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SCO Tells Customers and Partners It Will Appeal Shortly
Wednesday, July 30 2008 @ 01:09 PM EDT

I'm sure you could write it yourself, knowing SCO as we do by now, but SCO's Jeff Hunsaker has sent a letter to "SCO Customers and Partners", letting them know that SCO will be filing an appeal shortly. From the wording, I'd say they intend to appeal both rulings, the August 10th and the July 16th rulings.

It goes on quite a while about how Novell didn't get as much in court as it originally asked for, of course, and how SCO was ruled to have all rights to OpenServer and UnixWare, something that Novell never challenged, and then it states that Judge Dale Kimball indicated that the ruling was a final ruling and hence can be appealed. So that is what they say they will be doing soon.

Interestingly, the letter also says that they filed for bankruptcy and "have been working on a plan with the bankruptcy court to continue in this protection mode until the court ruling regarding Novellís claims was finalized and SCO could have a financial plan for moving forward. Part of this plan includes the potential investment from an outside group that could help lead us out of Chapter 11 and create a path for future business." I take that as an admission that the delays in bankruptcy were planned and that the strategy was to stay there until after Utah ruled. Perhaps that would explain the strange and clearly unworkable "plans" SCO filed with bankruptcy court.

Here are those sections of the latest Dear SCO Customers and Partners letter:

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

Dear SCO Customers and Partners,

In an effort to continue to provide updated information, I want to inform you about our progress and recent court rulings....

In an effort to continue to provide updated information, I want to inform you about our progress and recent court rulings. As you may be aware, one of the reasons SCO filed for Chapter 11 bankruptcy protection in September of last year was to protect us from a potentially large and damaging court ruling that could have put SCO in a precarious financial situation. Novell was initially requesting close to $40 million in damages and interest in its claims against SCO. They also wanted to impose a constructive trust over SCO assets to cover the potential award. Since then, we have been working on a plan with the bankruptcy court to continue in this protection mode until the court ruling regarding Novellís claims was finalized and SCO could have a financial plan for moving forward. Part of this plan includes the potential investment from an outside group that could help lead us out of Chapter 11 and create a path for future business....

We continue to believe, however, that the premise for Novellís counterclaims has no merit and that SCOís rights were denied when SCO was not allowed a jury trial to hear its case. We believe we have a strong basis for an appeal and expect one to be filed in the Tenth Circuit Court of Appeals soon.

I would like to outline to you other significant positives SCO gained in this recent ruling that have been lost in the press hype from last week....

* The sum of money owed Novell relates to the Sun Microsystems deal and is not based on an allocation of royalties but the modification of a 1994 contract.

* SCO had the right and continues to have the right to enter into SCOSource licenses.

We see this latest ruling as a positive step forward for SCO (even though we dispute the premise for the trial) as the damage award was low and it confirmed important rights that SCO has in UnixWare and OpenServer. The ruling also indicates that the judge believes this is a final judgment (along with the August 2007 ruling) which means we will soon be allowed to file our appeal. In the meantime, we will continue to focus on developing, supporting and selling our technology....

We value you as a customer and partner. We hope you will continue to find success in SCOís technologies and are committed to helping you succeed.

Sincerely,

Jeff Hunsaker President & Chief Operating Officer
SCO Operations Inc.


  


SCO Tells Customers and Partners It Will Appeal Shortly | 188 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: emtee on Wednesday, July 30 2008 @ 01:17 PM EDT
As needed.


---
Kindest Regards,

Mark T
--
The sound of one hand hacking.

[ Reply to This | # ]

Off Topic Posts here
Authored by: emtee on Wednesday, July 30 2008 @ 01:19 PM EDT
Please include links.

---
Kindest Regards,

Mark T
--
The sound of one hand hacking.

[ Reply to This | # ]

News Picks comments here
Authored by: emtee on Wednesday, July 30 2008 @ 01:21 PM EDT
WOW! First hat-trick ever. (Not exactly a News Pick comment.)

---
Kindest Regards,

Mark T
--
The sound of one hand hacking.

[ Reply to This | # ]

SCO Tells Customers and Partners It Will Appeal Shortly
Authored by: Anonymous on Wednesday, July 30 2008 @ 01:30 PM EDT
Who still thinks the US Civil Courts work as intended?

Hello?

<Crickets>

This travesty is a long way from over. It has and continues to have hugely
damaging effects (that will ultimately prove unrecoverable) on everyone
targeted in these actions by Microsoft and it's SCO Puppet.

It seems clear that gaming the courts as an aggressive litigant is a
successful strategy.

J.

[ Reply to This | # ]

SCO Tells Customers and Partners It Will Appeal Shortly
Authored by: Anonymous on Wednesday, July 30 2008 @ 01:41 PM EDT
"I take that as an admission that the delays in bankruptcy were planned and
that the strategy was to stay there until after Utah ruled. Perhaps that would
explain the strange and clearly unworkable "plans" SCO filed with
bankruptcy court."

Is there any chance that Novell (or maybe even the trustee) can come to the same
conclusion, get a copy of this letter, and use it in an attempt to demonstrate
bad faith on the part of SCO in BK court? And if they can do that, is there
anything the court can do about it should the judge agree with the conclusion?

[ Reply to This | # ]

Jury trial
Authored by: SpaceLifeForm on Wednesday, July 30 2008 @ 02:03 PM EDT
They just won't give up on that. It is imperative
in their evil plan that they be allowed to attempt
to confuse a jury.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Bond or Trust?
Authored by: bjnord on Wednesday, July 30 2008 @ 02:17 PM EDT
In order to pursue these appeals, will they need to post a bond or set aside
into a constructive trust or use some similar vehicle to protect the money
already awarded to Novell -- in the (nearly-certain, IMO) event they lose the
appeals?

If they must, then the effect would appear to be the same -- it pushes them the
same distance toward the line marked "0 assets remaining to pay lawyers and
operate the business".

[ Reply to This | # ]

SCO Tells Customers and Partners It Will Appeal Shortly
Authored by: Anonymous on Wednesday, July 30 2008 @ 02:22 PM EDT
Let's set this one straight.

"SCO had the right and continues to have the right to enter into SCOSource
licenses."

The essence of Judge Kimball's ruling on this point is that:

a) his prior holding, namely, that Novell did retain copyright ownership over
all the pre-APA copyrights, is intact;

b) that means, based on the remaining admissible evidence in the IBM case, that
SCO has no claim in that case;

c)since SCO may theoretically have 'some' copyrights to post-APA code that might
theoretically be infringed by Linux, it follows that SCO would have some limited
right to sue a Linux user on that basis only, and therefore the SCOsource
program is not technically illicit;

d) however, since the primary basis of the SCO threat had to do with the alleged
presence of SysX UNIX code in Linux, and since only Novell has the right to
enforce those copyrights, it follows that no Linux user is likely to be cowed
into buying an SCOcource license.

So -- the ruling was that the SCOsource license only grants releases to the code
that SCO owns, which is not UNIX code and which may be a universe of
"zero", and therefore 'let the buyer beware', but that the contract
with Novell doesn't expressly 'prevent' SCO from trying to perpetrate such a
fraud on 3rd parties.

Hardly a ringing endorsement of SCO, and the program is DOA.

LEXLAW

[ Reply to This | # ]

Can't be more clear: "... rights with respect to the acquisition of UNIX and UnixWare..."
Authored by: Anonymous on Wednesday, July 30 2008 @ 02:51 PM EDT
Can't be more clear...

"A. With respect to Schedule 1.1(b) of the Agreement, titled "Excluded
Assets", Section V, Subsection A shall be revised to read:

"All copyrights and trademarks, except for the copyrights and trademarks
owned by Novell as of the date of the Agreement required for SCO to exercise its
rights with respect to the acquisition of UNIX and UnixWare
technologies..."

http://www.krsaborio.net/research/acrobat/1990s/961016_unix.pdf

It's important to remember the Apple v. Microsoft case.

In the first years of the trial, things looked favorable for Apple. However,
when all facts were presented to the court, Apple lost the case.

We'll see when all facts are presented to the court in the SCO vs. IBM case.
Things might not look to favorable for IBM.

[ Reply to This | # ]

SCO Tells Customers and Partners It Will Appeal Shortly
Authored by: Steve Martin on Wednesday, July 30 2008 @ 03:25 PM EDT

"As you may be aware, one of the reasons SCO filed for Chapter 11 bankruptcy protection in September of last year was to protect us from a potentially large and damaging court ruling that could have put SCO in a precarious financial situation. "
So they now admit openly that they filed for bankruptcy to keep Novell from claiming what was theirs.

Lovely.

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

[ Reply to This | # ]

Do they need BK court permission
Authored by: Anonymous on Wednesday, July 30 2008 @ 03:47 PM EDT
So does SCO need the permission of the bankruptcy court to appeal?


It seems like they are likely to spend more than $2.5M on an appeal so even
getting the value reduced to $0 is not a win for SCO.

Also such action would seemingly have to get past the creditor committee. I am
pretty sure 95% or more of the committee would have a conflict of interest on
the appeal decision.


-- Side note. SCO said in a number of SEC filings and phone conferences "we
are fully paid up with the lawyers, right through all appeals" yet the
major expenses for the last 2 years have been continuing legal fees. It seems
the definition of "fully paid" is rather weak.

[ Reply to This | # ]

They will, too
Authored by: Anonymous on Wednesday, July 30 2008 @ 04:02 PM EDT
That is, SCO will appeal if the BK court lets them, and if the bond is something
they can afford.

SCO has to appeal. Their only alternative is to go back to the IBM case, with
Kimball's Novell ruling intact, and that would destroy SCO. So they have to
appeal.

The only two ways this will be stopped is by the appeals court telling SCO to
shut up and go away (at which point they will appeal to the Supreme Court), or
for the BK court to see that all hope is gone and pull the plug on this
charade.

MSS2

[ Reply to This | # ]

SCO Tells Customers and Partners It Will Appeal Shortly
Authored by: Anonymous on Wednesday, July 30 2008 @ 04:09 PM EDT
... you mean they can still use the plural form of those words?

[ Reply to This | # ]

SCO Executives will keep on Suing as long as someone keeps Paying
Authored by: SilverWave on Wednesday, July 30 2008 @ 05:02 PM EDT
And we all know *someone* will keep the money coming.

FUD its a business tactic.

Yeah we know its baseless...
... but they only have to get lucky once.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Hasn't their max claim against IBM dropped to $2 mil
Authored by: thorpie on Wednesday, July 30 2008 @ 06:24 PM EDT

What exactly did they sue IBM for?

They had no right to cancel IBM's license so the "using Unix after the license was revoked" part is gone. Definitely?

If they have extended Sun's license and $2 mil was the total value of the pre-Unixware code, and this was for it to be publicly released, isn't this now the max that they could claim from IBM? Only 1000th of their original claim!

What precisely is outstanding from the IBM case?

---
The memories of a man in his old age are the deeds of a man in his prime - Floyd, Pink

[ Reply to This | # ]

SCO Tells Customers and Partners... but how many are there?
Authored by: Anonymous on Wednesday, July 30 2008 @ 08:18 PM EDT
I bet that the postage didn't set them back much since the list must be pretty
short by now.

[ Reply to This | # ]

Does Suse arbitration have to be done before an appeal can be filed?
Authored by: Anonymous on Wednesday, July 30 2008 @ 08:30 PM EDT

I've always been confused about its effect on the Novell case.

[ Reply to This | # ]

  • Novell thinks not - Authored by: Anonymous on Wednesday, July 30 2008 @ 08:41 PM EDT
SCO Tells Customers and Partners It Will Appeal Shortly
Authored by: Ian Al on Thursday, July 31 2008 @ 07:57 AM EDT
Jeff Hunsaker President & Chief Operating Officer SCO Operations Inc.

* The sum of money owed Novell relates to the Sun Microsystems deal and is not based on an allocation of royalties but the modification of a 1994 contract.
Judge Kimball

After considering all of the evidence and the law as it applies to this case, the court awards Defendant and Counterclaimant Novell $2,547,817 on its Sixth, Seventh, and Eighth Claims for Unjust Enrichment, Breach of Fiduciary Duty, and Conversion.
So, that would not be 'Unjust Enrichment, Breach of Fiduciary Duty, and Conversion' of Novell's royalty payments, then?

Jeff Hunsaker President & Chief Operating Officer SCO Operations Inc.

* SCO had the right and continues to have the right to enter into SCOSource licenses.
Judge Kimball

On Novell's Fourth Claim for Relief, for the reasons stated above, the court concludes that SCO was entitled to enter into the 2003 Microsoft Agreement and the Other SCOsource Licenses, but was not authorized to enter into the 2003 Sun Agreement based on its amendment of the provisions concerning Sun's SVRX confidentiality requirements under the 1994 Agreement.
So 'SCO had the right and continues to have the right to enter into SCOSource licenses' as long as they did not offer any rights to do with SVrX, then. SCOSource was never about Linux, or Linux containing unlicenced SVrX code, then? There was never an arbitration initiated against SCOG for accusing Novell of misappropriating SVrX code and putting it into OpenLinux, then? The SCOG general counsel's 1500 letters listing SVrX copyrighted files and saying

In May 2003, SCO warned about enterprise use of the Linux operating system in violation of its intellectual property rights in UNIX technology. Without exhausting or explaining all potential claims, this letter addresses one specific area in which certain versions of Linux violate SCO's rights in UNIX.

In this letter we are identifying a portion of our copyright protected code that has been incorporated into Linux without our authorization. Also, our copyright management information has been removed from these files.

These facts support our position that the use of the Linux operating system in a commercial setting violates our rights under the United States Copyright Act, including the Digital Millennium Copyright Act. We are notifying you of these facts so you can take steps to discontinue these violations. We believe these violations are serious, and we will take appropriate actions to protect our rights. No one may use our copyrighted code except as authorized by us. The details of our position are set forth below. Once you have reviewed our position, we will be happy to further discuss your options and work with you to remedy this problem.

Certain copyrighted application binary interfaces (“ABI Code”) have been copied verbatim from our copyrighted UNIX code base and contributed to Linux for distribution under the General Public License (“GPL”) without proper authorization and without copyright attribution. While some application programming interfaces (“API Code”) have been made available over the years through POSIX and other open standards, the UNIX ABI Code has only been made available under copyright restrictions. AT&T made these binary interfaces available in order to support application development to UNIX operating systems and to assist UNIX licensees in the development process. The UNIX ABIs were never intended or authorized for unrestricted use or distribution under the GPL in Linux. As the copyright holder, SCO has never granted such permission. Nevertheless, many of the ABIs contained in Linux, and improperly distributed under the GPL, are direct copies of our UNIX copyrighted software code

never intended that buying SCOSource licences would be part of the offer 'to further discuss your options and work with you to remedy this problem'?

Oh, that's all right, then.

---
Regards
Ian Al

If you are not using Linux, you may be beyond help.

[ Reply to This | # ]

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