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More Novell Exhibits: We Find Out What MS & Sun Paid SCO For
Sunday, June 03 2007 @ 11:35 AM EDT

Here are more of the new exhibits in SCO v. Novell that Chris Brown picked up at the courthouse on the 31st. These are the paper exhibits attached to the Declaration of Kenneth Brakebill, filed in support of Novell's four summary judgment motions. And it was worth the trip, because among other things, we finally find out what Sun and Microsoft got from SCO when they paid them all those millions in 2003. And we find confirmation that SCO's SCOsource Linux license was "a right to use license (RTU License) for commercial end-users of Linux." Hmm. That's what the Novell-Microsoft deal called it too. A right to use Linux.

Brace yourself, Sun fans. In Exhibit 60, SCO's Response to Novell's Inc.'s Interrogatory 15, dated April 6, 2007, paragraph 4, we learn that Microsoft and Sun paid for licenses that included a covenant not to sue, UnixWare rights, and incidental rights to the older UNIX System V source code. Sun paid ultimately $10 million and Microsoft paid $16.75 million. It turns out, then -- according to SCO, I hasten to add -- that both the Linux "right to use" license and the Unix license that SCOsource offered included a covenant not to sue.

I know. It raises questions about the details. A covenant not to sue over *what*? If they were buying UnixWare rights and incidental rights to older Unix code, what is the threat? I'm thinking it might be sort of like the DaimlerChrysler litigation, where SCO claimed the license covered Linux and not just Unix code. In any case, SCO reveals that both licenses' covenant not to sue "provided that the licensee would not be exposed to liability for the use of SCO's intellectual property in Linux." Um. In UnixWare?

So, it wasn't just about Xenix with Sun, I'm sad to report, although it also was. But I have to correct what I repeatedly told you I had heard, that it was about Xenix, getting rights to open source Solaris. And my original response to Sun's announcement that it might put out its own indemnified Linux was pretty much spot on, as they say, after all. Back then, Sun *was* Linux's toxic boyfriend, the first to buy a covenant not to sue from SCO.

It illuminates Sun's announcements to the press in 2003 that Linux customers could go to Sun, because they were clean. Remember this? McNealy: Sun safe from SCO damage? Scott McNealy forgot to tell us why. Well, corporations are made up of people, and there are some new people there at Sun, but it's still stomach churning. A little more openness might have been nice, for one thing, about just what folks going to Sun were actually supporting.

Here are the details: In Exhibit 60, SCO's Response to Novell's Inc.'s Interrogatory 15, dated April 6, 2007, the first paragraph after the objections section, paragraph 1, confirms that the Linux license was "a right to use license (RTU License) for commercial end-users of Linux." It explains that SCO's business strategy involved that license and also "a UnixWare source code license to developers" and both licenses "contained a covenant not to sue, which provided that the licensee would not be exposed to liability for the use of SCO's intellectual property in Linux."

So whatever the threat, it was about Linux. Why would Microsoft need that by the way? What's up, Doc? Anyway, SCO also claims Santa Cruz had an 80% market share of the Unix-on-Intel market. "With the rise of Linux, that dominance precipitously eroded, and SCO's market share and revenues suffered. The SCOsource program positioned SCO to revive its business by capitalizing on its deep intellectual property rights and historically strong position in this market, by selling licenses to companies who were now running Linux."

I guess that explains why they wouldn't tell any seekers of specificity precisely what IP of theirs was being infringed, since if they did, it would have been the end of the business. You can't capitalize on your deep intellectual property rights being infringed if they aren't, now can you? How brilliant these guys are.

Paragraph 4 tells us about the two licenses to Microsoft and Sun including a covenant not to sue, for which, along with the rest of the package, Sun paid ultimately $10 million and Microsoft paid $16.75 million as of the date of this SCO Response.

Paragraph 5 claims that the letters to Linux users, the Fortune 1000, "were the precursor to SCO's expansion of its SCOsource licensing program. SCO had been contacted by potential customers around the world inquiring as to how they could get in compliance with SCO's claims and avoid any potential problems. The expanded SCOsource program was created in part in response to these requests and questions." They keep saying that, but not many signed up, not even at first, so I'm not so sure.

After SCO registered the copyrights, on July 21, 2003 "SCO announced the registrations and that it would offer licenses to support run-time, binary use of Linux for all commercial users of Linux based on kernel version 2.4x and later." That's in paragraph 13.

In mid-August, "a Fortune 100 company requested from SCO and purchased a SCOsource right to use license." I'll bet they feel silly now.

December 19, 2003, we learn in paragraph 18, saw SCO sending out a second mass mailing, telling Linux users that "use of the Linux operating system in a commercial setting violates our rights under the United States Copyright Act." I wonder if that might come back to haunt them, now that no one seems able to find any copyright violations so far? Maybe that is why it seems so urgent to fight like the dickens to get methods and concepts into the IBM litigation? Anyway, end users of a book don't have to pay for copyright infringement in the book. There's no law against use. Copyright law is about copying. Hence the name. It's like, to me, SCO keeps mixing up patents and copyrights.

Some of what is in here, and there's lots more, mainly things that we've heard before, like the alleged Chicago 7 meeting, has been rebutted/denied by all the parties named, so it's hard for me to be sure what is true and what is mere allegation. It's a world view that is impossible for my brain to accept as seriously meant. For example, SCO alleges that Novell and IBM conferred on the telephone during the early period of SCO's allegations. That, to me, seems perfectly normal. So reading the way SCO makes it sounds, like some kind of conspiracy against SCO when it was obviously the other way around, is as bizarre to me as SCO claiming money from Novell because Novell responded in public to SCO's public threats.

They accuse people of things that seem like responsive actions and words to defend themselves against someone trying to bully the marketplace. I know to SCO it's publicly about trying to protect their precious IP, but why not tell folks what it is, then, instead of trying to build a business on perpetual infringement? That's not the way copyright law normally works. You are supposed to end the infringement going forward, not license the infringement and build your business on people infringing your code. That's the patent troll hustle, but SCO doesn't have any patents in this litigation.

Chris has now scanned all of the exhibits for us, all the exhibits attached to Brakebill's Declaration. Thank you so much. And so, here they are, the ones we were missing, in all their glory. You will get to watch a fascinating discovery battle that has been going on since March, but which we are just learning about now, as you will see in my brief notes:

  • Exhibit 16 - Darl McBride (Marriott, Singer) deposition Dec. 2, 2005 in IBM (asked whether the value of the Unix assets went down, judging by price of the 3 deals)

  • Exhibit 21 - Deposition of Robert J. Frankenberg Feb. 10, 2007

  • Ex 25 - Deposition of Burt Levine March 23, 2007 - license inherent

  • Ex 33 - Deposition of Alok Mohan Feb 23 2007 - sold Unix which was 95% of their business

  • Ex 36 - Deposition of Chris Sontag March 14, 2007 - re Novell interfering allegedly with SCOsource

  • Exhibit 38 - George Weiss, "What to Do During SCO's Protracted Lawsuit Against Linux"

  • Exhibit 40 - TechnewsWorld article by Jay Lyman, "Split Decision on SCO Impact, Response" - Laura DiDio advising clients (Yankee Group as a firm) to take SCO seriously, that she knew of at least one customer that chose Windows over Linux because of the SCO claims. Remember back then how it was?

  • Exhibit 45 - Deposition of Michael Paul Olson, March 3, 2006 (in IBM case) - Can't remember anything. Question involves a "OPS" (operations) Council Strategy Meeting

  • Exhibit 46 - appears to be a list of companies SCO sent Unix Licensee and or Linux right to use license letters to and the response (one funny one, I think GE, in any case #9: "operator will have someone call me back regarding legal matter - Unix license letter.... Call back on 4-28 at 11:45 and no one picked up the phone"

  • Exhibit 57 - Novell's Inc.'s Third Set of Interrogatories to the SCO Group, Inc., September 29, 2006 - Novell asked for all facts, bases and evidence in support of SCO's claims for damages, and how Novell caused it. It's Interrogatory 15.

  • Exhibit 58 - SCO's Response and Objections to Novell's Second and Third Sets of Interrogatories, December 28, 2006 - With regard to questions Novell asked in Exhibit 57, Interrogatory 15, SCO's response: "SCO specifically objects to this request on the grounds that the information it seeks is properly the subject of expert discovery."

  • Exhibit 59 - email correspondence between Ken Brakebill and Ted Normand, March 10-12, 2007 regarding SCO's response in Exhibit 58 to Interrogatory 15. Novell pressing for factual predicates of SCO's damages claims, and how it calculated it, and SCO claiming it didn't have to present an exact figure, that it is a matter for expert reports; however it agreed to present a witness to testify generally about harm, "the nature of the impact on SCO's of Novell's acts and omissions, but will not testify regarding the specific amount of damages suffered by SCO." Also some lawyering about another Novell request for documents which SCO says belong to third parties like Steve Sabbath, Jim Wilt, Ed Chatlos and William Broderick.

  • Exhibit 61 - Letter to Edward Normand, SCO's lawyer, from Kenneth Brakebill, Novell's lawyer, March 5, 2007 (meaning it happened before the email exchange in Exhibit 59). In the letter Brakebill addresses SCO's refusal to provide any facts "concerning its allegations that Novell's actions caused SCO damage, including the factual justification' for SCO's claim, 'all documents that SCO contends support the bases for its damages claims' and 'all persons with knowledge of the related facts'." Brakebill informs SCO that while it can put forth an expert on its claim, that doesn't mean it needn't be bothered answering Novell's Interrogatory 15. And, of course, that is true, which is why SCO eventually did answer it, after reading, I suppose, the two cases that Brakebill cites to support his position, which also includes that SCO had to designate a Rule 30(b)(6) witness "on Topic 23 from Novell's Rule 30(b)(6) deposition notice. Topic 23, the letter explains, asked SCO to produce a witness on damages caused by Novell. And SCO eventually caved on this also, as we saw in the email exchange, possibly after reading the numerous cases Novell cites on this point.

    This is kind of basic, in my view, so I can only conclude that SCO is following the tooth extraction method of discovery. Namely, you must yank out at least one SCO tooth before you can get some. They probably didn't even read the cases. They did note the "Please let us know in three business days" whether it would comply, although it took two extra days, I think.

  • Exhibit 62 - is an email dated April 17, 2007 from Sashi Bach Boruchow to Ken Brakebill, including an earlier email from Brakebill to Normand, dated March 30, in which Brakebill wrote that he couldn't find some documents Chris Sontag mentioned in his deposition a day or so before, regarding communications with companies about SCOsource. She tells Brakebill, on Normand's behalf, that all the documents Brakebill wanted have been produced, I gather Exhibit 46 among other things. But she in no way tells him where to find it or how to identify it, despite Brakebill's letter to Normand asking for the Bates numbers if the materials had already been produced. Those are those numbers on each exhibit so you can put it all in a pile or a database and find it later. That struck me funny. It's starting to look like no love lost between the lawyers in SCO v. Novell, too.

    And this Boruchow email is dated April 17th. Novell was getting a little close to the wire, considering the summary judgment motion schedule. Novell is remarkably still asking for the factual basis for SCO's claim in mid-April. Does this not bring back memories of Wells' funny line about IBM being accused of shoplifting but not told what the stolen item was, and being handed a catalogue and told, "You know what you stole. It's in here somewhere." And then she refers him to SCO's answer to interrogatory 15's "non-exhaustive list of such correspondence." Well, I'm guessing he wanted the exhaustive list.

Now, I may be getting cynical, but when one lawyer answers correspondence directed to another without explaining why, my Spider sense starts itching. It occasionally can mean that the one addressed would rather not say anything, in case it turns out not to be true. Then he can say something like, "Oh say, did she say that? She's not the main attorney on this, and she got mixed up, I guess. Here's the stuff you wanted." Or some such. Sometimes, it's just about delay.

I'm not working on this case, but if I were and saw that email back in April, I'd run and look at all the dates. So I did anyway. And when we look at all that, here's the way it played out:

March 14, 2007 at Chris Sontag's deposition he mentions documents that Novell's Brakebill can't find, correspondence sent or received by SCO from potential SCOsource licensees, some of whom allegedly mentioned Novell as the reason they wouldn't buy a SCOsource license at that time.

March 29, 2007 is the date of Ken Brakebill's email to Ted Normand asking for the missing documents mentioned by Sontag in his deposition that Brakebill can't find.

April 6, 2007 is SCO's Response to Novell's Interrogatory 15, which means that on my calendar, when Brakebill wrote his email to SCO, in fact he didn't have the documents because SCO had not yet produced them.

April 17, 2007, more than two weeks after the request from Brakebill, Boruchow informs him -- not that he couldn't find them on March 29th because they hadn't been produced yet -- but just "such correspondence and potential SCOsource licensees has been produced." Meaning, to me, that just as soon as they got the email, they may have scrambled to produce those documents quickly, because they hadn't properly produced them heretofore.

This is why lawyers like depositions, of course. People tell them things the lawyers wouldn't. She ends, "Please let me know if you have questions." I will guess that his question was, why didn't you produce this without me having to catch you?

One exhibit isn't complete. The court has raised the price now on getting copies of paper documents. It used to be that you could Xerox them yourself. Now they do it for you for 50 cents a page. But thanks to your generosity, we got most of what we were missing. We will eventually get a transcript of the May 31st hearing as well.

Do you think, though, it's worth paying for the full list of the companies which were sent the Unix and/or Linux SCOsource letter? Take a look at Exhibit 46. If so, let me know, because that is the one item we didn't get in full, just a couple of representative pages, because it's a long exhibit, and it would cost $60 more to get that one completed. I'll do it if you like, but only if it really matters to you. Also weigh in all the types of information. Should we or not?

Once again, a big thank you to Chris, for doing this for us. It's priceless material. And now one of the biggest mysteries of all is solved. The only one I personally would like solved now is did Microsoft get ideas from SCO that we now see implemented in their patent covenant not to sue for "right to use" Linux? Or was it the other way around? Or independent invention? I surely hope somebody is asking that question, and that someday we get to know the answer.


  


More Novell Exhibits: We Find Out What MS & Sun Paid SCO For | 274 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Thread
Authored by: TheBlueSkyRanger on Sunday, June 03 2007 @ 11:48 AM EDT
Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Corrections Thread
Authored by: TheBlueSkyRanger on Sunday, June 03 2007 @ 11:49 AM EDT
Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Unix Licenses
Authored by: MDT on Sunday, June 03 2007 @ 11:55 AM EDT
Ok,
With the details on the licenses available now, I'd have to say IMHO (IANAL)
that Novell's claim of ownership of the money from the M$ and Sun deals is
pretty much spot on. At best, SCO *might* be able to claim the licenses were
only partially UNIX and only owe half the fee's (since it listed Linux and
UnixWare). But that is easily enough to send them to bankruptcy court.



---
MDT

[ Reply to This | # ]

OK so does SCO owe Novell all the money they have?
Authored by: Anonymous on Sunday, June 03 2007 @ 11:56 AM EDT
If I understand correctly, SCO sold Sun and Microsoft more than just something
that Novell was owed money for.

Mind you, if the Unix rights were a substantial fraction of the amount paid,
then SCO would still be on the hook for more money than they have.

[ Reply to This | # ]

More Novell Exhibits: We Find Out What MS & Sun Paid SCO For
Authored by: JamesK on Sunday, June 03 2007 @ 11:56 AM EDT
I suppose Sun and MS could sue SCO for fraud, though it's beyond belief that Sun
would fall for this scam, unless they had ulterior motives. We certainly know
MS has some.


---
Let me know if you don't receive this message.

[ Reply to This | # ]

More Novell Exhibits: We Find Out What MS & Sun Paid SCO For
Authored by: Anonymous on Sunday, June 03 2007 @ 12:00 PM EDT
It strikes me that none of this would be possible were it
not for software pattents.

[ Reply to This | # ]

Do We Find Out What MS & Sun Paid SCO For?
Authored by: rsteinmetz70112 on Sunday, June 03 2007 @ 12:03 PM EDT
The response to the interrogatory it seems to me does little to clarify what
Microsoft and Sun actually paid for.

In one paragraph SCO says that their two licenses include a covenant not to sue
for commercial users of Linux, I suppose they reserve the right to sue non
commercial users.

In another SCO says the Sun and Microsoft deals included a covenant not to sue.
There is no indication that these were the same covenants, word Linux is
conspicuously absent.

I for one don't believe SCO is above obscuring the facts and wouldn't believe
anything SCO said.

I was struck in Darl's deposition about the dramatically different view of the
CA deal, which Darl says was valued at $500/seat. That on the face of it is a
little suspect.

I'd prefer to see the actual licenses.

---
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 | # ]

Yes PJ
Authored by: Anonymous on Sunday, June 03 2007 @ 12:35 PM EDT
"Now, I may be getting cynical..

And now one of the biggest mysteries of all is solved. The only one I personally
would like solved now is did Microsoft get ideas from SCO that we now see
implemented in their patent covenant not to sue for "right to use"
Linux? Or was it the other way around? Or independent invention? I surely hope
somebody is asking that question, and that someday we get to know the
answer."

you are getting cynical. We all are. This shenagganins has gone on far too long
but with every can of worms that get opened we get more cynical and suspicious
of similar activities by other companies on the Linux World at large.

All of cynics would probably say "Yes" there is some link between the
actions of 'Child' (SCO) and their Parent (Microsoft).
However, we all remain willing to be conviced otherwise.
(Don't we?)

[ Reply to This | # ]

Exhibit 46 expense - PayPal
Authored by: Totosplatz on Sunday, June 03 2007 @ 12:48 PM EDT
I just sent $50 via PayPal to help with copying expense for Exhibit 46. That's
my vote!

---
All the best to one and all.

[ Reply to This | # ]

Copyright law is about copying, not using
Authored by: Anonymous on Sunday, June 03 2007 @ 12:55 PM EDT

"Anyway, end users of a book don't have to pay for copyright infringement in the book. There's no law against use. Copyright law is about copying."

That seems reasonable, but I'd like to understand something: Google certainly doesn't download one copy of Linux for each of its thousands of servers individually. They download one copy, compile it to their specs (to optimize for size and speed), and then they copy it to all their thousands of servers.

How does that "copy to thousands of servers" get interpreted under Copyright law? Is that the violation? Or they are in the clear since they never distributed it outside their company?

[ Reply to This | # ]

No PJ, you are just being realistic
Authored by: Anonymous on Sunday, June 03 2007 @ 01:08 PM EDT
"Now, I may be getting cynical..

And now one of the biggest mysteries of all is solved. The only one I
personally
would like solved now is did Microsoft get ideas from SCO that we now see
implemented in their patent covenant not to sue for "right to use"
Linux? Or was it the other way around? Or independent invention? I surely hope
somebody is asking that question, and that someday we get to know the
answer.",

No PJ, what you are displaying is pragmatism and realism, not cynicism.
The Microsoft record amply justifies all the theories, that when applied to
other, more normal companies, would seem merely paranoid.
Although hard to prove, the indications are that the entire sequence of events
was conceived, planned and orchestrated by Microsoft from beginning to end. It
even seems likely that MS orchestrated the appointment of Darl McBride to
pseudoSCO for this sole purpose.

Peter Smith

[ Reply to This | # ]

Note to Scott McNealy
Authored by: Anonymous on Sunday, June 03 2007 @ 01:22 PM EDT
You have just joined my list of companies I will not buy products or services
from.

[ Reply to This | # ]

SCO and copy rights
Authored by: DaveHowe on Sunday, June 03 2007 @ 01:45 PM EDT
I suspect they may have been taking advantage of one of the elements of computer use successfully exploited for advantage in the UK - in order to install *anything* onto a computer, you must copy it there - therefore, copy rights apply.

UK prosecutors exploit this against those possessing child pr0n - rather than fight over the lesser charge of possession, they use the fact that a copy of the data is created on the target machine to charge them with creating child pr0n - a crime for which there is no possible defence.

Personally I think the ground a little thin there - after all, you could say that playing a video "copies" the image into the tv's phosphor, and therefore anyone playing a video "creates" that video - but as you can imagine, the number of technical experts willing to go to bat for those admittedly in possession of child pr0n is low, so they have gotten away with it so far.

Personally, I think the implications of this ruling are interesting (although offtopic for here) - surely, if copying is creation, you create anything you download via p2p, so copyright doesn't apply (you are,after all, the author so are the copyright holder :)

[ Reply to This | # ]

We Find Out What MS & Sun Paid SCO For
Authored by: dodger on Sunday, June 03 2007 @ 02:09 PM EDT
Hi PJ, did we really find out what they paid for, or did we hear a modernized
story to somehow shape the truth in favor of SCO. And what about how it was
reported in the 10K for that year? Wasn't it reported as UNIX licenses?

Don't these perspectives affect whether Novell is due monies or not?

Whya duck!

[ Reply to This | # ]

Discovery of Master Lawsuit Project Plan for SPFUD?
Authored by: tce on Sunday, June 03 2007 @ 02:55 PM EDT
Given this description:

Exhibit 59 - email correspondence between Ken Brakebill and Ted Normand, March
10-12, 2007 regarding SCO's response in Exhibit 58 to Interrogatory 15. Novell
pressing for factual predicates of SCO's damages claims, and how it calculated
it, and SCO claiming it didn't have to present an exact figure, that it is a
matter for expert reports;

And the "that it is a matter for expert reports", would either IBM or
Novell be asking NewSco or its lawyers for the time-line-of-delay, the master
project plan that shows how everything they generate in the case is designed to
require something more, much later.

If the whole thing is Self Perpetuating FUD (SPFUD), and it is, then, it must be
well planned SPFUD.

I hope we see some discovery around the planning and machinery that keeps the
ball rolling

[ Reply to This | # ]

a naive explanation why M$ needed the license
Authored by: Anonymous on Sunday, June 03 2007 @ 03:46 PM EDT
M$ always wants to play fair and clean, and didn't want to endanger its
customers.
They already planned to sell Linux (via coupons), so they needed a license to
ensure its legality.

(Haha, well, i know this is a joke).

[ Reply to This | # ]

So why does SCO owe Novell anything?
Authored by: devil's advocate on Sunday, June 03 2007 @ 04:22 PM EDT
If the licenses to Sun and Microsoft were for Linux right to use and a not to
sue covenant, also for UnixWare (SCO's own, since they bought it from Novell)
and "incidental" rights to UNIX source code, this response from SCO
merely says that they owe Novell nothing. Their contention is that they only
owe money to Novell for binary UNIX licenses. I don't think this really
answers any questions until we see the agreements themselves.

[ Reply to This | # ]

We Find Out What MS & Sun Paid SCO For: NOT
Authored by: Anonymous on Sunday, June 03 2007 @ 04:23 PM EDT

These exhibits are simply the veneer, not the substance, of what MS and Sun paid
for.

Specifically, the purchase of these "rights" by Microsoft gave that
Microsoft the ability to support a legal attack on Linux, thereby slowing its
uptake and giving Microsoft several more years to earn defacto monopoly margins
on their existing business. It gave SCO some valuable revenues and additional
momentum for their "get rich quick" on Linux business plan.

The purchase by Sun allowed Sun also to slow the encroachment of the Linux
server business in their high end server market. The warrants sold by SCO to
Sun allowed Sun too to participate in the "get rich quick" plan,
whereby SCO stock was going to rise to the incredible heights on the basis of
their claims.

Is it a coincidence that the only major players in the technology market that
bought SCO licenses stood to gain the most from a SCO victory? I think not.

We are indeed fortunate that both IBM and Novell choose to fight SCO. Now that
battle is won.

[ Reply to This | # ]

Did Sun pay protection money so they could open source Solaris?
Authored by: Anonymous on Sunday, June 03 2007 @ 04:41 PM EDT
That would be my guess, but I did not read the docs to see whether the language
there supports that impression.

Surely it was convenient for Sun at the time to slow down Linux a bit by paying
(collateral damage). I doubt they'd do the same today.

But, for Solaris alone, they might have had to pay someone something anyway.

[ Reply to This | # ]

My big problem
Authored by: Anonymous on Sunday, June 03 2007 @ 04:41 PM EDT
Sue for what? Would Sun and
MS pay me if i just sent them a letter and say i own the Internet and if you pay
me i wont sue? Looks like the only company that questioned it was HP and Google.
Maybe it was just a small contribution from each to attack Linux.

[ Reply to This | # ]

So whatever the threat, it was about Linux.
Authored by: DaveJakeman on Sunday, June 03 2007 @ 04:52 PM EDT
So whatever the threat, it was about Linux. Why would Microsoft need that by the way? What's up, Doc?
Maybe Microsoft looked straight through SCO and saw instead, the potential death of Linux. Then took another look at SCO, saw they were having difficulty getting their scam/scheme/extortion off the ground and figured SCO could do with a little helping hand, acted all innocent and paid for a licence.

Microsoft would have known SCO would later claim something along the lines of: "look, if Microsoft thought they needed one of these, and they hardly use Linux, you sure as heck need one."

Speculation, of course.

---
Only two things are infinite: the universe and human stupidity and I'm not sure about the former. -- Einstein

[ Reply to This | # ]

Morgan Keegan
Authored by: mk270 on Sunday, June 03 2007 @ 05:48 PM EDT
I read somewhere that bankers Morgan Keegan received some sort of fee "in
relation to" these transactions with Microsoft and Sun. Does anyone else
recall this / have the actual evidence?

It strikes me as quite abnormal that a copyright licensing deal should involve a
handling fee to a merchant bank, whereas an investment deal might well do.

[ Reply to This | # ]

DarlSpeak
Authored by: Anonymous on Sunday, June 03 2007 @ 06:50 PM EDT
Weak and vague when describing his understanding of what transferred between
ATT, Novell and SCO:
"the majority of"
"in large part"
"substantially"

What SCO purchased:
"the intellectual property value going forward"
"the going forward asset base"

Later explained to be:
"not just Unix but specifically the asset they bought in there was the
Unix-on-Intel know-how and knowledge around not just what we developed on
OpenServer but also on UnixWare"

Unpersuasive, waving hands, feigning ignorance, obtuse.
I hope this goes to trial, for the same reasons that I watch motor racing and
ultimate fighting.

At the end, Singer declares that they designate the transcript confidential.
Curious.

[ Reply to This | # ]

Cynical? How's this for cynical...
Authored by: Anonymous on Sunday, June 03 2007 @ 06:56 PM EDT
The business practices revealed in these cases are simply repugnant. It's like a
bunch of petty criminal lords running around demanding protection money from
each other and from every mom-and-pop grocery store. No one wants to take a
chance standing up to these creeps, so they just pay the money.

And the ones who should be putting a dead stop to these rackets are either
pedantic fools refereeing the game and splitting legal hairs, or enforcers
making sure any one who risks litigation pays more in legal fees than simply
paying off the dons.

These CEOs have played the game so long they simply can't understand how someone
can stand up and say "stop".

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Exhibit 46
Authored by: kurtwall on Sunday, June 03 2007 @ 10:03 PM EDT

I'm all for collecting Exhibit 46 - half the cost of the photocopying is en route via PayPal. Not only should Groklaw have the a full set of the documents and filings from these cases, but there might also be some interesting tidbits of information.

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I wonder how MS and SUN feel
Authored by: Night Flyer on Sunday, June 03 2007 @ 11:25 PM EDT
After all is said and done, it seems that Microsoft and Sun may have a case
against SCO for fraud and/or extortion.

As far as Microsoft is concerned, this is pin money, and the FUD about LINUX
that it generated was probably well worth it from MS's point of view.

But as far as Sun is concerned, this is a lot of money and it seems that on top
of this, there will be some negative publicity for Sun.

---
Veritas Vincit - Truth Conquers

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More Novell Exhibits: We Find Out What MS & Sun Paid SCO For
Authored by: Anonymous on Sunday, June 03 2007 @ 11:34 PM EDT
reading this stuff I feel like I have been slimed.

where do these big businesses get off on thinking they have the right to claim
and IP in linux.

it sort of makes me sick - like it is some secret society or something where the
only way you can get in is to pay big bucks or get sued for big bucks.

slimed

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Hey, PJ--You're on Page 16 of Exhibit 60
Authored by: Anonymous on Monday, June 04 2007 @ 03:00 AM EDT
Congratulations (or something) for making another SCOG hitlist! (it's near the
end of the page.)

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

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Exhibit 46
Authored by: Anonymous on Monday, June 04 2007 @ 03:22 AM EDT
If Microsoft eventually brings down its patent hammer, it would be most
interesting to compare the companies on its hit list with those on SCO's hit
list. That's the best argument I can think of for obtaining a copy of Exhibit
46.

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Correct me if I'm wrong
Authored by: wethion on Monday, June 04 2007 @ 03:45 AM EDT
/very roughly/
SCO's suing IBM for patent infringement & licensing.
Novell and SCO are suing each other over who owns the UNIX license(s) & the
"intellectual property" if you will.

So....

With the Novell and MS deal, does it matter as much who wins the SCO vs. Novell
case(s)? Either way, the victor is deeply inbedded ( pun intended ) with
Microsoft, which is never good for us.

If Novell wins, could they conceivably go after IBM et. al. a la SCO?
Just wondering.....
Peace.


Jon Postel: You are missed.

---
Jon Postel, you are missed.

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Let's not jump on Sun without good cause
Authored by: Anonymous on Monday, June 04 2007 @ 04:04 AM EDT
On page 4 of Exhibit 60, we find
4. During these early months of the SCOSource program, SCO signed significant licensing agreements with Sun Microsystems and Microsoft, which included a covenant not to sue, UnixWare rights, and incidental rights to the older UNIX System V source code. ...
People are jumping to some conclusions about this text which might be true, but which are not justified by the text. We must first keep in mind that the SCOGlings (explicitly including BSFH) seem to perceive their reality in a unique way, and that their reality seems pretty disjoint from ours. Second, we keep in mind that this text was written by experienced wordsmiths. Further, these wordsmiths have some agenda which, while not transparent, seems to involve a "Let's You and Him Fight" game within the FLOSS community, at every opportunity.

The text says

  • SCOG sold licenses to Sun and to Microsoft.
  • The union of the provisions of these licenses involved a covenant, UnixWare, and incidentals.
  • So Microsoft got one or more of the provisions; and Sun got one or more.
  • Together, all three provisions were covered.

    Nowhere does it indicate which provisions apply to which license. So if you're jumping on Sun, based on this text, just remember--it's your reading, not the text's writing, that ties a non-suit covenant to Sun.

    Maybe Sun did sign up for a non-suit covenant. If so, they would be likely candidates for a hefty round of excoriation. But this is not evidence of that. Please save your venom for a more appropriate occasion.

    ---
    --Bill P, not a lawyer. Question the answers, especially if I give some.

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  • More Novell Exhibits: We Find Out What MS & Sun Paid SCO For
    Authored by: Anonymous on Monday, June 04 2007 @ 05:37 AM EDT
    Sorry, but isn't the MS/Novell deal with it's paragraphs excluding competing
    software in direct contravention of the Modified Final Judgement?

    "III. Prohibited Conduct

    1. Microsoft shall not retaliate against an OEM by altering Microsoft's
    commercial relations with that OEM, or by withholding newly introduced forms of
    non-monetary Consideration (including but not limited to new versions of
    existing forms of non-monetary Consideration) from that OEM, because it is known
    to Microsoft that the OEM is or is contemplating:

    1. developing, distributing, promoting, using, selling, or licensing
    any software that competes with Microsoft Platform Software or any product or
    service that distributes or promotes any Non-Microsoft Middleware; "

    Sounds like it to me!

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    More Novell Exhibits: We Find Out What MS & Sun Paid SCO For
    Authored by: Anonymous on Monday, June 04 2007 @ 09:32 AM EDT
    We Find Out What MS & Sun Paid SCO For

    Do we really? This is only SCO's reply to Novell's interogatory describing how they think that Novell caused them financial harm, and in it they claim that the Sun and MS deals consisted of "a covenant not to sue, UnixWare rights, and incidental rights to the older UNIX System V source code".

    We learned a while ago in Novell's Memo in Support of Motion for SJ on 4th Claim that according to Novell's understanding after finally reading the MS & Sun deals is that they were SVRx licenses, not UnixWare licenses.

    So who is telling the truth? It still appears to be "he said - she said" to me.

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    More Novell Exhibits: We Find Out What MS & Sun Paid SCO For
    Authored by: Anonymous on Monday, June 04 2007 @ 02:27 PM EDT
    PJ wrote: "It's like, to me, SCO keeps mixing up patents and copyrights.
    "

    My question would be. SCO has paid $Millions to a very high priced Law firm
    that should know the difference. Perhaps SCO is due a refund? Or alternativly
    how much do you need to pay to get accurate advice?

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    You'd believe SCO's account of the deal?
    Authored by: Anonymous on Monday, June 04 2007 @ 10:02 PM EDT
    I'd like to point out that all we know about the Sun deal w/ SCO is what SCO
    tells us, which I'm sure everyone agrees is *absolutely* accurate.

    Sun has a lot of 3rd party IP embedded in Solaris, so releasing OpenSolaris
    inevitably has a long lead time. If Sun elects to put OpenSolaris under GPL3,
    SCO will likely have a real problem (if there's anything left of SCO by then
    which seems most unlikely).


    rhb

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    Does MS have linux code ...
    Authored by: Anonymous on Monday, June 04 2007 @ 11:49 PM EDT
    I don't know why but the first thing this made me wonder is did MS put Linux
    code into their new Vista OS. It would help speed the process of putting out
    their new OS, that they said they wrote from scratch, and they could claim that
    they licensed the rights to do so from SCO.

    Maybe this is just my crazy idea, but the patent scare could be just to throw
    the scent off from MS's possibly real infringement of Linux code. Just kinda
    makes you want to take a look at what MS is hiding in there. We all know that
    they do like to take things from other companies and claim it as their own.
    Patents are just their newest method of theft(the term they like to throw
    around).

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    • Not likely - Authored by: Anonymous on Tuesday, June 05 2007 @ 06:23 AM EDT
      • Not likely - Authored by: Anonymous on Tuesday, June 05 2007 @ 04:21 PM EDT
        • Done it Before - Authored by: Anonymous on Friday, June 08 2007 @ 11:49 AM EDT
          • Stac - Authored by: Anonymous on Saturday, June 09 2007 @ 01:44 AM EDT
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