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SCO and Ch. 11 Trustee Cahn Oppose Novell's Motion to Consolidate with IBM or Assign One Judge - Update - Terpstra Speaks
Saturday, November 28 2009 @ 02:01 AM EST

SCO has responded [PDF] to Novell's Notice just filed in Utah District Court. Novell is asking that court to assign both the Novell case and the IBM case to the same judge or to consolidate the two cases. SCO's Chapter 11 Trustee, Edward Cahn, also submits a statement in support of SCO's position, which is basically that it needs to hurry up and finish the Novell trial. It's running out of money. It doesn't want to detour to decide the SUSE arbitration first, which Novell also is requesting, and it sees consolidation with IBM to be not only not necessary but something that will drag things out.

Granting the Novell request for the same judge to be assigned to both cases surely wouldn't slow down the Novell case at all, but it would help the new judge having to suddenly deal with these complicated and interwoven cases to at least comprehend how they interact, particularly with respect to the GPL.

Don't forget that Judge Dale Kimball was assigned to both IBM and Novell. So assigning the two cases to one new judge to replace him would simply be returning to a kind of status quo. And if Novell prevails in the arbitration, SCO's copyright claims pretty much go poof. Why wouldn't you want to do that first, particularly since now it's ripe on the vine, whereas when the Utah court decided to go forward on both tracks, the arbitration was just beginning. It would have been decided long ago, had it not been for SCO's bankruptcy filing.

Neither SCO nor Mr. Cahn show any comprehension, from what I could see, of the General Public License and how it will affect SCO.

Here are the filings:

11/24/2009 - 602 - RESPONSE re 600 Notice (Other), filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 11/24/2009)

11/24/2009 - 603 AFFIDAVIT of Brent O. Hatch in Support re 602 Response (NOT to motion) filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Hatch, Brent) (Entered: 11/24/2009)

Do they not understand the GPL, I wonder? The most important fact is that SCO knowingly distributed UnitedLinux after it sued IBM, a distribution which included all the code at issue in the IBM litigation, which it distributed under the GPL, which is a copyright license that allows anyone in the world who receives it to copy, modify and distribute the code in harmony with the license terms. Code SCO is suing IBM over was in UnitedLinux, such as JFS, and SCO knew it at the time of distribution, because it mentioned it or other "high end enterprise features" in ads, white papers [PDF], press releases, and presentations.

And may I point out that SCO is not the copyright holder of that code? It didn't write any of it or even buy it from someone who did. For example, IBM wrote JFS and donated it to Linux from OS/2, not from AIX. SCO has a theory I trust Cahn didn't get to yet, regarding methods and concepts, but the Utah court already ruled SCO can't go into that at trial, even if it had been from AIX.

Here's a paper written by John Terpstra in 2000, before SCO hired him briefly while he was working for Caldera in 20021, about UnitedLinux, and the technical paper lists some of what was in it back then:

jfsutils-1.0.24: utilities for managing IBM's JFS (journaled file system) under Linux...

The kernel is based on linux-2.4.19 with enterprise features enabled. The facilities and capabilities of the kernel include: ...

Memory: NUMA, Memory Extension Technology (MXT), Large Memory Support (64GB physical RAM)

So they knew. Everyone knew and everyone knows. It's just the courts and the judges trying to grasp what is as obvious as gravity to the tech community.

And Terpstra added:

The UnitedLinux product, which is the base of all its partner distributions, is identical across distributions. The startup process, core libraries, default tools and utilities, and so on, are now exactly the same for SuSE, Conectiva, Turbolinux, and SCO Linux products.

Because the base product is LSB compliant, OpenI18N compliant, and GB18030 compliant, developers who choose a UnitedLinux powered platform will have a well-defined, uniform development platform and a sure and certain deployment solution for their customers. While at the outset the UnitedLinux initiative is focused on the Intel processor architecture, UnitedLinux will eventually release a fully scalable uniform product for Intel IA32 and IA64, AMD x86-64, PowerPC, and IBM S/390 processors.

Catch that about core libraries, tools and utilities? And note that SCO then intended to release UnitedLinux for IBM S/390 and PowerPC? Terpstra adds that it already ran on a "quad-processor Intel Xeon-based IBM system with an IBM ServerRAID storage system." Ironic, but true. Now SCO wants to sue IBM for the same code UnitedLinux was extolling as a plus and making sure would run on IBM architectures.

After the main body of the paper, he listed development tools for UnitedLinux:

Looking to dive in and get started? Check out these development tools for UnitedLinux:
The paper links to everything on the list, but I want you to look at the first link. What do we find? binutils. If you investigate, you will find that other things SCO is suing about, like ELF, are in binutils, and it is under the GPL. Here's the binutils index. Caldera at one point maintained the ELF registry for the GNU binutils project, so they knew and they know. They just say these things. Here's SCO distributing skunkware in 2006, also here, which included binutils and hence ELF and the header files SCO is suing over, and it distributed it all under the GPL long after it sued IBM. Anyone in the world can use ELF. You can read about that here. Yet SCO had the gall to list binutils in this Exhibit [PDF], claiming to be the copyright owner and stating it never authorizd its release outside of UNIX:
1. SCO, as the copyright owner of source code and/or documentation upon which the following files and lines of code were copied or derived, has never contributed or authorized these lines of code or the documentation related thereto, for use in Linux as specified under part 0, or any other provision, of the GPL.

2. SCO, as the copyright owner of source code and/or documentation upon which the following files and lines of code were copied or derived, has never granted a license to any party that knowingly authorized use of these files or lines of code outside a UNIX-based distribution.

You can see from the above evidence what I think of those claims. SCO's expert, Thomas Cargill, also listed ELF, claiming it had no right to be in Linux. But SCO put it there itself, in its own distribution of Linux, more than once, knowing what it was, and under the GPL. You can probably guess what I think of SCO's experts. What exactly is meritorious about SCO's claims? They are, to me... I started to say laughable, but they're not funny. It's disturbing. Perhaps Mr. Cahn can be more specific. No. Really. What exactly is meritorious about any of this?

Here's where you'll find Ralf Flaxa's Declaration in the IBM litigation. He says clear as a bell that while he was at Caldera, he knew that things like ELF were in Linux:

28. I understand that SCO claims that certain materials in Linux infringe SCO's alleged intellectual property, specifically: header files required by the Open Group's Single Unix Specification (SUS), header files relating to the Streams technology, and files and specifications relating to the Executable and Linking Format (ELF).

29. While employed at Caldera, I was aware that this material was present in Linux. I know so because of my familiarity with Linux and also because Caldera incorporated it into its Linux products.

Caldera distributed binutils in OpenLinux too. You'll find a complete list of everything that was in OpenLinux eBuilder Enterprise Edition in 2000 here, also distributed under the GPL. You don't have a choice with binutils. And SCO was still distributing Linux, the kernel, in 2006, three years after suing IBM, and without any notice that it was just for their prior customers. Here's where it was distributing ELF under the GPL from its website in 2006 in binutils. That too was distributed under the GPL by SCO, so everything it is suing over it distributed itself, before, during, and after claiming it included infringing materials. Maybe that's why the tech community just laughs at SCO's allegations. They are, to us, simply ridiculous. Now one must hope that Cahn will find out about all this. SCO may not share that hope.

They don't seem to realize yet what that all means. Cahn spoke to all the lawyers in the case, but who he really needs to talk to is the Software Freedom Law Center's Eben Moglen, which represents FSF, the author of the GPL.They could explain all this to them better than I can, but I have explained it anyway, as best I can, and with quotations from Moglen and others specifically in connection with SCO's claims, here. Not to put too fine a point on it, but I believe it trumps all copyright infringement claims against Novell and end users. IBM is an end user. Contracts are a separate matter, of course. But if Cahn is thinking about end users and copyright infringement -- and I don't know that he is or isn't -- that's a fool's errand, and pursuing it will only waste more assets, I would suggest.

Of course, SCO wants to press its advantage. The Appeals Court gave it a gift, wrongly in my view, and SCO's lawyers want to keep that momentum going. And they'd like to hurry up before the Supreme Court can do anything should Novell be moving forward on asking that the appeal court decision be reviewed. But it's obviously prejudicial to Novell and to IBM to rush, because while Kimball wouldn't be unduly impressed with the ruling from the appeals court, knowing the facts of the case as well as he does, a new judge is bound to be. Even Cahn is. How would any of them know any better? These litigations have been going on for half a decade. You can't get up to speed in a few weeks. You just can't. So, I see an attempt to stack the deck a bit here. Of course, one could argue that is what lawyers are supposed to do, and to a point, that's true.

There is a perception among those of us who are not new to the case that the appeals court didn't look deeply enough or take the time to get it right, at best. But you'd have to know all these fine details to see that, I think, and the new judges won't have spent every day for years doing what we've been doing. And the more they hurry the trial, the less time the new judge has to get up to speed. Perfect for SCO, but not for truth. From SCO's perspective, though, it doesn't have a choice to be leisurely now. It's running out of money.

Here's something else that I noticed in Cahn's remarks, attached as an exhibit. He mentions that among the things he looked at were "confidential" materials that Boies Schiller has. That has me wondering if they, as has been their wont, intend to spring something at the last minute again, despite being sanctioned for trying that very trick in the IBM case. Mr. Cahn needs to get to know the Boies Schiller guys just a little bit better, methinks. He is new to this case, after all.

The way SCO tells the story about what's happened to date in the Novell and IBM litigations and the SUSE arbitration is sort of accurate, but not precisely so, at least not as I remember the facts. For example, SCO tells the court that SCO's claims against IBM include copyright infringement claims arising out of IBM's activities related to Linux. Kind of, vaguely, but it's way more complex than that. SCO did get permission to amend its complaint to add a copyright infringement claim, but not about donating to Linux. SCO argued with fervor that its copyright claim was about continued distribution of AIX after SCO allegedly terminated IBM's license. The court didn't believe that. But that is what SCO then claimed. IBM was pulled in to the group of 1500 Linux end users that got the letter about using Linux being infringing, not writing it. Look at SCO's Second Amended Complaint for yourself. And IBM's recounting of SCO's claims in its Second Amended Counterclaims, which also includes this gem:

28. The Linux kernel is subject to the GPL as it is comprised of programs and other works that contain notices placed by contributing copyright holders permitting distribution under the terms of the GPL. The Linux developers' public agreement to apply GPL terms expresses in a binding legal form the conscious public covenant that defines the open-source community -- a covenant that SCO itself supported as a Linux company for many years.

29. SCO accepted the terms of the GPL by modifying and distributing Linux products. By distributing Linux products under the GPL, SCO agreed, among other things, not to assert -- indeed, it is prohibited from asserting -- certain proprietary rights over any programs distributed by SCO under the terms of the GPL. SCO also agreed not to restrict further distribution of any programs distributed by SCO under the terms of the GPL.

Is SCO suing IBM over copyright infringement of JFS, which IBM itself wrote? Or ELF, which SCO doesn't own but even if it did it distributed under the GPL? IBM has counterclaimed for copyright infringement of its GPL-licensed code in Linux that SCO infringed by continuing distribution after it repudiated the GPL.

Also the SCO document describes the SUSE arbitration claim like this: "... the Novell subsidiary claims that SCO surrendered its copyrights as part of the joint venture called 'United Linux'." Again, kind of, but not exactly. Here's some info on the SUSE claims, which include:

46. In particular the United Linux members agreed that each member would have an irrevocable, perpetual, and worldwide license to use and unlimitedly exploit any intellectual property rights of the other members in the UnitedLinux Software, which would be transferred to the LLC for this very purpose....
And you'll find here the substantive relief SUSE is asking for, which you will also find on page 54 of the Declaration of Michael A. Jacobs [PDF] [PDF], in support of Novell, Inc.'s Motion to Stay Claims Raising Issues Subject to Arbitration [PDF]:
1. Declare that Respondent is precluded under the Master Transaction Agreement (MTA) and the UnitedLinux Joint Development Contract (JDC) from asserting any copyright infringement claims related to SUSE Linux;

2. Declare, in particular, that the MTA and JDC divest Respondent of ownership of any alleged intellectual property rights in any part of software included in the UnitedLinux Software (other than Pre-Existing Technology and Enhancements);

3. Order Respondent to refrain from alleging publicly or against third parties that the use and distribution of SUSE Linux infringes upon Claimant's copyrights, as precluded by the MTA and JDC;

4. Order Respondent to pay damages in an amount to be determined for breach of the MTA and JDC by improperly asserting claims against Claimant and its licensees, and by attacking and withdrawring support for the UnitedLinux project;

SCO tells the court about the claims to make them sound ridiculous, in my opinion. Well, since when does SCO tell the whole story? And it tells the court that SCO's "principal prospect" for survival is its litigation "assets". Well, I hate to break it to them, but if that is it, then that is it.

The SCO filing also says that IBM brought over a dozen counterclaims, and then voluntarily decided to drop several of them. Again, it's kind of true, but sounds a little misleading to me, in that IBM dropped the patent claims because it was clear SCO wouldn't have any money at the end of the road, which certainly proved to be the case. Even in this filing, SCO says it is "cash strapped". IBM didn't drop them because they thought they'd lose. They just didn't want to spend money on something that wouldn't bring in money. Say, SCO should give that strategy a try. And also IBM stated that it wanted to hurry up to trial and get it over with. Back then, SCO was trying, we all thought, to avoid a trial and if you recall it was arguing for tons of extra depositions just about the patents and hinting at asking to separate the patents issues from the rest, and IBM wanted to get the show on the road. Here is a snip from the discussion between Judge Kimball and SCO's then-attorney handling the patents claims defense, Frederick Frei, at a hearing on June 8, 2004:

THE COURT: It sounds like you're making an argument to separate the patent claims from each other.

MR. FREI: I am not making that argument now. All I can say is that in many, many cases, that ultimately happens, not only separating patent claims from each other, but within a patent the federal circuit has said that the preferred way of trying these cases is to trifurcate. Validity, damages, infringement, done in separate trials. But we're not getting to that. We're just saying, take us away from the rest of this case.

THE COURT: Appellate courts are often fond of saying things that don't work very well in the actual, real trial world, are they not? Instead of 14 trials, have 20 trials.

MR. FREI: They have good intentions.


MR. FREI: But these counterclaims were first filed August 6. The counterclaims were amended late September. They were amended again the end of March when originally there were four patents and it was reduced, IBM dropped three -- or dropped it down to three patents. Discovery is barely beginning on the patent side of the case. There was a stay of discovery in the entire case for three months from early December to early March. We served document requests. IBM responded a month ago. We've not yet gotten document requests. IBM served document requests. Our responses to those requests are due next week. There have been no patent depositions taken yet. And yet, IBM says this whole case can be handled to the completion of fact discovery by August 6 of this year. Patents and the rest of the case. That is unconscionable. It's not possible. We have estimated based on our experience that the trial of a patent claims could take up to five weeks of actual trial time. We have estimated that it could take 60, 70 depositions. Most of the reason for that is --

THE COURT: Why would the patent aspects of this case take five weeks to try?

MR FREI: Because we have -- validity is a separate line of inquiry with all sorts of third parties where we have to dig out the prior art, put those witnesses on the stand either live or through depositions. We have upwards of 40 claims that may be at issue. We don't know how many IBM is ultimately going to choose. We have at least four products, separate and distinct products. And we have raised many defenses, I mean, the key which are unique to patent cases : Validity; noninfringement; doctrine of equivalence; enforceability, due to what we say is inequitable conduct in prosecuting the patents; latches [sic], estoppel; and waiver, to name a few of the defenses. And I would --MO

MR. FREI: Right. But these are separate patents, separate inventors, separate documents, separate witnesses. Everything about these patents is separate. Normally, you might have three separate patent infringement suits, and here we have one, and it's just one of 14 counterclaims that's been asserted.

Here you have a judge and a skilled attorney agreeing that appeals courts don't always get things right, because they are in the clouds, not in trial courts, where the action is going down. And that is true.

On and on it goes, SCO arguing about needing more time and discovery, and IBM saw the strategy and nipped it in the bud. Patent litigation tends to go on forever, anyway, because there are always appeals and then appeals of appeals, because patents live down the rabbit hole, where things rarely happen with the logic one would expect, so it's worth appealing everything. There is little logic to patent law in the US, which is just one reason patent litigation is so expensive.

SCO is equally misleading, in my view, in how it describes the Novell case, telling the new judge -- who wasn't there and won't know it's not a complete description -- that Novell originally asked for more than $30 million, but only won $2.5:

After a four-day trial in April 2008, Judge Kimball issued findings of fact and conclusions of law awarding Novell approximately $2.5 million (instead of the more than $30 million Novell had initially sought).
What really happened was Novell entered the court on the first day of trial and told the court it wasn't going to pursue some claims, so it was reducing what it was asking for to around $20 million:
MR. JACOBS: Your Honor, in this bench trial, we seek a recovery of exactly $19,979,561 from SCO, based on the Court's earlier findings of breach of fiduciary duty, conversion, unjust enrichment. This is an amount we seek from SCO based on its licenses to Sun, Microsoft and what we're referring to as the SCOsource licenses.
On the last issue, Judge Kimball didn't think SCOsource licenses to folks like EV1 were about licensing software code, essentially, but rather about not getting sued. I think he was wrong about that, in that I think it was both, but that is what happened. In fact, I hope that issue comes up at trial, as long as they are going to have one. I hope the issue of incidental use also comes up again, because I think Kimball got that wrong too, not to mention SCO's laughably disingenuous the-tree-is-the-branch-too argument about UnixWare and UNIX being the same thing. And I hope the GPL comes up, and how SCO violated the GPL by demanding Linux end users buy a SCOsource license. Maybe they'll leave that to IBM later. But my point is, SCO never tells the story with all the details right and/or complete, and in that way they make themselves sound better than what really happened.

SCO makes much of Cahn's saying to the bankruptcy court that he thinks SCO's claims are meritorious and should be pursued. Again, that is kinda true, but what he actually said to the court was that he was still evaluating everything but to date that was his view. Just not the same thing. And with all due respect, he seems to place undue weight to the appeals court decision, which I think he'll find over time is not warranted. And the appeals court didn't rule on the merits of the copyright claims, only that it was an issue for a jury. "We take no position on which party ultimately owns the Unix copyrights or which copyrights were required for Santa Cruz to exercise its rights under the agreement,” the court wrote. “Such matters are for the finder of fact on remand.” The court also wrote, "We recognize that Novell has powerful arguments to support its version of the transaction, and that, as the district court suggested, there may be reasons to discount the credibility, relevance, or persuasiveness of the extrinsic evidence that SCO presents." That's if it is even appropriate to look at extrinsic evidence in this fact pattern, which is the issue Novell would like the Supreme Court to rule on.

All of which is to say that Cahn's earliest pronouncements are puzzling to me. What exactly is meritorious, if you read the appellate decision? I've learned to wait and see how things play out, though. Things in the SCO universe are not always what they seem. Perhaps Mr. Cahn is hoping for a deal, and so wishes to present a strong position to negotiate from. If you are hoping for a settlement, you don't walk in and announce, So, I'm holding nothing. What've you got?

Still, by saying what he did, he has changed the atmosphere in one significant way. I no longer see it as possible for SCO or the Boies Schiller firm to be sanctioned for bringing frivolous claims. His statement nukes that possibility, and I'm sure there is great relief about that.

And just a reminder: Monday *Tuesday* is the day for the status conference before the new judge currently assigned to the SCO v. Novell case in Utah:

01-Dec-2009 SCO vs Novell [598] [599] Notice of Hearing: (Notice generated by Chambers/slm) Status Conference set for 01-Dec-2009 01:30 PM in Room 142 before Judge Ted Stewart

Update: I forgot SysVinit, which SCO is also suing IBM over. As it happens, I own Caldera's OpenLinux 2.3-16, among others, which means they can't sue me ever for using Linux, and of course it also means, I think, that if SCO ever did get the copyrights it seeks, I'd still be within my rights to share it, copy it, modify it, etc., since I got it under the GPL. That is why I don't need a SCOsource license, because I already have a license to use Linux, and in fact if I bought one, it'd be a violation of my license, the GPL. I'd check with my lawyer before I did it, but multiply me by millions who will certainly do the same thing with their distributions, and you see the GPL pickle SCO is in. But leave that aside, what is in there? Things SCO claims it never authorized to be in Linux.

If you take a look at the SRPM folder, you will find some of them. For those who don't use GNU/Linux systems, I'll just explain that RPMs are packages, like OpenOffice on Linux arrives as an rpm on systems based on Red Hat, which is what Caldera did base its Linux distro on. It's kind of like .exe in Windows. SRPMs are the same thing, except they are the same packages in source form, not binary. With that background, here are some things you will find in that source folder:

There it is, our friend binutils, and SysVinit too, among other goodies. The packaged coas means Caldera Open Administration System. Lots of goodies in there too. What does this mean? It means it knew and it distributed the source of these packages, giving everyone the right to use that source, modify it, copy it, and distributed it. Telling prior customers they couldn't use Linux except in binary form was thus a repudiation of the GPL license, which SCO claims falsely it never violated. By my reading, it did. See why suing over these things is just fanciful? There's more on SysVinit here, where we list all the others versions of its distribution SCO/Caldera put SysVinit into and then distributed under the GPL. For example, in OpenLinux Server 2.3's package list of source packages, you'll notice COAS, binutils, iBCS and extra shared libraries, all the stuff SCO is claiming was put into Linux inappropriately and without authorization. But SCO did so itself. Hard to sue yourself, but Boies Schiller may find a way before this is over. It would be the only appropriate ending to this ridiculous saga.

On SCO's experts, one of the individuals SCO hired in 2005 to an expert in the IBM litigation showed up on Groklaw in 2007, the day Judge Kimball ruled against SCO in August. I asked him why he agreed to work for SCO, and he gave a number of answers that you'd expect, but here are the four reasons that I will always remember:

  • Chance to learn more about UNIX and Linux....
  • Pays well.
  • Helped me make additional contacts so I can pursue a career as an expert witness.
  • Fun.
A career move. As it happens, he was supposed to testify about methods and concepts, but that was ruled out, so he won't be taking the stand, I gather, after all. But can you imagine what IBM would do to him on the stand, with a list like that?

Update 2: There is a review of Caldera Network Desktop v 1.0, one that ran in the December 1, 1995 Linux Journal, by Roger Stafford. You have to be a member of acm Portal to get it now, but if you do, you will find the following paragraph in the review, regarding ELF:

Although it isn't yet possible to upgrade from one release to another, Caldera says that "such tools are planned for the final 1.0 release." [Those tools are in Preview 2, which has just been released. -- Ed] Something Caldera calls the InfoTrack database support system will become part of the overall technical support. OpenDoc support is in the offing. And ELF work is under way. [Again, Preview 2 is based on ELF -- Ed]
So, 1995. They knew what was in there. They were working on it being in there.

Update 3: Look at this, will you? It's Christoph Hellwig announcing publicly that the Linux-ABI release for Linux 2.4.14 is available. Here's what it supported:

The current release supports the follwoing operating systems:
System V Release 3 (SVR3)
System V Release 4 (SVR4)
SCO Unix 3.x
SCO Xenix 386
SCO Xenix 286 (with userspace x286emul)
SCO OpenDesktop
SCO OpenServer SCO UnixWare 7/Caldera OpenUnix8
Sun Solaris 2
Wyse V/386
ISC Interactive Unix
Currently only the Intel/i386 platform is supported.
But notice the email he used: -- yes, from Caldera itself came the news. What does that mean? In addition to the obvious that SCO needs to sue itself, it means that if folks had patches to send, they would send them to him at his work address at Caldera.

Since SCO is suing over the Linux-ABI in Linux 2.4 and beyond, they might want to explain how they can sue people for using something they themselves put into Linux when they were a Linux company, Caldera. And did you notice the date? 2001. And here's where you will find the kernel maintainers for 2.4.18, and there he is again, maintaining linux-ABI but also the SYSV file system, same email address. And in 2001, here he is offering a patch to the kernel from his work address at Caldera, a System V filesystem update:

Hi Linus,

the appended patch updates the System V filesystem driver to the latest version from Alan's tree.

The follwoing updates are included:

  • add SCO fast symlink support (me)
  • add readonly SCO AFS support (me)
  • be more graceful in the case of a wrong filesystem type (aeb)

Please apply,


Update 4: Since SCO phrases SUSE's position in the arbitration as a claim, I assume they are contesting it. Here's what they wrote:
D. SuSE Arbitration.

With respect to the SuSE arbitration, Novell’s subsidiary claims that SCO surrendered its copyrights as part the joint venture called “United Linux.”

I found a PowerPoint presentation SCO created to sell UnitedLinux. It's called "SCO's Vision for Linux, UNIX & UnitedLinux - A Uniform Linux for Business." Guess what it says? That The UnitedLinux, LLC owned the IP. Here's a screenshot of the slide, slide 28:


1 I have heard from John Terpstra by email with some corrections:


The article you have linked to ... was written in 2002 during my final days at Caldera International (already calling itself SCO Group).

Darl McBride and others I had worked with were well aware of this article and it had been carefully reviewed inside Caldera International before it was released for publication.

So, it was NOT written in 2000, but rather in 2002. The timing is significant because (as I recall) United Linux officially launched on November 15th, 2002. This article could not be released prior to confirmation that the product would indeed release on the scheduled date of 11/15/2002. That confirmation came only a day or two before my departure from Caldera (SCOG). My last day at Caldera (SCOG) was 10/31/2002.

The concept of a unified business Linux distribution started in November 1999 at the Comdex event in Las Vegas. Dirk Hohndel was the first person outside of TurboLinux (whom I worked with at that time) with whom I discussed the possibility of getting all the Linux distributions on board. He was CTO of SuSE at the time. Together we polled the Linux vendors at Comdex 1999 to commence the initiative.

When I left TurboLinux October 31, 2000, to join Caldera, Ly Pham (then CTO of TurboLinux) asked me not to drop this important initiative. I faithfully followed through on her request with the full support of Ransom Love and the rest of the Caldera International (later SCOG) executive team.

My purpose for writing this article was to make a permanent record of the fact that what we had started was in fact completed and that all the key components necessary for Linux to become a mature UNIX replacement product were in the release of United Linux 1.0.

Prior to finalization of the specifications for United Linux 1.0, I met with the Unix Systems Labs folks in Murray Hill, NJ, to validate that the features targeted for United Linux 1.0 would not leave the product short of its ability to replace UNIX. We all recognized that it would take a few short years to harness full support for use in truly mission critical applications, but the intent and purpose of Caldera being behind United Linux was very well communicated and very clear internally from the very beginning.

There was resistance from some of the old UNIX hands, but by and large we all understood that the long-term ability of the company to sustain UNIX was not financially and technically feasible. The SCO UNIX code was all 32-bit with no 64-bit development pathway. The future of Linux, with full capability to sustain mission-critical operation was recognized to depend on 64-bit support and total robustness. Part of that robustness requirement dictated the need to be able to run legacy 32-but UNIX applications under United Linux.

The inclusion of the Linux-ABI code and the ability to run OpenServer binaries under United Linux were seen as essential from the outset. Much more can be said here, but I will leave that discussion for a future day.

Feel free to quote from this email.


John H Terpstra


SCO and Ch. 11 Trustee Cahn Oppose Novell's Motion to Consolidate with IBM or Assign One Judge - Update - Terpstra Speaks | 336 comments | Create New Account
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Authored by: bprice on Saturday, November 28 2009 @ 02:10 AM EST
As if.

--Bill. NAL: question the answers, especially mine.

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NewsPicks discussion
Authored by: bprice on Saturday, November 28 2009 @ 02:11 AM EST
Remember to change your title to identify the news pick you're discussing.

--Bill. NAL: question the answers, especially mine.

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Off Topic
Authored by: bprice on Saturday, November 28 2009 @ 02:13 AM EST
Clickies are appreciated. See the red hints on the Post a Comment page.

--Bill. NAL: question the answers, especially mine.

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Who's going to the conference?
Authored by: bprice on Saturday, November 28 2009 @ 02:31 AM EST
I'm assuming the 12/1 conference will be in open court.

Since I've moved to the area, I plan to be there (and even have wifely permission!). However, my physical condition makes it unwise to count on me as the sole reporter (hearing difficulties, verbal processing issues). I'll do what I can, but I hope to meet some other Groklegians come Tuesday.

--Bill. NAL: question the answers, especially mine.

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Copyright claims...for a jury?
Authored by: Anonymous on Saturday, November 28 2009 @ 03:44 AM EST
Silly Appeals Court. Copyright claims are for the Arbiter, as per the contract.

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Neither show any comprehension of how the General Public License will affect SCO
Authored by: Anonymous on Saturday, November 28 2009 @ 04:22 AM EST
You say "Neither SCO nor Mr. Cahn show any comprehension, from what I could see, of the General Public License and how it will affect SCO."

As far as I understand the GPL affects SCO claims because they published the code under a license that grants eternal redistribution rights to the recipients. Am I correct in thinking that if SCO had published their code under MIT-like, Apache (or probably most reasonable open-source) license the result would have been the same: i.e. they could not have claimed copyright infringement afterward ?


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What "gem"?
Authored by: Anonymous on Saturday, November 28 2009 @ 05:24 AM EST
"28. The Linux kernel is subject to the GPL as it is comprised of programs
and other works that contain notices placed by contributing copyright holders
permitting distribution under the terms of the GPL. The Linux developers' public
agreement to apply GPL terms expresses in a binding legal form the conscious
public covenant that defines the open-source community -- a covenant that SCO
itself supported as a Linux company for many years.
29. SCO accepted the terms of the GPL by modifying and distributing Linux
products. By distributing Linux products under the GPL, SCO agreed, among other
things, not to assert -- indeed, it is prohibited from asserting -- certain
proprietary rights over any programs distributed by SCO under the terms of the
GPL. SCO also agreed not to restrict further distribution of any programs
distributed by SCO under the terms of the GPL."

As a consequence the Linux kernel is of course not subject to the (terms of the)
GPL to the extent it is comprised of (or based on) programs and other works that
do not contain notices placed by copyright holders permitting (or having been
permitted) distribution under the terms of the GPL.

And anything that follows based on ignoring or denying that simple obervation is
... uh, ... nonsense. Period.

BTW "as a whole" refers to any program and a modification, if any, of
such particular program. Not to any program under (the terms of) the GPL and
another program not under (the terms of) the GPL.

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What about those other Unix copyrights
Authored by: Anonymous on Saturday, November 28 2009 @ 06:01 AM EST
What exactly is Novell's position with regard to (transfer of) that other Unix
copyrighted code that SUSE in Arbitration does not want to see divested for
release and distribution under the GPL?

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Cahn nuked possibility of claims of frivolity?
Authored by: jbb on Saturday, November 28 2009 @ 06:10 AM EST
This does not make sense to me but perhaps I am at fault for once again trying to apply logic to the realm of lawyers and judges. If SCO's claims have no basis in fact (they don't) and if SCO knew there was no basis in fact (SCO did) then ISTM SCO's lawsuits could (and should) be deemed frivolous regardless of Mr. Cahn's current incomplete viewpoint.

How can Cahn's words magically create a "get out of jail free" card for Darl and friends? His words can't alter the prior facts. If I convince Mr. Cahn that the moon is made out of green cheese, his opinion does not alter the actual composition of the moon. It makes sense to me that if someone claimed SCO's lawsuits were frivolous and the matter ended up before a judge then the opinion of the judge would be vital to the outcome but I don't see how Mr. Cahn's opinion now, based on incomplete information, somehow trumps the entire legal system.

While some people claim that the sole purpose of our legal system is identical to the sole purpose of the stock market viz. to make the rich people richer and the poor people poorer, I was under the impression that the purported raison d'etre of the legal system was to deal with human imperfections. So it seems most peculiar that Mr. Cahn's opinion on this matter based on incomplete knowledge would somehow be considered perfect in the eyes of the law.

You just can't win with DRM.

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Cahn is threatening Linux users
Authored by: ak on Saturday, November 28 2009 @ 07:04 AM EST

PJ wrote:

But if Cahn is thinking about end users and copyright infringement -- and I don't know that he is or isn't -- ...

I think that is time to acknowledge that this person has decided to continue asking Linux users to buy "SCO IP Licenses for Linux" (that is to pay money to SCO) and threatening them with lawsuits. See: protectionfaq.html

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Microsoft gets its moneys worth from trustee Cahn
Authored by: Anonymous on Saturday, November 28 2009 @ 07:43 AM EST
Two different judges to try to finagle.
SCO might win after all.
Microsoft got its moneys worth.
SCO gets another bite of the apple from Trustee Cahn

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Cahn's true colors?
Authored by: Anonymous on Saturday, November 28 2009 @ 09:05 AM EST
IANAL, I am having trouble picturing the scenario where using the same judge for
IBM and Novell will put Cahn at risk of ending up as defendant in a law suit. It
looks to me Cahn is just looking for a fight. Not necessarily what I expected
from a retired judge. I sure hope Cahn enjoys losing.

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"His statement nukes that possibility..."
Authored by: Totosplatz on Saturday, November 28 2009 @ 09:56 AM EST
His statement and Darl's carefully crafted letter threatening to sue the
Trustee, making the usual absurd claims about how valuable tSCOg's
"Intellectual Property" really is.

Fine. Now Darl can sigh with relief, and Ralf too. And maybe the rest of this
can collapse too, sometime soon.

But I doubt it.

Greetings from Zhuhai, Guangdong, China; or Portland, Oregon, USA (location

All the best to one and all.

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Now that I have actually read SCO's response...
Authored by: Gringo on Saturday, November 28 2009 @ 10:16 AM EST

In a comment earlier I suggested "We have no basis to speculate what other interests he [Cahn] may have beyond that obvious necessity." Now that I have actually read SCO's response to Novel's request to consolidate I have to eat my words. Here is what I read...

After meeting with counsel for the parties and reviewing their filings and the relevant orders, Trustee Cahn recently informed the Bankruptcy Court that he has concluded that SCO’s claims are meritorious and that SCO should pursue them “aggressively.” [my emphases]

That is the reason for PJ's article today - to dispute that "SCO’s claims are meritorious" and in fact demonstrate that they are not.

Now get how the bankruptcy court judge responds to this profound statement from Cahn...

In response to Judge Cahn’s report, Judge Gross stated: “I am particularly pleased to have someone with your expertise involved in analyzing the merits of the cases. And I take great solace in the fact that based upon your, at least – your thorough but not as yet final review of the litigations that you find that they do have merit and should proceed, and proceed aggressively.”

We see he has swallowed this whole, without reserve, as if he too believed all along that SCO’s claims are meritorious. For those of you who were frustrated by the bankruptcy court's indulgence to SCO's shenanigans, it kinda makes you think... Why does he take "great solace" in Cahn's findings? Isn't he supposed to be neutral???

Anyhow, I want to point out something about the first line of that quote above where it says...

In response to Judge Cahn’s report, Judge Gross stated...

Did you see that? Was that just a slip of the tongiue, or deliberate, where he refers to Trustee Cahn as "Judge" Cahn? Cahn is not a judge in respect to these issues before the court - he is a trustee. To call him "Judge Cahn" at this moment in the document could confuse someone reading this to think that a judge has ruled at some point that SCO's claims are meritorious.

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Authored by: Anonymous on Saturday, November 28 2009 @ 10:58 AM EST
SCO is the zombie company that just won't die.

Every year or two, I come around here to complain that the U.S. legal system is
just not doing its job with respect to SCO.

These lawsuits should have ended within a year or two of when they started.
Darl and all of his friends should be on trial for fraud, extortion,
pump-and-dump and vexatious litigation by now.

Face it: your legal system does not work. The only justice IBM and Novell are
ever going to get here, will be vigilante justice. It would please me to no end
to see Microsoft dragged into this muck and made to pay.

Its so frustrating. PJ, how do you manage to put up with it all? Why does it
take years and years, hundreds of court filings and dozens of oral arguments, to
push a case through this system clogged with interminable amounts of deadwood of
old precedents and arcane rules? NO ONE in this system--not the judges nor the
lawyers nor even the trustee--seems to give two hoots about either the truth, or
about seing justice done. All they are doing is pushing around paper and making
a giant complicated mess of what should have been an easy and simple case to
resolve. The only reason it was NOT easy and simple to resolve, is because the
legal system is an insane mess.

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  • One can only agree with you. - Authored by: Anonymous on Saturday, November 28 2009 @ 11:08 AM EST
  • Sigh. - Authored by: om1er on Saturday, November 28 2009 @ 11:20 AM EST
  • Sigh. - Authored by: PJ on Saturday, November 28 2009 @ 12:04 PM EST
  • Sigh. - Authored by: JamesK on Saturday, November 28 2009 @ 05:29 PM EST
    • Sigh. - Authored by: Anonymous on Saturday, November 28 2009 @ 07:19 PM EST
      • Sigh. - Authored by: JamesK on Saturday, November 28 2009 @ 10:19 PM EST
        • Sigh. - Authored by: JamesK on Saturday, November 28 2009 @ 11:28 PM EST
SCO will never run out of money
Authored by: Anonymous on Saturday, November 28 2009 @ 11:31 AM EST
I've been hearing for some years how soon SCO will run out of money. Well, it
hasn't happened, and it's not going to happen. SCO will always have enough money
for this. Somehow, they always will.

Please, stop saying SCO will run out of money. They won't.

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Authored by: DaveJakeman on Saturday, November 28 2009 @ 12:24 PM EST
Indeed, although this case has been pending since 2004, and the IBM case since 2003, and although both Novell and IBM have repeatedly asserted their interest in proceeding to trial as soon as possible, until now neither Novell nor IBM has suggested consolidation.
Gives the impression Novell or IBM could have suggested consolidation since 2003 or 2004, no?

Well, their cases were consolidated up until the Appeals Court ruling this summer, after which Kimball recused, then there was a delay, then two different judges were assigned to the Novell and IBM cases, not so very long ago.

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The Truth about Bankruptcy
Authored by: DaveJakeman on Saturday, November 28 2009 @ 12:37 PM EST
At Groklaw, we always said this, but now Cahn says it too:
Judge Kimball’s ruling led SCO to file a bankruptcy petition in Delaware under Chapter 11 in September 2007.
So, SCO didn't file for bankruptcy protection because of, er, bankruptcy, but because of Judge Kimball's August 10, 2007 ruling, which SCO really, really didn't like. It was a legal manoeuvre all along.

Ironic then, that SCO is now approaching bankruptcy...

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Nuke sanctions
Authored by: Anonymous on Saturday, November 28 2009 @ 12:42 PM EST
Still, by saying what he did, he has changed the atmosphere in one significant way. I no longer see it as possible for SCO or the Boies Schiller firm to be sanctioned for bringing frivolous claims. His statement nukes that possibility
Could this be his plan to save SCO from further costs. SCO would not recover money from Boies Schiller. Sanctions would only have a negative impact on the creditors, and take resources away from the trials which in theory have a potential upside

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SCO and Ch. 11 Trustee Cahn Oppose Novell's Motion to Consolidate with IBM or Assign One Judge to Both
Authored by: Anonymous on Saturday, November 28 2009 @ 01:00 PM EST

This 'mess' is causing corporate types not to help with the education of the
next generation, the schoolchildren. And i think it's global.

Really, it doesn't matter to us in the UK what decision you come to in the USA.
There was a reason that the two countries split in 1776, and it was that
England's laws (and King) were intolerable to the Americans.

Still applies. If you get the supreme court unanimous on an issue ... Roe v
Wade, for example ... it might bind every state of the Union; but Queen
Elizabeth would look at the issue, confirm that England wasn't a state of the
Union, and to get a ruling in the UK it would have to be litigated in her courts
all over again.

But what should IBM and Microsoft do in the schools ? One of my kids is at a
90-child school in the UK, and there are IBMers and a Microsoftie amongst the
staff. (And they use Microsoft Office to the exclusion of IBM Lotus Notes, like
all the other schools)

And I don't think the school can afford a $200M hole in the budget; neither can
the parents.

So what do we do ? Leave the 'commercial standoff' well alone ? Surely letting
the kids think Microsoft Windows and Microsoft Office are the future of
'computers' is about as useful as letting them think that AT&T was the
future of telephones, 20 years ago.

There is more to technology, just as there was then.

But how do we get there safely ?

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Whats the flow chart on this?
Authored by: LaurenceTux on Saturday, November 28 2009 @ 05:54 PM EST
i see three tracks possible here

1 both cases get sent to the same judge/one of the current judges wins the Coin
toss: result things get ugly for TSCOG
very quickly

2 The cases get consolidated: TSCOG goes into final countdown mode and this
wraps up for an April Fools party (or next Christmas)

3 Both cases go on and on seperately: result we get to wonder if the next
president (or MrO for his lame duck years) will do something about this.

is this about right or am i off base??

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Confidential material ...
Authored by: Anonymous on Saturday, November 28 2009 @ 08:51 PM EST
Mr Ed [Cahn] says he has seen confidential information held by da Boies Boyz. I
cant help wondering about the confidential information.

What can it be? The famous contents of the briefcase of Herr Blepp? The
fantastic findings of the MIT deep dive team? The conspiracists dream of
monopolist sponsored corruption?

I hope we get to see the confidential information, but somehow I have a hunch
that's never going to happen.

Here's another thing I'm still wondering. Which legal team recommended Mr Ed
[Cahn] to the US Trustee. I think we were never told?

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SRPMs are not like exe files at all...
Authored by: Anonymous on Sunday, November 29 2009 @ 05:51 AM EST
I know this is nitpicking to an extent, but in an article in which the
technologists are being somewhat condescending to the lawyers for apparently not
having digested the implications of the GPL properly its a little embarassing to
have got the tech wrong.

An exe file is of course an executable binary, just like a binary file in Linux.
They can, but need not, be distributed in packages, which in Windows these days
are often, but not exclusively .msi files, and in Liux are often but not
exclusively RPMs. The SRPM concept isn't really directly transferrable to
Windows, because in Windows there isn't really a widely used special
distribution just for source code: it might be put in an MSI, or distributed in
another form according to convenience or preference.

But pretty much you all know this anyway, and this is all considerably over
simplified, but I thought it worth making the point.

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SysVinit and System V init
Authored by: Anonymous on Sunday, November 29 2009 @ 05:56 AM EST
I still think that SCO does not claim anything with respect to SysVinit (the source of which you showed). They only claim copyright infringement with respect to System V init, which has nearly nothing to do with SysVinit (except the second is based very loosely on the ideas of the first). Remember SCO is claiming IBM copied System V init code in Linux 2.6 which cannot be SysVinit.

I think that SCO is claiming that IBM copied a part of System V init in Linux. If I am correct then your argument does not change anything: they distribute SysVinit which is a different program. You cannot claim they licensed System V init code because they licensed a (similarly named but) different program.

Do not ask me what part of System V init IBM is copied because as always SCO's statement is purposefully vague and unsubstantiated.


I've already said as much a loong time ago and some discussion occurred there.

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Patience - SCO and Ch. 11 Trustee Cahn Oppose Novell's Motion to Consolidate with IBM or Assign
Authored by: Anonymous on Sunday, November 29 2009 @ 06:35 AM EST
"Do they not understand the GPL..."

I guess the only thing I can do is counsel patience. The GPL is foreign to the
way a lot of people think, and they need to be educated. They'll get there
eventually. SCO will turn into a landmark case that will be taught in law
schools for ages to come to teach what the GPL means.

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  • j/k? - Authored by: DMF on Sunday, November 29 2009 @ 11:43 AM EST
    • j/k? - Authored by: dio gratia on Sunday, November 29 2009 @ 04:25 PM EST
"if Novell prevails in the arbitration, SCO's copyright claims pretty much go poof."
Authored by: DMF on Sunday, November 29 2009 @ 11:37 AM EST
Uh.. why? AFAIK, U.S. Courts aren't bound to respect the decisions of foreign
judicial - or quasi-judicial - bodies.

Could it be that this is a contracts dispute, with the contract specifying sole
jurisdiction? If so, then it would seem to have no relevance to actions under
Title 17.

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Two Main Issues
Authored by: ChrisP on Sunday, November 29 2009 @ 11:42 AM EST
As I see it, there are two main and separable issues (tell me if I'm wrong).

1. Can new SCO go after IBM for distributing AIX without their permission?

The upcoming trial in Utah will determine whether or not the pre-APA AT&T
and Novell copyrights in UNIX transferred to SCO without which SCO has no
standing to sue (assuming Novell won't be joining SCO as a plaintiff in this
action.) Getting ownership of these copyrights affects the SCO reorganization

2. Can new SCO go after Linux distributors and users (including Novell and IBM)
for using or putting SCO's allegedly owned or controlled code in Linux? (Like
UNIX headers, ELF and IBM's JFS.)

The SUSE arbitration in Switzerland could resolve this, see Michael Jacob's
declaration points 1 to 4 in the main article. As I read them, if SUSE wins this
does not mean that the whole of UNIX etc. is open-sourced, but only those parts
that are actually in UnitedLinux, and SCO has given up all rights to sue over
code in Linux.

Even if SCO wins on both these issues that is only the starting point. There are
other subsidiary pre-requisites, issues, defences and counter-claims to overcome
as well, but if they lose those two that's game over for SCO.

I think Mr. Cahn is narrowly concentrating on the first and most important issue
to SCO, the UNIX copyrights, because time and money are short and losing on that
issue would seriously affect his future strategy and plans for the company. The
rest is spin designed to keep the other claims alive while the first issue is
resolved. Of course Mr. Cahn needs to learn about the GPL, but it's not going to
be an issue before the courts in these cases for a while (years if ever).

SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.

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SCOahns Oppose Novell's Motion to Consolidate with IBM or Assign One Judge
Authored by: webster on Monday, November 30 2009 @ 12:41 AM EST

There is a lot going on. SCO is opposing all suggestions. Their reasons are illogical and false. They don't really want a prompt resolution. They just want to go somewhere where they can win -before a jury. They would rather waste time before a jury over resolving the issues in a logical fashion. A victory before a jury will give them more strength even if it could be undermined by arbitration. They must maintain their nuisance value.

PJ's article takes some curious twists.

  1. SCO wants multiple fora. Confusion helps them. What they lack in substance may be bolstered by opportunity. The more chances they have, the greater the likelihood of a success. They have escaped Kimball. Two judges are better than one, at least until they show their colors. This of course makes things longer and more complicated. Conflicts are sure to arise.
  2. The filings contain Cahn's declaration: SCO claims have merit. This immediately turns PJ to the GPL. "Pray tell, Mr. Cahn, didn't SCO give everybody a license to their code? And not just any license, the GPL?!" The rest of the article is a powerful summary of what was apparent from the beginning and what made SCO's claims so outrageous. She even adds a new statement from a SCO insider, Terpstra. SCO knew and did it willingly. No FUDster he.
  3. Cahn, BSF, the SCOnks, they all know about the GPL. It is part of a powerful Motion for Summary Judgment in the IBM case. The new judge is going to have to rule on it. How does SCO argue around the GPL? What does Cahn say about it? Nothing yet. It would moot out any gains in the Novell trial. A jury finding for copyrights won't change the fact that SCO licensed those copyrights to everybody under the GPL. If the judge won't grant summary judgment, then it becomes a defense in the IBM trial with an appropriate jury instruction. Everyone can claim a SCO license under the GPL. Cahn must be thinking about the nuisance merit.
  4. The Novell trial should be captioned SCO v SCO. It will be the Old Timers v the Johnny-come-latelys. The Johnny-come-latelys are going to have to say who told them they got the copyrights that were all licensed under the GPL. The new judge is going to try and follow the law on the relevance and admissibility of evidence. They are still bound to the relevant extraneous evidence
  5. PJ concludes that Cahn's finding SCO claims with merit eliminates any later finding of frivolity. By now Cahn is on notice. What does he and SCO have to get around the GPL? It can't be undisclosed copyrights. It can't be negligence, ignorance or accident. Maybe it's an indemnity promise from the PIPE Fairy.

  6. ---------webster

    Tyrants live their delusions. Beware. Deal with the PIPE Fairy and you will sell your soul.

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I wonder what flavor of kool-aid --
Authored by: dwiget001 on Monday, November 30 2009 @ 10:08 AM EST
-- that Mr. Cahn has been drinking while Trustee.

To me, it is *definitely* the SCOXQ.PK Reality Distortion Field flavor.

On the plus side, SCOXQ.PK is running out of money and, all I can say is, the
sooner the better.

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