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A Mountain of Filings in SCO v. Novell and a Kind Word About Groklaw |
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Friday, August 31 2007 @ 09:54 PM EDT
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SCO and Novell have filed the most documents -- 16 filings, plus exhibits -- we've ever had in a single day. That only happens when I say I need to go to the beach.
But one of the nicest things happened. Novell has responded [PDF] to SCO's slur against Groklaw: Novell does not share SCO's view of the commentary concerning the SCO v. IBM litigation. (Mot. at 4 (complaining of "anti-SCO bias").) To the contrary, the close scrutiny the Linux community -- Groklaw in particular -- has brought to bear on SCO's litigation is a testament to the power of open source ideals and their potential for application to spheres outside software. That is something I really treasure. Thank you.
PACER:
416 -
Filed & Entered: 08/31/2007
Order on Motion to Withdraw
Docket Text: ORDER granting [413] Motion to Withdraw as Counsel as to Matthew Kreeger, Johnathan Mansfield and Maame A.F. Ewusi-Mensah for Novell. Signed by Judge Dale A. Kimball on 8/30/07. (blk)
417 -
Filed & Entered: 08/31/2007
Memorandum in Opposition to Motion
Docket Text: Plaintiff's MEMORANDUM in Opposition re [387] MOTION to Dismiss Voluntarily Its Third Claim for Relief filed by Plaintiff SCO Group. (Normand, Edward)
418 -
Filed & Entered: 08/31/2007
Memorandum in Opposition to Motion
Docket Text: Plaintiff's MEMORANDUM in Opposition re [391] MOTION in Limine No. 1 to Preclude SCO from Challenging Questions Already Decided as a Matter of Law filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A-B: Unpublished Cases)(Normand, Edward)
419 -
Filed & Entered: 08/31/2007
Motion for Miscellaneous Relief
Docket Text: Plaintiff's MOTION FOR RECONSIDERATION OR CLARIFICATION OF THE COURTS AUGUST 10, 2007 ORDER re [377] Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment, filed by Plaintiff SCO Group. Motions referred to Brooke C. Wells.(Normand, Edward)
420 -
Filed & Entered: 08/31/2007
Memorandum in Support of Motion
Docket Text: Plaintiff's MEMORANDUM in Support re [419] Plaintiff's MOTION FOR RECONSIDERATION OR CLARIFICATION OF THE COURTS AUGUST 10, 2007 ORDER re [377] Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment, Plaintiff's MOTION FOR RECONSIDERATION OR CLARIFICATION OF THE COURTS AUGUST 10, 2007 ORDER re [377] Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment, filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A-B: Unpublished Cases)(Normand, Edward)
421 -
Filed & Entered: 08/31/2007
Memorandum in Opposition to Motion
Docket Text: Plaintiff's MEMORANDUM in Opposition re [393] MOTION in Limine No. 2 to Preclude SCO from Contesting Licenses Conveying SVRX Rights are "SVRX Licenses" filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A: Unpublished Case)(Normand, Edward)
422 -
Filed & Entered: 08/31/2007
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [389] Plaintiff's MOTION in Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon filed by Defendant Novell, Inc.. (Sneddon, Heather)
423 -
Filed & Entered: 08/31/2007
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [390] Plaintiff's MOTION to Strike Exhibits on Novell's Revised Exhibit List Not Previously Disclosed filed by Defendant Novell, Inc.. (Attachments: # (1)
Exhibit (Attachment A))(Sneddon, Heather)
424 -
Filed & Entered: 08/31/2007
Memorandum in Opposition to Motion
Docket Text: Plaintiff's MEMORANDUM in Opposition re [395] MOTION in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument of SCOsource Revenue filed by Plaintiff SCO Group. (Attachments: # (1)
Exhibit 1 # (2) Exhibit A: Unpublished Case)(Normand, Edward)
425 -
Filed & Entered: 08/31/2007
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition to SCO's Motion In Limine to Exclude Testimony of Terry L. Musika [REDACTED] filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A - Valentino v. Proviso Township# (2) Exhibit B - Wrench v. Taco Bell)(Sneddon, Heather)
426 -
Filed & Entered:
08/31/2007
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition to SCO's Motion in Limine Regarding Apportionment of Microsoft and Sun SCOsource Licenses [REDACTED] filed by Defendant Novell, Inc.. (Sneddon, Heather)
427 -
Filed & Entered:
08/31/2007
Declaration
Docket Text: DECLARATION of David E. Melaugh re [426] Memorandum in Opposition to Motion, [425] Memorandum in Opposition to Motion, [423] Memorandum in Opposition to Motion, [422] Memorandum in Opposition to Motion filed by Novell, Inc.. (Attachments: # (1)
Exhibit 5 # (2)
Exhibit 6)(Sneddon, Heather)
428 -
Filed & Entered:
08/31/2007
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of Novell's Oppositions to SCO's Motions in Limine Regarding Terry L. Musika and the Apportionment of Microsoft and Sun SCOsource Licenses, and the Declaration of David E. Melaugh filed by Defendant Novell, Inc. (Sneddon, Heather)
429 -
Filed & Entered:
08/31/2007
Objections
Docket Text: OBJECTIONS to [381] Exhibit List(Proposed) (SCO's Second Amended Rule 26 Disclosure) filed by Defendant Novell, Inc.. (Attachments: # (1)
Exhibit A)(Sneddon, Heather)
430 -
Filed & Entered: 08/31/2007
Memorandum in Opposition to Motion
Docket Text: Plaintiff's MEMORANDUM in Opposition re [385] MOTION to Strike SCO's Jury Demand filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A-B: Unpublished Cases)(Normand, Edward)
431 -
Filed & Entered: 08/31/2007
Proposed Jury Instructions
Docket Text: Proposed Jury Instructions by Novell, Inc.. (Attachments: # (1) Exhibit 1, 2)(Sneddon, Heather) That is it for today, I think. So now, since I didn't make it to the beach, instead please join me as I bask a bit in the sun of some commendation for our hard work. Speaking of which, I have no hope of transcribing all these, without your help. So please everyone pick one and email the text to me. HTML gets you a beer. Nah. You wish. Update: I have my robot generated HTML for about ten of these. If you can help clean up the HTML, please email me and I'll send you what I have. Update 2: Erwan, our detail person, reminds me that there was one day worse than this one, back on September 26, 2006 when SCO and IBM began filing their summary judgment motions. But not all the 20+ filings that day were substantive, as most of today's are. And speaking as the person who has to explain them, that makes a difference. Still, for the sake of accuracy, I'm noting the correction.
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Authored by: TheBlueSkyRanger on Friday, August 31 2007 @ 09:58 PM EDT |
Hey, everybody!
Remember clickies if you can make them.
Dobre utka,
The Blue Sky Ranger[ Reply to This | # ]
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Authored by: TheBlueSkyRanger on Friday, August 31 2007 @ 10:00 PM EDT |
Hey, everybody!
Dobre utka,
The Blue Sky Ranger[ Reply to This | # ]
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Authored by: rc on Friday, August 31 2007 @ 10:01 PM EDT |
And please put the link in the message, as well as the subject of the newspick
in the header.
--- rc [ Reply to This | # ]
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Authored by: TheBlueSkyRanger on Friday, August 31 2007 @ 10:02 PM EDT |
Hey, everybody!
And don't forget to check the comments on the last few articles. So many new
reports, each about different concerns, don't forget the discussions there as
well.
Dobre utka,
The Blue Sky Ranger
Hat trick![ Reply to This | # ]
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Authored by: Mark Nelson on Friday, August 31 2007 @ 10:04 PM EDT |
GROKLAW deserves all the compliments it gets and if I was the Novell lawyers I
would introduce a motion that reads something like this"Groklaw will be
asked to provide analysis of all cases involving technology that a Magistrate
judge requests analysis of from now on. Furthermore, PJ shall be commended by
the court for her help in this case and the IBM case Signed Judge Kimball"
If I was the Novell lawyers which thankfully I am not.
---
http://www.getfirefox.com[ Reply to This | # ]
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Authored by: rsi on Friday, August 31 2007 @ 10:06 PM EDT |
On the contrary, in place of PJ, I will be glad to buy a round for anyone in the
NYC area who can help! Just let me know!
PJ knows how to reach me.
Rick Stanley
[ Reply to This | # ]
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Authored by: Anonymous on Friday, August 31 2007 @ 10:34 PM EDT |
You know I have only started to scratch the surface on some of these filings but
it seems to me that these SCO folk are slicker than Riverdance in a grease pit.
Thier entire set of documents basically boils down to we dont want Novell to
dismiss a claim against us because without it we know we may not get a jury and
we WANT a jury, novell should lose on everything else because even though we
have never talked about apportionment before we want to now.
About the only ting that seemed very solid to me beyond SCO making demands
directly for things it wants, is that each of the motions in limine from novell
does not specify what it is specifically asking to be excluded. IANAL but a
motion in limine is to get rid of evidence which is improper or otherwise
unneccesary, right? Otherwise is there some other kind of motion for Novell to
ask for SCO to limit its scope or do these types of motions also do that?
---
Clocks
"Ita erat quando hic adveni."[ Reply to This | # ]
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Authored by: Anonymous on Friday, August 31 2007 @ 11:13 PM EDT |
Novell gets it.
[ Reply to This | # ]
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Authored by: elcorton on Saturday, September 01 2007 @ 12:29 AM EDT |
In 430 (opposing Novell's motion for a bench trial,) SCO cites to the
denial
of certiorari in DePinto v. Provident, 323 F.2d 826 (9th Cir. 1963) cert.
denied, 376 U.S. 950, 84 S. Ct. 965, 968, 969:
Having in mind the
necessity of scrutinizing, with utmost care,
any seeming curtailment of the
right to jury trial, we hold that where a claim
of breach of fiduciary duty is
predicated upon underlying conduct, such as
negligence, which is actionable in
a direct suit at common law, the issue of
whether there has been such a breach
is, subject to appropriate instructions, a
jury question.
Is
Novell's claim for breach of fiduciary duty predicated on conduct
actionable at
law, in the sense the DePinto court envisioned?
If so, what would be an
example of a breach of fiduciary duty that was not
so predicated? [ Reply to This | # ]
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Authored by: CraigV on Saturday, September 01 2007 @ 01:08 AM EDT |
Recognition by the legal community can be prized even more
than recognition by the open source community. The value
of Groklaw is obvious to the latter, but I suspect the
legal community is very tradition bound and slow to
recognize new ideas.
Could it be that the yet-to-be-revealed newest award to PJ
comes from the broader legal community? Novell and IBM
know about Groklaw, but recognition from the ABA or some
such would be extra special.[ Reply to This | # ]
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Authored by: Anonymous on Saturday, September 01 2007 @ 03:12 AM EDT |
Note that it seems that Novel have been nice and submitted some of the documents
electronically so "only" 422-423, 425-429 and 431 needs to be
transcribed. In the rest the text can be copy/pasted.[ Reply to This | # ]
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Authored by: Erwan on Saturday, September 01 2007 @ 03:27 AM EDT |
-- 16 filings, plus exhibits --
Well, I remember 25-Sep-2006, PSJ day
in SCO vs IBM, and
the next few days. 45 filings in a single day if my count
is right.
Still, PJ, don't overwork yourself.--- Erwan [ Reply to This | # ]
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Authored by: elderlycynic on Saturday, September 01 2007 @ 05:17 AM EDT |
The order did somewhat oversimplify the situation, and the plain
language of the APA does imply that, IF SVRX is purely incidental
to the sale of UnixWare, THEN the full ritual is not needed.
However, I don't see either SCO getting this motion through in
toto, or managing to prove that SVRX was purely incidental in the
Sun and Microsoft cases.
[ Reply to This | # ]
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Authored by: elderlycynic on Saturday, September 01 2007 @ 05:21 AM EDT |
I didn't realise that Novell's extra exhibits were almost
entirely ones produced by SCO in the first place! Oh, what a
lovely trap.
And SCO fell right into it.
[ Reply to This | # ]
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Authored by: GLJason on Saturday, September 01 2007 @ 05:31 AM EDT |
Look at #420, where they seek clarification on the August 10th order insofar
as it relates to SCO's rights to license SVRX incidentally to licensing
Unixware. How can SCO not grasp this? They tried to make it out like Novell
should only get royalties from BINARY SVRX licenses. The actuality is the
opposite. SCO may only license SVRX insofar as it is incidentally related to
their licensing Unixware. For example, if they sell 1,000 copies of Unixware,
they are in effect sublicensing portions of SVRX code that is included in
Unixware. If they enter into licensing agreements with Microsoft and Sun that
include expanded source code rights to SVRX, that is not incidental to licensing
Unixware. PERIOD. They basically have only a binary license themselves, not
the other way around.
Unless the SUN and Microsoft agreements
specifically license Unixware as a whole, SCO has overstepped its bounds. If
they mention SVRX or existing licenses, SCO has overstepped its bounds. Let's
say a singer licenses a song for inclusion in a movie, and ONLY for inclusion in
the movie. do you think the movie studio should be able to sell a soundtrack
without further licensing? What about sublicensing the song out for a car
commercial on TV?
Basically it comes down to this: Did SUN and
Microsoft buy copies of Unixware or not? If not, SCO overstepped their bounds.
SCO has no rights to enter into any new SVRX agreements, and if they licensed
anything except binary copies of Unixware, they are SVRX agreements.
[ Reply to This | # ]
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Authored by: Anonymous on Saturday, September 01 2007 @ 05:47 AM EDT |
"Novell does not share SCO's view of the commentary concerning the SCO v.
IBM litigation. (Mot. at 4 (complaining of "anti-SCO bias").) To the
contrary, the close scrutiny the Linux community -- Groklaw in particular -- has
brought to bear on SCO's litigation is a testament to the power of open source
ideals and their potential for application to spheres outside software."
....that since their deal with Microsoft, "the close scrutiny the Linux
community" can muster is now upon them.[ Reply to This | # ]
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Authored by: Steve Martin on Saturday, September 01 2007 @ 07:37 AM EDT |
From filing 429:
Reconsideration of this issue is appropriate
because the parties’ arguments and
memoranda regarding SVRX Royalties centered
on whether SVRX Licenses were limited to
existing licenses at the time of the
APA and licenses of binary code. SCO also argued that any
license to SVRX
products included in the Sun and Microsoft Agreements was incidental to the
core
UnixWare License, and that SCO was therefore entitled to the payments from
those
Agreements as UnixWare Royalties. (SCO Memorandum in Opposition Opp. to
Novell’s
Motion for Partial Summary Judgment or Preliminary Injunction and in
Support of SCO’s Cross-
Motion for Summary Judgment or Partial Summary Judgment
at 40-41.) In response, Novell principally argued that “SVRX is central, and not
incidental, to the Sun and Microsoft
Agreements,” and that Novell was therefore
entitled to the payments from those Agreements as
SVRX Royalties. (Novell Reply
to SCO’s Opp. to Novell’s Motion for Partial Summary
Judgment or Preliminary
Injunction at 7.) Although Novell asserted that it should receive the
royalties
even if the licensing of SVRX was incidental, that was not the central argument.
SCO
nonetheless presented evidence not only that the Sun and Microsoft
Agreements’ licensing of
SVRX was only incidental to a UnixWare license, but
also that the APA should not be construed
as making such incidental licenses of
SVRX subject to a separate royalty to Novell, apart from
whatever royalty Novell
was entitled to pursuant to the UnixWare royalty
provisions.
(emphasis added)
From the SCO Group quarterly SEC report for the quarter ended April 30,
2003:
We initiated the SCOsource effort to review the status of
these licensing and sublicensing agreements and to identify others in the
industry that may be currently using our intellectual property without obtaining
the necessary licenses. This effort resulted in the execution of two license
agreements during the April 30, 2003 quarter. The first of these licenses was
with a long-time licensee of the UNIX source code which is a major participant
in the UNIX industry and was a “clean-up” license to cover items that were
outside the scope of the initial license. The second license was to
Microsoft Corporation (“Microsoft”), and covers Microsoft’s UNIX
compatibility products, subject to certain specified limitations. These
license agreements will be typical of those we expect to enter into with
developers, manufacturers, and distributors of operating systems in that they
are non-exclusive, perpetual, royalty-free, paid up licenses to utilize the UNIX
source code, including the right to sublicense that code.
(emphasis
added)
Even given the vague description of the first SCOsource license
in the SEC filing, we can conclude that The SCO Group told the court that the
Microsoft SCOsource license was a UNIXware license, and yet told the SEC that it
covered Microsoft's "UNIX compatibility products" (not UNIXware). They
further told the SEC that "[t]hese license agreements [...] are non-exclusive,
perpetual, royalty-free, paid up licenses to utilize the UNIX source code,
including the right to sublicense that code." IANAL, but this doesn't sound
to me like UNIX rights that are "incidental" to a UNIXware license.
So
to which official did The SCO Group give an accurate
account?
--- "When I say something, I put my name next to it." --
Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: DaveJakeman on Saturday, September 01 2007 @ 11:38 AM EDT |
Novell's Opposition to SCO's Motion in Limine to Exclude All Evidence
Related to Other Litigation and Commentary Thereon, Footnote 2:
IBM
and Sun both bought out their ongoing SVRX royalty obligations over a decade
ago. In 2003, Sun bought a SCOsource license so that Sun could open source
the SVRX source code in its "OpenSolaris" product without breaching
confidentiality restrictions from the 1994 agreement. SCO accused IBM of
doing essentially the same thing (releasing confidential code to the public by
way of open source products), and sought hundreds of millions of dollars in
damages. SCO's argument, and its expert analysis of its purported IBM damages,
are therefore relevant impeachment evidence should SCO attempt to minimize the
significance of the provisions lifting confidentiality restrictions in the Sun
SCOsource license.
From the same Novell Opposition Motion that
sprinkles praise on Groklaw, comes an interesting snippet for
Groklaw.
:)
--- Only two things are infinite: the universe and
human stupidity – and I'm not sure about the former. -- Einstein [ Reply to This | # ]
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Authored by: Anonymous on Saturday, September 01 2007 @ 11:45 AM EDT |
AfricaNews
article. Must be that one-finger salute I've heard so much about. [ Reply to This | # ]
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- Oops - Authored by: Anonymous on Saturday, September 01 2007 @ 11:48 AM EDT
- Oops - Authored by: jmc on Saturday, September 01 2007 @ 12:07 PM EDT
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Authored by: bigbert on Saturday, September 01 2007 @ 04:54 PM EDT |
$0.02
---
--------------------------
Surfo, ergo sum.[ Reply to This | # ]
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Authored by: Anonymous on Saturday, September 01 2007 @ 07:38 PM EDT |
Novell, in it's motion in document 426 (which is Novell's opposition to SCO's
Motion in Limine, wherein SCO tries to restrict Novell's apportionment analysis
and argument solely to section 4 of the SCO-MS agreement) makes the point that
we discussed a few days ago here on Groklaw, namely that:
(a) Novell insisted in its contract with Santa Cruz (and by assignment, SCO),
that Novell would retain the right to approve any new SVRX licenses.
(b)SCO entered into the SCO-MS agreement in secret, failing to get Novell's
approval. Therefore the existence of the license itself represents a breach of
SCO's obligations to Novell, and therefore the terms and apportionment aren't
endorsed by, or binding on, Novell, or dispositive of Novell's rights (as
between Novell and SCO) to the license proceeds.
(c) SCO's theory of apportionment, set forth in SCO Document 403 implicitly
argues or assumes (falsely) that Novell and the Court are in fact obligated to
"honor" the actual express allocation terms of the Microsoft (and
SUN)
licenses. In the MS license, SCO and Microsoft endeavored to allocate certain
percentages of the license revenue to various purposes, and allocated only a
small percent to SVRX licenses. SCO argues in 403 then the Novell should be
limited to argue about only the section 4 revenue, therefore limiting the
maximum that Novell could claim to the literal apportionment cooked up by SCO
and MS.
(d) Novell moves to rebut SCO (by a footnote on page 3 in its motion in document
426) saying that the allocation in the agreement between SCO and MS should and
must be ignored, because Novell didn't approve the license.
I think that Novell should (if oral argument is permitted on these motions, or
else at trial) strengthen and expand this argument beyond a mere footnoted
reference, and emphasize that:
- Novell was smart enough, in the original contract with Santa Cruz, to realize
that since (then) Santa Cruz would have the power to act unilaterally as
Novell's agent and to seek out and then draft and negotiate new SVRX licenses,
then Novell, absent an approval rights, would have no way to stop Santa Cruz
from conspiring with it's licensees to create new joint/mixed licenses where the
terms wildly undervalued the SVRX portion in the allocation and inflated the
non-SVRX considerations, thereby depriving Novell of its reasonably expected
future consideration, and so
-- Novell covered this exposure by retaining approval rights to the licenses, so
that if Santa Cruz (SCO) undervalued the SVRX portion in a false allocation,
Novell could withhold approval of the license and force Santa Cruz to negotiate
with Novell to fairly apportion the revenue as a condition of obtaining Novell
approval, and that
-- in the licenses at issue, SCO cooked their own deal with MS, belittling the
SVRX code in the allocation as much as they reasonably could and valuing it as
nominal to non-existent, so therefore
-- SCO's motion should, first, be denied, and moreover the SCO-MS allocation
formulas should be wholly disregarded by the court with respect to binding and
limiting Novell’s rights/allocation, as (i) Novell didn't approve the MS or SUN
licenses, (ii) the agreements in those licenses as to the allocations were
cooked up between MS and SCO, and between SUN and SCO, and therefore (iii) the
allocations have absolutely no validity, and in fact they represent exactly the
mischievous behavior that Novell expressly anticipated, and for which Novell
built in a mechanism to protect against, by requiring Novell consent.
LEXLAW
[ Reply to This | # ]
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Authored by: philc on Saturday, September 01 2007 @ 08:03 PM EDT |
That is throwing down the gauntlet infront of anyone that wants to go toe to toe
with FOSS. Bring it on.
Groklaw, under PJ's leadership, continues to show how the community comes
together to defend itself. This "project" is up among the top half
dozen FOSS projects.
Thank you PJ for taking this up and shepherding it along to what it is today.
Gorklaw is your accomplishment. You provide (and moderate) a forum that
continues to promote civil discourse in the quest for truth.
PS: When you put on the red dress could you post a photo of you in it?[ Reply to This | # ]
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- Seven good men - Authored by: Anonymous on Sunday, September 02 2007 @ 12:04 AM EDT
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Authored by: Anonymous on Sunday, September 02 2007 @ 12:33 AM EDT |
I'm kind of surprised there wasn't an update filed in the SCO vs. Red Hat case
since the judge wanted to be informed of any updates that happened in the case?
I'm sure that SCO losing the majority of the case since they didn't own the
Copyrights is a significant update for the case?[ Reply to This | # ]
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Authored by: Anonymous on Monday, September 03 2007 @ 05:22 PM EDT |
Novell may be genuine in the apparent compliment but I have a different take on
this. After the recent Microsoft deal I trust Novell about as far as I can throw
them. They *know* how effective Groklaw is and if they are smart they would do
anything they could to schmooze you over. If they are that smart then they would
also know that schmoozing would probably not be that effective so they would be
gambling. It wouldn't be much of a gamble however, they could only win and at
worst push.
Why do I have such a hard time forgiving Novell for the Microsoft deal? Can
anyone quantify any sort of product that has come from the deal to this point?
Show me the money. My experience is the Interoperability between Novell funded
open source and Microsoft technologies has only gotten worse since the time of
the deal. The exchange connector is yet to work with Exchange 2007 and it's been
known to be broken back in 2006. There are other products that interfaced with
Exchange mail that did not break when 2007 came out. I just don't understand it.
I don't trust them. I do not accept sweet talk. Again, show me the money.
Sorry, I just had to express my thoughts on this and I know some of you might
call me a troll but please don't let your guard down.[ Reply to This | # ]
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