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SUSE Files Arbitration Request in Paris - The Jacobs Declaration
Wednesday, April 12 2006 @ 04:55 AM EDT

The SCO v. Novell litigation just got a lot more interesting. Here are some more documents filed yesterday and now available on Pacer, and they provide some more explosive news, namely that SuSE on April 10th filed a Request for Arbitration with The Secretariat of the ICC International Court of Arbitration in Paris. Here are the ICC Rules, which you can download in several languages.

We learn about this development in a Declaration by Michael Jacobs, one of Novell's attorneys, and you can see the request for arbitration on page 53 of his Declaration. Here it is along with the other filings:

What's going on? We can only guess. Let's do. We can at least make some educated guesses. I can't help but guess the following: I think just maybe Novell mapped out a strategy that included goading SCO with Novell's amazingly strong counterclaims, which in turn prompted SCO to amplify its claims, adding copyright infringement claims regarding SuSE Linux -- remember Novell didn't object when SCO asked to be able to file its second amended complaint -- with the hope that SCO would thus trigger the arbitration clause, which it did. That's my best guess, that we are watching some phenomenal lawyering, and even BS&F got sucker punched.

If you were given a choice between having a GPL-related case heard in Europe in a fast-track arbitration based on clear contracts or let it drag out for year after painful year in Utah, what would you choose? Anyway, someone on Novell's team at some point noticed that the UnitedLinux agreements, which Caldera signed, require such arbitration of certain types of claims, likely even designating the jurisdiction, and once SCO filed its 2nd Amended Complaint alleging that distribution of SUSE Linux was copyright infringement, it opened up the door to this request for arbitration in France. The ICC Rules state that those wishing to include arbitration clauses in contracts should specify where the dispute should be heard:

Parties are reminded that it may be desirable for them to stipulate in the arbitration clause itself the law governing the contract, the number of arbitrators and the place and language of the arbitration. The parties’ free choice of the law governing the contract and of the place and language of the arbitration is not limited by the ICC Rules of Arbitration.

So when the parties to UnitedLinux wrote up the contract, they presumably did just that, although we have to guess on that, because a lot of the agreements are redacted. SuSE is asking for the following relief from the Arbitral Tribunal in Paris:

1. Declare that Respondent is precluded under the Master Transaction Agreement (MTA) and the UnitedLinux Joint Development Contract (JDC) from asserting any copyright infringement claims related to SUSE Linux;

2. Declare, in particular, that the MTA and JDC divest Respondent of ownership of any alleged intellectual property rights in any part of software included in the UnitedLinux Software (other than Pre-Existing Technology and Enhancements);

3. Order Respondent to refrain from alleging publicly or against third parties that the use and distribution of SUSE Linux infringes upon Claimant's copyrights, as precluded by the MTA and JDC;

4. Order Respondent to pay damages in an amount to be determined for breach of the MTA and JDC by improperly asserting claims against Claimant and its licensees, and by attacking and withdrawring support for the UnitedLinux project;

5. Order Respondent to bear all costs of the arbitration proceeding, including the costs and expenses of the ICC and of the arbitration, as well as attorneys' fees, cost of lost executive time and expert's costs, if any; and

6. Award any further relief that the Tribunal deems necessary to effectuate the relief requested above.

In paragraph 2, the document says that UL members agreed that they each would have the right to commercialize the UL technology independently, "free from claims that the other members had any proprietary rights to such technology. In particular, the UnitedLinux members agreed that each member would have broad licenses to exploit and distribute Linux products that include UnitedLinux technology." When the announcement was made in November of 2002 about UnitedLinux, SCO's Linux was actively promoted as "powered by UnitedLinux". So, on what basis can SCO raise copyright infringement claims against a party to those agreements?

Then SCO pulled out of Linux distribution, it goes on, because SCO altered its business strategy "to the detriment of the agreements to which it is a party" and now it's trying to "undermine the very business that it had promised to promote," including filing litigation against SuSE's "parent and licensee Novell, alleging that Novell's distribution of SUSE Linux infringes Respondent's supposed copyrights."

SCO is being accused of not honoring a contract. We all know how sacred contracts are to SCO. You'll remember how deeply they cared about every jot and tittle in the Project Monterey contract. And remember what it tried to put DaimlerChrysler through based on SCO's interpretation of contracts? So this feels fitting. SuSE is asking the arbitration body to make SCO live up to its agreements. This is priceless.

You'll note, on page 58, that the agreements regarding UL were signed in May of 2002, just before Darl McBride hopped on his UNIX nag and began to ride as CEO. In paragraph 11, on that same page, we read this:

As discussed below, Respondent's claims are completely inconsistent with, and precluded by, the terms of the MTA and JDC. Therefore, this dispute should be resolved by ICC arbitration as laid out in the arbitration clause in said contracts.

This is the most surprising thing that has happened in the entire SCO saga, to me anyway. This is strategy way over my head. I don't feel bad, though. It appears BS&F didn't see it coming either. Plus, I hadn't read the UL contracts, obviously. Did SCO?

Now, according to the ICC rules, each party gets to nominate an arbitrator, and SuSE suggests Dr. Roberto Dallafior of Switzerland, who wrote the chapter on contract law in this book "Switzerland Business & Investment Handbook". His firm is Hess Dallafior. Here are some more things he's written, along with a picture of him. He's very good-looking. And not a million years old, either. One publication is called, "David gegen Goliath". For sure, they didn't pick his name out of a hat. No doubt they researched to get an idea of who they felt would be best equipped.

If you look on page 59, you'll see that they are supposed to say what language or languages the proceedings should be held in, and it's redacted. I love that touch. Might it be they chose, say, German? Anyone with BS&F speak German? I don't know why that part is redacted. It is possible they chose English, or English too. This document is in English, after all. If the parties don't agree, the Tribunal decides, and it will be influenced by the language of the contract, according to the ICC rules. Time will tell. But if it's in German or whatever, I'll be relying on Groklaw's translators, for sure. I note on page 60 that Novell's team now includes, for this arbitration, a Swiss firm. Likely they helped Novell choose an arbitrator.

That reminds me. I really need help transcribing all these documents. Please leave a comment stating what you are willing to do, so we don't duplicate effort, then email me in a plain text email either the text or the HTML, depending on your ability. Let me know in that same email how you wish to be credited, please.

Paragraph 17 expressly reserves the right to add further claims, or amend claims, and present further evidence in the future. There may be more up their sleeve, just in case they need it. And paragraph 46 gives us an idea of what was in the MTA and the JDC:

46. In particular the United Linux members agreed that each member would have an irrevocable, perpetual, and worldwide license to use and unlimitedly exploit any intellectual property rights of the other members in the UnitedLinux Software, which would be transferred to the LLC for this very purpose....

Then a couple of pages are redacted, apparently because of confidentiality requirements in the agreements themselves, but that sum up paragraph gives us enough to go on to grasp the slippery slope SCO now appears to be precariously standing on. The document goes on to describe UnitedLinux's launch in November of 2002, with appropriate quotes from then CEO Ransom Love, and tells how SCO continued to distribute even after the March 2003 litigation was begun against IBM, until May of 2003, when it announced it had "only recently discovered Linux included code that infringed on Respondent's alleged proprietary rights even though Respondent had been distributing Linux since 2001, and had participated in the development of UnitedLinux in 2002" and so was ceasing Linux distribution. The kernel in UnitedLinux was 2.4.19, which of course is subject to the GPL.

On page 75, we get to the heart of the matter, in paragraph 78 where it quotes SCO's Second Amended Complaint, which charges Novell with infringing SCO's copyrights by its use and distribution of SuSE Linux. But, SuSE points out, Novell is now its parent company and in the acquisition, Novell was granted an "exclusive license to all of SuSE's intellectual property rights, including any rights under agreements and licenses with other parties", which would include its rights under the MTA and JDC, the UnitedLinux agreements.

Paragraphs 81 and 82 are interesting. They point out that Caldera didn't contribute the Linux kernel to UL, but its infringement claims, although vague, appear to involve the kernel. The MTA and JDC, therefore, preclude SCO from asserting copyright infringement claims against the Linux kernel, no matter how you examine the issue, and the document does so every possible way, including the requirements of the GPL, which surely has been the MVP of the SCO litigation. In short, SCO is breaching the UL agreements by bringing such claims, and SuSE asks the Arbitral Tribunal to make them stop. Oh, and in addition they would like damages.

So, how do you like all this? Amazingly interesting, isn't it? What happens next? According to the ICC rules, as I read them, SCO must answer in 30 days, with any counterclaims, and giving any choice regarding arbitrators, language, and place of arbitration. It can ask for an extension. After an answer is filed, then SuSe gets 30 days to reply. It too can ask for an extension of time. SCO can protest the arbitration request. Then either the Tribunal decides to go ahead as a matter of law, relying on its decision that the arbitration clause is binding, or the parties end up in a local court, asking that court to decide if the arbitration clause is binding. It can decide just on the papers submitted, or there can be a hearing requested, but no matter what, after all the papers are in, it is supposed to be over in six months. No discovery. Whew. We're all sick of SCO discovery.

The number of arbitrators is decided very much like an ICANN UDRP domain name arbitration proceeding, I notice. Each party tells how many it wishes, one or three. If they can't agree, the Tribunal decides. If they agree on the number three, they each appoint one and the Tribunal appoints one. You can read about that on page 14 of the ICC rules. The decision is binding. If you think a mistake has been made, you can ask for a correction, but that's it. Talk about fast track. Not only that, but the parties can agree to go faster than the rules set out. I don't see SCO agreeing to be fast, though, do you? Keep in mind that when I say fast, I'm marking on a curve.


  


SUSE Files Arbitration Request in Paris - The Jacobs Declaration | 429 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic here
Authored by: AndyC on Wednesday, April 12 2006 @ 05:00 AM EDT
Make links clickable please.

(Yay! I get in first on this one!!!)

[ Reply to This | # ]

Corrections (if needed)
Authored by: AndyC on Wednesday, April 12 2006 @ 05:02 AM EDT
Thanks.

[ Reply to This | # ]

time limits to invoke arbitration clause
Authored by: nils on Wednesday, April 12 2006 @ 05:05 AM EDT
Isn't there a time limit or similair to invoke an arbitration clause (in order
to get a case stayed)?

Shouldn't the party who wan't to refer the dispute to arbitration state this
immedeately when the dispute first is brought before the court?

When was the claims brought in this case?

[ Reply to This | # ]

Novell is gone completely insane
Authored by: Anonymous on Wednesday, April 12 2006 @ 05:09 AM EDT
What a BOMB!
Novell seems completely forgotten who it is, leaves its position and switches to
argue ownership and transfer of the copyrights at issue from the POV of SuSE. In
2002, a year before Novell got involved.
Could TurboLinux and/or Conectiva do the same?
And what is the current legal status of UnitedLinux?

[ Reply to This | # ]

International recognition - the New York convention
Authored by: nils on Wednesday, April 12 2006 @ 05:13 AM EDT
Here is BTW the New York concention which is the main convention relating to
international regocnition of abitration awards:
http://arbiter.wipo.int/arbitration/ny-convention/text.html

[ Reply to This | # ]

Language
Authored by: Anonymous on Wednesday, April 12 2006 @ 05:14 AM EDT
A lawyer from Switzerland is to be expected to be fluent in at least two of
french, german, italian.
Combine that with the arbitration happening in France and french is the best
guess.

[ Reply to This | # ]

Transcription claims thread
Authored by: Anonymous on Wednesday, April 12 2006 @ 06:59 AM EDT

[ Reply to This | # ]

Novell Files Arbitration Request in Paris - The Jacobs Declaration
Authored by: mpellatt on Wednesday, April 12 2006 @ 07:11 AM EDT

Priceless. Truly priceless. I suspect this has all been prepared well in advance, just waiting for the right moment.

I also like Darl's quote in the 4th May 2003 CNET news.com article: 'Asked if SCO planned legal action against Red Hat and SuSE, SCO Chief Executive Darl McBride told CNET News.com, "There's a point in time that has to be resolved with those guys, too." However, he said such action isn't currently part of SCO's legal proceedings.....'

Well, that point in time has come now. And it is now part of SCO's legal proceedings. But not at the time he hoped when he made that statement. Nor has it been brought in in the way he hoped.

[ Reply to This | # ]

With whom and how will SCO pay for this?
Authored by: Anonymous on Wednesday, April 12 2006 @ 07:26 AM EDT
Does anyone think BS&F will be involved in this? I thought their legal fees
had been capped, and they wouldn't do any NEW claims without additional fees.
Granted SCO didn't make the new claims, but I'd think a case outside of the US
would give them cause to pause. I think that SCO's legal fee bucket just grew a
great deal. Can't wait to see their next 10K filing.

[ Reply to This | # ]

A Nightmare...
Authored by: Steve Martin on Wednesday, April 12 2006 @ 08:06 AM EDT
I just had a horrible thought.

We've speculated in the past on the chances that Novell's outcome could
significantly affect the outcome of TSG v IBM. What are the chances of the
following scenario?

1. The Motion to Stay Novell is decided by Judge Kimball in favor of Novell, so
the Novell case is stayed pending the outcome of the arbitration.

2. One of the parties in TSG v IBM (I'm not sure at this point whether either of
them so moving makes any sense) moves to stay that case, pending the outcome of
Novell's arbitration, since (from what we read here) such arbitration would be
binding on the IBM case.

3. Judge Kimball grants the motion.

At that point, AutoZone and Red Hat are both stayed pending the outcome of IBM,
and IBM and Novell are both stayed pending the outcome of the arbitration.
Everything grinds to a halt while we wait possibly another six months for the
arbiters.

I said above that it makes no sense for either TSG or IBM to move to stay;
however, now that I think about it, it would make *perfect* sense for TSG to so
move, since it would inject a "free" six-month delay in *all* their
pending suits.

Ack!


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

[ Reply to This | # ]

That book, PJ
Authored by: cybervegan on Wednesday, April 12 2006 @ 08:07 AM EDT
You know - the one you've promised/threatened to write when all this is over.
Looks like you're going to have to make it a trilogy just to get the basics in.
This family of cases has more twists and turns than a rollercoaster. I hope
you're enjoying the ride more these days ;-)

regards,
-cybervegan

---
Software source code is a bit like underwear - you only want to show it off in
public if it's clean and tidy. Refusal could be due to embarrassment or shame...

[ Reply to This | # ]

I've asked this before and maybe I'm just dumb.
Authored by: Anonymous on Wednesday, April 12 2006 @ 08:30 AM EDT
I don't see how this affects the slander of title claim. It seems to protect
Suse linux from claims of copyright infringement but doesn't protect Red Hat for
instance. It also doesn't settle the ownership of the copyrights. So, how does
it trigger a stay in Utah?

My brain hurts.

[ Reply to This | # ]

"This will turn out as one of the biggest jokes," SUSE CEO, 2003
Authored by: Anonymous on Wednesday, April 12 2006 @ 08:32 AM EDT
"They signed a joint development agreement with us, and there is a cross-licensing agreement between the four of us. This will turn out as one of the biggest jokes," said Richard Siebt of SUSE back in 2003, according to Computer Business Review

[ Reply to This | # ]

Novell Files Arbitration Request in Paris - The Jacobs Declaration
Authored by: John Hasler on Wednesday, April 12 2006 @ 09:24 AM EDT
> They point out that Caldera didn't contribute the Linux
> kernel to UL, but its infringement claims, although vague,
> appear to involve the kernel.

Caldera copyrights appear in the kernel.

---
IOANAL. Licensed under the GNU General Public License

[ Reply to This | # ]

Dude, where's my money?
Authored by: LPrecure on Wednesday, April 12 2006 @ 09:25 AM EDT
Any change that, while they're all in the room with the arbitor, Novell can ask
when SCO is going to send them the licencing fees they owe Novell?

(OK, so it's just a "wish list" scenario.)

[ Reply to This | # ]

SUSE dropped UL in 2004 - Arb rights?
Authored by: Anonymous on Wednesday, April 12 2006 @ 09:44 AM EDT
According to this eWeek.com article SUSE dropped out of UL in 2004... would this not mean they cannot use arbitration?
http://www.eweek.com/ article2/0,4149,1457065,00.asp

"UnitedLinux, RIP
By Steven J. Vaughan-Nichols, January 23, 2004

Without ceremony, fanfare or even an announcement, UnitedLinux, an industry consortium of The SCO Group Inc. (formerly Caldera International Inc.); Conectiva S.A; SuSE Linux (now a division of Novell Inc.); and Turbolinux Inc., which created a single enterprise Linux distribution, has come to an end.

The death announcement came in passing during a Novell press conference, when Richard Seibt, former SuSE Linux CEO and now president of SuSE, said SuSE had stopped being a member months ago, before Novell purchased SuSE. "There is no value in this relationship," he said. "SuSE, however, will work separately with UnitedLinux members Turbolinux and Conectiva."

SuSE made this move because SCO, even as it attacked Linux on several fronts, remained a member of UnitedLinux."

--

[ Reply to This | # ]

Please, oh please
Authored by: Anonymous on Wednesday, April 12 2006 @ 09:44 AM EDT
"...someone on Novell's team at some point noticed that the UnitedLinux agreements, which Caldera signed..."

Wouldn't you just love to hear this out of an SCOG's lawyer's mouth:

"Your honor, we can not be bound to these arbitration clauses because we are The SCO Group, we are not Caldera."

[ Reply to This | # ]

Leap Frog
Authored by: Anonymous on Wednesday, April 12 2006 @ 09:55 AM EDT
Now it appears that at least *some* of the Novell/SCO case will be decided
*before* SCO and IBM go to trial (in arbitration). How might a decision in
favor of Novell here help the IBM case? Doesn't IBM also make extensive use of
SUSE?

I find it very interesting that this might turn SCO's trial strategy on its ear.
After all, hadn't they sought to delay much of the Novell case until after the
IBM case. Won't this arbitration (if decided for SUSE/Novell) potentially change
the entire game plan only a few months before they are expected to present their
case in the IBM action?

Novell strikes me as a patient, seasoned warrior that drew his opponent in and
then let his opponent wear themselves out before beginning the real battle. Now
SCO is faced with real, simultaneous and deadly war at the same time on two
fronts. This didn't work out so good for Germany in WWII and I have to believe
this is not what SCO expected or wanted either.

As for me, I couldn't be happier.

[ Reply to This | # ]

Irrevocable?
Authored by: stend on Wednesday, April 12 2006 @ 10:54 AM EDT
See, there's the problem. SCO will assert that they have revoked SuSE's right to use SCO's IP in UnitedLinux, just like they revoked IBM's irrevocable license to UNIX.

<g,d,&r>

---
Please see bio for disclaimer.

[ Reply to This | # ]

Rope-a-dope
Authored by: tangomike on Wednesday, April 12 2006 @ 11:21 AM EDT
PJ says 'sucker punched'. I'd say rope-a-dope. Muhamid Ali would be pleased
(Google for it).

BS&F are way out of their neighbourhood: they've brought pikes and knives to
a tank battle.



---
Deja moo - I've heard that bull before.


[ Reply to This | # ]

All Roads Lead to Frivolous
Authored by: webster on Wednesday, April 12 2006 @ 11:39 AM EDT


1. I wish I had time to read the links. I'll have to rely on the article.
I'll throw in my 2 cents anyway.

2. This may explain the extremely awkward and lame slander of title claim filed
by SCO rather than anything substantive.

3. I don't think BS&F got sucker punched unless the sides don't talk and
argue informally at all in the hopes of settling the matter or about discovery.
Given how they went through the APA to find their one-sentence derivative claim,
it is hard to believe they are not aware of the arbitration clause in the MTA
and JDC. There seems to be some ironical "successor in interest"
arguments a la the discovery privilege battle about to hit the fan. SCO should
be desperate for more time and to avoid arbitration. PJ speculates that BSF
didn't read the UL agreement. I suggest they did so they tried to sneak through
this litigation without it. Thus the strange Slander suit.

4. Consider the following:

**..."3. Order Respondent to refrain from alleging publicly or against
third parties that the use and distribution of SUSE Linux infringes upon
Claimant's copyrights, as precluded by the MTA and JDC;"...**

-----I think IBM and anyone else that happened to buy any United Linux or SUSE
is a "third party." So here is another defense for them. Even if
there were copyrights, SCO code, patents etc. even if the GPL were invalid, SCO
gives it up here to Suse and anyone who claims through them, including IBM and,
by the terms of the license, the GPL, the rest of the world. So it looks like
under these circumstances there are at least two more reasons why SCO claims are
invalid or FRIVOLOUS. Pardon my enthusiasm.

This release of claims by SCO to UL may also trump any ambiguities or claims
arising from the prior APA, another convenient bypass for IBM.

5. The Courts like arbitration clauses. It lightens their case load.



---
webster

[ Reply to This | # ]

Open Group Losing Unix Trademarks
Authored by: Anonymous on Wednesday, April 12 2006 @ 11:43 AM EDT
The USPTO site shows one of the Unix trademarks will expire next week and the
other early next month. I wonder if the Open Group knows they are expiring and
will be canceled. If they are canceled can SCO then register Unix System
Laboratories or even Unix? Does anyone know who should be contacted at the Open
Group?

[ Reply to This | # ]

Can/will SCO amend again to drop copywrite claims?
Authored by: ljs on Wednesday, April 12 2006 @ 12:19 PM EDT
SCO dropped copyright claims against IBM when it got ugly. Might they do the
same here to head off the arbitration process? Novell is asking for them to
amend anyway because of the unfair competition claims so it would be an
opportune time to do it.

[ Reply to This | # ]

ICC power
Authored by: Yossarian on Wednesday, April 12 2006 @ 01:24 PM EDT
A question for the legal mind:
If I lose a trial in a US federal court, and I don't pay,
then the winer can use the government power to confiscate
my property. Ditto for a binding arbitration where the
court just rubber stamps the decision. But what about ICC?

To put it simply, if Novell will win in the ICC arbitration,
who has the power the enforce that verdict on SCO? E.g.
should the federal court in Utah just say "this was decided
in ICC arbitration" and rubber stamp it?
If not, who can force SCO to follow the verdict?

[ Reply to This | # ]

  • ICC power - Authored by: Anonymous on Wednesday, April 12 2006 @ 02:03 PM EDT
  • ICC power - Authored by: rsteinmetz70112 on Wednesday, April 12 2006 @ 04:41 PM EDT
  • automatic - Authored by: Anonymous on Thursday, April 13 2006 @ 12:04 AM EDT
What if SCO refuses to arbitrate?
Authored by: jbb on Wednesday, April 12 2006 @ 01:25 PM EDT
For the sake of argument, let's assume that SCO's amended complaints against Novell get stayed by Judge Kimball. What happens if SCO refuses to participate in the arbitration for reasons of "blah blah blah"?

Would Novell have to sue SCO to get relief? Since SCO is already facing dire consequences down the road no matter what they do, they probably don't care about the dire consequences they would face by ignoring the arbitration just so long as they can push all decisions back until after the Vista release.

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

[ Reply to This | # ]

Novell Files Arbitration Request in Paris - The Jacobs Declaration
Authored by: Anonymous on Wednesday, April 12 2006 @ 02:29 PM EDT
Did some googling and I found some opinions:

A Comparison between the ICC Arbitration Rules and the UNCITRAL Arbitration Rules
In section 8.0:
"ICC Rules simply provides that the arbitral tribunal shall after giving due regard to all relevant circumstances, including the language of the contract, determine the language(s) to be used."

and:
"If the parties agree on one or two languages for the arbitration on the basis of what is convenient to them and if language is a factor when appointing the arbitrators the number of translations can be limited."

Standard ICC Arbitration Clause
"Parties are reminded that it may be desirable for them to stipulate in the arbitration clause itself the law governing the contract, the number of arbitrators and the place and language of the arbitration. The parties' free choice of the law governing the contract and of the place and language of the arbitration is not limited by the ICC Rules of Arbitration."

Article 16 - Language of the Arbitration
"In the absence of an agreement by the parties, the Arbitral Tribunal shall determine the language or languages of the arbitration, due regard being given to all relevant circumstances, including the language of the contract."

The applicable law, the contract and the parties all use English. Unless the governing arbitration clause states something entirely different (than English) then, from the above, I would think it is quite likely that the language will be English.

[ Reply to This | # ]

Mysterious silence from Utah
Authored by: Anonymous on Wednesday, April 12 2006 @ 03:06 PM EDT
What really strikes me here is how quiet SCO has become about this case. In the
early days, they were out there pushing their case to the public 24/7, spinning
every single little detail that occurred in the courts, now... they don't seem
to think anything happening in the case is worth talking about. They'd rather
talk about cell phone marketing or China, or... something. In the meantime, even
the pro-corporate/pro-microsoft press shills that were flogging this case like
crazy in the public eye when it first started seem to suddenly not think it's
worth discussing.

IBM's going to finally start bringing consequences for SCO's failure to specify
things on friday; Novell just got a serious and important portion of one of
SCO's cases kicked over to arbitration. Wouldn't you think these are significant
enough events, SCO or their friends might have something to say about the
subject?

But, no, nothing. Funny how that works out.

[ Reply to This | # ]

Back to the IBM case
Authored by: Anonymous on Wednesday, April 12 2006 @ 03:22 PM EDT
"free from claims that the other members had any proprietary rights to such technology. In particular, the UnitedLinux members agreed that each member would have broad licenses to exploit and distribute Linux products that include UnitedLinux technology."

So how does this affect IBM? I don't believe IBM was a "member" here, but couldn't they have argued, way back when, that Caldera let the horse out of the barn when they entered into this agreement?

Did IBM just miss this, or is it something that they could not have pushed?

[ Reply to This | # ]

Careless Sappers Hoist By Their Own Petard!
Authored by: iceworm on Wednesday, April 12 2006 @ 03:56 PM EDT

PJ put it thusly:

SCO is being accused of not honoring a contract. We all know how sacred contracts are to SCO. You'll remember how deeply they cared about every jot and tittle in the Project Monterey contract. And remember what it tried to put DaimlerChrysler through based on SCO's interpretation of contracts? So this feels fitting. SuSE is asking the arbitration body to make SCO live up to its agreements. This is priceless.

[ Reply to This | # ]

Transcription - who's doing what
Authored by: sjlilley on Wednesday, April 12 2006 @ 05:23 PM EDT
I can't see any claims for this yet. I'm happy to do any of the docs, not had
chance to read them yet, but on hols next week.
If any one wants to OCR and send the results on I can HTML - don't have OCR
here.
thanks

---
Steven J Lilley

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Divestiture under the UL agreements
Authored by: elcorton on Wednesday, April 12 2006 @ 07:23 PM EDT
2. Declare, in particular, that the MTA and JDC divest Respondent of ownership of any alleged intellectual property rights in any part of software included in the UnitedLinux Software (other than Pre-Existing Technology and Enhancements);

It sounds like the divestiture provision only applies to code that was developed specifically for UnitedLinux. The purported "SCO IP in Linux" would presumably come under the designation "Pre-Existing Technology and Enhancements." So if any such code had existed, the MTA and JDC would not have transferred ownership of it.

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  • I don't think so - Authored by: Anonymous on Wednesday, April 12 2006 @ 10:06 PM EDT
Does this mean Novell admits SCO actually has copyright?
Authored by: mobrien_12 on Wednesday, April 12 2006 @ 10:03 PM EDT
If the arbitration is about the contract of one UL partner suing another for use
of copyright protected material or patents, does the simple act of asking for
arbitration mean they are admitting that SCOG owns copyrights in UNIX and
arbitration is needed to determine if it is in Linux and if SCOG can countersue
about it?

It seems very strange...

Is it doesn't admit anything, but forces the whole mess into an arbitration
forum, where SCOG can no longer (a) dodge the copyright ownership issue (b)
dodge the issue of what in Linux is allegedly infringing on their IP and (c)
torpedo the SCOG counterclaims... I'm just really confused...

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If you think a mistake has been made, you can ask for a correction
Authored by: The Mad Hatter r on Wednesday, April 12 2006 @ 10:34 PM EDT


Can they? I can jsut see Darl calling Ransom Love up right now asking for a
correction...


---
Wayne

http://urbanterrorist.blogspot.com/

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Two things:
Authored by: DaveJakeman on Thursday, April 13 2006 @ 11:53 AM EDT
The ICC fees appear to be based upon the amount in dispute, which Novell
suggests as being between $50M and $100M. A big enough hole for SCO to fall
into?

Also:

"Respondent has remained vague about the specific portions of SuSE Linux
that supposedly infringe Respondent's copyrights. However, all or virtually all
of the allegedly infringing items indentified in Exhibit B to Respondent's
Second Amended Complaint (Exhibit C-20) appear to be part of the Linux kernel
that was included with UnitedLinux. Indeed, Respondent has asserted that the
allegedly improper code is included in any product that includes the Linux
kernel 2.4 or above."

Of the 293 items in SCO vs IBM, 198 look set to be removed like dust shaken from
a rag. Could this take out the rest?

---
SCO: hunting for snarks in an ocean of sharks
---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.

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We all know how sacred contracts are to SCO.
Authored by: attila_the_pun on Thursday, April 13 2006 @ 05:00 PM EDT
Didn't Darth say something like "contracts are what you use against people
you have relationships with"?

Chicken, roost. Roost, chicken.

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