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The Most Recent SCO Letter to the Red Hat Judge
Friday, April 27 2007 @ 11:35 AM EDT

Playing catch-up with all the filings recently in Novell and IBM meant that the most recent SCO letter to the judge [PDF] in the Red Hat case got put on the back burner. But here it is as text, in its usual SCOish magnificence, stressing the positives and talking rather fast about the depressing bits. There are a lot of depressing bits. Not for me, personally, mind you. I always strive not to let SCO's woes get me down. But just empathizing with SCO's lawyer having to write up this report, which is all about SCO's house of cards falling down, down, down.

That's how I read it, anyway. As you'll see, SCO puts the emphasis this time on their efforts to get all the negative rulings reversed. It's hard to make that sound good, but they do their level best. In January, SCO told the judge [PDF] its spoliation motion was pending, for example. And the letter before that [PDF] made it seem like ominous clouds were gathering over IBM's case, for sure:
Also on Sepember 25, 2006, SCO filed its Motion for Relief for IBM's Spoliation of Evidence. In its supporting memorandum, SCO argues that IBM executives directed the widespread destruction of plainly relevant materials and accordingly asks the Court to impose an adverse-inference instruction against IBM and preclude IBM from contesting that it relied on AIX and Dynix source code in making its contributions to Linux development.

Har har. The motion went splat, which is what can happen to allegations that are not accompanied by convincing evidence. Now SCO has the unhappy duty to tell the Red Hat judge the motion was denied (and how, but SCO skips the "and how" part), but it adds that SCO has submitted a request for reconsideration, so all hope is not lost in SCOville just yet.

So we might as well enjoy the show, plus it's a very good summing up of just how bad things are currently in SCOville, with SCO asking the court in every way on every recently decided motion to please, please rethink so SCO's case won't end up on life support, with Novell and IBM continuing to beat up on the helpless comatose patient with their numerous counterclaims.

Yes, it is hard not to get depressed just thinking about it. Happily, I've always had a sunny disposition, and it certainly helps me these days to ride the waves of emotional turmoil one naturally feels watching SCO's case sinking like a slimy stone.

Garçon! Une coupe de champagne, s'il vous plaît.

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

[Morris, Nichols, Arsht & Tunnell letterhead]

April 6, 2007

BY ELECTRONIC FILING

The Honorable Sue L. Robinson, Chief Judge
United States District Court, District of Delaware
[address]

Re: Red Hat, Inc. v. The SCO Group, Inc., C.A. No. 03-772-SLR

Dear Chief Judge Robinson:

Pursuant to this Court’s April 6, 2004 Order, SCO respectfully submits this 90-day status report to apprise the Court of events occurring since our last update (on January 4, 2007) in SCO v. IBM, Case No. 2:03CV0294 (DAK), which is pending before the Honorable Dale A. Kimball in the United States District Court for the District of Utah.

Summary Judgment Motions

On March 1, 5, and 7, 2007, the Court heard oral argument on the parties’ summary judgment motions and took the motions under advisement.

Other Motions

As previously reported, on December 13, 2006, SCO filed a motion for reconsideration of the Court’s order of November 29, 2006, that affirmedMagistrate JudgeWells’ order of June 28, 2006. SCO’s motion is now fully briefed, but the Court has not set a date for oral argument.

As last reported, on December 21, 2006, Magistrate Judge Wells issued an order granting IBM’s Motion to Confine SCO’s Claims to, and Strike Allegations in Excess of, the Final Disclosures. On January 9, 2007, SCO filed its objections to that order as well as a Motion to


The Honorable Sue L. Robinson, Chief Judge
April 6, 2007
Page 2

Amend Its December 2005 Submission. IBM opposed both applications in a brief filed on February 16, and SCO filed its reply briefs on March 19, 2007. The Court has not set a date for oral argument on the objections or motion.

By an order dated March 2, 2007, Magistrate Judge Wells denied SCO’s Motion for Relief for IBM’s Spoliation. On March 16, SCO filed a motion for reconsideration of that order and filed objections to that order.

On April 2, 2007, SCO filed its Motion to Deem a Prospective Third-Party Deposition in Related Litigation to Be a Deposition Taken in This Case As Well.

SCO v. Novell

On December 12, 2006, SCO filed its opposition to Novell’s Motion for Partial Summary Judgment or Preliminary Injunction, and filed its Cross Motion for Summary Judgment or Partial Summary Judgment on Novell’s Third, Sixth, Seventh, Eighth, and Ninth Counterclaims. On January 23, 2007, the Court heard oral argument on the motion and cross motion, taking both under advisement.

On December 1, 2006, Novell filed its Motion for Partial Summary Judgment on Its Fourth Counterclaim. On January 17, 2007, SCO filed its opposition brief, and on January 18, its Cross Motion for Partial Summary Judgment. Both Novell’s motion and SCO’s cross motion have now been fully briefed, but the Court has not set a date for oral argument.

On April 3, 2007, based on a stipulation by the parties, the Court extended the deadline to complete all outstanding fact discovery to April 30, 2007, without disturbing the trial date of September 17, 2007.

Respectfully,

/s/ Leslie A. Polizoti

Leslie A. Polizoti (#4299)

cc: Peter T. Dalleo, Clerk (By Hand)
Josy W. Ingersoll, Esquire (ByHand)
William F. Lee, Esquire (By Fax)
Edward Normand, Esquire (ByFax)
Mauricio A. Gonzalez, Esquire (By Fax)


  


The Most Recent SCO Letter to the Red Hat Judge | 165 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Let the action with RH commence!
Authored by: Anonymous on Friday, April 27 2007 @ 12:09 PM EDT
Then we'd have a THREE ring circus!

[ Reply to This | # ]

Is the letter complete?
Authored by: Anonymous on Friday, April 27 2007 @ 12:09 PM EDT
Do they have to mention the depositions? It seems to me that they should have
to mention anything that may have a material effect on the case. For instance:
"Novell just filed several depositions that gut our case." Something
like that.

[ Reply to This | # ]

The Most Recent SCO Letter to the Red Hat Judge
Authored by: Anonymous on Friday, April 27 2007 @ 12:13 PM EDT
SCO's letter paints a picture of very alive and vibrant cases with IBM and
Novell. Not the kind of thing a busy judge wants to bring on herself. Under
the circumstances, I'd say BSF put up quite a snowstorm!

[ Reply to This | # ]

The Most Recent SCO Letter to the Red Hat Judge
Authored by: AceBtibucket on Friday, April 27 2007 @ 12:17 PM EDT
I do find it interesting how much they leave out. I am assuming that, since
those are different cases, SCO is not required to mention stuff like the recent
testimony on who 'owns' UNIX.

"These are not the 'droids you are looking for."

[ Reply to This | # ]

90-day status report, deadline missed
Authored by: Anonymous on Friday, April 27 2007 @ 12:24 PM EDT
90 days from January 4 was Wednesday, April 4. They submitted it in April 6.
In this case, though, I don't think anybody will be too bothered. This one is
on everybody's back burner

[ Reply to This | # ]

Interesting Slant
Authored by: MDT on Friday, April 27 2007 @ 12:26 PM EDT
I'm no expert, but just reading it over, it almost seems as if BS&F
(Emphasis on the first two letters) are highlighting how they are constantly
re-submitting requests for Reconsideration.

I almost wonder if they are trying to not-so-subtly let the judge know that

1) If you reopen now, we will have to file multiple requests for you to
reconsider that.
2) If you don't, we'll appeal every decision you make we don't like.
3) We don't want a third front, and you don't want us in your courtroom.

While this is probably a good thing for them right now (another court case is
lots of money they are *not* making from SCO), I have to think this will come
back to bite them in the end. Judges are not stupid, and they do follow other
cases, especially big cases. Additionally, I bet they do research on any major
law firm that shows up in their court. These antics will come home to roost in
other court cases, IMHO.



---
MDT

[ Reply to This | # ]

Off-Topic
Authored by: MDT on Friday, April 27 2007 @ 12:30 PM EDT
Clickies please

---
MDT

[ Reply to This | # ]

Corrections Here
Authored by: mmm on Friday, April 27 2007 @ 12:42 PM EDT
So they can be fixed...

[ Reply to This | # ]

PJ - It ain't over till it's over. What is going on in Switzerland with the UnitedLinux stuff?
Authored by: Anonymous on Friday, April 27 2007 @ 12:45 PM EDT
PJ - It ain't over till it's over. Remember about the sin of Hubris? Hopefully
you don't get that red dress out until it is time!

What is going on in Novell SuSE with Caldera/SCO arbitration in Switzerland with
the UnitedLinux related stuff? There was some agreement that Caldera was party
to and all those proceedings are closed, are they not? OR did I get some part
of that wrong? Would we ever get to find out what happened there?

[ Reply to This | # ]

That spirit!
Authored by: Rudisaurus on Friday, April 27 2007 @ 01:01 PM EDT
Garçon! Une coupe de champagne, s'il vous plaît.
Oh, je m'excuse, Mademoiselle - nous n'avons pas eu cet esprit ici depuis 1969.

[ Reply to This | # ]

  • That spirit! - Authored by: Anonymous on Friday, April 27 2007 @ 01:08 PM EDT
  • That spirit! - Authored by: Anonymous on Monday, April 30 2007 @ 02:42 AM EDT
The Most Recent SCO Letter to the Red Hat Judge
Authored by: Anonymous on Friday, April 27 2007 @ 01:16 PM EDT
Didn't Red Hat have to file a letter too?

Seems like now might be a good time for them to switch from a "going
through the motions" strategy to a "hey, wake up, the court is making
very clear that what we were saying all along about SCO's case being all hot air
is true, so how about reactivating this case and doing something to stop it like
you should have done in the beginning" kind of strategy. Although with
rather more "respectfully submit"s ;)

[ Reply to This | # ]

No mention of delay of IBM trial date
Authored by: Anonymous on Friday, April 27 2007 @ 01:25 PM EDT
I know that in their last letter to the judge they failed to mention the delay
of the trial date in the IBM case, but now that the original trial date for the
IBM case has come and gone, doesn't this judge have an obligation to noitice for
herself that the IBM trial has been delayed? She had to have known the original
scheduled start of the IBM trial, which was some time in February of this year
as I recall, and now that date has come and gone and still no trial. Does she
think that the world isn't watching? She declared almost 2 years ago that if
there were any further delays in the IBM case that the Redhat case would go
forward.

[ Reply to This | # ]

Condensed version
Authored by: Anonymous on Friday, April 27 2007 @ 01:30 PM EDT
Dear Judge Robinson

Both IBM and Novell are trying to sandbag the issues by overburdening the courts
with facts and documentation. We have objected and re-objected, thereby
successfully maintaining the snails pace. Go back to sleep. We anticipate our
negative solvency strategy will resolve these cases well before there is
anything you need to trouble yourself with.

Sincerely, SCO

[ Reply to This | # ]

  • Thanks! - Authored by: Anonymous on Friday, April 27 2007 @ 03:52 PM EDT
for those who don't speak french....
Authored by: mossc on Friday, April 27 2007 @ 02:03 PM EDT
My french is a little rusty but I think this:
"Garçon! Une coupe de champagne, s'il vous plaît."

Can be roughly translated...
Waiter, a couple of champagnes please while sco goes splat.

[ Reply to This | # ]

Life Support
Authored by: DannyB on Friday, April 27 2007 @ 02:08 PM EDT
SCO's case on Life Support?

I remember when SCO spoke loudly about how Linux would be dead already if IBM
would stop putting life support systems around Linux. I think it was Darl who
actually said that.

I remember concurrently hearing from a pro-Microsoft/SCO coworker about how
"IBM is keeping Linux going", as if Linux would die without IBM. The
way I seem to remember it was that in 1999 Linux was doing so great that IBM
decided to join the party.

BTW, that coworker is no longer here. He left about a year ago. Too bad.
Things in the SCO case have gotten far FAR worse during that time. :-) But I
think he had gotten used to losing arguments anyway.


---
The price of freedom is eternal litigation.

[ Reply to This | # ]

  • Life Support - Authored by: Anonymous on Friday, April 27 2007 @ 03:21 PM EDT
The Most Recent SCO Letter to the Red Hat Judge
Authored by: Anonymous on Friday, April 27 2007 @ 02:09 PM EDT
I guess in France it may be a cup..

But here in Quebec they drink it by the glass(verre) and bottle(bouteille)...

[ Reply to This | # ]

On hindsight...
Authored by: Anonymous on Friday, April 27 2007 @ 02:22 PM EDT
Over the years we theorised and speculated about the many possible endings of
the SCO charade.

Now we have hints coming from all sides (SCO v. IBM, Novell v. SCO, Red Hat v.
SCO, the NASDAQ index) that not only one, but all of these alternative endings
have a strong of possibility of becoming true, not just one of them.

The only question at this point is -I believe- *which* will happen first.

[ Reply to This | # ]

The Most Recent SCO Letter to the Red Hat Judge
Authored by: Anonymous on Friday, April 27 2007 @ 02:50 PM EDT
What's interesting is how is this going to affect the Red Hat case if it ever
gets heard? They have a file paper saying "we're going to win motion X in
case Y" and they do that over and over only to have those motions denied.
What is this going to do to their credibility with the Red Hat judge?

Furthermore, how is saying "oh, we didn't win that motion, but we've filed
a new one to reconsider that motion" going to affect their standing with
the Red Hat judge?

On both accounts, I think it will be viewed too kindly. They really should be
more honest with the courts, no?

[ Reply to This | # ]

Novell tries again for an SCO KO
Authored by: Anonymous on Friday, April 27 2007 @ 03:19 PM EDT
Linux Watch

Novell is once again trying to finish off The SCO Group's court cases by proving that Novell is the company that actually owns Unix's intellectual property rights. What makes this latest attempt different, is we finally see an explanation of how SCO ended up owning Unix without owning its copyrights.

This is core to any and all of SCO's multiple cases regarding Linux. Without a legal claim to Unix IP (intellectual property), SCO's cases against Novell, IBM, and Red Hat can't even enter the ring to begin the fight.

Novell has been pushing this very point since early 2004. Then, Novell first asserted that in the original APA (Asset Purchase Agreement) and Amendment No.2 to the APA, it had never sold Unix's IP to SCO. Since then, the legal arguments have never stopped on this very point.

By and large, though, SCO hasn't been able to score any points in this critical round. Minutes from a 1995 Novell's board of directors meeting clearly state, for example, that Novell was to retain its Unix copyrights when it sold the operating system to Santa Cruz Operation. Santa Cruz Operation would eventually become today's SCO.

Novell has also claimed that in late 2002, SCO's CEO Darl McBride had tried to get Novell to amend the APA to give SCO Unix's copyrights. Thus, this proved, according to Novell's lawyers' logic, that SCO already knew that it didn't own Unix's IP.

SCO's counter-arguments can be boiled down to: "Why would we buy an operating system without its copyright?" It's a good question.

Now, thanks to Novell's latest efforts to win a summary judgment against SCO -- that is, Novell is asking the court to rule in its favor without a trial because the evidence is so completely clear that Novell is in the right -- we finally know why SCO did not get Unix's IP.

The Reader's Digest condensed version? Novell never wanted to sell them in the first place.

In Novell's supporting document, the company includes statements and some original legal documentation from the Novell attorneys who wrote the APA and the Amendment, Tor Braham and Allison Amadia, respectively.

In Braham's statement to the U.S. District Court in Utah, he explained that when Novell sold Unix to the Santa Cruz Operation it "was not a straight up asset purchase. The contract took on a more complex form due to various issues that arose in the course of negotiations. For example, Santa Cruz did not have the cash to buy both the UNIX assets that Novell had purchased from USL in 1993 plus Novell's UnixWare business. SCO's financial health also raised serious concerns about Santa Cruz's viability as a company."

Because of this, "Novell was unwilling to transfer intellectual property rights in UNIX and UnixWare, including patents and copyrights." The reason for that is that if SCO went under, Novell would still own the valuable Unix IP. "Novell's copyright ownership, in particular, would permit Novell to continue to have rights to this revenue, should Santa Cruz go bankrupt; the rights to the revenue would follow the copyrights to Novell. Novell's ownership of the copyrights also would aid in Novell's negotiation of buyouts of SVRX Licenses and in Novell's interest in the development of UNIX on 64-bit Intel processors, for example, by Hewlett Packard," said Braham.

This isn't just a matter of Braham's recollection of a deal now more than 10 years gone in the past. His statement includes numerous copies of the original drafts, making it clear that keeping the copyrights had always been Novell's intentions. Because Santa Cruz was short on cash to make the deal, Santa Cruz eventually agreed to this.

Then, in 1996, according to Allison Amadia, in her declaration to the court, Steve Sabbath, an in-house lawyer at Santa Cruz, had asked "Novell to amend the Original APA to explicitly give Santa Cruz rights to copyrights in UNIX and UnixWare."

Amadia said that while Novell was willing to affirm that Santa Cruz had a license under the Original APA to use Novell's UNIX and UnixWare copyrighted works in its business, Novell was not going to transfer ownership of any copyrights to Santa Cruz through Amendment No. 2."

So it was that the key paragraph in the Amendment reads: "All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies."

Novell's senior VP and general counsel, Joseph A. LaSala Jr. argues today that SCO only got the "copyrights … required for [Santa Cruz Operation] to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." And, since SCO didn't ask for any specific required copyrights, it never got them.

In her statement, Amadia agreed. "Amendment No. 2 was not intended to alter the Original APA's copyright ownership exclusion. Amendment No. 2 was not intended to transfer ownership of any UNIX or UnixWare copyrights owned by Novell. As I mentioned above, Amendment No. 2 affirmed that Santa Cruz had a license under the Original APA to use Novell's UNIX and UnixWare copyrighted works in its business."

Therefore, SCO's contention "that Amendment No. 2 acted to transfer ownership of the UNIX and UnixWare copyrights to Santa Cruz, that contention is inaccurate. That was not the intent during the negotiations of Amendment No. 2," Amadia added.

Amadia continued, "There was no Bill of Sale or other similar legal document executed in connection with Amendment No. 2 that transferred ownership of any UNIX or UnixWare copyrights from Novell to Santa Cruz. The reason is simple: Amendment No. 2 was not intended to transfer ownership of any copyrights to Santa Cruz."

So, while, yes, Santa Cruz sought to gain Unix's IP, but "I rejected his proposal and ultimately we agreed on the language that became Paragraph A of Amendment No. 2," concluded Amadia.

To sum up, Novell former attorneys argue that while Santa Cruz did want to obtain Unix's IP, Santa Cruz didn't have the funds to buy them in 1995 and they were unable to negotiate for them in 1996. So again, Novell seeks to have the court deliver a knockout blow to SCO's ownership of Unix's IP -- and with it, the rest of its protracted legal actions against Linux and Linux-related companies.

[ Reply to This | # ]

    Off-topic, but fun!!
    Authored by: AceBtibucket on Friday, April 27 2007 @ 05:13 PM EDT
    http://www.earthtimes.org/articles/show/news_press_release,96554.shtml

    I wonder if this was mentioned at the shareholders meeting?

    [ Reply to This | # ]

    When's Red Hat's letter due?
    Authored by: Anonymous on Friday, April 27 2007 @ 05:32 PM EDT

    That's the one that'll be interesting. Nobody would expect SCO to be including any of the bad news in their letter. Oh to be the proverbial fly on the wall when the judge compares the contents of the two letters.

    [ Reply to This | # ]

    Novell goes first -- The Most Recent SCO Letter to the Red Hat Judge
    Authored by: Anonymous on Friday, April 27 2007 @ 09:56 PM EDT
    You know, I don't remember SCO ever telling Judge Robinson that the IBM vs
    Novell case was suspended until after the Novell case. All they say is they've
    filed such and such and oral arguments have not been scheduled.

    [ Reply to This | # ]

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