2005, I caused to be mailed a true and correct copy of the foregoing via first class U.S. Mail, postage prepaid, to the following:

Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]

Michael A. Jacobs
Ken W. Brakebill
MORRISON & FOERSTER
[address]

(signature of Mark F. James)

6


  


SCO Asks to Amend Complaint in Novell Litigation | 246 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO Asks to Amend Complaint in Novell Litigation
Authored by: Anonymous on Tuesday, January 03 2006 @ 09:54 PM EST
How can Novell be guilty of infringing copyrights that have not been transferred
to SCO???

[ Reply to This | # ]

Entitled?
Authored by: Anonymous on Tuesday, January 03 2006 @ 09:59 PM EST

Jeez... just what does SCO believe entitles them to a transfer of the copyrights? Nah... don't tell me. I doubt I could wrap my brain around the tortured arguments they're using to justify this request.

[ Reply to This | # ]

SCO Asks to Amend Complaint in Novell Litigation
Authored by: Nivuahc on Tuesday, January 03 2006 @ 10:14 PM EST
Let me see if I understand this correctly:

"Your honor, bad, naughty Novell slandered us by claiming that they were the truthful owner of those Unix copyrights so, as is only logical, we ask that you make them transfer those copyrights to us now"

Have I got that right?

---
My Doctor says I have A.D.D... He just doesn't understand. It's not like... Hey! Look at that chicken!

[ Reply to This | # ]

Corrections Thread Starts Here
Authored by: Weeble on Tuesday, January 03 2006 @ 10:16 PM EST
...since nobody else seems to want to do it.

---
You Never Know What You're Going to Learn--or Learn About--on Groklaw!
(NOTE: Click the "Weeble" link for Copying Permissions and Contact Info.)

[ Reply to This | # ]

Off-Topic Threads Start Here
Authored by: Weeble on Tuesday, January 03 2006 @ 10:18 PM EST
You know the drill.

---
You Never Know What You're Going to Learn--or Learn About--on Groklaw!
(NOTE: Click the "Weeble" link for Copying Permissions and Contact Info.)

[ Reply to This | # ]

Change of control clause
Authored by: Anonymous on Tuesday, January 03 2006 @ 10:25 PM EST
I seem to recall there was a change of control clause in the APA that
effectively eliminates the non-compete clause. The APA was entered into with
Santa Cruez, not the company currently calling itself Sco. Doesn't that render
much of the ammendment doa? Can Novell kill the ammendment by using that clause
in their reply? Or is a change of control a matter of fact rather than of law?

[ Reply to This | # ]

I have more questions than answers
Authored by: Anonymous on Tuesday, January 03 2006 @ 10:31 PM EST
Thanks so much PJ. Doesn't the following put us back to square one in certain regards?
 
    • 16 Novell has infringed and continues to infringe SCO's copyrights by copying, reproducing, modifying, sublicensing, and/or distributing Linux products containing unauthorized contributions of SCO's copyrighted intellectual property.

    •  
The judge can't just say, "Oh my, someone was distributing Linux, of course this infringes on your intellectual property."

At some point SCO will have to, at a miniumm publish with some specificity where the infringement is. Won't they? Probably I'm being overly naive.

Also, what is a Linux product? Something the Linux kernel produces?
 

[ Reply to This | # ]

Thanks, Steve
Authored by: Nivuahc on Tuesday, January 03 2006 @ 10:35 PM EST
you wild and crazy guy, for taking care of this for all of us :)

---
My Doctor says I have A.D.D... He just doesn't understand. It's not like... Hey!
Look at that chicken!

[ Reply to This | # ]

SCO's horse is blind and has only 3 legs
Authored by: kawabago on Tuesday, January 03 2006 @ 11:38 PM EST
But someone just put $10 million on it! I wish I was their booky!


---
TTFN

[ Reply to This | # ]

It took them long enough...
Authored by: The Mad Hatter r on Wednesday, January 04 2006 @ 12:27 AM EST


This looks so much like what they should have filed originally instead of
"Slander of Title", and filing it now does look like desperation.

Which brings up a point - what exactly did was Boies Schiller told when SCO
hired them? Too bad we'll likely never know.




---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

"14. SuSE's implementation of PIDs"
Authored by: Simon G Best on Wednesday, January 04 2006 @ 12:32 AM EST

14. SuSE's implementation of PIDs

What might that be? typedef unsigned long pid_t; perhaps?

---
FOSS IS political. It's just that the political establishment is out of touch and hasn't caught up.

[ Reply to This | # ]

So the real question about Exhibit B is...
Authored by: wordsofwonder on Wednesday, January 04 2006 @ 12:33 AM EST
...would, "Your honor, the 'methods and concepts' SCO mentions here are
commonly found in the following seventeen college Operating System Design
textbooks" be a valid defense to infringement claims? If so, I think you
could knock about 21 of those items off the list right off the bat.

[ Reply to This | # ]

21. SuSE's implementation of ESR
Authored by: MalFal on Wednesday, January 04 2006 @ 01:27 AM EST
Um.... does Eric Raymond know anything about SuSE implementing him. And even if
he did, who is TSG to object?

[ Reply to This | # ]

SCO ADMITS it does not have copyrights to Unix
Authored by: Anonymous on Wednesday, January 04 2006 @ 02:10 AM EST
WOW!

SCO ADMITS in this filing that it does not have copyrights to Unix or
Unixware.

It is asking the judge to force Novell to give the copyrights to them.

Of course, years ago, Santa Cruz would have had to purchase the copyrights
from Novell but it did not. Nor did Santa Cruz need the copyrights in the first

place - they have to be justified as necessary to sell Unixware.

IBM should have a field day using SCO's filing as an admission of lack of
copyrights in its partial summary judgment motions.

[ Reply to This | # ]

Palladium / Longhorn / Vista / YourNewCage delayed?
Authored by: grouch on Wednesday, January 04 2006 @ 02:51 AM EST
My first impression is that tSCOg must have received Word that their carnival in
court is moving too quickly. The show must continue producing its subliminal
message of FUD until after the grand launch of the new cage.

Consider:

* It appears only minor delays now may be introduced in the IBM case. The judges
involved do not seem willing to tolerate much further deviation from the
schedule.

* Recent news includes stories about a wide-ranging, serious hole in MS Windows,
decreased user convenience for every-day tasks for users of MS Windows versus
GNU/Linux and accelerated adoption of Firefox, Thunderbird and GNU/Linux by
governments, businesses and schools.

* The details of the recent infusion of $10 million that tSCOg received are
obscured. Even though the amount is much less than the previous deals (licensing
and the Anderer connection), it is enough to keep tSCOg going. (Maybe the
backers have decided it's not as likely to be effective as they originally
hoped. Gambling a few million here and there for studies, "institutes"
and "concrete actions" doesn't seem to bother MS).

* Amending the complaint is the method used to begin the delays in the IBM case.
(If I were a cop on tv, I'd call it tSCOg's M.O.).

* The bizarre often fits tSCOg better than what's reasonable.

Tin-foil hat territory? Sure, but with tSCOg the tin-foil has been as revealing
as documents from the beginning, even to the point of being short-term
predictions of documents which surface later. The past ties are documented; it's
only the motives and current tie-in that are speculative.


---
-- grouch

http://edge-op.org/links1.html

[ Reply to This | # ]

SCO Asks to Amend Complaint in Novell Litigation
Authored by: bventer on Wednesday, January 04 2006 @ 03:45 AM EST
If IBM wins the only thing going away will be the SCO claims, They still will
have to defend the Novell claims, and knowing Novell over the years I think they
will press ahead.

Wondering what will happen now about Novell's promise about their patent pledge
for Linux and its wording, maybe Novell will add a few patent claims against
SCO....


---
...

[ Reply to This | # ]

This is absolutely outrageous
Authored by: Anonymous on Wednesday, January 04 2006 @ 04:06 AM EST
Just have a look on what SCO is laying claim to. It is
absolutely outrageous. I really thing something is
broken when you can get away (as I'm sure SCO will)
making such ridiculous statements.

[ Reply to This | # ]

SCO Asks to Amend Complaint in Novell Litigation
Authored by: blacklight on Wednesday, January 04 2006 @ 04:33 AM EST
For SCOG to amend its complaint to require Novell to execute the terms of the
APA is an implicit admission that:

(1) the slander of copyrights suit is no longer a slander of copyrights suit.
The nature of the suit has totally changed

(2) SCOG's reading of the terms of the APA, namely that the APA transferred all
copyrights and that SCOG has them - that reading is a load of bull.


Frankly, SCOG has been left with no choice since judge Wells laid out her
rationale in denying SCOG's upteenth renewed motion on Dec. 22. And that
rationale, if I remember correctly, denied that SCOG is part of the UNIX
business succession link that starts with AT&T.

As of this moment, any of SCOG's claims that its UNIX copyrights claims has been
violated is probably in the crapper. And SCOG does not have any ground for suing
corporate end users on copyrights violations.

SCOG has upped the ante by claiming that Novell's flagship SuSe Linux product
has violated SCOG's copyrights (don't ask me why it's logical), contract terms
and trade secrets. SCOG has also guaranteed that Novell will fight to the death,
as Suse Linux is the key of Novell's future as an ongoing concern.

IBM won't settle and Novell won't settle. In addition, the IBM and Novell legal
teams will cooperate closely. SCOG is like a deer caught in the headlights of a
car: the fight is over, but for the kill.


---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

Circle of dependencies
Authored by: JochenW on Wednesday, January 04 2006 @ 07:50 AM EST
Hi,

I do see some of the new complaints in a different light: If SCO seeks to have a
case against Novell distributing Linux, then this might, in particular,
introduce a dependency on the IBM case.

As we all know, the IBM case has an obvious dependency on the Novell case
(question of copyright). However, this circle of dependencies might be a reason
to ask the judge, to resolve the IBM case *before* the Novell case, which they
obviously want.

Jochen

[ Reply to This | # ]

The injunction stuff
Authored by: Anonymous on Wednesday, January 04 2006 @ 08:03 AM EST
My guess

1. They know they don't own the copyrights - so Slander Of Title is ultimately
doomed

2. The aren't a party to the APA (Santa Cruz not Caldera was), the APA itself is
non-transferable, and in any case it doesn't mean what SCO contends it means.
So requesting transfer of copyrights is ultimately doomed.

3. SuSE Linux doesn't actually infringe whatever UNIX copyrights there are, even
if SCO held them (which it doesn't and won't see 1 + 2). SCO know this in their
heart of hearts.

4. The non-competition clause doesn't apply (against because APA is not
assignable), but even if did, SCO winning this, depends on them winning 3.


So why are SCO bothering?

It's a game of bluffmanship!

Novell: We want preliminary injunctive relief creating a trust over all SCO's
money (effectively shutting down SCO)

SCO's Response: We want preliminary injunctive stopping SuSE Linux (effectively
shutting down Novell's SuSE division)


Difference is of course (to me atleast): Novell's request looks like it has a
decent chance, whereas SCO's feels like a bluff


Quatermass
IANAL IMHO etc

[ Reply to This | # ]

United Linux
Authored by: Anonymous on Wednesday, January 04 2006 @ 08:53 AM EST
If the code they claim Novell is distributing through SuSE was in United Linux,
then there will be no issue. They were founding members of United Linux and they
distributed it themselves under the GPL. Do anyone know if the files listed
included in UL? I am sure Novell is going to bring that issue in their defense.

[ Reply to This | # ]

Amend?
Authored by: Anonymous on Wednesday, January 04 2006 @ 09:07 AM EST
They ask for transfer of copyright as relief in a slander of title lawsuit?

That's not an amendment. It is "ok, this lawsuit is frivolous, could we
please have another one without having to pay the price tag for the previous
nonsense?".

The claims in the "amendment" are utterly _incompatible_ with the
original claims.

The only sensible reply would be to throw the case out of court, letting SCO pay
all incurred legal costs, and tell them they are permitted to sue for transfer
of assets if they really want to make a fool of themselves over a different
topic.

"Your honor, I want to sue defendant over there." "What
for?" "Damages." "Where have you been damaged?"
"No idea, but we'll dig something up. Let's pretend this is about
something specific, but maybe we'll find something better in due while."

SCO has been ridiculous enough with IBM already, but suing for two contradictory
claims at the same time without bothering to drop one sure is, well, big
thinking.

[ Reply to This | # ]

Threads
Authored by: AdultSupervision on Wednesday, January 04 2006 @ 10:22 AM EST
I know by experience as a programmer that threads in Unix more closely resemble
Free BSD than Linux. Linux (as of 2.2, that is) threads were implemented using
separate PIDs. Think of threads as cooks in the kitchen - the kitchen is a PID,
a process. Each cook's activities are a separate thread. In Linux 2.2, each
cook was given his own kitchen - that is, the thread's ID (TID) was the same as
the Process ID (PID).
In Unix and Free BSD, each PID has one or more threads, and each Thread ID is
distinct from each other and from the PID.
Once I tried to get two threads to work together under Unix, using the standard
POSIX "condition variable" features. I found that waiting thread was
blocking the other thread from running, even though waiting thread was supposed
to yield the processor. Note this was Unix - I found the answer, not in Linux,
but in the Free BSD source code. The condition wait was doing a "spin
lock" - it was sitting in the processor in a very tight loop
"spinning" - repeatedly testing the condition.
This told me that if any copying was done, it was between Free BSD and Unix, not
Linux, as Linux *didn't even have the feature implemented* at the time.
The POSIX standard specifically allowed for the behavior - so it's probably not
even copied, except behaviorly.
I have seen other behavioral differences between linux and Unix threads that
tell me there's no way that either is a copy of the other.
Also, there are quite a few FOSS non-kernel thread libraries available out, some
of which (I understand) are better than either's implementation.
If Linux was going to copy threads, there's better and more legal alternatives
than Unix.

---
I drive way too fast to worry about cholesterol.

[ Reply to This | # ]

  • Threads - Authored by: Anonymous on Wednesday, January 04 2006 @ 12:18 PM EST
  • Threads: clone() vs. fork() - Authored by: Anonymous on Wednesday, January 04 2006 @ 09:36 PM EST
Standing
Authored by: overshoot on Wednesday, January 04 2006 @ 10:44 AM EST
Maybe I'm missing something here, but it certainly seems to me that Novell has a slam-dunk challenge 107, 108, and 118 on the grounds of standing -- SCOX isn't a party to the contract that they're asking the Court to enforce, and the contract is specifically not transferrable.

In addition, 116 and 117 are duplicative of senior issues raised by IBM and already before the same Judge with regard to IBM's CC8. If the Court finds for IBM, it's all over so Novell has no real need to pursue it.

After all, IBM's "Linux Activities" include distribution of SuSE, so they're a proper superset of Novell's activites.

[ Reply to This | # ]

Getting close to perjury in the other case???
Authored by: jbeadle on Wednesday, January 04 2006 @ 11:16 AM EST

58. On June 9, 2003, for example, Novell purported to direct SCO to waive its right to terminate its Software License Agreement with IBM, even though that source-code agreement by definitions was not for binary royalties and therefore did not come under the purview of Sections 4.16, 1.2(b), and 1.2(f), and even though Novell had no ongoing royalty stream from IBM that it needed to protect. On June 12, 2003, Novell invoked its purported right under Section 4.16(b) to waive and revoke SCO's proper termination of IBM's UNIX license agreements.

Hmmm - doesn't this sort of fly in the face of tSCOG's claim in the IBM litigation that IBM didn't have a paid-up, perpetual license???

-jb

[ Reply to This | # ]

Overlapping complaints
Authored by: Anonymous on Wednesday, January 04 2006 @ 11:27 AM EST
The complaints against Novell now seem to depend on some of the issues in the
IBM case. And as we know ownership of the copyrights is something which is
needed for the IBM case.

So will the cases be consolidated, or will one have to complete first? Or is it
possible for the judge to resolve parts of one case, then the other, and then
come back to the original?

[ Reply to This | # ]

Now we know why SCOX got a new $10M...
Authored by: seanlynch on Wednesday, January 04 2006 @ 11:39 AM EST
Now we know why SCOX got a new $10M...

They have been paid to continue spreading FUD about Linux.

SCOX distributed SuSE Linux as part of United Linux. SCOX themselves have
distributed all of SuSE's Linux code under the GPL. If SCOX "owns" any
of that code, they have released and distributed under the GPL.

Saying that they were unaware that they owned it does not hold up in Court. SCOX
is a multimillion dollar a year company with expertise in Linux and in Unix.
They are required to do due dilligance.

They are making baseless accusations that will not stand up in Court in order to
create an atmosphere of Fear, Uncertainty, and Doubt surrounding Linux.

They are criminals in behavior and in deed trying to extort money from
legitamite Linux users and using illegal tactics to hinder competition. This
will eventually lead to prison time (these are my opinions).

[ Reply to This | # ]

implementation of STREAMS
Authored by: Anonymous on Wednesday, January 04 2006 @ 01:21 PM EST
I understood that Linux famously does not implement STREAMS. You can add it
(http://www.gcom.com/home/linux/lis/), but I don't think Novell has
(http://www.novell.com/products/linuxpackages/professional/index_all.html).
Anybody know for sure?

[ Reply to This | # ]

SCO's "Hail Mary" strategy ...
Authored by: jbb on Wednesday, January 04 2006 @ 01:33 PM EST
IMO, the intent of this nonsense from SCO is to peeve off the judges so much that they make a mistake and give SCO wiggle room for an appeal.

The urge to slap down SCO could be well nigh overwhelming.

Novell's request for an injunction to put basically all of SCO's assets in escrow is looking better and better. The judges certainly gave up hope that SCO is acting in "good faith" months ago. The contracts are clear to everyone except SCO. The standard interpretations are also the only reasonable ones. According to SCO, they bought almost total control of a multi-billion dollar industry for just a few (5?) million dollars.

The creation of an escrow account seems like the only reasonable way to proceed. The fact that it may bankrupt SCO is not a good argument against, rather, it is a good argument for an escrow account.

---
Anyone who has the power to make you believe absurdities has the power to make you commit injustices.

[ Reply to This | # ]

Is There Any Precedent?
Authored by: dmscvc123 on Wednesday, January 04 2006 @ 02:08 PM EST
Has there ever been a successful case where the plaintiff simultaneously sued to
acquire copyrights while suing for coypright infringment of those copyrights
it's attempting to acquire? It doesn't seem logically possible to concurrently
sue for slander of title, specific performance to hand over the title
(copyrights) and copyright infringment.

---
All of my comments on Groklaw are released under the Creative Commons License
Attribution-Noncommercial 2.0

[ Reply to This | # ]

A Flight of Fancy
Authored by: Steve Martin on Wednesday, January 04 2006 @ 07:07 PM EST

Okay, I got to thinking about this, wondering how Novell would respond. I came up with the following (yes, I admit it's a fantasy, but gee it would sure be nice):

  1. Novell files a response with a counterclaim asking for a PSJ deciding who actually holds the copyrights in question. TSG absolutely cannot contest this; theoretically they are as anxious to prove to the world that they hold the copyrights as Novell is to prove that TSG doesn't (think "mitigation of damages").
  2. Concurrently, Novell files a motion to bifurcate the above PSJ into a separate trial, which for the sake of judicial efficiency is requested to be put first, ahead of TSG v Novell. (After all, if it is decided that Novell actually has the copyrights, or that TSG doesn't, all of TSG's claims in this case die and months/years of litigation are avoided. On the other hand, if for the sake of argument it is decided that TSG does own said copyrights, at least on paper Novell would be more likely to settle (in the TSG universe), again avoiding litigation.)
  3. Since the single issue of who has the copyrights is likely to be simpler than the multiple issues in TSG v Novell as it currently stands (certainly simpler than all the complex litigation in TSG v IBM), Novell proposes a scheduling order with a trial date of, oh, say, January 2007 (which gives a year for discovery and trial preparation on this one issue).
  4. TSG's legal staff turns purple.

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

[ Reply to This | # ]

Read/Copy/Update
Authored by: Totosplatz on Thursday, January 05 2006 @ 12:19 AM EST

It boggles the mind to see TSCOG lay claim to 'SuSE's implementation of the "Read/Copy/Update" algorithm' which was invented by Sequent and is now owned by IBM. I would be curious to know exactly what piece of TSCOG code actually has this RCU algorithm, and it seems to me that it could only be something that leaked into some Santa Cruz code during project Montgomery.

Surely there is no RCU code in any version of SYS-V - impossible, but if someone knows the history of this I would appreciate reading more.

It seems to me that in the 'convoluted way' of TSCOG the RCU code that they have in one of their offerings (which one ??) came from IBM via Montgomery, but now belongs to them more than it belongs to IBM.

Does anyone have better insight into this?

---
All the best to one and all.

[ Reply to This | # ]

dynamic linking ?.
Authored by: Anonymous on Thursday, January 05 2006 @ 01:16 AM EST
quote : "18. SuSE's implementation of dynamic linking"

I think all/most operating system in this world support dynamic linking, and
this kind of linking is a compiler related thing, not a kernel related thing.

[ Reply to This | # ]

the wording is so SCO
Authored by: skidrash on Thursday, January 05 2006 @ 05:57 AM EST
Note very carefully - not

"Novell is infringing SCOG's copyrighted materials"

No, Novell is using data structures and algorithms that bear a vague resemblance
(not copyright violation) to things found in AIX and Dynix/PTX

I've never seen such an example of "cornered rat syndrome"

[ Reply to This | # ]

Reference counters
Authored by: MORB on Thursday, January 05 2006 @ 09:19 AM EST
"SuSE's implementation of reference counters".

Reference counters are a basic, widely used concept in many different kind of
software. Are they claiming they stole the idea of implementing them, or the
implementation ?
And how can you claim rights about something trivial that consist basically into
doing this:

SomeStuff->RefCounter++;

and this:

if( !( --SomeStuff->RefCounter ) ) FreeStuff( &SomeStuff );

Esepcially as it is C and there is not a thousand ways of implementing this (as
opposed to C++ where you might argue that there are a lot of different ways to
implement this as smart pointers)

[ Reply to This | # ]

This smells ...
Authored by: Anonymous on Thursday, January 05 2006 @ 09:31 AM EST
After reading this again, I came to the conclusion
that this is part of M$'s continuing attempt to kill
any competition. Now we know what really goes on
in M$'s Linux lab.

[ Reply to This | # ]

SuSE: SCO poses no legal threat
Authored by: IMANAL on Thursday, January 05 2006 @ 01:26 PM EST
ZDNet Article from 5 May 2003:

"An agreement with SCO Group protects Linux seller SuSE from legal action stemming from SCO's accusation that Unix software was copied into Linux, SuSE said.

"We have a joint development agreement with them, which includes appropriate cross-licensing arrangements," said SuSE spokesman Joe Eckert on Friday. "Our lawyers feel that covers us from any actions that SCO may take."

[...]

SuSE has in a different relationship with SCO, however. It hired about 15 SCO programmers when the two companies, along with Brazilian Linux seller Conectiva and Japanese Turbolinux, formed the UnitedLinux consortium.

Conectiva and Turbolinux also have a technology cross-license agreement with SCO that was signed as a part of that deal, Eckert said.
"



---
--------------------------
IM Absolutely Not A Lawyer

[ Reply to This | # ]

... constitutes a *primary* portion of the value
Authored by: Anonymous on Thursday, January 05 2006 @ 01:31 PM EST
as the Para 118 that PJ quotes says: SCO's so-called IP has to constitute
Novell expressly covenanted not to use those technologies [...] wherein that intellectual property constitutes a primary portion of the value of the product.

I doubt that using that small portion of intelectual property that SCO and/or SCOG has (either implicitly or explicitly) licensed to the universe as a part of Linux would qualify as a violation of that covenant. -- furthermore, trying to enforce that covenant with respect to GPL code would (once again) place SCO in violation of the GPL (once again) for all of the other code that's in Linux (AKA the other 99.x%) .... (IBM: are you listening?)

Then, again, there's the fact that SCO knew about their so-called IP in Linux long before they filed suit against Novell, so my (non-legal) mind wonders if they technically even have the right to file such an ancient complaint this late in the game.

[ Reply to This | # ]

SCO Asks to Amend Complaint in Novell Litigation
Authored by: Anonymous on Thursday, January 05 2006 @ 02:07 PM EST
How can SCO claim that copyright of some old code gives them copyright of a
concept? I thought under the law you specifically cannot copyright a concept.
They list 24 "implementation"s of specific concepts in operating
system design and expect that their copyrights disallow those implementations!?!
Don't you need a PATENT to prevent someone else from creating an implementation
of your concept?

Thanks for any clarification.

[ Reply to This | # ]

SuSE Linux = UnitedLinux = developed with SCO's staff, money at SCO's instigation
Authored by: Anonymous on Friday, January 06 2006 @ 09:20 AM EST
SCO paid SuSE, to develop SuSE Linux as UnitedLinux.

As part of the arrangement:

- SCO arranged for some of its programmers to transfer to SuSE

- SCO paid SuSE money, each time they shipped a copy of UnitedLinux, i.e. SuSE

So the short version is that SCO is now saying, that a product developed at
SCO's instigation, paid for by SCO, sold to customers by SCO, somehow infringes
SCO's copyrights and/or infringes copyrights that SCO doesn't yet have but would
like to have.

That is insane.

Here is the quote proving the above.

http://news.zdnet.co.uk/business/0,39020645,2135352,00.htm

The two companies formerly were allies in the UnitedLinux consortium, under
which SCO and two other companies agreed to use SuSE's version of Linux in an
attempt to make Linux relationships easier for other computing companies.
Through the arrangement, SuSE hired about 15 SCO Linux programmers and was paid
for each copy of the software shipped.


Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Novell can ask for a PSJ on copyright ownership
Authored by: Anonymous on Friday, January 06 2006 @ 12:04 PM EST
SCO admits in its amendment that it does not own copyrights to Unix.

Novell should ask the court for partial summary judgment to declare that SCO
does not own copyrights to Unix.

This would clarify many issues.

Certainly, SCO would like Novell to give it the copyrights. But that is another

matter for litigation.

[ Reply to This | # ]

Novell needs to ask for PSJ or object
Authored by: GLJason on Monday, January 09 2006 @ 06:18 PM EST
Quote: "of the following data structures and algorithms contained in or derived from SCO's copyrighted material:". Data structures and algorithms are not copyrightable. No patents were transferred. End of story.

[ Reply to This | # ]

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