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What Goes to Trial? - Updated
Monday, August 13 2007 @ 04:17 PM EDT

I've had a chance now to think a bit on what's left after the court's ruling Friday. SCO's statement yesterday seems to indicate that they are looking at what they can do next, so I'm doing the same.

As best I can make out, not decided yet is who owns the copyrights to all modifications made to the Unix code after the date of the APA in 1995. One would assume mostly Santa Cruz and successors, but we've reported on Groklaw earlier that Novell for sure holds some copyrights at least up to 1998, and HP, Intel and others may own some, and it's going to be a trick to sort it all out. To whatever degree SCO can prove it has copyrights, however, it may pursue its claims for copyright infringement with respect to any derivative works SCO created. That's if there were any copyright infringements, which so far I don't see. And of course the GPL issue remains, and I believe it handily takes care of both arms and both legs of the Black Knight. Then there is the arbitration, which could knock this out also, as I'll explain in a minute. In the case of IBM, additionally, I think SCO will be limited to whatever it already listed by the end of discovery. Red Hat and end users in general is a separate analysis.

SCO can pursue breach of contract claims against Novell with respect to SuSe Linux based on a non-compete clause between those two. Again, though, that would only be if SCO could demonstrate that any code belonging to it was in Linux, which it's been struggling to do since 2003 even when it had the entire UNIX codebase to work with. Now it has less. That doesn't say SCO can win any of this, just saying this is what couldn't be decided by law and so must go to a jury for a fact determination. That seems to be what remains on the table from SCO's side. And all the counterclaims are still on the table too, both Novell's and IBM's. So, unless there is a settlement, there will still be trials in both litigations.

I'm seeing some new FUD in response to the judge's ruling in SCO v. Novell, so let me explain a few things, using Paul McDougall's article in Information Week, "Novell's Victory Over SCO Could Have Downside For Linux Users", as a template. The most important thing to understand is that both Novell and IBM will go to trial insofar as this ruling is concerned.

I'll put my commentary in colored text interspersed so you can distinguish the Information Week story and my explanations:


The free software world spent the weekend celebrating after a judge nixed SCO's ownership claims over Unix and, by extension, Linux. But the ruling did not specifically address SCO's charge that Linux is a Unix knock off--and a case that could have settled that question for good may now fade away as a result of Friday's decision.

No. It's the Linux world that was celebrating. Free software was never in the SCO saga, although I'm sure everyone is happy. It's been about the Linux kernel, the SCO claims, not free software. Also, SCO never had any ownership rights in Linux, only a claim that it had found some Unix System V code in there, which it would never identify to the kernel guys so they could remove it, and judging by what has been filed in the IBM case might just be nothing at all.

Also, the judge didn't rule that SCO has no copyrights, just not the ones it said it had, the UNIX and UnixWare copyrights that SCO falsely claimed had transferred under the APA. The judge pointed out numerous reasons why he ruled that Novell didn't transfer them under the agreement to Santa Cruz, including both Darl McBride, SCO's CEO, and Ralph Yarro, the Chairman of the Board, asking Novell unsuccessfully for them just before they launched SCOsource. So the judge apparently concluded that they not only didn't get them, they knew they didn't have them.

To recap, Utah federal court judge Dale Kimball on Friday ruled that SCO does not own the Unix operating system and that the rights belong to Novell. The decision eviscerates SCO's four-year-old lawsuit against Novell.

It certainly eviscerates SCO's case against Novell in most respects. For example, its slander of title claims against Novell are dead now. And not even rewriting Utah's anticompetition law could save them. What the judge ruled was that SCO doesn't own the UNIX and UnixWare copyrights that Novell got from USL. Of course, while it hasn't come up yet in this litigation, I personally doubt that anybody owns any copyrights in that old stuff, and if you read the settlement agreement in the BSDi case and Judge Debevoise's ruling in the NJ case, you'll see why. You'll find them on our Contracts page, if you are curious.

Also, SCO filed its lawsuit against Novell in January of 2004, as you can verify on our Novell Timeline page, so it's not a 4-year-old lawsuit. Perhaps he was thinking of the IBM litigation, which was filed in March of 2003. But we put all these resources on Groklaw so journalists have a way to get the facts accurately.

Kimball said that an asset transfer agreement between Novell and SCO did not give SCO ownership over Unix, as SCO claimed. End of story.

It's not the end of the story. First of all there are Novell's counterclaims, on top of the explanation above.

What Kimball did not rule on, however, was SCO's allegation that Novell's SUSE Linux distribution is a Unix rip off and thus violates what SCO said was its copyright over Unix. Kimball had previously punted that aspect of the case to an arbitrator in France. A hearing is pending but is now likely moot.

Not quite right. First of all, the arbitration request was filed in Paris, but the arbitration itself is in Switzerland. Second, Kimball didn't punt all copyright issues over to arbitration. Here's what went there, issues involving UnitedLinux, contractual issues, mainly, as to whether SCO has any rights to talk about copyright violations, in light of the UnitedLinux story. The judge just ruled on copyright issues involving the APA and the TLA, which issues did not go to arbitration. Here's part of the decision on what was involved and would go to arbitration:
SCO's Second Amended Complaint also claims for the first time that Novell's distribution of SuSE Linux infringes SCO's alleged UNIX copyrights, constitutes unfair competition, and a breach of contract. SuSE Linux is a version of the Linux operating system developed by SuSE Linux, GmbH, a wholly-owned subsidiary of Novell. SCO, SuSe, and two other Linux vendors (Turbolinux and Conectiva) jointly developed a standard form of the Linux operating system, referred to as "UnitedLinux." In connection with developing UnitedLinux, the parties entered two contracts: the Master Transaction Agreement ("MTA"), and the UnitedLinux Joint Development Contract ("JDC"). These two contracts are collectively referred to as the UnitedLinux contracts.

The UnitedLinux members agreed that each member would have a broad license to use the technology included in the UnitedLinux Software, including any related intellectual property rights of the other members. The contracts provided that "All intellectual property rights related to the UnitedLinux Software (with the exception of certain "Pre-existing Technology" and "Enhancements" thereto) shall be assigned by the members to a new company, UnitedLinux, LLC. In addition, the contracts provided that "[e]ach member shall have a broad, royalty-free license to all intellectual property rights in the UnitedLinux Software, entitling each member to "use, copy, modify, distribute, market, advertise, sell, offer for sale, sublicense . . . in any manner the Software, including the rights to make derivative works of the Software, to provide access to the Source Code and/or Object Code to any third party, to incorporate the Software into other products or bundle the Software with other products for its own business purposes and any other unlimited right of exploitation." The contracts further state that the UnitedLinux Software shall be subject to any existing "open source" licenses.

Significant to the present motion before the court, the UnitedLinux contracts require any disputes arising under the contracts to be "finally and exclusively settled under the Rules of Arbitration of the International Chamber of Commerce then in force (Rules) by three arbitrators appointed in accordance with said Rules." After SCO asserted claims relating to SuSE in its Second Amended Complaint, on April 10, 2006, SuSE submitted a Request for Arbitration against SCO pursuant to the terms of the arbitration clause in the UnitedLinux contracts. SuSE contends in the arbitration that the UnitedLinux contracts preclude SCO from asserting that SuSE Linux infringes any copyrights of SCO because they divested SCO of ownership of any copyrights in technology included in UnitedLinux, they conferred a broad license on SuSE to use the technology included in UnitedLinux, and they contained an agreement by SCO that any open source code included in UnitedLinux would remain subject to the terms of any open source license. Therefore, SuSE has requested a declaration in the arbitration that (1) SCO is precluded from asserting copyright infringement claims against SuSe and that (2) the UnitedLinux contracts divested SCO of ownership of any copyrights related to technology included in UnitedLinux, except for pre-existing technology and enhancements. ...

Because it is possible that the arbitrator's ruling could have little effect on the nonarbitrable claims in this case, the court concludes that only the portions of the claims relating to SuSE should be stayed in this court pending SuSE's arbitration. The claims asserted in relation to the APA and TLA should go forward. The claims are distinct enough that it would not be too great of a burden on the parties to proceed with the litigation and arbitration at the same time. The case has been on this court's docket for over two years. The case should proceed so that it is ready for trial regardless of the arbitrator's ruling on the claims relating to SuSE. If the arbitration concludes before the parties are ready for trial in this matter, then the court will address the preclusive effect of the arbitrator's ruling on the claims in this case. If this case is ready for trial before the arbitration concludes, the court will revisit the issue of whether to stay the trial on the APA and TLA claims pending the conclusion of the arbitration.


For the reasons stated above, Novell's Motion to Stay is GRANTED IN PART AND DENIED IN PART. The portions of the claims relating to SuSE are stayed pending arbitration. The parties shall proceed to litigate the remaining claims.

As you can see, the issue in arbitration isn't whether Linux is a knockoff; it's whether SCO can even ask the question in any court anywhere insofar as it relates to SUSE Linux, which is the distro at issue with Novell. And frankly, if SCO thought Linux was a knockoff of UNIX, why didn't it present evidence of that in the IBM case? I haven't seen anything like that. It's been all about code IBM wrote itself and things like errno.h. Errno.h? Puh-lease. Anyway, that is one of the items that the UNIX and UnixWare copyrights that Novell retained would cover, I believe. So it's off the table now. I'd guess the methods and concepts stuff took a mortal blow as well, since how Unix does things would likely be in the copyrights that didn't go to Santa Cruz.

Kimball also ruled in favor of Novell's request that it be allowed to order SCO to drop a lawsuit against IBM in which SCO charged that those parts of Linux that allegedly rip off Unix were contributed to the open source community by IBM.

No. Wrong again. It was ruled that Novell has the authority to waive any breach of contract by IBM and Sequent, which it already did. SCO wrongfully refused to comply, but now it must. But Novell has no authority to order SCO to drop the lawsuit. Both sides in the IBM litigation will file with the court on Aug. 31 what issues each thinks still remain in regard to all the summary judgment motions in that case, and then the judge will rule on those, and then that case will proceed to trial. Don't forget that IBM has claims against SCO that must be adjudicated, even if every claim of SCO's were knocked out at summary judgment. And again, that involves an analysis of what SCO actually does own in the way of copyrights and if there are any "infringements" that they can dream up.

Kimball has asked both IBM and SCO to submit memos summarizing where they believe the case stands in the aftermath of Friday's SCO v. Novell ruling. It seems likely the action will be dropped: After all, how can SCO continue suing IBM for stepping on rights that SCO doesn't own?

Again, SCO can claim something with respect to whatever copyrights it can dig up, if any, on anything Santa Cruz wrote after the APA. And IBM has zero interest in dropping its claims, I'd say. It wants its reputation made whole, and SCO's executives made some claims in public that still resonate in the public's mind, as this article evidences.

Linux backers are reacting with glee to all of this news. An anonymous blogger who goes by the name 'Pamela Jones' on the anti-SCO Web site Groklaw said over the weekend that he or she would "eat chocolate" to celebrate Novell's victory.

If he keeps writing I am anonymous when he knows my real name, can I sue him myself? Just horsing around, although I probably could. Groklaw isn't an "anti-SCO site" either. I wish them the very best in their mobile business ventures. I believe anonymous speech is a protected right under the US Constitution, by the way. I don't happen to be anonymous; but I believe in the US Constitution. The Federalist Papers were written by anonymous pamphleteers, you know, so I think anonymous speech is fine. Benjamin Franklin wrote anonymously too. But really, from what you've read so far, I think you can see that even if I were anonymous, I still get more facts right than the folks at Information Week, so you should probably keep reading Groklaw, no matter who wrote it. I have a track record now that supports Groklaw's value as a resource. In fact, if Information Week used it a bit more, I wouldn't have to write corrective articles. And what might be the motive for the endless gratuitous attacks on Groklaw? Didn't we just demonstrate that we were right all along? That's expertise, not bias against anyone or anything. I think it's time the anti-Groklaw guys cut it out. You were wrong, Groklaw called it right, and you should just admit it like men.

But hold the Godiva and Toblerone for a moment. If I'm a Linux user, do I really want SCO v. IBM to be called off without a definitive ruling on SCO's claims?

If I were a betting woman, I'd bet he is a Microsoft man. I bet too that his company gets a lot of Microsoft ad money, so I think we can stop worrying about his Linux use. As for SCO's claims, the court of public opinion decided long ago that SCO had no legitimate claims, with a few holdouts of course, who may or may not have reasons for their views. But no matter, since SCO v. IBM hasn't been called off.

A victory by IBM could have quashed for good the notion that Linux infringes on Unix. If the case is dropped, then questions will still linger and might later be revived—by Novell or someone else.

IBM will pursue that victory, I'm guessing. This case will not be dropped. As I earlier explained, even if IBM won every single one of its summary judgment motions, its counterclaims are still on the table. SCO said early on that it would pursue to its utter destruction, IIRC, and I believe that will be exactly what will happen, but in any case, it's not over, and neither lawsuit will be dropped, unless there is a settlement of some kind. With normal litigation that is what you'd expect to see after a devastating ruling like this one, but SCO isn't normal, and there is some doubt as to how willing Novell or IBM would be to agree to settle. But don't forget that in SCO's statement about the ruling, it mentioned that it is an exclusive licensee of the trademark, and it has earlier indicated that it has some theory whereby an exclusive licensee can assert copyright infringement claims. I doubt it, but who knows what SCO will try? One thing I feel confident in predicting is that SCO doesn't give up. Don't you remember the DaimlerChrysler case, where SCO was practically run out of court on a rail by the judge, and they persisted in the assertion that they'd be back to pick up on that ridiculous case someday?

To boot, IBM was winning. Judge Brooke Wells last year tossed 187 out of SCO's 298 claims in the case. Now it appears the game will be called off in the top of the fifth with IBM ahead on the scoreboard.

No. Sigh. She threw out some evidence SCO tried to slip in a back door after discovery was over and said SCO couldn't add new claims. All of SCO's original claims remained, as you can read in their Complaint. The new ruling from Kimball has knocked some out, but Wells didn't do that last year. Also, SCO had 294 items, not 298, on its original Final Disclosures list. After SCO abandoned one of its items, that left 293. Most of them were "methods and concepts" for which SCO offered no code at all, the judge found. Here's part of what she wrote:
In December, near the beginning of this case, the court ordered SCO to, "identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM." Even if SCO lacked the code behind methods and concepts at this early stage, SCO could have and should have, at least articulated which methods and concepts formed "the basis of their action against IBM." At a minimum, SCO should have identified the code behind their methods and concepts in the final submission pursuant to this original order entered in December 2003 and Judge Kimball's order entered in July 2005.

I'm explaining this carefully mainly for historians, who hopefully will get their information from Groklaw, and not Information Week. I think maybe Information Week should start reading Groklaw with more respect, actually. At least use the resources. Seriously.

Novell has not threatened to sue Linux users, but what happens if the company, or its Unix rights, are at some point sold to a more, uh, territorial organization. You know, like Microsoft—which says other parts of Linux infringe on Windows. Indeed, Judge Kimball's affirmation of Novell's ownership of Unix makes the company a more attractive takeover target starting Monday.

This seems to be the new FUD. I've seen it in more than just this article, so I assume it's the new "get the facts" pr spreading. First of all, there is no company on earth more territorial than SCO. They win that contest hands down. And Novell has no interest in selling anything like that to Microsoft. At the moment, it holds aces. And frankly, just between us chickens, if Microsoft even tried to buy them, I'd say the antitrust issues that are already floating in the air would seriously come home to roost on Microsoft's head kerplunk, and then it would be most interesting to do discovery on precisely what role it has been playing in the SCO drama. But Novell can't go after Linux and neither could Microsoft based on these copyrights, I don't think. Novell has already waived, for starters, and it released it all under the GPL. So even if it sold them, that goes with the package, and there's no taking that back.

And whoever picks up the gauntlet next time may have deeper pockets than SCO to go up against IBM. (Or they might be smart enough not to name as primary defendant a company with $90 billion in annual revenues.)

That might be hard to achieve, considering that Boies Schiller foolishly, in my view, agreed to a cap on legal fees so that it has to go all the way through an IBM appeal for free. And let's not forget the millions that Microsoft and Sun provided SCO, with BayStar telling us that it helped on the referral of Microsoft. Does anyone have more money than Microsoft? If so, it's at a level where it surely plays no role in the outcome of legal disputes in courtrooms in Utah.

Bottom line: Novell's victory over SCO could result in one of the big questions around Linux remaining unanswered. That's not good if you're a corporate IT manager contemplating a deployment of the open source OS. Better if SCO v. IBM had been allowed to play through.

In your dreams. The market knows already what to make of the SCO claims. And stay tuned, folks. SCO v. IBM will play through, despite what you are reading in the funny papers.

And someone needs to explain to Microsoft and SCO, I think, that even if it could cook up some more devilish ways to attack Linux, it's not working. No one admires a bully. They are like a woman who has had too much plastic surgery. After a while, it's not worth doing it again, because all you get is ugly.

Update: I found this indication in an article on Groklaw from August of 2004 that OpenServer at least didn't change from 1995 until 2004, the date of the article, a date which is after SCO launched its litigation against IBM:

"SCO Group says it derives about two thirds of its revenues from OpenServer. The application is based on SCO Unix, which first shipped in 1989. The current version, OpenServer 5, was launched in 1995. SCO estimates there are about 500,000 installs of its flagship product. . . .

The article had a link to an article that day on News Factor, but the link doesn't work now. I'm sure though that the information can be confirmed, though, and that little nugget means to me that SCO has nothing to use from OpenServer against any of the parties it sued. Since SCO specifically mentioned OpenServer as its own in its statement on Sunday, this find is meaningful. It means the judge's ruling that new materials would belong to SCO if they had any is immaterial in the real world, because there weren't any, according to this article which is reporting what SCO said.

Here's what the link was, for anybody wanting to try to sleuth it out: SCO-Offers-Peek-at-Latest-OpenServer-App&story_id=26139

Update 2: Someone found it. It's now here.

Update 3: More confirmaton in this IT Jungle article, "SCO OpenServer 6 Launches with Unix SVR5 Kernel", that OpenServer remained essentially unchanged until Legend:

While OpenServer 5.0.7 is notable in that it provided some limited support for UnixWare 7 applications, OpenServer 5 was based on the Unix System V Release 3.2 kernel, which is very old and has some pretty severe limitations in terms of threading, main memory, and file system support. That's why SCO bought UnixWare and the rights to the Unix operating system created by AT&T from Novell to have a more scalable Unix than OpenServer. To preserve backward compatibility with the large installed base of OpenServer customers--there could be as many as 1 million servers installed in the world that are running OpenServer and UnixWare--SCO has not messed with that kernel, even as Unix System V was updated to Release 4 and then Release 5. With Legend, that changes, and OpenServer now uses the SVR5 kernel while maintaining backward compatibility with all prior generations of OpenServer, Unix, and Xenix Unixes from SCO.

Update: McDougall has posted a kind of rebuttal. I'd appreciate it if you didn't leave any comments about his article there. Thanks. Groklaw doesn't do flame fests.


What Goes to Trial? - Updated | 724 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: rsteinmetz70112 on Monday, August 13 2007 @ 05:31 PM EDT
IF you got any.

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 | # ]

Off Topic here please
Authored by: tiger99 on Monday, August 13 2007 @ 05:39 PM EDT
Ideally stuff that is relevant to the diverse interests of the Groklaw community, of course.

And please try to make clickies where possible.

[ Reply to This | # ]

Discussion about Newspicks items here please
Authored by: tiger99 on Monday, August 13 2007 @ 05:41 PM EDT

[ Reply to This | # ]

Wiki-formatable version of the decision (repost)
Authored by: JesseW on Monday, August 13 2007 @ 05:49 PM EDT
(I apologize if re-posting this message in the new article is considered wrong.)

I've put the decision up on Wikisource, here: http: // (Thanks to the person who made the text available on Groklaw). I think I've got it well divided, and the footnotes integrated, but there's lots of things still to do, ranging from the trivial (italicizing all the mentions of "Id"), to the profound (linking to the relevant portions of the APA, the TLA, the California legal code and all the other things Judge Kimball cited). It would also be nice to pull out the "court ruled" sentences, as a quick summary of what motions were which. We may also want to copy/move it to Groklaw's wiki. (we do have one, don't we?) In any case, get crackin' folks!

(Contact me for comment licensing, e.g. GPL, CC, PD, etc.)

[ Reply to This | # ]

What Goes to Trial?
Authored by: Yossarian on Monday, August 13 2007 @ 05:59 PM EDT
First I want to thank PJ for her good job of pointing most
errors in the Information Week article. What I don't know
is why the "professional" made such a lousy job.

Was it just stupidity and laziness?
(I suspect some malice.)

[ Reply to This | # ]

Paid for poo
Authored by: Carla Schroder on Monday, August 13 2007 @ 06:00 PM EDT
I almost wish I could paid to write nonsense, except I like
having self-respect:

"But the ruling did not specifically address SCO's charge
that Linux is a Unix knock off--and a case that could have
settled that question for good may now fade away as a
result of Friday's decision." etc blah blah blah-

PJ, I love all the detail and analysis that Groklaw has
provided over the years. Groklaw is revolutionary. Not only
did it expose one of the most bogus lawsuits of all time,
rivaled only by the judge who wanted millions for his
pants, it exposed the shoddy state of tech journalism. Some
things are so obvious on their face that even
alleged "tech" "journalists" (translation: ignernt dunces,
or worse, paid shills, or even worse, unpaid shills) should
be ashamed at missing them. You can go back
in time to the very beginning on Linux and follow every
iteration of its development. It's all there for anyone to
download and study- the code, developer mailing lists,
everything. You can even track down and interrogate
individual developers. If there is anything bogus in there
it's in plain sight. What is a lawsuit going to prove?
SCO's mountains of "literally copied code" evaporated early
in discovery anyway, which even a "tech" "journalist"
should know.

Another fact that escapes these purveyors of poo is that
Unix is not a single monolithic entity, but has many
variations. There are two main families: Unix System 1-7
and BSD (Berkeley Software Design) Unix. Novell "owns"
System V, not all of Unix. There is
HP-UX, IBM's AIX, Sun's Solaris, Xenix, Free/Open/NetBSD,
Irix, and gosh knows what else. But I suppose that's too
fine a distinction for the clicks-at-any-cost crowd.

Yes, I am grumpy about this crud. Every morning everyone
has the same opportunity to start a new day- to try to be a
better person, and to try to leave the world a tiny bit
better. All these alleged journalists and reporters have
priceless opportunities to contribute something that is
actually useful and helpful, to bring a bit more light into
the world, and instead they choose to dump more trash, just
like any litterbug or graffiti vandal. Shame on them. They
should find honest jobs, like cleaning up their own messes.

Well that's enough ranting. Thanks again for Groklaw!

[ Reply to This | # ]

Unresolved Unix Infringment
Authored by: Anonymous on Monday, August 13 2007 @ 06:03 PM EDT

Another point with regards:

Novell has not threatened to sue Linux users, but what happens if the company, or its Unix rights, are at some point sold to a more, uh, territorial organization.
The court has specifically ruled, as P.J. indicated, that SCOG has to acknowledge the fact that Novell has the right to waive any infringement.

Novell has already done the waiving including producing that waiver in publicly available court documents. Anyone that wants to "pick up the gauntlet" will have to work around that waiver. Anything that falls within the realm of the waiver is a completely lost cause.

IANAL but that seems like a pretty big defense that could very well win PSJs without too much discovery occuring.


[ Reply to This | # ]

What Goes to Trial?
Authored by: Anonymous on Monday, August 13 2007 @ 06:06 PM EDT
Where is SCo's money coming from though - how many trials can they keep chasing?
They owe Novell a fortune and their share price has collapsed. The company is
two steps away from being forced to throw in the towel.

[ Reply to This | # ]

Does anyone have more money than Microsoft?
Authored by: Anonymous on Monday, August 13 2007 @ 06:10 PM EDT

[ Reply to This | # ]

How much would it cost...
Authored by: Anonymous on Monday, August 13 2007 @ 06:32 PM EDT
...for the FSF to outright buy what Novell has left? You know, the copyrights
and patents...

Probably a lot, but we could start a donation pool, couldn't we?

Ahh, my evil thoughts of world domination persist.. :)

[ Reply to This | # ]

  • How much would it cost... - Authored by: Aim Here on Monday, August 13 2007 @ 06:39 PM EDT
  • Poison Pill - Authored by: Anonymous on Tuesday, August 14 2007 @ 04:18 AM EDT
  • Why? - Authored by: Anonymous on Tuesday, August 14 2007 @ 01:27 PM EDT
    • Why? - Authored by: Anonymous on Tuesday, August 14 2007 @ 04:54 PM EDT
      • Seriously? - Authored by: Anonymous on Wednesday, August 15 2007 @ 03:06 AM EDT
Nicely written PJ
Authored by: The Mad Hatter r on Monday, August 13 2007 @ 06:37 PM EDT

I hope that Information Weak (misspelling deliberate) reads Groklaw and issues a
correction, but I am not holding my breath.


[ Reply to This | # ]

The Novell "new threat" nonsense
Authored by: Anonymous on Monday, August 13 2007 @ 06:58 PM EDT
All the conspiracy theorists, that think that Novell is now going to be the next
bad guy threating Linux with copyright infringement lawsuits, are forgetting two
fundamental facts:

- there is no copyright infringement in Linux
- Novel is distributing Linux, therefore giving everyone permission (the GPL)
even if there was any

Why does it always have to be FUD?

[ Reply to This | # ]

Authored by: Anonymous on Monday, August 13 2007 @ 07:01 PM EDT
PJ wrote:
And someone needs to explain to Microsoft and SCO, I think, that even if it could cook up some more devilish ways to attack Linux, it's not working. No one admires a bully. They are like a woman who has had too much plastic surgery. After a while, it's not worth doing it again, because all you get is ugly.

But Microsoft has relied on plastic surgery for a long time. Microsoft is already ugly--everyone who knows anything about technology knows what a predatory, miscreant company Microsoft has been for the past 15 years.

I believe they keep doing this stuff because they don't imagine their rep can really get worse than it already is. (And unless they make a Sony-rootkit-sized blunder, they are probably right.)

[ Reply to This | # ]

A tad bit of sexism?
Authored by: Anonymous on Monday, August 13 2007 @ 07:11 PM EDT
"You were wrong, Groklaw called it right, and you should just admit it like

Wasn't there some Maureen someone or other? Come on PJ. I've been called out
on sexism enough to know it when I see it. ;) Strangely enough the concept
didn't really sink in until the union I belonged to started saying "women
and men". I somehow felt demoted but it got the point across. Strange how
little 'quirks' of language DO MATTER. Plus, it is often simply inaccurate to
imply one gender. Do you have to be a man to admit you are wrong? ;) Nit
pick, ya....

[ Reply to This | # ]

Chronological question
Authored by: Anonymous on Monday, August 13 2007 @ 07:15 PM EDT
I seem to recall, from Kimball's ruling, that SCO asked Novell for the copyrights a couple of months after the start of SCOsource. Did I misread that?


[ Reply to This | # ]

Now SCO can only go under, it's just a matter of how many last gasps
Authored by: kawabago on Monday, August 13 2007 @ 07:29 PM EDT
It does make me wonder if any of the SCO board of directors really knew about
the copyrights. Chairman Yarrow knew they didn't have them but how many of the
board? Every member of that board is now tarred with the same brush. They knew
or should have known SCO didn't have the copyrights and they approved the
actions anyway. That makes them all culpable methinks.

[ Reply to This | # ]

SCO Statement
Authored by: MrCharon on Monday, August 13 2007 @ 07:30 PM EDT
SCO has updated their Statement with a Forward Looking Section that has the
following text.

"the inability to devote sufficient resources to the development and
marketing of the Company's products, including the Me Inc. mobile services and
development platform, and the possibility that companies with whom the Company
has formed partnerships will decide to terminate"


[ Reply to This | # ]

On a mission
Authored by: Anonymous on Monday, August 13 2007 @ 07:36 PM EDT
The extraordinary and unexhaustible PJ is/was on a mission that truly is a
admirable and remarkable amount of effort, only one that can be fueled by a
injustice that will not be allowed to stand without a fierce fight, one that has
all power to do what it has & will keep on doing.

That said

Not much will go to trial, not enough at stake. The paper trail, along with the
consequences of what has been brought forth should discourage any of the soon to
be discovered ethically challenged participants. look for negotiated setlements
on any, if at all, issues.

[ Reply to This | # ]

errno.h saddens me
Authored by: Anonymous on Monday, August 13 2007 @ 07:37 PM EDT
As I think about the comment that ... only things like errno.h remain..., I
wonder if this may not be a missed opportunity. Just suppose that Linux,
FreeBSD, and a couple of others got together and developed a new list of error
numbers. Compatibility would be lost, but whose distributions are more likely
to change? Linux with its *millions* of installed base users or, say, OtherX
with its few tens of thousands?

We live in a different world now: Linux is the leader.

[ Reply to This | # ]

No SCOG Press Release?
Authored by: Anonymous on Monday, August 13 2007 @ 07:52 PM EDT
Everyone knows what happened but SCOG has not filed
a "press release". A Google News search for "scog"
does not return any "PR newswire" hits. They refer
to their "statement" as a "press release" in their
8K that was filed at 17:26 EDT on 13 Aug 07.
The SCOG PR staff has fallen down, [he] is noted
elsewhere as a BYU undergraduate.


[ Reply to This | # ]

What Goes to Trial? - One part is non-trivial.
Authored by: Anonymous on Monday, August 13 2007 @ 08:06 PM EDT
Novell has not threatened to sue Linux users, but what happens if the company,
or its Unix rights, are at some point sold to a more, uh, territorial
organization. You know, like Microsoft—which says other parts of Linux infringe
on Windows. Indeed, Judge Kimball's affirmation of Novell's ownership of Unix
makes the company a more attractive takeover target starting Monday.

Point of fact, Novell is not the strongest company around. They sold the Unix
business once, and presumably did not sell the copyrights because the Santa Cruz
Operation could not afford to. I don't think there is any question that
Microsoft is rich enough to buy the copyrights to Unix that are in Novell's
contol if they were for sale.

Currently my faith in Linux is based on the fact that the code was written from
scratch, and nothing gets put in unless it is certified original. But that
still does not prevent MS from buying the copyrights and continuing to play the
FUD game. As far as anti-trust is concerned, if Novell sold the Unix Business
along with the copyrights, then MS could turn around and sell off the Unix
business and retain copyrights, same as Novell did with SCO.

I'm assuming Novell will get the Unix business back from SCO. SCO has failed
it's feduciary duty to account for SVRX licenses sold to SUN and Microsoft and
remit as required. I can't believe that there is any court where failure to
perform per contract is not grounds for voiding the contract.

Will I give up Linux. Only if they pry it from my cold dead hands!!!!!!!!!!

[ Reply to This | # ]

Straight FUD piece
Authored by: Anonymous on Monday, August 13 2007 @ 08:14 PM EDT
The InfoWeek article is straight fud aimed at the pointy hair boss. The last line gives it away.

Bottom line: Novell's victory over SCO could result in one of the big questions around Linux remaining unanswered. That's not good if you're a corporate IT manager contemplating a deployment of the open source OS. Better if SCO v. IBM had been allowed to play through.

Anyone who has been following the saga knows it isn't over. The PHB is going to read the article in the "throne room" and decided it isn't safe to deploy open-source. Or at least that is the intention.

If the "article" had been written to a forum it would be a troll.

[ Reply to This | # ]

What Goes to Trial?
Authored by: Anonymous on Monday, August 13 2007 @ 08:38 PM EDT
PJ, thank you! I read this today and was fuming at just how much incorrect info
had been crammed into it. You have dissected it and also pointed out the
factual errors that a journalist included in his article. It would be nice if
the journalists of the tech world and world at large would take the time to
check their facts and get them right.

[ Reply to This | # ]

What Goes to Trial?
Authored by: GLJason on Monday, August 13 2007 @ 08:52 PM EDT
Bottom line: Novell's victory over SCO could result in one of the big questions around Linux remaining unanswered. That's not good if you're a corporate IT manager contemplating a deployment of the open source OS. Better if SCO v. IBM had been allowed to play through.

I think it's fine that the only company that has challenged Linux IP in a court of law will be bankrupt and torn to shreds in the court, even with financial backing from Microsoft and SUN. I think it's great that the public has seen all the bluster put forth from SCO and its friends in the media and how it all turned out. The next time people hear squawking in the media about problems with Linux IP, they'll think twice before believing them.

[ Reply to This | # ]

The kicker is at the end
Authored by: Anonymous on Monday, August 13 2007 @ 08:59 PM EDT
In the beginning I didn't get why PJ was saying this was FUD, as opposed to just
a journalist who didn't get tech issues in over his head. But it was there,
after all, at the end: if you can no longer sell anyone on the lie
"Linux/the GPL/FLOSS will lose in court" the next best lie you can
fall back to is "it's never been tested in court so who knows?"

[ Reply to This | # ]

New SJ motions in IBM?
Authored by: Anonymous on Monday, August 13 2007 @ 09:05 PM EDT
This may have been covered in another thread, but are we going to see a new
flurry of Summary Judgment motions from IBM based on this decision, or have they
essentially been filed and we are simply going to see some GRANTED?

[ Reply to This | # ]

What Goes to Trial? SCO Group, Inc. 8K statment.
Authored by: Anonymous on Monday, August 13 2007 @ 09:09 PM EDT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

August 10, 2007

Item 8.01. Other Events.

Relativly non-commital. You've probably already read everything it contains, but for the record, here it is: s/secarticle.asp?&sid=1453151&symb=SCOX&guid=5366041&type=8

[ Reply to This | # ]

Information Weekly name change
Authored by: DodgeRules on Monday, August 13 2007 @ 09:11 PM EDT
Let's vote:

A. MisInformation Weekly
B. Miss Information Weekly
C. Ms. Information Weekly
D. MS Information Weekly
E. Information Weakly
F. (fill in the blank)

[ Reply to This | # ]

  • Disinformation? - Authored by: Anonymous on Tuesday, August 14 2007 @ 07:04 AM EDT
Money & Power
Authored by: stomfi on Monday, August 13 2007 @ 09:34 PM EDT
Money and Power.
Novell is a potential winner in both areas.
Novell is a Linux company that needs more revenue.
Novell relies on an operating system and software created and maintained mainly
for free by Open Source and GPL developers.
UNIX is a revenue stream for Novell.
Novell can increase the value of Linux by open sourcing (under yet another
license), and merging System V with Linux.
Novell can renegotiate with it's SRV5 licensees to allow them to blend their in
house *NIX enhancements into a new version of "UnitedLinux".
Everyone would get more business especially Novell who could become the good
guys once again.
A United Linux OS with desktop/mainframe/big and little server technologies
could easily unseat the Windows OS.
Microsoft would continue to dominate the desktop office application market for
at least the next 5 years.
A unified OS will enable new technologies in the network and human interface
All the hardware companies want a more diverse computing experience much faster
than MS is delivering.
All the big users want open systems seamless interoperability.
Novell is now in a win win situation unless it shoots itself in the foot again.

[ Reply to This | # ]

Enderle's self-serving article
Authored by: gvc on Monday, August 13 2007 @ 09:47 PM EDT
I won't give it a link. Search for it if you wish.

Some quotes:

"By the way, I’m not particularly worried that Microsoft will now step in
and pick up the fight; it simply is not on that path anymore." [be
worried; very worried!]

"the threats of violence against SCO, the massive denial-of-service attacks

"the result has been a more moderate and mature open source

"the litigators were not litigation experts, and that likely kept them from
seeing critical pieces of information they needed to know"


[ Reply to This | # ]

Independent creation is a defense
Authored by: pem on Monday, August 13 2007 @ 09:59 PM EDT
IBM has been working on AIX for a very long time, and is quite capable of doing
it themselves.

Absent the Project Monterey agreement, it is doubtful that they would have
accepted any code which SCO wrote -- they probably forked AIX well before 1995.

And Project Monterey is problematic for SCO -- IBM's lawyers drafted the
agreement carefully enough that SCO will probably have a very difficult time
showing that IBM can't do whatever it pleases with the fruits of that

Even if there is something in AIX that looks kinda, sorta like something SCO
wrote, SCO has to overcome, first, the hurdle of showing that IBM could have
gotten the code from them, and then even if they pass that, second, the
application of the abstraction/filtration/comparison test to prove that that
code is copyrightable.

The chances of there being significant code in AIX (from whence it is alleged to
have been leaked into Linux), which IBM received from SCO after 1995 without
being subject to generous contractural Monterey terms, which has not been so
severely rewritten by IBM as to be unrecognizable, and which is actually
copyrightable, is probably miniscule.

The chances of the same code being on the pitifully small short list which
survived challenges during discovery are laughable.

[ Reply to This | # ]

The new FUD - one for the lawyers
Authored by: Anonymous on Monday, August 13 2007 @ 10:04 PM EDT
Micro$oft have made public statements that Linux infringes on their patents.

Say I write a personal letter to Billy G (signed for on delivery, notarized by a
lawyer on sending).

In this letter I inform him that I'm running an operating system, Linux, that
his underlings (in his name, as owner of the company) have clearly and publicly
stated infringes on his patents.

I invite him to enumerate precisely what patents the operating system I'm
running infringes.

I, of course, get no answer. Or some meaningless drivel from a marketing droid.

IANAL but I'm reasonably certain that there's a principle that if a patent
holder is actually *informed* of infringement but willfully does nothing to
assert their patent(s) then they waive the right to assert it in future.

That is, the submarine patent "shock horror, we only just this morning
found out that x was infringing on our patent, honest" goes right out of
the window.

So how about a letter-writing campaign, from everyone who runs Linux, asking
Billy if he wishes to assert any patents against them?

Since the source is public knowledge, and he owns a company with literally
thousands of developers capable of analyzing that code, an answer of "I
don't know" would pretty much end any patent case in the first hour in
court, I'd think.

Is my logic faulty in any way here?

[ Reply to This | # ]

Freeing Unix
Authored by: John Hasler on Monday, August 13 2007 @ 10:14 PM EDT
I don't think it would be practical for Novell to release SysV under a Free
Software license: Pre-McBride Caldera looked into it and concluded that it
would be too expensive to untangle the copyrights. They could, however, issue
some sort of a declaration granting immunity to Linux. One way to do this would
be to announce that all Unix source to which they hold the copyright is licensed
to whoever has it under the terms of the GPL but not release the source
themselves. Another would be to publically stipulate that any source code that
they own copyright in that is in the Linux kernel is GPL because of their
distribution of Suse.

IOANAL. Licensed under the GNU General Public License

[ Reply to This | # ]

Authored by: Anonymous on Monday, August 13 2007 @ 10:19 PM EDT
I'm afraid I'm a little annoyed at the way Sun has been presented.

SVRX is the result of a joint effort by Sun & AT&T to resolve the Unix
wars of the late 80's & early 90's. Unfortunately, everyone else formed OSF
out of fear and claimed that Sun was not in favor of "Open Systems".
Only DEC actually fielded OSF as a product, and we all know what happened to
them. (Despite its misguided origins it *was* a good product. I bought Alpha
164LX running OSF. But today I run a Sun Ultra 20 running Solaris 10 as my
primary system.)

Sun was compelled by circumstance to do business w/ SCOX in order to be able to
disclose the source code for Solaris. They paid ~$10 million for the right to
make their source code public (p. 40 of Kimball's decision). SCOX's duplicity
in cheating Novell is not Sun's fault. By contract Sun *had* to talk to SCOX.

The world does *not* benefit from reinventing the BSD vs AT&T Unix war as
the Unix vs Linux war.

There is not enough difference between Linux & Unix to matter. Aside from
zealotry, the differences only matter to curmudgeons who consider stability
& consistency as the ultimate goal.


[ Reply to This | # ]

What Goes to Trial? IBM Summary Judgment.
Authored by: Anonymous on Monday, August 13 2007 @ 10:20 PM EDT
Trying to figure out what is left, there is the summary Judgment hearing from
March 1, 5 and 7. It would seem to me that the Judge is in a good position to
consider the ruling he has just made when considering these summary judgments.

It appears that the ladder theory, where if it touched System V code in any way,
it is System V code, should now be firmly out the window, as indicated where one
of the items, where IBM expressly referenced the waiver by Novell I found as

From PDFs from Groklaw article:
IBM's Massive Memo in Support of SJ On SCO's Contract Claims - Updated
Monday, October 02 2006 @ 09:57 PM EDT

Summary Judgment on SCO's contract claims, (SCO'S First, Second, Third and
Fourth causes of Action.)

S. Novell's Waiver of any Purported Breaches.

189. After SCO filed suit, Novell sent a series of letters to SCO that
explicitly waifed the purpoted breaches of contract SCO has asserted IBM
commited. (See Ex. 135; Ex. 136; Ex.137; Ex 138; Ex. 240 paragraph 29).

190. On October 7, 2003, in a letter from Josepha A. Lasala, Jr. to Ryan
Tibbitts, Novell directed SCO to waive any purported right to assert a breach of
the IBM Software Agreement based on IBM's use or disclosure of code that does
not contain any Unix System V source code. (Ex. 135; Ex. 240 paragraph 30.) The
letter states:

[P]ursuant to section 4.16(b) of the Asset Purchase Agreement, Novell herby
directs SCO to waive any purported right SCO may claim to require IBM to treat
IBM Code itself as subject tothe confidentiality obligations or use restrictions
of the Agreements. Novell directs SCO to take this action by noon,MST on
Octover 1, 2003,and to notify Novell that it has done so by that time.
(Ex. 135; Ex 240 paragraph 32)

Additional paragraphs 191, 192, 193, 194 regarding Sequent 195, 196, 197, where
Novell waived any purported right of SCO to terminate the IBM Sublicensing
Agreement, 198, 199 and 200.

[ Reply to This | # ]

corporate IT managers contemplating a deployment of the open source OS
Authored by: vb on Monday, August 13 2007 @ 10:53 PM EDT
Do not underestimate the power that Microsoft has over the IT trade press.

Many corporate IT managers will read this:

"Bottom line: Novell's victory over SCO could result in one of the big
questions around Linux remaining unanswered. That's not good if you're a
corporate IT manager contemplating a deployment of the open source OS. Better if
SCO v. IBM had been allowed to play through. "

... and continue to avoid Linux. I know that the CIO for the company that I
work for has stated that we'll have no Linux deployments as long as there are
legal issues.

The FUD will continue to work as long as there are brain dead IT mangers that
lap up this drivel.

[ Reply to This | # ]

Linux isn't free software?
Authored by: mattflaschen on Monday, August 13 2007 @ 10:59 PM EDT
Whatever Linus's ideology, Linux is under a free software license and that makes
it free software (as well as open source software and whatever else).

[ Reply to This | # ]

Microsoft Windows and Unix ...
Authored by: dmarker on Tuesday, August 14 2007 @ 12:01 AM EDT

Many times over the past couple of days, the topic of Microsoft's windows
containing stolen code from UNIX (or even Linux) has come up.

There seems to be lots of confusion over what course of action is open to the
UNIX (& even Linux) copyright holders, should those holders be able to show
that UNIX (and possibly Linux) code was taken by MS employees and used in

While I am no lawyer, I am certain that if it could be shown that for example,
Gates took code from his licence of Unix Ver 7 & put it in Xenix, then
Microsoft could be sued (allowing for any statute of limitations & that the
Windows/DOS source code was largely hidden over the years).

Anyone who has extensive experience with DOS & Xenix will surely recognise
very unix like functions being put into DOS. As a very simple example 'cd ..'
has always worked in DOS.

If Microsoft did over the years steal code from Unix or BSD or Linux and put it
into Windows, the crime would be there if at the time the code was taken, it was

It is this issue of code being protected at any particular time that seems to be
where the most confusion is. For example, if MS did *steal* some Unix code
& put it in Windows & sold many copies for a couple of years, then the
copyright owner of that code freed it up a couple of years later, my
understanding is that MS would still be guilty of theft up to the point the code
was freed up.

Now what are the chances that Windows does contain (at different points in its
evolution) code from Unix that was not licensed to Microsoft.

Anyone willing to bet on it :)


[ Reply to This | # ]

SCO's own emails
Authored by: Anonymous on Tuesday, August 14 2007 @ 12:19 AM EDT
Paul MacDougall says:
Bottom line: Novell's victory over SCO could result in one of the big questions around Linux remaining unanswered. That's not good if you're a corporate IT manager contemplating a deployment of the open source OS. Better if SCO v. IBM had been allowed to play through."
How can he say that in light of this particular email from the annals of SCO history? (since the comments on InformationWeek *never* work)? Link
SCO e-mail: No 'smoking gun' in Linux code By Ina Fried
Staff Writer, CNET
Published: July 14, 2005, 9:00 PM PDT

update A 2002 e-mail suggests that an investigation commissioned by The SCO Group failed to produce any evidence that Linux contained copyrighted Unix code.

The e-mail, which was sent to SCO Group CEO Darl McBride by a senior vice president at the company, forwards on an e-mail from a SCO engineer. In the Aug. 13, 2002, e-mail, engineer Michael Davidson said "At the end, we had found absolutely nothing ie (sic) no evidence of any copyright infringement whatsoever."

The e-mail was posted Thursday to Internet law site Groklaw.

SCO sued IBM in 2003 for more than $1 billion, alleging that IBM had misappropriated Unix technology to which SCO claimed intellectual property rights.


[ Reply to This | # ]

Mississippi Squirell Revival
Authored by: proceng on Tuesday, August 14 2007 @ 01:16 AM EDT
For all who have been watching: We are watching with sadistic glee as tSCOg sees what happens when you with the intentions behindf open source software.

PJ has amply illustrated that the zealots will come out of the woodwork to justify the concept that we can not provide a solution without "infringing". WE just have to inform the PHB as to what the line is.

And ye shall know the truth, and the truth shall make you free.John 8:32(King James Version)

[ Reply to This | # ]

  • Huh? - Authored by: Anonymous on Tuesday, August 14 2007 @ 01:14 PM EDT
  • Chill out, Darl - Authored by: Anonymous on Tuesday, August 14 2007 @ 01:41 PM EDT
Authored by: Peter Baker on Tuesday, August 14 2007 @ 01:35 AM EDT
Well, if it were to pass I'd be there..

= P =

[ Reply to This | # ]

Who's to blame?
Authored by: Anonymous on Tuesday, August 14 2007 @ 01:46 AM EDT
A lot has been said here about shareholders suing the board of directors and/or
the lawyers. Apart from looking a little like blood lust, the question of who
can sue who over this mess might be a tricky one.
Take the shareholders. At about the time BayStar got second thoughts, SCO did a
huge stock buy back. Presumably, those with stock are the people running SCO,
granting themselves stock options etc., and the lawyers, having received partial
fees in stock. So do the share holders sue each other? (It would be interesting,
if only for the dirt that would surface - think Microsoft).
Darl was brought aboard by the board, presumably on his strong record of
aggressive IP enforcement, so, in a sense, he did what he was hired to do. But
who can sue the board if they hold their own stock?
The lawyers must have known there was no copyrights when they came aboard, or
should have found out early on in the course of this farce. Still they elected
to stay on and see it through. So can the stock holders sue the lawyers (who can
then counter sue the stockholders)?
Assuming there is anything left, once IBM/RH gets through picking over the
remains of SCO, it seems the only ones able to sue are the very people
responsible for this shakedown gone wrong.
So, who, if any, are left to seek reparation through the courts?

[ Reply to This | # ]

ARS Technica
Authored by: sappha58 on Tuesday, August 14 2007 @ 01:57 AM EDT
At least they're getting the story right. Plus, in their relevant stories about SCO, they have links to Groklaw's resources!

[ Reply to This | # ]

SCO Copyrighted Code in Linux
Authored by: Anonymous on Tuesday, August 14 2007 @ 02:02 AM EDT
Now that at least some of the Utah Dust is settling It is as stated by PJ a good
time to look at whats left.
The issue of "Sco Copyrighted Code" in Linux has come up.

It seems to me (IANAL etc) that as SCO (in whatever shape or form) did at one
time become a Linux Distributor they appeared at least on the surface to
understand the GPL AND that this distribution contained at least part (if not
all) of said code then can they not held to have:-

Knowingly released their own copyrighted code into Linix thus negating any
claims thay might have about unaurthorised used and distribution of said
copyrighted code?

We know that SCO (today) has big issues with the GPL. This does not preclude
that a former BOD/PHB did know what they were doing when they signed up for and
became a Linux Distributor.

This is (IMHO) is the next bombshell that I suspect will hit the killer home run
against SCO.

[ Reply to This | # ]

Can SCO continue to seal documents in Novell/IBM cases?
Authored by: gard on Tuesday, August 14 2007 @ 02:04 AM EDT

Now that the court has ruled that the Unix copyrights never transferred to SCO,
will it also ask the parties to revisit the rationale for sealing documents in
the various cases? Wherever SCO justified sealing to protect their Unix IP, do
they now have to reconsider?

I don't remember either side having to provide any reasons for sealing a
document, other than claim it had to be so. Also, even if SCO does not own Unix
IP, they still have obligations under their Novell agreements to protect it. In
spite of that, I am guessing there is plenty of material in the sealed documents
that are no longer justifiable for sealing.


[ Reply to This | # ]

Who sold ... Who bought?
Authored by: argee on Tuesday, August 14 2007 @ 03:28 AM EDT
6 million shares traded today. Some questions arise.

First, I wondered, who sold them. This is a massive sell
off, like 28% of ALL company stock. A handful of fat cats
did not want to be caught owning this stock. They could
have sold on Friday and not lost $14 million. Why did
they sell now?

Then, I thought, even more interesting: Who bought the
shares and why. If SCO is on a decline, in a few hours,
or at most a few weeks, it will be worth nothing. Somebody
wanted to have 28% of the company. Who were the buyers?
Was it just one buyer, or a group of closely allied

Did Novell buy those shares? Or an "agent" for Novell?
Or an agent for Microsoft, or Sun ... or even IBM?

With 28% trading hands, control of the company could
have shifted. Maybe Yarro bought them.

Maybe, McBride bought them at a discount of his option
price, and he can claim a loss to the IRS?

Something is afoot here. Not on the price, but on the

Inquiring minds are speculating.


[ Reply to This | # ]

What Goes to Trial?
Authored by: Anonymous on Tuesday, August 14 2007 @ 03:56 AM EDT
Can Novell now or soon find SCOG in breach of contract and breach of fiduciary
duty, proceed to nullify and/or terminate some or all of the contract/s
regarding the purchase of UNIX assets, and deny SCOG the right to conduct
certain major UNIX business relating to the former contract rights?

Given the apparent imminent insolvency of SCOG and its no longer being a going
concern, under what circumstances may Novell reclaim control and possession of
the UNIX intellectual property originally conveyed to Santa Cruz Operation in
those contracts?

Given the fact that the contract required Santa Cruz Operation and SCOG as a
successor in interest to remit 100 percent of all license revenue to Novell, the
fact SCOG willfully failed to do so, and the fact SCOG does not have the assets
to remit those amounts to Novell; doesn't Novell retain a certain right/s to
reclaim possession of the intellectual property in which Novell retained a
financial interest by the terms of the contract?

Imagine the atmosphere in the Lindon offices if notices terminating UNIX
licenses and LINUX licenses for cause suddenly arrived.

[ Reply to This | # ]

Ceterum censeo SCO esse delendam
Authored by: el cojo on Tuesday, August 14 2007 @ 04:21 AM EDT
There are a lot of articles on Judge Kimball's ruling on the SJs with several
journalists expecting a settlement.

In my opinion this would a very bad signal and the worst that could happen at
this point, after so many years of FUD and millions and millions spent in legal

The complete and utter routing of SCO should send the following signals:

a) Linux is very huge and even if it is not owned by any corporation and is free
there are big ones, really big ones, earning lots of money with it, so

b) If Microsoft or some such approaches you to make hidden attacks on Linux on
whatever promises (even if they seem irresistible), be aware :

As PJ points out Microsoft can't act this way by itself because of the antitrust
case. So it should be a signal to everybody even considering to become its

So IMHO SCO should be completely destroyed and its ruins salted (and not only in
a symbolic way like its ancient counterpart).

I only hope that it does not take years and a third war to accomplish this :-)

Ceterum censeo SCO esse delendam

[ Reply to This | # ]

It's the industry, stupid
Authored by: Anonymous on Tuesday, August 14 2007 @ 06:43 AM EDT
The paid to write media is always complaining about their shrinking audience.
It's too bad they can't connect the dots between poor reporting and lessened

[ Reply to This | # ]

IBM Still Goes to Trial
Authored by: Anonymous on Tuesday, August 14 2007 @ 06:53 AM EDT

IBM has a lot of mindshare at stake in winning the issues being tried. for the
good and possibly for less. they are a corporation with a board and shareholders
who want constant increases in investment value, etc, ad nauseum, and so on.

[ Reply to This | # ]

Utah Court but California Law on trial?
Authored by: Anonymous on Tuesday, August 14 2007 @ 07:39 AM EDT
Can somebody explain to a non-US person why we have this notion that a Federal
Court uses California Law rather than its own law, or for geographical reasons,
Utah law because the contract says California Law? It sound strange to outsider
where the judge can use laws created by another entity.

[ Reply to This | # ]

"If I'm a Linux user" - did he mean when ?
Authored by: Anonymous on Tuesday, August 14 2007 @ 07:40 AM EDT
The WeakInformation mouthpiece included the predicate "If I'm a Linux
user" and PJ responded "I think we can stop worrying about his Linux

Two things popped into my head. First, he (deliberately) didn't claim to be a
Linux user and I'm reasonably sure he won't have Ubuntu running on his home PC.
Second, he almost certainly is a Linux user but is too ill-informed to recognise

The two things together are representative of many of the less tech-savvy
computer users globally (and boy, is that guy not tech-savvy!). At present, most
PC users do not use desktop GNU/Linux but they use GNU/Linux every day. Even if
they're not buying from Amazon, they probably use Google dozens of times a day.
And every time they Google, they use GNU/Linux - they just don't know it. Even
the most die-hard MS fanboy may unknowingly call someone using a mobile phone
running embedded Linux. Compare the needle of a computer user who DOESN'T use
GNU/Linux to the haystack of the blissfully ignorant. The reality that, for
these millions, it is irrelevant what OS they are using may prove fatal to
marketing driven corporations like MS.

Because of Google, most computer users are already GNU/Linux users. Most
computer users are also MS users. The problem for the marketers is to keep
people believing they "need" MS when every day they use something
cheaper, safer and less intrusive. It's much harder to use "fear of the
unknown" against something people are accustomed to using every day. The
WeakInformation article seeks to foster uncertainty within businesses by
supplying misinformation supported by general ignorance. With Groklaw and PJ
around I doubt it can succeed.

Nigel Whitley

[ Reply to This | # ]

Why I gave up on Information Week 10 years ago
Authored by: Anonymous on Tuesday, August 14 2007 @ 08:03 AM EDT
During the Msft vs Netscape wars, when Netscape still owned 70% of the market,
IW published several alarmist articles about the devastating effects of one
company controlling this critical technology. Never-mind msft controlling 95% of
everything else on the desktop.

After msft won the browser wars, IW didn't have any further concerns about one
company controlling this critical technology.

The bias is completely blatant. It seems to me that IW is just rubber-stamped
msft PR.

[ Reply to This | # ]

PJ, OpenServer has changed
Authored by: ijramirez on Tuesday, August 14 2007 @ 08:13 AM EDT
PJ, I think this time you are not correct. Openserver 5 has changed
significantly since its introduction in 1995. They have released several .xx
patches and 3 major uodate packs that introduced new functionality. How much of
that functionality and code is significant to this case is another story. See
this <a

[ Reply to This | # ]

Sleuth mode activated, here you go...
Authored by: Anonymous on Tuesday, August 14 2007 @ 08:17 AM EDT

[ Reply to This | # ]

Yet another motion for summary judgement?
Authored by: elderlycynic on Tuesday, August 14 2007 @ 08:27 AM EDT
I have spotted an interesting nugget:

A slander of title claim involves a false statement
disparaging title, that is made with malice and that causes
actual or special damages. ... Because SCO has not moved on
the elements of malice or special damages, the court has no
present basis for dismissing Novell's claim. Accordingly,
the court denies SCO's motion for summary judgment on the
Novell's slander of title claim.

Might we see another motion from SCO based on precisely
those grounds? :-)

[ Reply to This | # ]

The Sun and Microsoft agreements
Authored by: elderlycynic on Tuesday, August 14 2007 @ 08:29 AM EDT
Moreover, whether or not Novell's present satisfaction is
reasonable, which could present a question of fact, the
language suggests that SCO was obligated to present the
information to Novell before the customer would be
considered validly converted. The facts here demonstrate
that Novell was not made aware of the 2003 Sun and Microsoft
Agreements. Therefore, SCO never attempted to validly
convert Sun or Microsoft. Under Schedule 1.2(b), then, Sun
and Microsoft would not be considered validly converted.

Does that mean they are void? PJ might have a clue; I don't.

[ Reply to This | # ]

What Goes to Trial? - Updated
Authored by: Anonymous on Tuesday, August 14 2007 @ 09:01 AM EDT
As for this:

Here's what the link was, for anybody wanting to try to sleuth it out:

I found this while searching for:

I remember that one too.

[ Reply to This | # ]

NewsFactor link
Authored by: Anonymous on Tuesday, August 14 2007 @ 09:06 AM EDT
"OfficeServer was born as a Linux program in the 1990's....."

That sounds interesting.Link

[ Reply to This | # ]

  • NewsFactor link - Authored by: Anonymous on Tuesday, August 14 2007 @ 09:41 AM EDT
What Goes to Trial? - Updated
Authored by: Anonymous on Tuesday, August 14 2007 @ 09:08 AM EDT
The Article can be found here:

[ Reply to This | # ]

Authored by: Anonymous on Tuesday, August 14 2007 @ 09:10 AM EDT
In Wake Of SCO Ruling, Torvalds Sticks To Kernel
Posted by Alexander Wolfe, Aug 13, 2007 09:45 PM Posted by Alexander Wolfe, Aug
13, 2007 09:45 PM

We've had responses from Novell, SCO, and even Groklaw's Pamela Jones to this
weekend's legal ruling that Novell owns the Unix copyrights,

It appears from this that and from PJ article

Court Rules: Novell owns the UNIX and UnixWare copyrights! Novell has right to

Friday, August 10 2007 @ 04:52 PM EDT

That everyone has forgotten that Novel does not own UNIX; that AT&T did not
own Unix and that all this was settled in the BSDi cases – Federal one in New
Jersey and the state one in California.

After having read the judge’s ruling from beginning to end I did not find one
word transferring BSD (owned by the University of California), HP Unix, IBM Unix
(AIX), Silicon Graphics Unix or any other Unix to novel.

Based on this one can only conclude that there is some sort of FUD and
misinformation campaign underway to deprive the rightful Unix owners of their
property and to convert Unit into a proprietary closed source operating system
owned by Novel which in light of Novel recent arrangement with Microsoft leads
one to the logical conclusion that Novel is trying to replace The SCO Group as
the rent collectors on Linux.

If one finds the above preposterous it is no more propertous than many other
postings of the last week.

[ Reply to This | # ]

  • FUD - Authored by: RPN on Tuesday, August 14 2007 @ 09:20 AM EDT
  • FUD - Authored by: Anonymous on Tuesday, August 14 2007 @ 01:00 PM EDT
SCO history site.
Authored by: Anonymous on Tuesday, August 14 2007 @ 09:25 AM EDT
It seems to have actual items.Link

[ Reply to This | # ]

more fud ..
Authored by: Anonymous on Tuesday, August 14 2007 @ 09:41 AM EDT
For more fud, headover to PaulMurphy's blog in ZDnet
to quote - Linux is Unix

[ Reply to This | # ]

Where is SCO's breach of contract claim?
Authored by: gvc on Tuesday, August 14 2007 @ 09:54 AM EDT
I looked through the archive of legal documents and found SCO's amended
complaint, which seems to contain only the slander of title claim.

Where is the part of the complaint that alleges violation of non-competition?

The way that clause is worded, SCO would have to prove that some of their
home-grown Unixware code was in SUSE. They've presented no such evidence -- not
in SCO v IBM and certainly not in SCO v Novell.

It seems to me that the judge erred in failing to award summary judgement on
this. Maybe Novell stated the wrong grounds -- they should have said that SCO
presents no evidence that, if found to be true, would indicate that the
"licensed product" is present in the SUSE offering.

[ Reply to This | # ]

In SCO vs IBM, if IBM does not reffer to this ruling..
Authored by: insensitive clod on Tuesday, August 14 2007 @ 11:10 AM EDT
Just a curious question:

If IBM would not refer to this ruling, but simply would state that they have not
infringed on any copyright, regardless who ownes it, would that case still have
to decide on all alleged infringements?

A ruling that no ingringements were found seems nicer than a dismissal on the
grounds that SCO had no standing.

Lemmings vs Penguins

[ Reply to This | # ]

newsfactor article
Authored by: Anonymous on Tuesday, August 14 2007 @ 11:31 AM EDT
if sombody didn't post it already, here is link to that article:

[ Reply to This | # ]

For all those desperate FUD Masters...
Authored by: mram on Tuesday, August 14 2007 @ 12:07 PM EDT
The only case SCO had against IBM was that IBM "violated their contractual
agreements" when they contributed their precious IP to Linux.

There is absolutely no way for Novell to make this claim in the future (not that
they would want to). After all Novell has already asserted (in documents
submitted by IBM to the court in the SCO-IBM case) that UNIX licensees are free
to do whatever they want with their additions.

After the rest of this saga a decent thing for Novell to do is to make a public
statement to the effect that Linux does not violate any Unix IP. If they haven't
done so already, I am sure they will.

To me the most important task that should be done by Groklaw and the community
is to make the FUDsters like Didiot, Enderle and O'Gara accountable for
disseminating false-hoods. Something drastic needs to be done to make the
FUDsters think twice before blatantly spreading FUD for MS or their cronies.
After all just exposing their idiocy repeatedly in Groklaw does not seem to
deter them.

Any ideas on what can be done? Are there legal options?

[ Reply to This | # ]

The Spin Cycle
Authored by: Anonymous on Tuesday, August 14 2007 @ 01:20 PM EDT
See what SCO has done to Wikipedia... Edits to their entry were made from the
SCO address block.

[ Reply to This | # ]

Their Article and Magazine are
Authored by: BassSinger on Tuesday, August 14 2007 @ 02:37 PM EDT
Information Weak!

In A Chord,


"We cannot solve our problems with the same thinking we used when we created
them." -- Albert Einstein

[ Reply to This | # ]

Regarding the idea of Novell now attacking Linux distributors
Authored by: theMutant on Tuesday, August 14 2007 @ 02:45 PM EDT
I have read several comments that Novell might well take SCO's place in
attacking Linux distributions, since the court ruled that Novell owns the
copyrights to UNIX and UNIXware.

1: Only those copyrights that Novell actually owned at the time the APA went
into effect remain Novell's. Therefore, there is no claim that Novell
"owns it all."

2: Novell is a Linux distributor itself so it will have no grounds to go after
other distributors.

On this second point:
(a) Novell owns whatever copyrights still exist in UNIX and UNIXware. Not only
has it never took any action to protect its copyrights regarding Linux
distributions, it has stated that Linux does not violate those copyrights.

(b) It purchased a Linux distribution and became a Linux distributor. The moment
it did this, it automatically released its claims to whatever UNIX or UNIXware
copyrights might be in Linux by virtue of the terms of the GPL. There is
absolutely no way for Novell to back out of this and make a copyright claim
against Linux.

Novell's only remaining interest in UNIX and UNIXware copyrights is the revenue
it still collects from the SVRx licensees. Even if that revenue dwindles
because of Linux's growing popularity, item b above prevents Novell from doing
anything about it.

Its bad enough when other spread FUD, let's not be guilty of it ourselves.

David W. Cooney, CNB (Certified Novell Bigot)

[ Reply to This | # ]

What Goes to Trial? - Updated
Authored by: miniver on Tuesday, August 14 2007 @ 02:49 PM EDT
McDougall has offered his own reply to this thread: To Groklaw's 'Pamela Jones': Get Your Facts Straight. He seems just a tad irked.

[ Reply to This | # ]

Not so sure SCO v IBM will go to trial
Authored by: blang on Tuesday, August 14 2007 @ 03:12 PM EDT
" And stay tuned, folks. SCO v. IBM will play through, despite what you
are reading in the funny papers."

SCO is now seriously insolvent, what with Novell's granted PSJ motion. It would
be fiduciary prudent for SCO management to seek bankrupcy protection or initiate

So while there will be more going on, I personally think it will not be in the
form of a trial. It will be a negotiation between SCO's bankrupcy trustee and
creditors and claimants.
The trustee's job will be to:
1) Try to reach an accord with creditors.
2) figure out if company can be a going concern after reaching accord.
3)The most prudent thing is probably to file for liquidation, not just bankrupcy

I think it likely that the trustee will seek settlement with Novell and IBM, a
settlement that will likely give the remaining UNIX biz to Novell, sell off
their other biz to highest bidder, and use what's left to pay off IRS,
employees, Novell and IBM.

The settlement that SCO will have to sign will be the end of the "There is
Unix core in Linux" myth.

There is no point for SCO to take it to court. They will settle, or simply
dismiss the case unilaterally. They might even let IBM win all counterclaims by

I am not a bankrupcy expert either.

Final disclosure:
My prediction assumes that SCO as a corporation acts rationally and ethically. I
have never seen SCO act that way before, so the most likely scenario is that SCO
will crash and burn their remaining cash in scandal like fashion, and there will
not be a penny left, even for creditors. Even IRS will get an empty bag.

[ Reply to This | # ]

Darls sidestep
Authored by: Anonymous on Tuesday, August 14 2007 @ 03:28 PM EDT
Dear SCO Customer and Partners,

Undoubtedly you have heard news about the recent adverse court ruling
regarding the situation between SCO and Novell. The company is
obviously disappointed with the ruling issued last Friday. We feel it
important to outline for you the ruling and what impact, if any, this
might have on you.

First, the court clearly determined that SCO owns the copyrights to
the technology developed or derived by SCO after Novell transferred
the assets to SCO in 1995. We continue to believe that when SCO paid
more than $100 million dollars for the UNIX technology to Novell in
1995, we purchased everything. We believe that “All rights and
ownership of UNIX and UnixWare, including but not limited to all
versions of UNIX and UnixWare and all copies of UNIX and UnixWare
(including revisions and updates in process), and all technical,
design, development, installation, operation and maintenance
information concerning Unix and UnixWare, including source code,
source documentation, source listings…” means just what it says, but
the court did not agree.

Second, the court ruling on Friday continues to assert that SCO owns
all copyrights to the new development in all subsequent versions of
UnixWare up through the most current release of UnixWare which
includes substantial portions of SCO UnixWare Gemini 64. Also, SCO
owns the exclusive, worldwide license to use the UnixWare trademark,
which is owned by The Open Group.

Third, SCO's ownership of OpenServer and its Mobile Server platforms
were not challenged and remain intact. These SCO platforms continue to
drive enterprises large and small and our rapidly developing mobile
business is being well received in the marketplace.

This ruling has no impact on SCO’s ability to continue to develop and
support all versions of UnixWare and OpenServer as well as the
recently announced OpenServer 6M and UnixWare 7M as well as our new
mobility products. It has no impact on your ability to sell, service,
support and develop to any of our UNIX operating systems.

Fourth, the court did not dismiss our claims against Novell regarding
the non compete provisions of the 1995 Technology License Agreement
relating to Novell's distribution of Linux to the extent implicated by
the technology developed by SCO after 1995. Those issues remain to be

Although the district judge ruled in Novell's favor on important
issues, the case has not yet been fully vetted by the legal system and
we will continue to explore our options with respect to how we move
forward from here.

Fifth, as many of you have noted by our recent SCO Tec Forum, SCO’s
primary business is not to litigate or to solely rely on outcomes in
the court, but to rapidly evolve SCO’s technology platforms to meet
your needs in the marketplace. For more than three years SCO has
continued to upgrade its UNIX operating systems (including releasing
perhaps the single most significant upgrade in its history with
OpenServer 6) as well as innovate in the areas of the fastest growing
sector of IT, mobile computing.

That being said, we do feel a responsibility to you and our
shareholders to defend our rights when we believe they have been
violated and that is simply what we continue to do within the courts.
In the end, our legal team will focus on the necessary actions needed
to protect SCO, its customers and shareholders.

SCO’s management, development, service and sales teams will continue
to focus on driving the business forward including releasing the
upcoming OpenServer MP3 and new mobile technologies and provide you,
our customers, with the best technology in the industry.


Darl McBride
President & CEO

[ Reply to This | # ]

McBrides statements ...
Authored by: dmarker on Tuesday, August 14 2007 @ 05:23 PM EDT

Darl McBride has no option but to paint any ruling that is against tSCOg as
either a mistake or to distort its meaning. The tinest thing in tSCOg's favour
gets turned into a statement of glory no matter how irrelevant to the actions
tSCOg instigated. e.g. "The judge clearly ruled that we own what we own
(we own any code we & SCO (Santa Cruz) developed subsequent to the Novell
sale)". McBride is merely stating the irrelevant obvious and as if it is
some magnificent victory out of this recent ruling.

He has to do this because if he is not careful, he will be admitting that they
commenced fraudulent actions against both IBM & Novell. Therein lies
McBride's dilemma now, tSCOg on the available evidence, initiated a fraudulent
set of lawsuits and Groklaw exposed it all for the world to see. tSCOg &
McBride will never admit anything that can be construed as them knowing the
patent transfers had no legitimacy back in 2003 but the facts (documented
evidence) and rulings from Kimball show that he Kimball has no doubts.

The path is clearly open to fraud litigation should Novell or IBM decide to go
after tSCOg.


[ Reply to This | # ]

Hmm... I hear an echo of Darl
Authored by: Anonymous on Tuesday, August 14 2007 @ 06:06 PM EDT
"Contracts are what you use against people you have a relationship
with" or some similar statement (too lazy to look it up).

Given that Kimball used the contract to destroy SCO's case, that just seems
ironic. It became a true statement, but it was Novell that did what Darl said.


[ Reply to This | # ]

Some issues go to trial but what else follows from this ruling?
Authored by: Anonymous on Tuesday, August 14 2007 @ 07:55 PM EDT
SO we have a PSJ ruling.

We have trials coming, and the threads above address what might be dealt with
there. What else needs to be considered, outside the courtroom?

IANAL or copyright expert, but what would the proper steps be ... for the wise
and experienced IP attorneys ... to be doing and planning.

Recall a while back, Novell had copyright registrations in a New Jersey office
which SCO (the 1st)took over.

When the new SCOG began saying they HAD the copyrights, Novell and SCO both
filed registration forms with the US Copyright Office. Only one holder has legal

It seems to me, that now would be the time to file this court ruling with said
Copyright office and have SCOG's registration forms rejected, to avoid latter

Where else should this ruling be filed or noticed to preserve Novell's rights
and bar future problems?

[ Reply to This | # ]

PJ, a question
Authored by: philc on Tuesday, August 14 2007 @ 09:25 PM EDT
You have been discusing SCO sueing Novell over copyright infringement for SCO's
home grown IP. I have not been able to figure out how Novell came to license
SCO's home grown IP. Is there some document that describes what Novell licensed
from SCO? If Novell didn't license it they would not have a legal copy to
infringe. Also, if they didn't license it, how did they get it?

Would SCO sueing Novell for infringement of their home grown IP be tried in this
case, or would there be another suit? Would this require more discovery?


[ Reply to This | # ]

A quote from The Inquirer:
Authored by: Anonymous on Tuesday, August 14 2007 @ 10:06 PM EDT
SHAREHOLDERS are abandoning the anti-Linux bad boy SCO faster than a
well-greased leopard on its way to a wildebeest convention.


[ Reply to This | # ]

What Goes to Trial? - Updated
Authored by: RSC on Wednesday, August 15 2007 @ 12:53 AM EDT
Been awhile since I last commented on Groklaw. Life matters took over I

These last few days have giving me some joy. Its not often you hear good new
coming from legal matters now-a-days. But You are right PJ, there is still a
long ways to go.

It is good to see the court system working, yes it took some times but you have
to remember that SCO set out right at the beginning to drag it out for as long
as possible. A speedy trial is not in their favor.

If things go well we may yet have the question of the tainted Linux answered. It
is sad to think that greed in this world would try to destroy something as
beautiful as Linux.

You may think i am mad calling an operating system beautiful, but linux is so
much more than an operating system. It is a symbol of co-operation, of unity, of
multiculturism. It shows to the world that when poeple of all races, colours,
religions and creeds get together and work as a community they can give birth to
incredibly complex but wonderful and useful creations.

All from their hearts and with only the sense of community as the real reward.

To think that their are people on this world who only want to tear it down, to
belittle the effort the community has expended just so they can fulfill the need
for money is quite frankly sickening.

Its not only the Microsofts or Sonys etc but those who pretend to report the
news. I say pretend deliberately because in the last 10 years I doubt I have
seen more than a couple of news articles that reported the unbiased and honest
truth of events. I hate the way all media now feels the need to spin every

I sometimes wonder now if I can believe anything reported in the media. I may be
paranoid, I know I am getting cynical in my old age, but I defiantly feel that
the gods honest truth is now harder to find than ever before.

Even with PJs well known and admitted biases, I still feel Groklaw is one of the
few places left where you can still seek and receive some truth in matters.

Well done so far PJ... you are a shining light in the ever increasing darkness
of greed. Keep up the good work.

Be Well


An Australian who IS interested.

[ Reply to This | # ]

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