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
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

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


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

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
Novell's Opposition to SCO's Motion for Judgment on Pleadings (Scott, Nathan, and Marty) - as text
Saturday, April 12 2008 @ 08:08 AM EDT

Here's Novell's Opposition to SCO's Motion for Judgment on the Pleadings on Novell's Claims for Money or Claim for Declaratory Relief [PDF] as text. If you recall, it's the one with the car analogy, in which SCO is represented as selling a friend's car without permission, then insisting he should get to keep the money -- the story of Scott, Nathan, and Marty, in which Scott has been a very bad and greedy little boy.

But the significance of this document, to me, is that Novell seems to be stating as clearly as it wishes to at this time that it has not yet decided what it will choose to do if the court rules that SCO lacked the authority to enter into SCOsource licenses, like the ones with Microsoft and Sun. Do Microsoft and Sun get their money back? Or does Novell get the money? If the court rules Novell's way, Novell will face a happy choice.

But I don't think that is the main event. I think Novell principally wants to get a ruling that SCO did not have any such right, so as to close off any future SCO (or a later successor in interest) moves to ramp up the SCOsource licensing program again.

SCO gets caught once again telling different tales to different audiences, having told the media and the bankruptcy court in Delaware that it has that intention of suing some more, after a fantasized SCO successful appeal. But it told Utah that SCOsource was a dead duck, in effect, and that the issue here will have no effect in "the real world". So, which is it?

Novell makes sure Judge Kimball knows what SCO has been saying lately, attaching several exhibits, such as an exclusive interview [PDF] with SCO CEO-for-now, Darl McBride by Todd Weiss at ComputerWorld, quoting McBride on SCO's glowing hopes for the litigation future, a bankruptcy filing [PDF] in Delaware, with an MOU stating that the proposed deal's purpose was to continue to pursue the litigation, and a screenshot of SCO's very current SCOsource webpage [PDF], still doing its thing, offering SCOsource licenses to anyone stupid enough to buy one.

McBride told Weiss that Judge Kimball's summary judgment decisions were usually overruled, which by my research is not the case, but his point was that SCO shouldn't be counted out yet, that they'd appeal a wrong decision, and then move on into litigation heaven after this little detour. And now, here SCO stands before the very judge its CEO publicly dissed as having an allegedly "dismal record on appeal". I feel for the SCO attorney who has to deal with that. Maybe Boies Schiller will send in the new associate on their team for that part. You think? It wouldn't be the first time a partner sent in an associate for what looks to be an embarrassing mangling. The hearing on this will be April 30 in Utah before the Honorable and probably somewhat bemused Dale A. Kimball, who has the patience of a saint and very good and wry sense of humor. If only we could hear what he's *thinking*!

*************************

MORRISON & FOERSTER LLP
Michael A. Jacobs, pro hac vice
Eric M. Acker, pro hac vice
Kenneth W. Brakebill, pro hac vice
Marc J. Pernick, pro hac vice
David E. Melaugh, pro hac vice
[address]
[phone]
[fax]

ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
Heather M. Sneddon, #9520
[address]
[phone]
[fax]

Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC., a Delaware corporation,
Plaintiff and Counterclaim-Defendant,

v.

NOVELL, INC., a Delaware corporation,
Defendant and Counterclaim- Plaintiff.
NOVELL'S OPPOSITION TO SCO'S
MOTION FOR JUDGMENT ON THE
PLEADINGS ON NOVELL'S CLAIMS
FOR MONEY OR CLAIM FOR
DECLARATORY RELIEF



Case No. 2:04CV00139

Judge Dale A. Kimball

(1)

I. INTRODUCTION

Novell is entitled to the SVRX Royalties improperly retained by SCO and to a declaration that the SCOsource licensing program exceeded SCO's authority as Novell's agent. SCO maintains that Novell cannot have both, and therefore seeks "judgment on the pleadings" dismissing one or the other set of claims. Not a single case cited in SCO's motion supports such a proposition.

As to the SCOsource license revenue, there are three parties that might be entitled to a share: Novell, SCO, and the licensee. At best, SCO's motion makes a case that, as between Novell and the licensee, there are circumstances in which the licensee might be entitled to its money back. That may depend in part on whether Novell elects to ratify the terms of the SCOsource license. Ratification is a matter between Novell and the licensee, is not a choice Novell needs to make now, and is not a decision SCO has any right to force. It therefore is not an issue properly before the Court. SCO's motion provides no caselaw support for the proposition that SCO should keep the SCOsource license revenue it derived from its improper attempt to license Novell's property.

Such a result would certainly be surprising. To illustrate: suppose Nathan owns a car. If Nathan's friend Scott sells that car to Marty without Nathan's permission, it is hard to see how Scott can argue he is entitled to keep any of that money. Once Nathan gets the money back from Scott, Nathan might decide to keep the money and let Marty keep the car. Or Nathan might demand the car back fro Marty and return Marty's money. But in none of those scenarios does Scott get to keep the money he pocketed by selling something he didn't own.

Moreover, because, here, there is a dispute as to whether "Scott" had permission to sell Nathan's car, and because Scott has stated his intent to go on "selling cars" owned by Nathan, declaratory relief is anything but moot. SCO has proclaimed its intent to continue in the "business" of suing Linux users for purportedly using Novell's SVRX code. In bankruptcy, SCO sought approval of a $100 million loan to allow it to do precisely that. In fact, the terms of that

1 (2)

loan contractually committed SCO to aggressively pursue its claims against the Linux community.

Novell is therefore entitled to pursue both forms of relief at the upcoming bench trial and the Court should deny SCO's motion to the contrary.

II. ARGUMENT

A. SCO is Not Entitled to Retain SCOsource Revenue Derived from SCO's Attempt to License Novell's Property.

Notwithstanding this Court's prior ruling that the plain language of the Asset Purchase Agreement obligates SCO to remit SVRX Royalties to Novell, SCO asks the Court to determine, as a matter of law, "that Novell cannot recover any SVRX Royalties." (Memorandum in Support of SCO's Motion for Judgment on the Pleadings on Novell's Claims for Money or Claim for Declaratory Relief ("Mot."), PACER No. 506, filed March 7, 2008, at 1.) SCO suggests the Court should reconsider its prior ruling because of Novell's (supposedly "recent") contention that Novell never approved the SCOsource licenses. Novell's contention, not at all recent, mandates no such reconsideration.1

SCO argues that "[t]he Tenth Circuit has long held that '[i]f the principal disclaims the agent's acts as unauthorized, he has no grounds to retain the fruits thereof.'" (Mot. at 8.) When one reads the four cases SCO cites for that proposition, it is clear that they involve situations in which the agent has already properly remitted the "fruits" to its principal and a dispute arose over whether the principal was obligated to return those fruits to the party that originally provided them i.e., here, the SCOsource licenses. (Mot. at 8 n. 7 & 9 n. 9 (citing cases).)

2 (3)

Because these are the only cases SCO cites that might plausibly support its motion, detailed examination is warranted:

  • Maryland Cas. Co. v. Queenan, 89 F.2d 155 (10th Cir. 1937): A bank cashier who was also city treasurer embezzled $8,000 from the bank and billed the city's accounts that amount to cover the debit. The bank's insurer refused to cover the loss, claiming that the cashier embezzled from the city, not the bank. The court noted that the bank could not both claim the benefits of the insurance and seek to enforce the debit against the city's account. There was, not surprisingly, no suggestion by the court that the embezzling bank cashier (i.e., SCO) might retain the funds.

  • In re Maxwell Newspapers, Inc., 164 B.R. 858 (Bankr. S.D.N.Y. 1994): A debtor-principal sought to avoid debts to third-party creditors, blaming the fraudulent acts of its owner-agent. The creditors claimed that because the fraud supposedly allowed the debtor to stay afloat, the company benefited from the fraud and could not disclaim it. The court held that, far from a benefit, the fraud destroyed the company, causing its eventual liquidation, and therefore declined to impute the owner's acts to the company. Again, there was no suggestion that the defrauding owner could keep any monies.

  • United Chems., Inc. v. Welch, 360 So. 2d 540 (Fla. App. 1984): A United Chemicals agent accepted Welch's forklifts on a 60-month lease. United Chemicals used the machinery for over a year, then disclaimed the lease. The court held that use of the forklifts over a prolonged period with knowledge that Welch believed there to be a 60-month lease was "tantamount to ratification" and that United Chemicals was therefore bound by the leases. Id. at 541. No benefits of the arrangement were retained by the United Chemicals agent.

  • Advance Mortgage Corp. v. Concordia Mut. Life Assoc., 481 N.E. 2d 1025 (Ill. App. 1985): The plaintiff-agent advanced funds necessary to foreclose property on behalf of

    3 (4)

    the defendant-principal, then sought reimbursement. The defendant argued that advancing the funds was outside the plaintiff's authority as an agent and that the plaintiff was therefore not entitled to reimbursement. The court held that, by accepting the fruits of the advanced funds, the defendant ratified the advance and owed the plaintiff the funds. It was therefore only the agent's own funds at issue in Advance Mortgage.

None of these cases hold that, where an agent improperly takes money from third parties in the principal's name, the agent is entitled to keep that money if the principal disclaims the agent's authority.

SCO fills additional, voluminous footnotes with other authority, but these remaining cases concern three unremarkable principles, none of which is relevant to this motion:

  1. Some contracts entered into in excess of an agent's authority are unenforceable.2
  2. Ratification can sometimes render an otherwise deficient contract enforceable.3

4 (5)

  1. A licensee cannot assign or sublicense rights the licensee's own contract does not convey.4
Again, none of these cases support the proposition that an agent acting in excess of its authority is entitled to keep the proceeds of that excess.

B. Whether Novell Will at Some Point Ratify the SCOsource Contracts Is Irrelevant.

SCO's motion could be read as an attempt to force Novell to decide now whether to ratify the SCOsource contracts. SCO claims Novell owes an "obligation as a principal to timely determine whether to accept or reject its agent's contracts." (Mot. at 10.) SCO cites no caselaw establishing such an "obligation," much less an obligation that inures to the benefit of and is enforceable by the agent. On the contrary, Novell is under no obligation to decide now whether to ratify SCO's improper acts. And even if there were such an obligation, SCO does not explain why it is "timely" for Novell to make ratification decisions now. Instead, one might reasonably expect Novell to wait until the propriety of SCO's acts is resolved by this Court before it makes any decisions regarding the SCOsource licenses.

More to the point and as further discussed below, even if Novell decided today to ratify the existing SCOsource contracts as against the SCOsource licenses, that would have no effect on the propriety of SCO's acts in entering into the existing SCOsource licenses or on its authority to continue entering into such licenses.

C. Declaratory Relief Is Not Moot.

SCO concedes that declaratory relief is appropriate where such relief will "have some effect in the real world." (Mot. at 10, quoting United Sch. Dist. No. 259, Sedgwick County, Kan.

5 (6)

v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1147 (10th Cir. 2007).) Novell's request for declaratory relief easily meets that standard.

As with the arguments addressed above, SCO's own cases undermine any claim that the relief sought is moot. SCO's cases each involve some change in circumstances that rendered the requested declaratory relief totally unnecessary. In Prioer v. Steed, 456 F.3d 1209, 1213-14 (10th Cir. 2006), the plaintiff dismissed his claims with prejudice, but the parties nevertheless sought a ruling on an affirmative defense. In Nat'l Adver. Co. v. City & County of Denver, 912 F.2d 405, 412 (10th Cir. 1990), the plaintiff sought declaratory judgment regarding a statute repealed during the course of the litigation, despite the fact that the statute that replaced it was held constitutional.

Under that caselaw, to render declaratory relief moot, SCO would need to acknowledge that it exceeded its authority in entering into the SCOsource licenses and bind itself not to enter into any such contracts again. SCO has done exactly the opposite. It persists in maintaining the validity of the SCOsource licenses and avows its intent to continue to license Novell's intellectual property:

  • In its bankruptcy proceedings, SCO sought approval of a plan that committed SCO to "aggressively" pursue the litigation and licensing activities embodied in its SCOsource program. (Declaration of David Melaugh in Support of Novell's Opposition to SCO's Motion for Judgment on the Pleadings on Novell's Claims for Money or Claim for Declaratory Relief, filed herewith, Ex. 1 at Ex. A p. 3.)

  • SCO's "SCOsource" website is still live, offering SCOsource licenses to the public. (Id., Ex. 2, available at http://www.sco.com/scosource/.)

  • SCO is telling the public that this Court has a "dismal record on appeals" and that SCO will therefore be able to continue its SCOsource program notwithstanding the Court's

    6 (7)

    ruling on the parties' motions for summary judgment. (Id., Ex. 3 (Computerworld interview with Darl McBride).)

Novell's request for declaratory judgment therefore presents the classic case for such relief disputed contract language requiring judicial interpretation, coupled with the possibility that such relief will guide the parties' future conduct. See, e.g., Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 671 (9th Cir. 2004) (finding contract interpretation dispute ripe for declaratory judgment); Lyons Sav. & Loan Assoc. v. Geode Co., 641 F. Supp. 1313, 1319 (N.D. Ill. 1986) ("A suit under the Declaratory Judgment Act is appropriate for a contracting party seeking resolution of actual disputes regarding the interpretation of that contract.").5

CONCLUSION

There is no inconsistency in Novell's pursuing both the SVRX Royalties SCO has wrongfully withheld and a declaration that SCO is without authority to enter into the SCOsource licenses. Pursuing one therefore does not merit dismissal of the other. For that reason, this Court should deny SCO's motion for judgment on the pleadings dismissing Novell's Sixth, Seventh, and Eighth Claims for Relief or, in the alternative, dismissing the Fourth Claim for Relief.

7 (8)

DATED: April 7, 2008

ANDERSON & KARRENBERG

By: /s/ Heather M. Sneddon
Thomas R. Karrenberg
Heather M. Sneddon

- and -

MORRISON & FOERSTER LLP
Michael A. Jacobs, pro hac vice
Eric M. Acker, pro hac vice
Kenneth W. Brakebill, pro hac vice
Marc J. Pernick, pro hac vice
David E. Melaugh, pro hac vice

Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.

8 (9)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 7th day of April, 2008, I caused a true and correct copy of NOVELL'S OPPOSITION TO SCO'S MOTION FOR JUDGMENT ON THE PLEADINGS ON NOVELL'S CLAIMS FOR MONEY OR CLAIM FOR DECLARATORY RELIEF to be served on the following:

Via CM/ECF:

Brent O. Hatch
Mark F. James
HATCH JAMES & DODGE, P.C.
[address]

Stuart H. Singer
William T. Dzurilla
Sashi Bach Boruchow
BOIES, SCHILLER & FLEXNER LLP
[address]

David Boies
Edward J. Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Devan V. Padmanabhan
John J. Brogan
DORSEY & WHITNEY, LLP
[address]

Via U.S. Mail, postage prepaid:

Stephen Neal Zack
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Heather M. Sneddon

9 (10)

1 As Novell's evidence makes clear, Novell has always maintained that SCO had no power to enter into the SCOsource licenses. (See, e.g., Reply Decl. of David E. Melaugh in Support of Novell's Motion for Summary Judgment on Its Fourth Claim for Relief, PACER No. 500, filed February 19, 2008, Exs. 5-11 (2003-2004 correspondence objecting to SCOsource licenses).) There are therefore no "newly available facts or changed circumstances" warranting reconsideration. Nor has SCO undertaken any effort at all to show that "manifest injustice" would result from the Court's refusal to reconsider its plain holding that Novell is entitled to the SVRX Royalties. (Mot. at 8-9 n. 8.)
2 Sarkes Tarzian, Inc. v. U.S. Trust Co. of Fla. Sav. Bank, 397 F.3d 577, 582, 583, 585 (7th Cir. 2005) (reciting general caselaw, finding attorney had no actual or apparent authority to bind client); Nash v. Y&T Distribs., 616 N.Y.S.2d 402, 403 (N.Y. App. Div. 1994)(vacating settlement negotiated in excess of attorney's authority).
3 Summit Props., Inc. v. New Tech. Elec. Contractors, Inc., No. CV-03-748-ST, CV-03-6394-ST, 2004 U.S. Dist. LEXIS 13053 (D. Or. July 2, 2004) (Attached as Exhibit A) (company's occupation of property for two years held sufficient to ratify lease); Sphere Drake Ins. Ltd. v. All Am. Life Ins. Co., 300 F. Supp. 2d 606, 627 (N.D. Ill. 2003) (noting retention of payments can act to ratify contract, finding ratification unwarranted under facts presented); Cent. States Indus. Supply, Inc. v. McCullough, 279 F. Supp. 2d 1005 (N.D. Iowa 2003) (reciting general notion that principal can ratify contract entered into in excess of authority); QAD Investors, Inc. v. Kelly, 776 A.2d 1244, 1250 (Me. 2001) (compliance with terms of deal negotiated by agent, coupled with renegotiation of aspects of deal by principal, ratified deal); De La Cerda v. Hutchinson, No. 93-1743, 1994 WL 255873 (Tex. Co. Ct. Mar. 8, 1994) (Attached as Exhibit B) (reciting general caselaw); Martin v. Fed. Life Ins. Co (Mutual), 644 N.E.2d 42 (Ill. Ct. App. 1994) (whether executive had authority to bind company at time of promise was immaterial given executive's later promotion to a position acknowledged to have such authority, and the fact that executive did not repudiate promise after promotion); Perkins v. Philbrick, 443 A.2d 73 (Me. 1982) (reciting general caselaw, declining to find ratification); Newco Land Co. v. Martin, 213 S.W.2d 504, 511 (Mo. 1948) (defendant used funds embezzled by agent from plaintiff to pay debt; by keeping benefits of embezzlement, defendant ratified embezzler's actions); Poudre Valley Furniture Co. v. Craw, 251 P. 543, 543 (Colo. 1926) (accepting good in trade and keeping possession for several months sufficient to ratify agreement by agent to reduce value of good from purchase price).
4 Gardner v. Nike, Inc., 279 F.3d 774 (9th Cir. 2002) (voiding assignment of license without licensor's permission); Gilliam v. Am. Broad. Cos., 538 F.2d 14 (2d Cir. 1976) (holding licensor cannot grant more rights than it owns); Major League Baseball Promotion Corp. v. Colour-Tex, Inc., 729 F. Supp. 1035, 1042 (D.N.J. 1990) (where license required written approval of sublicenses, holding failure to obtain approval meant no sublicense).
5 In addition, declaratory relief is relevant as to the existing SCOsource licenses. A holding that SCO exceeded the authority granted it in the Asset Purchase Agreement by entering into those SCOsource agreements would considerably bolster any later decision by Novell not to ratify those agreements. Conversely, a decision by this Court that SCO did have the authority to enter into the agreements renders any ratification decision-making unnecessary. Whether SCO had the authority to enter into the SCOsource agreements is fundamentally a dispute between Novell and SCO, and this Court, having reviewed thousands of pages of briefing, declarations, and exhibits, is the appropriate forum in which to decide what the Asset Purchase Agreement does and does not permit SCO to do.

  


Novell's Opposition to SCO's Motion for Judgment on Pleadings (Scott, Nathan, and Marty) - as text | 211 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: Erwan on Saturday, April 12 2008 @ 08:20 AM EDT
If any. Please, check the original PDF first.

---
Erwan

[ Reply to This | # ]

News picks discussions here.
Authored by: Erwan on Saturday, April 12 2008 @ 08:22 AM EDT
Please quote the article in your title.

---
Erwan

[ Reply to This | # ]

OT, the off topic thread.
Authored by: Erwan on Saturday, April 12 2008 @ 08:23 AM EDT
As usual.

---
Erwan

[ Reply to This | # ]

A reminder
Authored by: julian on Saturday, April 12 2008 @ 08:34 AM EDT
Just a short reminder that a significant portion of PJ's income comes from our
donations. Mentioned in a previous artical, she's a little strapped about now.
On the main page near the top left are two ways to donate.

---
John Julian

[ Reply to This | # ]

Is SCO's Behavior Normal?
Authored by: TheBlueSkyRanger on Saturday, April 12 2008 @ 09:14 AM EDT
Hey, everybody!

Does anyone have experience in BK court?

See, I'm wondering if this is typical. Do companies going to bankruptcy court
alter their behavior? I'm just wondering if other companies go into BK and
continue with their businesses, deals, scams, etc. I mean, you would think Darl
and company would realize the judge holds every decision in his hands, but they
aren't changing. Is there some scope to the judge's view (unfamiliarity, mercy)
that makes them think they can continue to operate this way?

Considering Darl was really quiet for a while, and now is opening his mouth
again, I'm just wondering if the judge, like Kimball, has not seen this behavior
before and they are hoping to blindside hime ("Oh, we have plenty of money!
We aren't about to declare bankruptcy!").

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Why wouldn't Novell ratify?
Authored by: Henning Makholm on Saturday, April 12 2008 @ 09:27 AM EDT
Is there any rational reason, aside from litigation tactics, why Novell would not ratify the Sun/Microsoft licenses and keep whatever money they can squeeze out of SCO's empty husk?

I mean, the (nonexclusive) right to copy stuff from pre-APA-but-post-BSD-split Unix sources into operating systems is pretty much worthless today. Letting Microsoft and Sun keep that would not measurably improve their ability to compete against Novell. And it would seem unlikely that Sun/MS actually did any copying of that sort, such that Novell could recover monies from them for infringement, assuming the SCOsource licenses were declared void.

[ Reply to This | # ]

Could Novell declare licenses invalid?
Authored by: Anonymous on Saturday, April 12 2008 @ 09:36 AM EDT
It seems that SCO has sold licenses to Sun and Microsoft without permission of Novell and kept the money. Novell can accept these licenses as valid but then has the major problem getting any money out of SCO; by now even if Novell were put first in the line of creditors, they wouldn't get much.

Could Novell tell Sun and Microsoft that the license is invalid, and that it is Sun's and Microsoft's problem to get the money back from SCO, and if they want a valid license they need to pay money to Novell?

[ Reply to This | # ]

Novell's Opposition to SCO's Motion for Judgment on Pleadings (Scott, Nathan, and Marty) - as te
Authored by: Steve Martin on Saturday, April 12 2008 @ 09:42 AM EDT

If only we could hear what he's *thinking*!

I'm guessing the trial transcript and His Honor's verdict will be a good clue.

:)

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

[ Reply to This | # ]

Chapter 7 in the week before the trial?
Authored by: elderlycynic on Saturday, April 12 2008 @ 11:11 AM EDT
What would happen if SCO attempted to play the same trick
again, this time with chapter 7?

My understanding is that they now need permission from Gross
to do this, but what would he say?

And what would Kimball's reaction be? Well, not pleased, but
what could and would he do?

[ Reply to This | # ]

Short term thinking in action!
Authored by: Anonymous on Saturday, April 12 2008 @ 11:27 AM EDT
Here is the result of McBrides short term thinking in action:
"This apparently is a [judge] who very regularly, the majority of the time, gets [overturned] when it goes to the replay booth. ... ... He certainly has a dismal record on appeals."

Why would he say such a thing. I guess that this is part of the whole McBride culture that was brought into SCO: "Do whatever seems expedient today. Let tomorrow take care of itself."

Well, it looks like tomorrow is coming up on April 30th for McBride and his pals.

[ Reply to This | # ]

Novell's Opposition to SCO's Motion for Judgment on Pleadings (Scott, Nathan, and Marty) - as te
Authored by: wharris on Saturday, April 12 2008 @ 12:48 PM EDT
Novell can not justly keep Sun's and Microsoft's money and claim those two
get nothing in return. It really does seem like Novell is trying to have it both

ways, by telling the bankruptcy court that SCO is in possession of money
owned by Novell (i.e. license fees), and then later, after dissolving SCO,
telling
Microsoft and/or Sun that they get nothing and "Oops, you should have filed

a claim against SCO to get your money back before they were liquidated".

Novel has a valid point that neither Microsoft nor Sun are parties to the
litigation, so SCO does not have the authority to force the issue -- but my
personal opinion is that by claiming ownership of the money, Novel is
ratifying the license whether or not they ultimately extract anything from
SCO.

[ Reply to This | # ]

If only we could hear what he's *thinking*!
Authored by: The Mad Hatter r on Saturday, April 12 2008 @ 12:57 PM EDT


Agreed. It would be VERY interesting to be able to know what Judge Kimball is
thinking right now. Very interesting. But whatever he is thinking, I can
guarantee that he will not let it show in his actions.

This is a man who has been on the bench for years, has seen some truly bizarre
cases enter his court, and is well aware by now that in this case he is dealing
with litigants who will:

1) Use the courts as a blackmail device
2) Lie in the media
3) Feed the media inaccurate information
4) Feed the media information from sealed filings
5) Attack third parties who disagree with them
6) Make outrageous statements in the media
7) Attack his record in the media

I've probably missed a few points, but you can be sure that the judge is aware
that TSCOG is not a normal litigant. In fact they are more akin to a biohazard,
and he will take the precautions that you'd take with a biohazard. The SCO Group
has shot themselves in the foot already by making the media statements that they
did. The judge is warned, and will takr appropriate precautions.



---
Wayne

http://sourceforge.net/projects/twgs-toolkit/

[ Reply to This | # ]

April Fool
Authored by: caecer on Saturday, April 12 2008 @ 01:00 PM EDT
anyone who believes the SCOsource webpage. Notice the date on which the
"screenshot of SCO's very current SCOsource webpage" was taken.

[ Reply to This | # ]

Car analogy
Authored by: Anonymous on Saturday, April 12 2008 @ 02:46 PM EDT
To me, the car analogy doesn't work. If Nathan didn't sell the car, the sale
isn't valid. Nathan can choose to sell the car to Marty for the cash Scott
already collected, but that requires Scott's cooperation. The alternative is to
collect the car from Marty, who has no rights to it. It would then be up to
Marty to collect the money from Scott. If Marty never bothers doing that, Scott
keeps the money. Nathan can only collect the cost of recovering the car and
similar damages from Scott in the second case.

This is particularly clear in the case of cars because there are titles
involved. Nathan would still have the title which would prove that Nathan still
had ownership no matter what transpired between Scott and Marty.

Something similar has been happening involving museums. Often they buy items
from dealers, but later someone claims the item was stolen and they are the
actual owner. If that is valid, the museum must turn the item over to the
rightful owner. The museum is out the cash, unless they can somehow collect it
from the dealer. If they don't, the dealer walks off with the cash.

IANAL, but this is how I understand that these things work.

The Novell/SCO situations has some important differences, though. SCO, unlike
Scott, was an authorized dealer of something else that was owned by Novell.
Also, Microsoft and Sun would have been expected to know that SCO didn't own the
rights to UNIX, but that issue never came up in the car analogy. So Novell may
be in a much stronger position to collect the money than Nathan would be.

[ Reply to This | # ]

Place Predictions Here . . .
Authored by: DodgeRules on Saturday, April 12 2008 @ 04:23 PM EDT
. . . why the trial on April 29, 2008 will not happen. Chapter 7? New orders
from Bankruptcy Court to place a hold on the trial? Darl's dog ate his court
paperwork? We all hope this finally happens, but we all have that voice in the
back of our heads that SCO will do something to delay it yet again. What are
your guesses?

[ Reply to This | # ]

NI disagree slightly with PJ
Authored by: HockeyPuck on Saturday, April 12 2008 @ 11:46 PM EDT
I think that the issues SCO (Darl) made against the judge is a good thing, in an
indirect way. I'm sure the honorable Judge Kimball will take this as a chllamge
and do the right thing. Buy that, I mean he will slam the hammer down with
"extreme prejudice". There will be nothing theft to appeal. He will
leave as little wiggle room as possible. What will be left is scraps of hope;
nothing more (as if there was any).

Is is me? Or do you see Darl selling snake oil? it makes perfect sense tome.

When will this all end. Quoting a certain TV cartoon in the US; "Kill me...
Kill me"

[ Reply to This | # ]

OOXML: How the "fix" was (maybe) done
Authored by: Anonymous on Sunday, April 13 2008 @ 01:06 AM EDT
Alex Brown blogged on Wednesday last (9/Apr) about the
comming actions with regard to ISO/IEC29500.
ISO it seems is organizing a comittee structure to
maintain [it] with Alex Brown continuing in a lead role.
In a comment to that blog entry Marbux links to his blog
giving a (circumstantial) "deal" outline that lead (at least
in part) to the passage of DIS29500.

Alex Brown responded to Marbux with: "Wowza! Fabulous stuff".

http://adjb.net/comments.php?y=08&m=04&entry=entry080409-221633

[ Reply to This | # ]

If only we could hear what he's *thinking*!
Authored by: Anonymous on Sunday, April 13 2008 @ 04:10 AM EDT
IMO Judge K. thinks something like "enough is enough. This is
a court room, not a three rings circus. If you don't like it
then move your big tent to Delaware."

[ Reply to This | # ]

confused on dates - Novell's Opposition to SCO's Motion for Judgment on Pleadings
Authored by: Anonymous on Sunday, April 13 2008 @ 08:00 AM EDT
I'm confused.

The hearing is scheduled for April 30. Checking the timeline, the last date I
can find for the bench trial is April 29. When is the bench trial scheduled
for, or is the judge going to hear motions for summary judgment after the trial
starts?

[ Reply to This | # ]

Thjis =is what Novell needs to do
Authored by: Anonymous on Sunday, April 13 2008 @ 01:22 PM EDT
Go to MSFT and Sun, and demand that they pay again.

It is the same as if you buy a stolen car. The original owner gets it back
unless you pay for it again. SCO sold without authority, and failed to pass on
the proceeds to Novell.

At this point MSFT and Sun could say, oh this was not really SYSV, it was a
"pretend" license.

At which point Novell can say: "Really?!!!" In that case, I think I
will refer this to the US DOJ. I hear some companies are on probation, and if
they break their parole terms, they might have to pay BEEELIONS! Or even get
broken up. Plus I think WE might have a piping fresh antitrust suit of our own.



[ Reply to This | # ]

Car analogy not quite apt
Authored by: Anonymous on Sunday, April 13 2008 @ 06:41 PM EDT
The car anaolgy used is not quite right in this situation. A better analogy
would be a prototype car, with top secret super -duper design information.
Scott is given the car to test and go to select companies to see if they like
the car and would they buy it. Scott then takes the prototype car to Nathan's
rival Marty, who works out the secrets and uses them in his design. Nathan
cannot just ask for the prototype back because Marty already has the secrets.
The only things Nathan can ask for is the car back AND licence fees for the
technology that it never wanted to release in the first place or for a court to
stop Marty using the secrets. As Marty has placed these secrets on the internet
trying to stop the secrets being used would be futile. This is why Nathan is
waiting to see what happens.

[ Reply to This | # ]

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 )