decoration decoration
Stories

GROKLAW
When you want to know more... 		decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook

Donate

Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments

Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO's Redacted Reply Memo in Support of Motion for Reconsideration
Thursday, September 13 2007 @ 02:35 AM EDT

We have SCO's Redacted Reply Memorandum in Further Support of Its Motion for Reconsideration or Clarification of the Court's August 10, 2007 Order [PDF], and exhibits. A whole lot of rearguing going on, from what I see in a quick glance. They argue again that Novell isn't entitled to any royalties from UnixWare licenses that also license SVRX incidentally. And there is a change in the room for the trial starting September 17, from Judge Kimball's courtroom to Judge Dee Benson's, Room 246.

They don't say why, but maybe they expect too many people? Or fewer, now that there is no jury, now that I think of it. Anyway, whatever the reason, here's PACER:
460 - Filed & Entered: 09/12/2007
Notice (Other)
Docket Text: NOTICE of Courtroom Change for Trial by Novell, Inc. (Sneddon, Heather)

461 - Filed & Entered: 09/12/2007
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of SCOS REPLY MEMORANDUM IN FURTHER SUPPORT OF ITS MOTION FOR RECONSIDERATION OR CLARIFICATION OF THE COURTS AUGUST 10, 2007 ORDER filed by Plaintiff SCO Group re [458] Sealed Document, (Normand, Edward)

462 - Filed & Entered: 09/12/2007
Motion for Leave to File Excess Pages
Docket Text: Plaintiff's MOTION for Leave to File Excess Pages re SCOS REPLY MEMORANDUM IN FURTHER SUPPORT OF ITS MOTION FOR RECONSIDERATION OR CLARIFICATION OF THE COURTS AUGUST 10, 2007 ORDER filed by Plaintiff SCO Group. (Attachments: # (1) Text of Proposed Order) Motions referred to Brooke C. Wells.(Normand, Edward)

463 - Filed & Entered: 09/12/2007
Redacted Document
Docket Text: REDACTION to [461] Notice of Conventional Filing re SCOS REPLY MEMORANDUM IN FURTHER SUPPORT OF ITS MOTION FOR RECONSIDERATION OR CLARIFICATION OF THE COURTS AUGUST 10, 2007 ORDER by Plaintiff SCO Group. (Attachments: # (1) Exhibit 1 # (2) Exhibit 2: Filed Under Seal# (3) Exhibit 3 # (4) Exhibit 4)(Normand, Edward)

  


SCO's Redacted Reply Memo in Support of Motion for Reconsideration | 353 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: Aladdin Sane on Thursday, September 13 2007 @ 02:38 AM EDT
Please note corrections beneath this comment.

---
Free minds, Free software

[ Reply to This | # ]

Groklaw News Picks [NP] Comments
Authored by: Aladdin Sane on Thursday, September 13 2007 @ 02:40 AM EDT
Please comment on Groklaw News Picks here.

---
Free minds, Free software

[ Reply to This | # ]

[OT] Off Topic comments
Authored by: Aladdin Sane on Thursday, September 13 2007 @ 02:42 AM EDT
Any comments not on-topic here.

Thanks.

---
Free minds, Free software

[ Reply to This | # ]

The room change
Authored by: Nick_UK on Thursday, September 13 2007 @ 04:18 AM EDT
...is for a smaller one as SCO do not have to bring along the Briefcase with the
millions of lines of code now.

Nick :-)

[ Reply to This | # ]

  • The room change - Authored by: rc on Thursday, September 13 2007 @ 11:44 AM EDT
    • The room change - Authored by: Anonymous on Thursday, September 13 2007 @ 02:57 PM EDT
Hey, wait a minute!
Authored by: Ian Al on Thursday, September 13 2007 @ 04:32 AM EDT
Docket Text: NOTICE of Courtroom Change for Trial by Novell, Inc. (Sneddon, Heather)
So Novell are changing the courtroom. I would have thought that was Dale's prerogative. Something tell's me I am misreading the paperwork!

---
Regards
Ian Al

Linux: Genuine Advantage

[ Reply to This | # ]

463. Motion for Reconsideration.
Authored by: Ian Al on Thursday, September 13 2007 @ 05:43 AM EDT
SCOG write
SCO therefore moves for reconsideration or clarification of the Order with respect to this one issue.

I. NOVELL DOES NOT REFUTE THE EVIDENCE THAT SCO IS ENTITLED TO ROYALTIES FROM UNIXWARE LICENSES THAT LICENSE SVRX INCIDENTALLY.

A. The Plain Reading of the APA Grants SCO the Royalties from UnixWare Licenses that License SVRX Incidentally.

As Novell concedes (at 3), the APA provides that "Novell gets SVRX revenue; SCO gets UnixWare revenue." Spcifically, the APA provides that "no royalties shall be payable in connection with any of the UW [UnixWare] Products" to Novell, unless Novell satisfies certain specified conditions. ....... Novell does not dispute that it has not satisfied those conditions. The implication of the plain language of the APA, then, is that "no royalties shall be payable" to Novell in connection with an agreement that licenses a UnixWare product, even if that agreement includes the incidental licensing of SVRX products, which is permitted by the APA.

Skipping the point, for the moment, that their motion relies on the odd assertion that an implication drawn from the plain language of the APA means that they don't have to pay Novell, I want to address the claim in the heading that Novell doesn't refute that incidental inclusion of SVRX doesn't entitle Novell to royalties.

I remembered the question; what is it that SCOG don't understand about the word 'all'. I found this in MEMORANDUM IN SUPPORT OF NOVELL'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS FOURTH CLAIM FOR RELIEF

8. First, Novell retained "[a]ll right, title and interest" to "all royalties, fees, and other amounts due under all SVRX Licenses" -- referred to as "SVRX Royalties." Although the APA transferred "the SVRX Licenses" to Santa Cruz, Novell and Santa Cruz expressly acknowledged and agreed "that [Santa Cruz] only has legal title and not an equitable interest in such royalties." As Novell's "administrative agent" for the sums due under all SVRX Licenses, Santa Cruz agreed "to collect and pass through to [Novell] one hundred percent (100%)" of these monies and Novell, in turn, agreed to pay Santa Cruz a 5% administrative fee.
So, Novell do refute SCOG's inference that they don't have to pay royalties for incidental inclusions of SVRX in UnixWare contracts. Their reason is that the actual plain language of the APA says "all royalties, fees, and other amounts due under all SVRX Licenses" and makes no distinction about licenses that also include UnixWare or any other product.

The more I consider this the less I understand what SCOG are trying to do. Perhaps it is a 'Motion to Rile the Judge'. I can't believe that SCOG have any hopes of that. Why are they trying to pit inferences drawn from tortuously tangled minor paragraphs against the plain language of a key clause which counters the inference in the clearest possible English? Why are they claiming that Novell haven't refuted the inference months ago in a court document?

I predict they will lose this one.

What's that you say?

---
Regards
Ian Al

Linux: Genuine Advantage

[ Reply to This | # ]

SCO's Redacted Reply Memo in Support of Motion for Reconsideration
Authored by: Anonymous on Thursday, September 13 2007 @ 06:15 AM EDT
It does seem reasonable, esp. in view of the UNISYS example, that Santa Cruz,
and hence tSCOg, should be able to retain UNIXWARE license revenue, which is
mostly what they are arguing. Quite clearly, UNIXWARE refers to a PRODUCT, not a
TECHNOLOGY, and revenue from selling of this product, according to the APA,
would go to SCO, despite containing an SVRX core.

But that doesn't address these issues.

1. In what way were ScoSOURCE licenses connected with UNIXWARE, the product? EV1
and others might arguably be using SVRX methods/concepts, but there can be no
argument that they were using UNIXWARE product in any form.

2. In what way would $Soft make use of UNIXWARE product?

The Sun license is a slightly different situation, as there has been mention of
Sun requiring rights to some driver code for Solaris86, and that may not be
ex-Novell code. Probably not ex-SCO either, as hardware folk generally provide
the drivers in the first place, so SCO probably didn't own the copyrights.

[ Reply to This | # ]

SCO's Redacted Reply Memo in Support of Motion for Reconsideration
Authored by: elderlycynic on Thursday, September 13 2007 @ 06:32 AM EDT
This is the first one of SCO's motions that is relevant and
reasonable - maybe they are desperate?

I am not a lawyer, yada, yada, but ....

I think that it will be granted in part - i.e. they will be
allowed to argue the point. If they aren't, they would definitely
have grounds for appeal, because they can reasonably
claim this is a finding of fact and the facts are disputed,
so it should not be settled by summary judgement.

But all Novell have to do to destroy this theory is to provide
some solid evidence that the SVRX component was not
PURELY incidental, and thus SOME money was due. I doubt they
will have much trouble - and I am pretty sure that they would
settle for 20% (being more than they will actually get,
given SCO's financial straits).

[ Reply to This | # ]

Suddenly they can speak English!
Authored by: Anonymous on Thursday, September 13 2007 @ 06:33 AM EDT
When reading the various complaints that SCO made, I found my eyes trying to
slide out of their sockets to escape. The language and reasoning was so twisted.
There were logical gaps that had been camoflaged with artful diversions.
Sometimes I had to re-read things several times, just to begin to see what they
were getting at.

I thought it was me. Some sort of disjoint in my understanding, or the inability
to understand lawyering.

Now suddenly, when their backs against the wall, we get a reply that I can
understand, and I see it wasn't my misunderstanding at all! It was
deliberate!!!!

This document is in plain language. There aren't any odd jumps or twists. No
linguistic tricks. No smoke, no mirror!

Hooray!

[ Reply to This | # ]

PJ Alert
Authored by: DaveJakeman on Thursday, September 13 2007 @ 06:37 AM EDT
This one has us guessing. Maybe this latest from SCO is worth more than a quick
glance. What do you think?

---
Monopolistic Ignominious Corporation Requiring Office $tandard Only For
Themselves

[ Reply to This | # ]

Just what did SCO "sell"
Authored by: KC on Thursday, September 13 2007 @ 07:26 AM EDT
IANAL, so this is just my opinion.

Contracts are generally very specific in language, interpreting them can
sometimes be tricky, BUT, From the standpoint of the APA, and Addendums, my
reading is:

Novell specifically allowed SCO the right to continue development of a
"merged product" (to be known as Unixware), and the right to
"sell" Licenses for the "merged product" which would include
an incidental License to the remaining UNIX code in the "merged
product";

Novell specifically disallowed SCO the right to "sell" any Licenses
for any UNIX product/code, without specific prior approval and agreement from
Novell (presumably so they could apportion the fees due to Novel, and keep track
of the payments);

SCO then "sold" the rights to develop/market the "merged
product" to Caldera (where IS the documentation of the purchase agreement,
specifying what was included in the sale - and what was excluded; This document
is critical to prove any legal rights actually were transferred!);

Caldera then "spun out" the new SCOX, supposedly with the rights to
develop/market the "merged product" (where IS the documentation of the
purchase agreement, specifying what was included in the sale - and what was
excluded; This document is critical to prove any legal rights actually were
transferred!);

SCOX then at a later time developed a "marketing" campaign to sell
SCOSource Licenses, purporting to give the "rights to use" UNIX IP -
note that there was no mention of a right to use the "merged product"
- only a concentrated and vocal effort to sell this "License" to use
the UNIX IP.

Based on the above:

If SCOX cannot prove a legal path to the "merged product" then they
have no rights to "sell" a license for the "merged product"
(which they do not seem to be selling in any event);

Regardless of a possible legal path to the "merged product" SCOX has
no right to "sell" any license for any UNIX IP, as this was restricted
by the original sale (this does not address the issue of Copyrights, which is
muddy at best, only the legal rights to "sell" licenses).

So, unless SCOX can pull a rabbit out of the hat, as I see it, SCOX goose is
cooked, both legally and financially. (Sorry about the last 2 animal
references.)

---
KC

[ Reply to This | # ]

Where is Schedule 1.2(b)?
Authored by: Steve Martin on Thursday, September 13 2007 @ 07:46 AM EDT

"As Novell concedes (at 3), the APA provides that "Novell gets SVRX revenue; SCO gets UnixWare revenue." Specifically, the APA provides that "no royalties shall be payable in connection with any of the UW [UnixWare] Products" to Novell, unless Novell satisfies certain specified conditions. (APA Schedule 1.2(b) § (b)(i)(a).) Novell does not dispute that it has not satisfied those conditions. The implication of the plain language of the APA, then, is that "no royalties shall be payable" to Novell in connection with an agreement that licenses a UnixWare product, even if that agreement includes the incidental licensing of SVRX products, which is permitted by the APA."
Do we have the text of Schedule 1.2(b)? I went looking for it here on Groklaw to verify the above, but couldn't find it.

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

SCO's Redacted Reply Memo in Support of Motion for Reconsideration
Authored by: Anonymous on Thursday, September 13 2007 @ 08:15 AM EDT
Ian Al has already quoted this section but dealt with a different aspect of it.
The piece that leapt out at me was SCO's small step for language but a giant
leap for implication.

Their first statement reads in part
'the APA provides that "no royalties shall be payable in connection with
any of the UW[Unixware] Products" to Novell'

Skipping the intervening sentence, their second statement reads in part
'The implication ... is that "no royalties shall be payable" to Novell
in connection with an agreement that licenses a Unixware product, even if that
agreement includes the incidental licensing of SVRX products'.

Now obviously IANAL, and maybe logic works differently on planet BSF, but the
first statement does not naturally imply that conclusion. The two statements
appear to be comparing apples and oranges: depressingly typical of the sophistry
SCO clings to in the absence of a decent case. The quote talks about royalties
for a product, the conclusion refers to royalties for an agreement which
includes that product. To reduce SCO's argument to absurdity, including Unixware
in an agreement means none of the royalties would pass to Novell.

Perhaps they are making the point here to prepare the ground for an
apportionment argument later : SCO's conclusion could be interpreted to indicate
merely that no royalties are payable to Novell for the Unixware part where the
agreement includes SVRX (which appears to me to have been the intent in the
APA). In the trial, it could be vital for SCO to show a ruling here which
supported the position that SCO get to keep the Unixware element.

Bearing in mind the context of the quote from the APA, which is SCO's
responsibilities with regard to SVRX royalties, a statement which implies simply
that SCO keeps the UnixWare portion of a combined agreement seems the only
reasonable reading. Hence, SCO's subsequent attempt to suggest that labeling an
agreement a "Unixware license" removes it's responsibilities for
passing on included royalties for an SVRX element is farcical - it's hope for
reconsideration on this count is doomed.

------------------------
Nigel Whitley

[ Reply to This | # ]

  • Sophistry - Authored by: Anonymous on Thursday, September 13 2007 @ 09:04 AM EDT
    • Sophistry - Authored by: jdg on Thursday, September 13 2007 @ 10:30 AM EDT
      • Sophistry - Authored by: Anonymous on Friday, September 14 2007 @ 05:34 AM EDT
I thought that Kimball cut off these shenanigans...
Authored by: itchytweed on Thursday, September 13 2007 @ 09:25 AM EDT
I thought that with the last rulings, Kimball told SCO/BS&F not to revisit
old, decided upon, material. I may be wrong with this, though.

All I can say is that I really, really hope that when PJ writes her memoirs on
this whole SCO v. (IBM || Novell), that law schools use this as a required text
to show prospective legal personnel on how NOT to try a case. In some ways, I
would love to see Kimball censure BS&F, as part of the record, and that gets
included to show that, yes, bad law practice does get you in trouble. Maybe
BS&F needs a little more "practice" to get it right... ;-)

Back to my second cup of joe...

-- Itchytweed

[ Reply to This | # ]

Opening Paragraph
Authored by: Wardo on Thursday, September 13 2007 @ 09:59 AM EDT
Anyone notice how particular SCO is getting, even in their opening paragraph (emphasis added):
SCO's motion asks the Court to reconsider or clarify a single ruling in the Order: Is the Asset Purchase Agreement ("APA"), as amended by Amendment No. 1, reasonably susceptible to the reading that the incidental licensing of SVRX in a UnixWare license does not require payment of an SVRC royalty along with a potential UnixWare royalty.

My first glance reading leads me to think that SCO is trying to ignore Amendment No. 2, to support it's argument.

Thinking while typing means that the relevant portions of amendment are probably in Amendment No. 1, and not in Amendment No. 2; but shouldn't they have said "as amended" and no more, or should they have mentioned amendment 2?

Looks like I have to dig up the amendments and read through them again.

Wardo

---
caveat lector...
Wardo = new user(lawyer = FALSE,badTypist = TRUE,badSpeller = TRUE);

[ Reply to This | # ]

Solaris not SYS V rX?
Authored by: rsteinmetz70112 on Thursday, September 13 2007 @ 10:46 AM EDT
SCO says Sun is not shipping and paying royalties on an SYSVRX product. Solaris
is certainly a SYS V xX product. Sun has in prepaid the royalties, just like SCO
prepaid their lawyers.

I'm not sure what the point of that particular statement is.

---
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 | # ]

SCO's Redacted Reply Memo in Support of Motion for Reconsideration
Authored by: KW on Thursday, September 13 2007 @ 10:48 AM EDT
They aren't trying to change the Judge by any chance?

It'd be a disaster, 'couse he would't know a whoot about the case.

I get goose pimples just by thinking of it.

[ Reply to This | # ]

"Unless Novell satisfies certain specified conditions..."? Wrong, SCO.
Authored by: Anonymous on Thursday, September 13 2007 @ 12:04 PM EDT
There'a clearly some sophistry on SCO's part to say:

"no royalties shall be payable in connection with any of the UW [UnixWare]
Products" to Novell, unless Novell satisfies certain specified conditions.
(APA Schedule 1.2(b) § (b)(i)(a).)"

and then to base their formulation "unless NOVELL satisfies" on the
language of 1.2(b)(i), which says:

"(a) No royalties shall be payable in connection with any of the UW
Products until buyer shall have shipped or licensed, in any year, 40% of the
units contemplated by the plan for such a year;"

Clearly, the condition that x number of units must first be sold is NOT a
condition that NOVELL (!!) satisfies -- it's an objective factual
"condition subsequent" triggering event that identifies SCO's
obligation to pay royalties to Novell. So why is SCO trying to morph an
objective triggering event into some sort of an obligation that 'Novell must
satisfy'?

Here's why -- because even if the Judge accepted SCO's interpretation/argument
that the 'de minimus' licensing of SVRX means "all $$ goes to SCO", it
still holds that common sense and legal practice require, in such an agency
arrangement, that SCO has the ongoing affirmative fiduciary obligation as
Novell's agent, to demonstrate to Novell's satisfaction and oversight that the
SVRX licensing was in fact de minimus. That's the ONLY way such an arrangement
could work, otherwise the agent could perpetrate an ongoing fraud against the
principal. And of course the APA requires such transparency, approval rights,
audit rights, etc.

And so SCO's actions to undertake these licenses in secret, to hide the de
minimus licensing from Novell, to resist Novell's audits, etc, represents a
breach of SCO's agency/fiduciary obligations -- hence SCO's desperate need to
fashion the administration of the triggering event as a "Novell
obligation" rather than to acknowledge that the triggering event was a
factual milestone that SCO, as the agent, would be obligated to manage to,
report on, and maintain transparency with Novell about.

In other words, the existence of such triggering events and their management
underscores SCO's obligations as fiduciary. SCO can't therefore admit any
'reading' or interpretation that leads in that inevitable direction, hence their
contortions here...

[ Reply to This | # ]

SCO is right, but it doesn't matter
Authored by: GLJason on Thursday, September 13 2007 @ 12:19 PM EDT

I believe the judge got it wrong about incidental licenses for SVRx when licensing Unixware. I don't think that affects any of the SCOSource licenses though, including Sun and Microsoft. The judge seemed to make it sound like any license of Unixware was an SVRx license. Now I could be wrong here if SCO claims that Unixware is just SVRx upgraded and rebranded, but that would blow their case apart anyway. I am assuming that Unixware is the merged product that the APA contemplated Santa Cruz creating.

That is dangerous because SCO clearly had the right to sell and license Unixware (the merged product) without getting approval from Novell. If SCO required approval from Novell on each sale of Unixware, they wouldn't be able to conduct their business. The APA left SCO the right to sell and market the merged product, but only to license it as a complete product. Selling "Unixware" licenses to cover Linux installations does not fall under that category. Selling licenses to allow Microsoft and Sun licenses to use source code does not fall into that category either. Those must require Novell's approval because the customers aren't running Unixware, they are licensing technology in SVRx.

I might be mistaken as I haven't been able to read through the SUN and Microsoft licenses, but I doubt it. Does anyone think they have thousands of x86 PCs around running Unixware? I think Sun has even said that part of the reason for their deal with SCO was to allow them to open-source Solaris (which as an aside would blow away any proprietary methods and concepts claims in the IBM case).

For Linux-based SCOSource licenes, like EV1, SCO is licensing nothing basically. They are saying that the license is for whatever technology from Unixware exists in Linux, but all of the examples we have seen are not Unixware-specific. Even SCO can only claim that they were derived from SVRx from what I've seen in the IBM litigation. If you stretched your imagination long enough to believe that these were "incidental" to licensing Unixware, your imagination would break.

[ Reply to This | # ]

SCO's Redacted Reply Memo in Support of Motion for Reconsideration
Authored by: Anonymous on Thursday, September 13 2007 @ 12:28 PM EDT
I think I might have an idea of how SCO is going to try to get around the
apportionment wrt SCOSource licenses to end users:

As we all know, Unixware is a product based on SVRx. SCO has full right to sell
Unixware products at no royalty payback to Novell. If someone were running
Unixware on a computer with no license, effectively it is a piracy claim (just
like running an unlicensed copy of Windows on a PC).

SCO could be trying to now claim that the whole SCOSource program is based off
of this theory (new theory #XXXXXXXXX):

Linux (in their belief) could be running (in binary form) parts of their
Unixware product - just as if someone had successfully ported Microsoft Internet
Explorer to BSD, and people used Internet Explorer on BSD without license from
Microsoft. (never mind, for the moment, that there are no Unixware products in
Linux - it was a "we won't sue you if we find it" license). Because
SCO was licensing this "product" to end users, it is no longer a SVRx
license because they didn't license the source code. Therefore, Novell would
have no right to receive royalties.

If the SCOSource license were a right to use and modify the SOURCE CODE, then it
would be a partial SVRx license, depending upon when the source code was
written, etc.

So, what SCO is now arguing is that they have created a derivative PRODUCT,
called "stuff that might be in Linux", that is a subset of Unixware as
a whole, which anyone who uses Linux needs in order not to be in violation of
using their PRODUCT without a license.

[ Reply to This | # ]

This sounds like classic SCO doublethink
Authored by: mobrien_12 on Thursday, September 13 2007 @ 02:27 PM EDT
SCO doesn't get to enter new SysV licenceses w/o Novell's permission. Then
Novell gets all the money and they get a small percentage remittance. Not happy
happy joy for Darl who wants to "own the Unix operating system" (as
SCO puts it).

So SCO says, "we can licence unixware, and unixware has some sysV in it, so
ergo we can license SysV through this loophole and not give Novell the money.

[ Reply to This | # ]

New court room
Authored by: Anonymous on Thursday, September 13 2007 @ 02:47 PM EDT
A funny thought just hit me. Maybe SCO requested a different court room for the
trial so they could claim that THIS COURT hasn't ruled that Novell owns the
copyrights.

I was thinking about this and the recent "Comcast Digital Voice"
commercial played through my mind. For those of you not in an area where this
commercial has been broadcast, a man is standing in his boxer shorts talking on
the phone with "tiger stripe" tattoos all over his body, and he's
trying to convince the person on the other end of the conversation that the
tattoos can now be removed because he is using his "new Comcast Digital
Voice" so it is somehow different than previous conversations on the same
subject using his old phone service. At the end, you hear the voice from the
otther end of the conversation say "Sorry Roger, you tiger now."

I can just hear SCO's lawyers... "But your honor, that was the old court
room, this new court hasn't decided that Novell owns the copyrights" and
the judge replies "Sorry SCO, you loser now."

[ Reply to This | # ]

Scary thought
Authored by: rsmith on Thursday, September 13 2007 @ 02:47 PM EDT
Suppose Darl is doing this to get a seat as
"VP of Legal Harassment^W^WIP Licensing" at M$?

---
Intellectual Property is an oxymoron.

[ Reply to This | # ]

What's In A Name?
Authored by: sproggit on Thursday, September 13 2007 @ 05:14 PM EDT
Though it's a while ago now, I vaguely remember hearing about Novell first
buying and later selling Unix.

I am pretty sure that shortly after the deal was signed, Novell announced the
name change from Unix to Unixware. This was done to align it with Netware, their
pre-existing and home-grown NOS.

Why is this important now? Well, put simply... it becomes important if Novell
were already selling product named "Unixware" in the marketplace.
Given the above history in the naming convention, I think you'll agree that it
would be pretty unlikely that SCO would have decided to name the "new"
product "Unixware".

So from my perspective it's an oversimplification [at best] to say "Unix
revenue belongs to Novell; Unixware Revenue belongs to SCO". It might not
be implicitly stated there, but I think we need to go back and look at the APA
and the supporting, historical record to determine exactly what release of code
was transferred when SCO purchased the business from Novell.

The APA does give them the right to continue to develop this into a
"Merged Product" [was this a merger between Novell's Unixware and the
oldSCO Xenix, do you suppose?" I'm pretty sure that the APA also says that
newSCO gets to keep all the revenue from all sales and maintenance of this new
"Merged Product".

But I don't see how SCO can argue that just because the name of the Product is
"Unixware" that they automatically get to keep 100% of the revenue.

Especially [look for an earlier post of mine] when what we've seen from
Microsoft, for example, talks exclusively of services for "Unix" and
*not* Unixware.

To be honest I am quite surprised that MoFo haven't simply slapped SCO with
details of precisely what release of Unixware was transition, asked them to do
an "MIT deep dive" comparing the transferred source code with their
"latest" source code, then work out a way of apportioning the revenue
based on what value newSCO has added to the transferred code base.

After all, given their track record so far, probably the most they did was
change "(C) Novell inc" to read (C) The SCO Group inc" and little
else...

[ Reply to This | # ]

All's right with the world.
Authored by: red floyd on Thursday, September 13 2007 @ 06:15 PM EDT
I would have been worried if I didn't see 462 there.


---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Yawn
Authored by: Anonymous on Thursday, September 13 2007 @ 07:38 PM EDT
Isn't this all a bit of a non issue? Even if SCO wins all of these motions 100%
and keeps all of the money from Microsoft and Sun:
1) they don't have any of the money left - it's all been spent on lawyers;
2) Novell own the UNIX copyrights;
3) IBM have a valid waiver from Novell, so SCO lose against IBM;

The remaining Novell case is now just about SCO not going bankrupt and BSF
keeping their windfall.

Who cares?

And if there are any damages awarded in IBM, SCO goes out of business anyway.

[ Reply to This | # ]

  • Yawn - Authored by: PJ on Thursday, September 13 2007 @ 08:37 PM EDT
  • Yawn - Authored by: Anonymous on Thursday, September 13 2007 @ 09:39 PM EDT
  • Justice never sleeps - Authored by: Anonymous on Friday, September 14 2007 @ 07:03 AM EDT
Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details ) 		Site layout based on Woodlands theme by Bryan Bell.
Groklaw logo by John Crowley.
News Picks logo by Ted Thompson.
Powered By GeekLog
Created this page in 0.06 seconds