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SCO Files Opposition Memos to 2 Novell Motions for SJ
Saturday, May 19 2007 @ 12:58 AM EDT

More filings in SCO v. Novell. SCO files memoranda in opposition to two of Novell's motions for summary judgment, Novell's Motion for Partial Summary Judgment on the Copyright Ownership Portions of SCO's 2nd Claim for Breach of Contract and 5th Claim for Unfair Competition (Memo in Support [PDFs]) and Novell's Motion for Partial Summary Judgment on SCO's Non-Compete Claim in its Second Claim for Breach of Contract and Fifth Claim for Unfair Competition (Memo in Support [PDFs]).

So those are the two motions SCO is opposing in the new filings, and here are the docket entries, which we can read together:

05/18/2007 - 299 - Plaintiff's MEMORANDUM in Opposition re 271 MOTION for Partial Summary Judgment on the Copyright Ownership Portions of SCO's Second Claim for Breach of Contract and Fifth Claim for Unfair Competition filed by Counter Defendant SCO Group, Plaintiff SCO Group. (Normand, Edward) (Entered: 05/18/2007)

05/18/2007 - 300 - Plaintiff's MOTION for Leave to File Excess Pages filed by Counter Defendant SCO Group, Plaintiff SCO Group. (Attachments: # 1 Text of Proposed Order Order Granting Ex Parte Motion for Leave to File Excess Pages) Motions referred to Brooke C. Wells.(Normand, Edward) (Entered: 05/18/2007)

05/18/2007 - 301 - Plaintiff's MEMORANDUM in Opposition re 273 MOTION for Partial Summary Judgment on SCO's Non-Compete Claim in its Second Claim for Breach of Contract and Fifth Claim for Unfair Competition filed by Counter Defendant SCO Group, Plaintiff SCO Group. (Attachments: # 1 Exhibit Unpublished Cases)(Normand, Edward) (Entered: 05/18/2007)

The eagle-eyed among you will have noticed that the numbering of the PDFs on Novell's second motion are odd. It's because of the glitch I earlier pointed out, that Novell had filed identical motions as numbers 271 and 273, although the memos in support made it clear, along with the docket text, that they were supposed to be two separate motions. So, now Novell has filed the corrected motion for 273, the memo for which was already correct, so it is still 274, while the corrected memo it supports is 282 now. Just explaining so you don't go around in circles. And all of the above need to be OCR and put into HTML, if any of you are willing and able. Thanks if you can.

  


SCO Files Opposition Memos to 2 Novell Motions for SJ | 142 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: feldegast on Saturday, May 19 2007 @ 01:13 AM EDT
So PJ can fix them

---
IANAL
My posts are ©2004-2007 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Non-Anon Off Topic
Authored by: LocoYokel on Saturday, May 19 2007 @ 01:29 AM EDT
Yes, we had an anon start an anchor thread again.


---
Waiting for the games I play to be released in Linux, or a decent Windows
emulator, to switch entirely.

[ Reply to This | # ]

I am waiting for ...
Authored by: Anonymous on Saturday, May 19 2007 @ 01:35 AM EDT

the day tSCOg files a motion opposing its own funeral. It will happen :) :)

DSM

[ Reply to This | # ]

SCO Memos now claim Novell "robbed" them! Forget breach, it's theft!
Authored by: Anonymous on Saturday, May 19 2007 @ 02:06 AM EDT
So, in spite of the long lapse between the sale to Caldera and the SCOG lawsuit,
SCO is just now noting this claim?

Not just claiming breach of contract by failure to convey copyrights, but
outright theft? Misapropriation by Novell, after selling the lock, the stock and
the barrel.
Oh my!

The big bad man stole my lollipop.
A sucker I never had, in my possesion.
One I have no receipt for.
One the shopowner claims I never bought.
But it is a lollipop I saw once, and would have gotten if I'd had a nickel.
And now that bad Novell won't give it to me.
Wahhh!

Call the sheriff, call CSI.
It's robbery, clear for all to see.
{sigh}

[ Reply to This | # ]

SCO Opposition ReDux
Authored by: rsteinmetz70112 on Saturday, May 19 2007 @ 02:31 AM EDT
Having skimmed through the filing, I expect a sur-reply. Since it was allowed in
IBM and since SCO has adopted the same tactics here, namely distorting the facts
and the opposition's position it will be allowed here.

I expected Novell expected this and the truly devastating response will be the
sur-sur-response reply.

I think BSF is channeling Charles Lutwidge Dodgso

But then I'm only guessing.

---
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 | # ]

"Undisputed" means something different to me
Authored by: Anonymous on Saturday, May 19 2007 @ 03:24 AM EDT
How can they put this under the heading STATEMENT OF UNDISPUTED FACTS?

"In May 2001, SCO purchased from The Santa Cruz Operation all right, title,
and
interest in and to the UNIX and UnixWare business, including the
copyrights"

If that were an undisputed fact, then why would SCO be filing this motion in the

first place? That is unbelievable.

[ Reply to This | # ]

They're disputing the change in control?
Authored by: Anonymous on Saturday, May 19 2007 @ 03:35 AM EDT
They are actually saying that the sale of Santa Cruz to Caldera didn't
constitute a
change of control.

Unbelievable. This just proves they don't care about winning, this is a nuisance

lawsuit.

[ Reply to This | # ]

Ok, how does this work?
Authored by: Anonymous on Saturday, May 19 2007 @ 04:02 AM EDT
Despite the title, this is not a reply to anything Novell has filed, and it
doesn't oppose anything that's in currently the case. It's basically attempting
to amend the case by making entirely new claims.

Does the judge have to permit the a, b, a, sur, sur-sur, etc pattern to keep
repeating endlessly? Cannot the judge say "Enough, I'm sua ponte striking
everything that has not been clearly laid out in the complaint!"

Since this is supposed to be a memo in opposition to a already filed motion,
where does the buck stop for someone to say "Not in the case. If you wanted
a breach of contract you should have filed a breach of contract in the first
place"?

I just don't understand how this can be permitted.

[ Reply to This | # ]

SCO Files Opposition Memos to 2 Novell Motions for SJ
Authored by: pem on Saturday, May 19 2007 @ 04:17 AM EDT
I dunno.

I went back and looked at the original APA, and I can see where SCO is coming
from on some of this.

SCO doesn't have a case against Linux, or IBM, or probably even Novell for the
SUSE acquisition, but in all the noise about the change of control provisions, I
think I would go with SCO's version. The TLA talks about "change of
control" without defining that, but it references the APA, and the APA
definition of the sort of "change of control" which would trigger
Novell's getting Unix back don't seem to cover the SCO->Caldera transfer, so
I don't think anything here has triggered that change of control provision.

So I wouldn't be too surprised or worried if SCO makes some headway against
Novell, but I don't expect that to translate to the IBM case.

It looks to me like SCO's slander of title might actually be viable. To us, the
whole thing looks like a sideshow, but from SCO's perspective, Novell was
obligated to deliver any "necessary" contracts, and then
simultaneously withheld them and bragged about how SCO didn't have them.

Sure, the copyrights are the elephant in the room (or not in the room because
the title to some of them is hopelessly clouded), but as has been discussed
here:

- SCO and Novell DID intend to transfer the whole business
- SCO DIDN't have enough money
- Any copyrights required "to execute" the business need to go to
SCO

So the final agreement made this adjustment:

- The portion of the business Novell kept because of this (the royalty stream)
was a huge portion of the business, but was BY DESIGN intended to be a declining
portion of the overall Unix business, because Novell REALLY DID intend to sell
its Unix business to SCO.

So, when SCO claims they own "Unix", they may be on surer footing than
Novell -- that's the result the contracts were designed to produce, and it may
be that Novell has been bad by publicly renouncing this.

However, due to competition, poor execution, the vagaries of the marketplace,
etc., this result hasn't been reached as intended, and it is highly likely that
Novell's actual monetary interest in Unix is still larger than SCO's. For
example, the SCOsource licenses which appear to be Svrx licenses. Was the money
supposed to go to Novell? Probably. Does that mean that Novell still
"owns" Unix? Sure, in one sense, but if the business had grown as it
was supposed to with the "merged product" then Novell's revenue would
have been a drop in the bucket of SCO's total Unix revenue.

So I wouldn't be at all surprised to see SCO win this round on these PSJs, but I
would be hesitant to hazard a guess as to the final outcome on all the
SCO/Novell litigation. It would be very interesting if SCO prevailed, because
then the SCO vs. Linux portion of the IBM lawsuit would have to be decided on
the merits rather than on who happened to own the Unix copyrights at the time.

[ Reply to This | # ]

And speaking of unjust enrichment...
Authored by: Anonymous on Saturday, May 19 2007 @ 05:42 AM EDT
Finally! SCO at last provides specificity, and now I understand!

In 2001 IBM contributed its own copyrighted AIX code to Linux, thereby making
Linux into Unixware and violating Novell's copyrights. Novell in 2004 bought
Suse Linux (which was now Unixware), thereby retroactively competing with Santa
Cruz between 1995 and 1997 in violation of the TLA. Furthermore, in 2003, Novell
still publicly claimed to have owned the allegedly infringed copyrights all
along, relying merely on an APA exclusion that says they never sold them.

Therefore TSCOG, who do not own any copyrights and are party to none of
aforementioned agreements, but who are really ATT, USL, Novell, Santa Cruz and
Caldera, and live on Endor, should be granted all of Novell's copyrights and 5
billion dollars from IBM to compensate for the damage they have suffered by
Novell publicly claiming that the APA (to which TSCOG is also not a party) says
exactly what it says, despite heresay from several people who had nothing to do
with it proving otherwise.


In keeping with the Wonderland theme, I picture a Boies-ish looking Hatter
shaking a Blepp_Briefcase-ish pocketwatch and muttering "I told you butter
wouldn't suit the works." To which a Darl-ish dormouse replies "But it
was the BEST butter!"

[ Reply to This | # ]

Novell-299.pdf converted to HTML
Authored by: Totosplatz on Saturday, May 19 2007 @ 06:28 AM EDT
I did a conversion to HTML and sent it to PJ.

Greetings from south China, where it is hot.



---
All the best to one and all.

[ Reply to This | # ]

Just beacuase it confused me...
Authored by: Anonymous on Saturday, May 19 2007 @ 06:47 AM EDT
SCO's 299 says that it is undisputed that SCO owns the Unix copyrights. "Wow," thought I, "That seems like a stretch even for SCO".

But, indeed, Novell's 271 does indeed say that "the copyright ownership portions of SCO’s unfair competition and breach of contract claims do not state valid claims for relief, even if SCO’s allegations were assumed to be correct," and, for the purposes of this motion, does not dispute those allegations.

Remember, you can't argue facts, except in extreme cases, without a jury, so Novell has to show that it doesn't need them in order to prevail at summary judgment.

I'm still trying to parse the actual arguments...

[ Reply to This | # ]

Novell-301 converted to HTML
Authored by: Totosplatz on Saturday, May 19 2007 @ 06:56 AM EDT
Converted to basic, plain-Jane HTML, using pdftotext
and OpenOffice, and sent to PJ.


---
All the best to one and all.

[ Reply to This | # ]

On the "change of control" issue
Authored by: PTrenholme on Saturday, May 19 2007 @ 03:56 PM EDT

As far as I can see, the LTA states that all definitions to be used in the LTA are defined in the APA. So, how does the APA define "change of control?"

Section 6.6(c) states:

(c) Change of Control. For purposes of this Agreement a "Change of Control" with respect to one party shall be deemed to have occurred whenever
(i) there shall be consummated

(1) any consolidation or merger of such party in which such party is not the continuing or surviving corporation, or pursuant to which shares of such party's common stock immediately prior to the merger have substantially the same proportionate ownership of common stock of the surviving corporation immediately after the merger or

(2) any sale, lease, exchange or transfer (in one transaction or a series of related transactions) of all or substantially all the assets of such party, or

(ii) the stockholders of such party shall approve any plan or proposal for the liquidation or dissolution of such party, or

(iii) any party, other than such party or a subsidiary thereof or any employee benefit plan sponsored by such party or a subsidiary thereof or a corporation owned, directly or indirectly, by the stockholders of such party in substantially the same proportions as their ownership of stock of such party, shall become the beneficial owner of securities of such party representing greater than fifty percent (50%) of the combined voting power of then outstanding securities ordinarily (and apart from rights accruing in special circumstances) having the right to vote in the election of directors, as a result of a tender or exchange offer, open market purchases, privately negotiated purchases or otherwise. or

(iv) at any time after the date of this Agreement, individuals who at the date hereof constituted the Board of Directors of such party shall cease for any reason to constitute at least a majority thereof, unless the election or nomination for election by such party's stockholders of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the date hereof, or

(v) any other event shall occur with respect to such party that would be required to be reported in response to Item 6(e) (or any successor provision) of Schedule 14A or Regulation 14A promulgated under the Exchange Act.

[Formatting changed to improve readability.]

Now IANAL, but I can see nothing in this definition which limits "change of control" to sale of either party to one (or more, I suppose) of the six "major competitors" listed in Schedule 6.3(c). (Which list includes HP, MS and IBM, but that's of no import here.)

Since the LTA states that the licenses become "unlimited" on any "change of control," and the definition is as quoted above, it seems to me that it becomes a legal question that Judge Kimbal or Wells will have to decide.

---
IANAL, just a retired statistician

[ Reply to This | # ]

SCO's claiming the next filing will prove SCO owns the copyrighhts
Authored by: Anonymous on Saturday, May 19 2007 @ 05:05 PM EDT
Yet in this filing SCO is

long on claims
long on outrage
long on acting hurt
long on stretching claims to their most outrageous extention

short on facts

IMHO this "proof" will be more declarations from the un-involved, more
declarations from 3rd parties, more outrage about how much money SCO paid.

[ Reply to This | # ]

299
Authored by: Ian Al on Sunday, May 20 2007 @ 05:00 AM EDT
I think I may be suffering from sur-itis, but I'm sure that 299 has already been comprehensively gutted by Novell replies. I know we have discussed the SCOG dictionary version of the word 'all' several times in the area of what the APA and amendments say and what the people who negotiated them say they say.

However, apart from the fact that someone has already removed the windmills at which they are tilting, it seems to me that this charge of unfair competition through misappropriation is broken in two places. The first is the caselaw they quote,

As this Court previously recognized, the “gravamen of a misappropriation claim is that a defendant has seized for his own benefit something of value that the plaintiff had built up through time, money, or effort, which is then generally used to compete against the plaintiff.” Proctor & Gamble Co. v. Haugen,
What is the thing of value that SCOG had built up through time, money, or effort, which Novell generally used to compete against SCOG? I assume that, since the act of slander occurred after Santa Cruz sold UNIX to them, it can only be SCOG. The copyrights existed before SCOG and its alleged predecessors in interest were born. If Novell misappropriated the copyrights, where is the evidence and in what way did they use copyrights to compete against SCOG? This caselaw does not apply to the facts of the case or even the facts of the case as understood and stated by SCOG.

SCOG, again, refer to legislation enacted well after the suit started and the alleged slander took place in an attempt to broaden the definition of unfair competition. I remember the discussion in Groklaw about how SCOG maintain it was a 'clarification' of legislation that already existed and we pointed out that if the existing legislation meant as a point of law what SCOG show in the 'clarification' that there would be no need for the clarification. Thus the new legislation does not apply to the old claim. This was all done so long ago that I despair of finding the references to the articles.

299 seems to sum to SCOG saying that Novell have been absolutely beastly to them. They used a contractual right to nix our case against IBM and that was never intended to be what it was for. It's so unfair and, since unfair competition is the only claim that includes the word, here's some casework we read, earlier.

---
Regards
Ian Al

[ Reply to This | # ]

301
Authored by: Ian Al on Sunday, May 20 2007 @ 08:06 AM EDT
MEMORANDUM in Opposition re 273 MOTION for Partial Summary Judgment on SCO's Non-Compete Claim in its Second Claim for Breach of Contract and Fifth Claim for Unfair Competition

So SCO want to show breach of contract over its non-compete clauses and also that the breach contributed to the allegation of unfair competition. That might work.

To protect the value to Santa Cruz of the transferred UNIX and UnixWare assets, the APA and TLA each contained a non-compete provision, whereby Novell covenanted not to use the Licensed Technology to compete with SCO's core operating-system products.
At the time of the execution of the APA, Novell was a leading networking software company. Because it had developed its flagship networking product, NetWare, to work on the UNIX operating system, Novell needed and requested the right to distribute trivial portions of the UNIX source code embedded in NetWare.
This is promising and the APA makes sense. One could see this being a genuine issue. We've seen stuff in the case papers and lots of us have seen Netware in our places of business. This all seems above board.

After the execution of the APA, Novell continued its business of developing and marketing its NetWare operating system, as it had contemplated in entering into the APA.
A little stumble, there. NetWare has morphed into an operating system. Never mind, there is nothing broken, yet, just a little chipped. A scrivenor's error, you might say.
SCO Alleges That Novell Breached the APA and TLA Non-Compete Covenants

On November 4, 2003, Novell announced its acquisition of SuSE Linux, one of the world's leading distributors of Linux. Since the closing of that acquisition in January 2004, Novell has been distributing Linux worldwide.

Well, that would seem to be correct. So, how does this affect the non-compete agreement?

On December 22, 2005, SCO filed with the Court in the SCO v. IBM case a compilation of 293 disclosures of technology which IBM has made to enhance Linux (in violation of its agreements with SCO) with the stated objective of making Linux a more enterprise-hardened operating system.

SCO alleges that Linux contains the Licensed Technology which, pursuant to Section 1.6 of the APA and Section II.A.(2) of the TLA, Novell covenanted not to distribute in an operating system.

Oh dear! So, on the basis of SCOG allegations against another company in a court case that has, effectively, been stayed until this one is finished, SCOG hope to show that Novell have used the Licensed Technology that they licenced to SCOG, to compete against SCOG.

Problem number one is that SCOG have no proof of the use of the licenced technology until SCOG v IBM is finished which will be after this case is finished.

Even after they return in their time machine with the findings against IBM they have a further problem. The contract says Novell will not use the technology, not that IBM or Caldera will not. Were IBM and Caldera (the people who traded uncompetitively by putting the enterprise quality 'Streams' product in Linux and ruined SCOG's share price) agents of Novell? I don't think they were, so they were not acting on Novell's behalf in any legal capacity.

Will the judge agree that Novell violated the non-compete part of the contract by acquiring a company that competed with SCOG using technology from a third party that might (in a future court case also known to the judge) be found to be using the technology licenced by Novell when Novell and SUSE were unaware until years later that SCOG would claim such use of the licenced technology? Does the term 'contract violation' always imply 'willful' and are defendants liable for non-willful acts? SCOG have submitted no evidence in this case of misuse of technology. In this case, how can this possibly be a fact in dispute which can stop the Novell SJ?

This one goes horribly wrong so quickly that it served no purpose to read all the supporting case law, so I didn't!

Further reading,

Mobius loop

Time travel

SCOG dictionary definitions of the following terms;

convoluted

insoluble

conundrum

---
Regards
Ian Al

[ Reply to This | # ]

Kimball already told SCO what he was going to do
Authored by: Anonymous on Sunday, May 20 2007 @ 05:45 PM EDT
"so what's a judge to do ... clear language ..." ?

IMHO Kimball already knew BEFORE the Tor Braham declaration how Kimball would
rule.

[ Reply to This | # ]
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