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SCO Files Reply to Novell's Counterclaims in SCO v. Novell
Friday, May 19 2006 @ 09:37 AM EDT

Here's SCO's Reply to Novell's Counterclaims [PDF]. It almost feels a little irrelevant, since May 19th is SCO's deadline to respond to Novell's Motion to Stay Claims Raising Issues Subject to Arbitration and Novell's Motion for a More Definite Statement. Somehow that feels like the main event, and this Answer feels more like a side show.

Here's the order [PDF] giving SCO until today to file, signed by Judge Dale Kimball.

In Novell's Answer to SCO's Second Amended Complaint and Counterclaims, which is the document you need if you want to compare each item by number -- the counterclaims begin after paragraph 149 -- (here's SCO's Second Amended Complaint), you'll recall that it listed the following affirmative defenses:

# Privilege
# Estoppel
# Unclean hands
# Laches
# Comparative fault
# Failure to mitigate
# No causation
# U.S. Const. Amend. I
# Misuse of copyright
# Fraud on the Copyright Office
# Independent creation
# Fair use
# License (the UnitedLinux agreements, the TLA, and ye olde GPL)
# Implied License
# Waiver
# Abandonment and forfeiture
# Obligation to Arbitrate

In this Reply, SCO raises most of the same affirmative defenses, so we find the comical situation where both SCO and Novell have accused the other of slander of title, and each claims the same affirmative defenses, the First Amendment, Privilege, Estoppel, Unclean Hands, Failure to Mitigate, No causation, etc. So each will have to argue that the other side doesn't deserve the affirmative defenses, but they do.

So SCO says to Novell, "You said in public that we don't own the copyrights on Unix." And Novell says, "I was allowed to, for a list of reasons. And *you* said to the world that we don't own the copyrights." And SCO replies, "I was allowed to, for a list of reasons, the same list of reasons you are claiming but that you don't deserve to use but I do." "No," Novell will say, "only I can make use of this list. You're just in the wrong. Totally."

I have a brainstorm. Let's let them cross each other out. Just drop the stupid slander of title stuff and let's talk about what's really important: Who owns the copyrights? Maybe then there will be a hope of getting this resolved without three years of discovery.

Of course, that won't happen. Once you get caught up in litigation, there's no quick fix or easy escape. It's like marriage. It's much easier to get in than to get out, as I believe poor Paul McCartney is about to discover.

I'm working on a chart and I have the Novell side done. If someone could quickly send me this SCO Reply OCR'd, I would appreciate it a lot. Thank you, if you can. Leave a comment, so others know not to duplicate effort.


  


SCO Files Reply to Novell's Counterclaims in SCO v. Novell | 179 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: Anni on Friday, May 19 2006 @ 09:42 AM EDT
Right here.


---
Sometimes it is better to light a flamethrower than curse the darkness.

[ Reply to This | # ]

Off Topic Thread
Authored by: Anni on Friday, May 19 2006 @ 09:44 AM EDT
I have nothing smart to say here, so I wont.


---
Sometimes it is better to light a flamethrower than curse the darkness.

[ Reply to This | # ]

#8 Admits to SCO's accusations - sleaze bags n/t
Authored by: Anonymous on Friday, May 19 2006 @ 10:30 AM EDT
n/t

[ Reply to This | # ]

Affirmative defenses wiped off the table
Authored by: Anonymous on Friday, May 19 2006 @ 10:30 AM EDT
Claiming that the Unix copyrights transferred from Caldera to UnitedLlinux
doesn't do much good to Novell's position, me thinks. But I'm sure Novell
counsel has that covered somehow. Ssomewhere.

[ Reply to This | # ]

SCO vs. Novell seems Simple
Authored by: rsteinmetz70112 on Friday, May 19 2006 @ 10:46 AM EDT
This case seems relatively a straight forward dispute over the meaning of the
contracts and the nature of the licenses held sold by SCOG. It appears that the
parties agree on the facts, which are pretty much public anyway.

A first reading of the response seems to indicate that extensive discovery may
not be necessary. The only discovery would seem to be files held by the few
companies involved and some depositions of the actual people involved in the
original deal. Seems like it might go to trial relatively quickly, if it can't
be disposed of by Summary Judgment.

But I'm probably wrong :-)

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

PLEASE REMOVE McCARTNEY
Authored by: mash_morgan on Friday, May 19 2006 @ 12:51 PM EDT
Please remove the reference to McCartney. IT IS PURE speculation.. and
unnecessary.. it offends me !!! :-(

[ Reply to This | # ]

SCO's Recursive Definitions
Authored by: Anonymous on Friday, May 19 2006 @ 03:02 PM EDT
90. Admits that section 4.16(b) of the APA (correctly quoted in paragraph 90)
sets fort the terms therein; but denies...any attempt by Novell to define the
term "SVRX Licenses" to include anything other than royalties that SCO
collected from then-existing SVRX licensees for their distribution of
binary-code versions of System V products pursuiant to sublicensing agreements.

Through the entire document, SCO seems to be insisting that "SVRX
Licensens" can only be defined as the royalty stream. So what exactly are
the 'SVRX licensees' paying their royalties *FOR*? SCO even talks about
"SVRX Royalties" in the same section where they talk about "SVRX
Licenses" elsewhere in the document.

I think they're going to have a tough time convincing *anybody* that a
"SVRX License" is anything other than a license to do something with
SVRX, despite their efforts in this document to paint the picture of someone
licensing a SVRX royalty stream. (What would that even mean? If I license a
royalty stream, shouldn't I get some sort of access to it?)

[ Reply to This | # ]

SCO Files Reply to Novell's Counterclaims in SCO v. Novell
Authored by: Anonymous on Friday, May 19 2006 @ 03:11 PM EDT
"poor Paul McCartney"

*splutters*

He isn't now and he won't be afterwards. I will be exceptionally surprised if
Heather Mills gets more than 50 million quid. He'll still be a dollar
billionnaire
afterwards.

[ Reply to This | # ]

sickening, as usual
Authored by: Anonymous on Friday, May 19 2006 @ 03:15 PM EDT
I couldn't make it past # 8. SCO/BSF continue to pervert any and every filing
in a vain attempt to repeat their point of view enough times to hypnotize the
judge.

Here's Novells Counterclaim 8, a succinct allegation of facts:

8. Linux is the name of a computer operating system, originally developed
beginning in the early 1990s when Linus Torvalds, an undergraduate student at
the University of Helsinki, began writing the Linux kernel, or the core of the
Linux operating system. He released the first version of the Linux kernel on the
Internet in 1991. Since then, thousands of software programmers around the world
have engaged in a collaborative effort to further develop Linux.

Since SCO has no first-hand knowledge of any of those facts, (except the last
sentence and the fact that Linux is an OS) they are well within their rights to
simply deny the whole paragraph (except the last sentence) and let Novell prove
it with evidence. When that time comes, SCO will have a chance to tell their
version of history. Here's the abomination they produce instead:

8. Admits that Linus Torvalds purportedly developered the Linux operating system
by consulting and referring to other materials; admits that numerous other
parties have also contributed to Linux, including parties who wrongfully
contributed SCO's UNIX intellectual property; but denies information or
knowledge sufficient to form a belief as to the truth of each and every other
allegation of P 8.

This has me so furious I'll go through it almost word by word.
"Admits that Linus Torvalds purportedly..."
You never admit something "purportedly". There's no logic to that.
"I've heard rumors about that" is not a proper response when you're
being asked to admit or deny something. If you have only hearsay evidence, you
just deny it.
"by consulting and referring to other materials"
This has nothing to do with Novell's counterclaim 8. SCO is just trying to
paint a picture that implies some kind of IP infringement, in a filing where
Novell has no real opportunity to respond directly. This sentence is also an
affront to anyone who cares bout semantic clarity in the English language. I
don't just mean that there is no such word as "developered". I mean
this: read the sentence closely and try to decide whether SCO is saying that the
"consulting or referring" was actual or just "purported".
If that ambiguity was intentional, it's one of the slimiest sentences I've ever
read. But it's possible that this sentence was merely written by someone who
developed an immunity to the English language after years of legal practice.
"admits that numerous other parties have also contributed to
Linux"
This is fine. They had to admit this, since they were among those
contributing parties.
"including parties who wrongfully contributed SCO's UNIX intellectual
property;"
Here we go again. Somebody please tell me how this is an admission or
denial of anything in Novell's counterclaim 8?
"but denies information or knowledge sufficient to form a belief as to
the truth of each and every other allegation of P 8."
This last clause is almost the entirety of what a proper response would look
like: admit Linux exists and lots of people have contributed to it, and let
Novell prove any other part of this paragraph that might help Novell's
counterclaims.
Instead we get more of the same old stomach-turning bluff and innuendo.

[ Reply to This | # ]

So, explain this to me
Authored by: Anonymous on Friday, May 19 2006 @ 03:22 PM EDT
So-- the Motion for a More Definitive Statement. The one SCO hasn't responded to.
  1. Does the lack of a response indicate they just aren't going to respond? Or does it indicate they will respond later today, or indicate they've already responded and the response just isn't on PACER?
  2. How long does stuff usually take to get on PACER, anyway? That is to say, How long do we have to go without SCO's response to the More Definitive Statement request showing up on PACER, before we can just plain assume they missed the deadline?
  3. Okay, so let's say SCO misses the deadline. Let's say today comes and goes and SCO never responds to the Motion for a More Definitive Statement. What happens next? If SCO doesn't respond to the Motion for a More Definitive Statement, what happens to them as a result?
Thanks.

[ Reply to This | # ]

Has SCO repaid the SVRX royalties? or stiffed Novell?
Authored by: hardmath on Friday, May 19 2006 @ 03:26 PM EDT

I found this section of SCO's reply the most curious:

139. Denies the allegation that SCO owes Novell monies under the APA, and states that Novell is not entitled to an accounting.

I say curious, because that follows repeated admissions by SCO earlier in the their reply that the APA entitled Novell to what SCO qualifies as "binary royalties" (eg. #138 inter alia) and "to payments for products unrelated to SVRX licenses and this litigation" (cf. #131). So, how could Novell be entitled to payments without commensurately being entitled to an accounting? Inquiring minds want to know...

It also seemed that a line item related to these "owed to Novell" SVRX royalties in SCO's quarterly financials disappeared in Dec. 2005, although it seemed to me the amount had moved into a category of "restricted" funds. At the time I speculated that maybe "the check was in the mail", but now it sounds like SCO, while agreeing that the APA says Novell was entitled to "royalties" (and other payments), SCO doesn't have to actually pay them.

confusedly, hm

---
Well, when the President does it, that means it is not illegal. -- Nixon, 1977 interview with David Frost

[ Reply to This | # ]

This sort of thing is never a problem for scox
Authored by: Anonymous on Saturday, May 20 2006 @ 01:33 PM EDT
Scox doesn't care about what information scox is ordered to provide. Scox
provides what scox wants to provide.

Usually scox will provide some sort of legal conclusion, or argue why the
request is irrelevant, or something entirely vauge, or lord only knows what.

The judges will never hold scox's feet to the fire, so what does scox care?

[ Reply to This | # ]
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