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SUSE's Reply in Support of Motion to Lift Stay, as text |
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Friday, December 25 2009 @ 02:07 AM EST
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Here, as promised, is the SUSE Reply [PDF] about lifting the bankruptcy stay, more properly titled SUSE's Reply in Support of its Motion for Relief from the Automatic Stay to Complete International Arbitration. This document is in response to SCO Chapter 11 Trustee Edward Cahn's Objection to SUSE's motion, and they do not hold back. Most interestingly, they highlight the GPL and what it means for SCO's copyright claims. The theme is simple: it's not fair for SCO to get to go forward on its copyright claims without letting SUSE go forward too on its related claims: The SCO Trustee asserts that SCO's claims against Novell and IBM "should be pursued aggressively." (Objection ¶ 15.) Yet the SCO Trustee is attempting to prevent SUSE from
pursuing claims in the Arbitration that would undercut SCO's claims. The SCO Trustee proposes the ideal scenario for any litigant: freedom to sue opponents with immunity from countersuits. The goal is clear: SCO hopes to obtain a favorable ruling in the Utah Litigation that would increase the value of its copyright claims, without having to confront troubling (to SCO) UnitedLinux questions that may severely undermine those claims.Such a use of the stay is wholly inconsistent with the stay's legitimate purposes: preserving the estate and giving the debtor a breathing space. Bankruptcy stay isn't supposed to be used to provide a debtor with a litigation advantage, only breathing room to get reorganized. Heaven only knows, SUSE points out, SCO has had plenty of breathing room, more than two years of it, with no positive movement toward reorganization yet on the horizon.
SCO needs to find out what it owns, yes, SUSE argues, but it also needs to find out what the copyrights' value would be to SCO, and for that it needs the arbitration to go forward:
The SCO Trustee does not dispute the critical premise of SUSE's Motion: Completing the SUSE Arbitration is essential to determine both the ownership and the value of the UNIX copyrights that supposedly constitute SCO's most important asset. In fact, as SUSE explained in its Motion, an arbitral award that accepts SUSE's claims would mean that (1) SCO does not own any UNIX copyrights that are needed to use the version of the Linux operating system that SCO and SUSE jointly developed ("UnitedLinux"); (2) SUSE has a royalty-free license to use such copyrights and to sublicense them to others, including Novell and IBM; and (3) SCO is required by the "open source" General Public License to license to the public any UNIX copyrights needed to use the UnitedLinux kernel. (Motion at 3.) Such a ruling would decimate the value of SCO's claim that Novell, IBM, and other Linux vendors and users are infringing SCO's copyrights and should pay billions of dollars to SCO....
Acquiring ownership of the UNIX copyrights is necessary, but not sufficient, for SCO to pursue its copyright infringement claims. Even if SCO prevails in the Utah trial, SCO's copyright claims will have little, if any, value if SUSE prevails in the Arbitration. Indeed, a win for SUSE would mean that SCO does not own any UNIX copyrights that are needed to use UnitedLinux. Therefore, prompt resolution of the Arbitration is essential to determine both the ownership and the value of the UNIX copyrights and of SCO's related claims.
The SCO Trustee proposes a piecemeal approach in which SCO is allowed to pursue its claims against Novell, but SUSE is prohibited from pursuing related claims that will directly affect SCO's claims against SUSE, Novell, IBM, and others. The courts, however, uniformly reject use of the stay as a sword instead of a shield. This Court should do the same, especially since SCO has already had more than two years of "breathing room" in which to reorganize....
The Utah trial, however, is only one portion of the overall dispute. Acquiring ownership of the UNIX copyrights does not, by itself, entitle SCO to money. The monetary heart of this dispute -- and the reason why SCO contends that the UNIX copyrights are extremely valuable -- is SCO's claim that Linux vendors and users are infringing the UNIX copyrights and should pay license fees or damages to SCO. Indeed, SCO has asserted copyright infringement claims against Novell (based on Novell's distribution of SUSE Linux) and IBM in the pending Utah lawsuits, and launched a highly public campaign (dubbed "SCOsource") against the Linux community.2(See Declaration of Grant L. Kim In Support of SUSE's Motion For Relief from the Automatic Stay, filed November 10, 2009 [Dkt. No. 952] ("Kim Decl."), Ex. C, Request for Arbitration ¶¶ 63-85.)
An arbitral award for SUSE will indisputably decrease the value of SCO's copyright infringement claims against SUSE, Novell, IBM, and other Linux vendors and users. Moreover, the Arbitration is related to the Utah trial in that both involve the issue of what UNIX copyrights, if any, are owned by SCO. SUSE contends in the Arbitration that the UnitedLinux contracts transferred ownership of any UNIX copyrights owned by SCO to a joint venture company, which then licensed those copyrights to SUSE. (Motion at 3.) Thus, even if the Utah trial results in a ruling that SCO acquired ownership from Novell, the ownership dispute will not be resolved until both the Utah Litigation and the Arbitration are completed. And as for Cahn's suggestion that the Court should defer to his decisions on litigation strategies, SUSE properly points out that Cahn is not a neutral party. He's fighting for SCO, but there are other parties in the room who have rights too, as SUSE meaningfully points out in footnote 3:
3 The SCO Trustee suggests that this Court should defer to his views as to how the litigation should proceed. (Objection ¶¶ 15, 24, 28.) However, the SCO Trustee is not a neutral, although appointed by the Court. Rather, the SCO Trustee's role is to advocate the interests of SCO and the bankruptcy estate. Of course, freedom to sue with immunity from countersuit is in the interest of any litigant. But it is not "equal footing." Fair's fair, and now that the Tenth Circuit has altered the picture that prevailed two years ago, other parties with an interest in this case are not so inclined to lay back and let things slide. I don't see how in any fair courtroom SUSE could lose this motion. But should it happen in a Delaware bankruptcy courtroom that has shown so far very little regard for anyone's interests but SCO's, as I have viewed it, I would expect SUSE would immediately appeal.
***********************************************
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
THE SCO GROUP, INC., et al., 1
Debtors. |
Chapter 11
Case Number 07-11337 (KG)
(Jointly Administered)
REF. DOCKET NOS. 951, 992, 995 |
SUSE'S REPLY IN SUPPORT OF ITS MOTION FOR RELIEF FROM THE
AUTOMATIC STAY TO COMPLETE INTERNATIONAL ARBITRATION
In support of its Motion for Relief from the Automatic Stay to Complete International
Arbitration (the "Motion"), SUSE Linux GmbH ("SUSE") replies to the Objection of Chapter 11
Trustee to SUSE's Motion for Relief from the Automatic Stay to Complete International
Arbitration (the "Objection") of Edward N. Cahn, the Trustee for the bankruptcy estates of the
SCO Group Inc., et al. (the "SCO Trustee").
I. INTRODUCTION
The SCO Trustee does not dispute the critical premise of SUSE's Motion: Completing
the SUSE Arbitration is essential to determine both the ownership and the value of the UNIX
copyrights that supposedly constitute SCO's most important asset. In fact, as SUSE explained in
its Motion, an arbitral award that accepts SUSE's claims would mean that (1) SCO does not own
any UNIX copyrights that are needed to use the version of the Linux operating system that SCO
and SUSE jointly developed ("UnitedLinux"); (2) SUSE has a royalty-free license to use such
copyrights and to sublicense them to others, including Novell and IBM; and (3) SCO is required
by the "open source" General Public License to license to the public any UNIX copyrights
needed to use the UnitedLinux kernel. (Motion at 3.) Such a ruling would decimate the value of
SCO's claim that Novell, IBM, and other Linux vendors and users are infringing SCO's
copyrights and should pay billions of dollars to SCO.
The SCO Trustee attempts to sidestep this critical point by focusing instead on the
upcoming trial with Novell on SCO's claims that it acquired ownership of the UNIX copyrights
from Novell and that Novell slandered SCO's title. But that trial is merely one part of the overall
dispute. Acquiring ownership of the UNIX copyrights is necessary, but not sufficient, for SCO
to pursue its copyright infringement claims. Even if SCO prevails in the Utah trial, SCO's
copyright claims will have little, if any, value if SUSE prevails in the Arbitration. Indeed, a win
for SUSE would mean that SCO does not own any UNIX copyrights that are needed to use
UnitedLinux. Therefore, prompt resolution of the Arbitration is essential to determine both the
ownership and the value of the UNIX copyrights and of SCO's related claims.
The SCO Trustee proposes a piecemeal approach in which SCO is allowed to pursue its
claims against Novell, but SUSE is prohibited from pursuing related claims that will directly
affect SCO's claims against SUSE, Novell, IBM, and others. The courts, however, uniformly
reject use of the stay as a sword instead of a shield. This Court should do the same, especially
since SCO has already had more than two years of "breathing room" in which to reorganize.
The SCO Trustee makes several other arguments, all of which are without merit.
Contrary to the SCO Trustee's assertion, SUSE is not seeking to "interfere with the Utah
Litigation"; rather, it merely seeks to get the long-pending Arbitration back on track. Nor is
SUSE requesting "reconsideration" of this Court's November 2007 ruling that the automatic stay
applies to the Arbitration. SUSE does not contest that the stay applies; the issue is whether stay
relief should be granted, which has never been briefed or decided. And stay relief is appropriate
in view of the Tenth Circuit's recent reversal of the summary judgment ruling on copyright
ownership, which revived SCO's previously dismissed copyright claims that are at issue in both
the Arbitration and the Utah Litigation.
The SCO Trustee makes the contradictory arguments that (a) proceeding with the
Arbitration would "distract" SCO from the Novell trial in March; and (b) lifting the stay serves
no point since the Arbitration hearing will not occur until after the trial. Of course, if the
Arbitration hearing is later (which SUSE agrees is the only realistic scenario), it does not conflict
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with the trial. And this is precisely why the stay should be lifted now: to get the Arbitration back
on track, so SUSE's claims can be decided as soon as possible after the Utah trial is completed.
II. THE ARBITRAL AWARD WILL DIRECTLY AFFECT SCO'S CLAIMS
OF COPYRIGHT OWNERSHIP AND INFRINGEMENT
The SCO Trustee does not dispute that the outcome of the Arbitration will directly affect
the value of the UNIX copyrights that allegedly constitute SCO's primary asset. Indeed, the
SCO Trustee admits that SUSE contends in the Arbitration that SCO "licensed or assigned its
right to UNIX to SUSE in 2002," and that SUSE seeks "a ruling barring the Debtors from
asserting copyright infringement claims."1(Objection ¶¶ 9, 25.)
The SCO Trustee attempts to downplay the Arbitration by arguing that it will not affect
whether SCO "acquired the copyrights from Novell," which will be "tried in connection with the
Utah Litigation in March." (Id. ¶¶ 25, 27.) The Utah trial, however, is only one portion of the
overall dispute. Acquiring ownership of the UNIX copyrights does not, by itself, entitle SCO to
money. The monetary heart of this dispute -- and the reason why SCO contends that the UNIX
copyrights are extremely valuable -- is SCO's claim that Linux vendors and users are infringing
the UNIX copyrights and should pay license fees or damages to SCO. Indeed, SCO has asserted
copyright infringement claims against Novell (based on Novell's distribution of SUSE Linux)
and IBM in the pending Utah lawsuits, and launched a highly public campaign (dubbed
"SCOsource") against the Linux community.2(See Declaration of Grant L. Kim In Support of
SUSE's Motion For Relief from the Automatic Stay, filed November 10, 2009 [Dkt. No. 952]
("Kim Decl."), Ex. C, Request for Arbitration ¶¶ 63-85.)
3
An arbitral award for SUSE will indisputably decrease the value of SCO's copyright
infringement claims against SUSE, Novell, IBM, and other Linux vendors and users. Moreover,
the Arbitration is related to the Utah trial in that both involve the issue of what UNIX copyrights,
if any, are owned by SCO. SUSE contends in the Arbitration that the UnitedLinux contracts
transferred ownership of any UNIX copyrights owned by SCO to a joint venture company,
which then licensed those copyrights to SUSE. (Motion at 3.) Thus, even if the Utah trial results
in a ruling that SCO acquired ownership from Novell, the ownership dispute will not be resolved
until both the Utah Litigation and the Arbitration are completed.
The SCO Trustee attempts to distance the Utah Litigation from the Arbitration by quoting
portions of the District Court order staying portions of the Litigation. (Objection ¶ 10.)
However, while the District Court concluded that the arbitrable issues do not "predominate," it
also noted significant connections between the two cases. The District Court found that "the
arbitrator's determination of whether SCO assigned the copyrights at issue to the UnitedLinux
entity bears on the question of whether SCO owns the copyrights it is suing upon." (Kim Decl.
Ex. D at 7.) The Court also noted that it would consider the preclusive effect of any arbitral
award that issued and might revisit whether to stay claims in the litigation. (Id. at 8.)
In any event, the critical issue before this Court is not the precise relationship between the
Arbitration and the Utah trial. Rather, the question is whether stay relief should be granted in
view of the uncontested fact that the Arbitration will affect both the ownership and the value of
the UNIX copyrights and of the related claims that are at the heart of this reorganization case.
The answer is clearly "yes," as determining the value of these assets -- the keys to the
reorganization kingdom -- will benefit both the creditors and the debtors and will promote the
efficient resolution of this long-pending case.
III. THE STAY SHOULD NOT BE USED AS A SWORD
The SCO Trustee asserts that SCO's claims against Novell and IBM "should be pursued
aggressively." (Objection ¶ 15.) Yet the SCO Trustee is attempting to prevent SUSE from
4
pursuing claims in the Arbitration that would undercut SCO's claims. The SCO Trustee
proposes the ideal scenario for any litigant: freedom to sue opponents with immunity from
countersuits. The goal is clear: SCO hopes to obtain a favorable ruling in the Utah Litigation
that would increase the value of its copyright claims, without having to confront troubling (to
SCO) UnitedLinux questions that may severely undermine those claims.
Such a use of the stay is wholly inconsistent with the stay's legitimate purposes:
preserving the estate and giving the debtor a breathing space. In re Schaefer Salt Recovery, Inc.,
542 F.3d 90, 100 (3rd Cir. 2008). The stay should be administered (imposition by statute,
termination through stay relief) to "place both debtor and creditors on an equal footing." In re
Excelsior Henderson Motorcycle Mfg. Co., Inc., 273 B.R. 920, 922 (Bankr. S.D. Fla. 2002)
(emphasis added). Giving the Trustee a strategic litigation and negotiating advantage is not a
proper office of the stay. Courts have repeatedly held that the filing of bankruptcy to obtain a
litigation advantage is improper. E.g., NMSBPCSLDHB, L.P. v. Integrated Telecom Express,
Inc., 384 F.3d 108, 120 (3rd. Cir. 2004); In re Star Broad., Inc., 336 B.R. 825 (Bankr. N.D. Fla.
2006) (because debtor filed bankruptcy case in bad faith to stall litigation going against it in the
hope of capitalizing on other bankruptcy procedures for an advantage, bankruptcy court grants
stay relief to complete litigation (but not dismissal of bankruptcy case)); In re Double W Enter.,
Inc., 240 B.R. 450, 455 (Bankr. M.D. Fla. 1999). It follows that continuing the stay for a
litigation advantage is equally improper.3
IV. SUSE IS NOT SEEKING "RECONSIDERATION" OF AN ISSUE THAT
THIS COURT HAS ALREADY DECIDED
The Objection states, "This Court has already considered the precise issue it is now being
asked to reconsider [by the Motion] whether the automatic stay should be lifted to permit the
5
SUSE claim against the SCO Group in Arbitration in a Swiss tribunal . . . ." (Objection ¶ 16
(emphasis added).) This is not correct. The only issue that this Court decided in November
2007 was that the automatic stay applied to the SUSE's claims in the Arbitration, even though
SUSE is a German company and the Arbitration is seated in Switzerland. (Order dated
November 13, 2007 (Dkt. No. 204); November 6, 2007, Hearing Transcript at 68, 71 (Objection
Ex. C) (stating that the Court is "address[ing] the applicability of the automatic stay to SUSE's
claims in the Swiss Arbitration," and concluding that "the Swiss Arbitration is subject to the
automatic stay.") Neither the parties nor this Court addressed the issue of whether relief from
the automatic stay should be granted, which is a different issue involving different
considerations.
Moreover, the situation now differs markedly from two years ago. In November 2007,
SCO was subject to a summary judgment ruling that it did not own the UNIX copyrights that
were at issue in the SUSE Arbitration. This ruling had the potential to effectively moot SCO's
copyright infringement claims. Now that the Tenth Circuit has reversed the summary judgment
ruling, SCO's claims are back in play.
Further, in November 2007, SCO had just filed its bankruptcy petition, and thus arguably
needed some "breathing room." Two years later, however, SCO has had more than ample
breathing room, without a hint of a viable reorganization plan. And the Arbitration has now been
stayed for a longer period than it was active (25 months v. 19 months), leading the Arbitral
Tribunal to express concern about "the future conduct of the Arbitration." (Kim Decl. Ex. G.)
V. THE SCO TRUSTEE'S DELAY AND BURDEN ARGUMENTS ARE
WITHOUT MERIT
The SCO Trustee asserts sundry arguments concerning alleged delay and burden. All of
these arguments lack merit.
First, the SCO Trustee argues that SUSE is attempting "to interfere with the Utah
Litigation." (Objection ¶ 18.) But the only relief sought by SUSE is an order allowing the
6
Arbitration to proceed. SUSE has not requested an order that would delay the Utah trial or
otherwise block the Utah Litigation. Of course, SUSE is seeking an order that would protect
SUSE and its distributors and customers against SCO's copyright claims. But that is a legitimate
exercise of SUSE's contractual rights.
Second, the SCO Trustee complains of an alleged pattern of "delay" by SUSE and Novell,
such as Novell's petition for rehearing en banc by the Tenth Circuit, which the Tenth Circuit
denied after directing SCO to file a response. (Objection ¶ 18.) Once again, SUSE and Novell
have simply exercised their legal rights. Moreover, this plea of "delay" is highly ironic. SCO
initiated this Chapter 11 proceeding more than two years ago, yet never proposed anything close
to a viable reorganization plan. The Arbitration was filed nearly four years ago (April 2006), and
has now been stayed for over two years, prompting the Arbitral Tribunal to express concerns
about "difficulties" arising from the prolonged delay. (Kim Decl. Ex. G.) Any complaints of
delay should come from SUSE and Novell, not SCO.
Third, the SCO Trustee suggests that lifting the stay would serve no point because "even
if the stay is lifted, it is more than likely the Utah Litigation will be completed well before the
Swiss Tribunal would even begin its proceedings." (Objection ¶ 17.) At the same time, the SCO
Trustee makes the contradictory argument that lifting the stay would be "prejudicial" because the
SCO Trustee would be "distracted" from the Utah trial, and the estate would need to "devote
critical and limited resources to the Arbitration." (Id. ¶¶ 22-23.) This makes no sense. If no
proceedings take place in the Arbitration until after the March trial in Utah, the Arbitration will
not "distract" the SCO Trustee from the trial or require major resources.
SUSE agrees that once the stay is lifted, at least several months of "start-up" time will be
required, meaning that the Arbitral Tribunal could not hold a hearing on liability until after the
Utah trial in March. Thus, allowing the Arbitration to resume will not "distract" the SCO
Trustee or require large expenditures during the next few months. But this is precisely why the
stay should be lifted now: to put the Arbitration back on calendar and to avoid still further delay.
7 Of course, continuing the Arbitration will involve some expense, especially in connection
with a liability hearing that would take place after the Utah trial is completed in March. But the
SCO Trustee has made no showing whatever regarding the estate's resources or how they would
be consumed by the Arbitration.4 In fact, the cost of obtaining an arbitral award on the key
pending claims is likely to be limited, given that the parties were on the eve of the merits hearing
and had completed almost all prehearing submissions when the Arbitration was stayed.5(Motion
at 6.) And lead counsel for the estate is working on the Arbitration at 50% of its normal billing
rates. (See Debtors' Application, Pursuant to 11 U.S.C. §§ 327(e), 328 and 330, for Approval of
Employment of Boies, Schiller [etc.] 4 ¶ 14 (Dkt. No. 115); Order [etc.] (Dkt. No. 269); Motion
of Chapter 11 Trustee for Entry of Order Authorizing Modification of Retention Order [etc.]
(proposing modification of earlier retention terms that does not affect Arbitration) (Dkt. No.
941); Order [etc.] (Dkt. No. 970.)
Finally, even if the Arbitration were deemed to be some burden on the estate, the fact
remains that the issues the Arbitration encompasses need to be decided, so that the Court, the
SCO Trustee, the debtors, and the creditors can determine whether reorganization or liquidation
of the debtors is appropriate. It is incumbent on all concerned to get both the Utah Litigation and
the Arbitration decided as soon as possible. After almost 28 months of these chapter 11 cases
8
already, including five months under the SCO Trustee's regime, there is no legitimate reason for
stringing matters out any further.6
VI. SUSE HAS A MORE THAN ADEQUATE PROBABILITY OF SUCCESS
The SCO Trustee "strongly disagrees" with SUSE's assessment of its likelihood of
prevailing on its claims in the Arbitration, arguing that SUSE's description fails to address
certain evidence and counter-arguments. (Objection ¶ 26.) Yet the SCO Trustee does not even
attempt to explain the evidence and arguments that supposedly support SCO's position.
The issue before this Court is not whether the SCO Trustee "agrees" with SUSE's
position. Rather, under the standard in the Rexene case that both sides have cited and that this
Court relied on in its decision granting Novell's motion for relief from the automatic stay,
"[e]ven a slight probability of success on the merits may be sufficient to support lifting the
automatic stay in an appropriate case [citations omitted]." In re The SCO Group, Inc., 395 B.R.
852, 857, 859 (Bankr. D. Del. 2007); In re Rexene Prods. Co., 141 B.R. 574, 576 (Bankr. D. Del.
1992). (See also Motion at. 10-11; Objection ¶ 21.)
SUSE has certainly shown at least a "slight probability of success" on the merits. As
SUSE noted in its motion, SUSE's claims are solidly based on the language and purpose of the
UnitedLinux contracts that SCO and SUSE signed. (Motion at 13-14.) This is illustrated by the
District Court's description of the UnitedLinux contracts in its opinion on SUSE's motion to stay
claims raising issues subject to Arbitration:
The UnitedLinux members agreed that each member would have a broad
license to use the technology included in the UnitedLinux Software, including
any related intellectual property rights of the other members. The contracts
provided that "All intellectual property rights related to the UnitedLinux
9
Software"7 (with the exception of certain "Pre-Existing Technology" and
"Enhancements" thereto) shall be assigned by the members to a new
company, United Linux LLC. In addition, the contracts provided that [e]ach8
member shall have a broad, royalty-free license to all intellectual property
rights in the UnitedLinux Software, entitling each member to "use, copy,
modify, distribute, market, advertise, sell, offer for sale, sublicense...in any
manner the Software, including the rights to make derivative works of the
Software, to provide access to the Source Code and/or Object Code to any
third party, to incorporate the Software into other product or bundle the
Software with other products for its own business purposes and any other
unlimited right of exploitation." The contracts further state that the
UnitedLinux Software shall be subject to any existing "open source" licenses.
(Kim Decl. Ex. D at 2-3.)
Finally, the SCO Trustee suggests that SUSE's claims in the Arbitration have somehow
been undermined by the Tenth Circuit's reversal of the summary judgment on copyright
ownership, because "the Trustee has repeatedly stated that the Tenth Circuit ruling was very
favorable for the Debtors and that the Debtors' claims should be pursued aggressively."
(Objection ¶ 26.) But the Tenth Circuit did not even mention the UnitedLinux contracts, let
alone purport to opine on their meaning. Moreover, the SCO Trustee's intent to aggressively
pursue SCO's claims is exactly why stay relief should be granted. It would be manifestly unfair
to allow SCO to pursue its claims while preventing SUSE from pursuing related claims that are
essential to resolving the ownership and value of the UNIX copyrights that are SCO's primary
asset.
VII. CONCLUSION
Prompt resolution of the Arbitration is indispensable to breaking the logjam in these very
old cases. Whatever inconveniences that process may pose are slight in comparison to the
10
continued uncertainty that leaving the Arbitration in limbo will entail. SUSE respectfully
requests the Court to grant stay relief to get the Arbitration back on calendar.
Dated: December 23, 2009
Wilmington, Delaware
YOUNG CONAWAY STARGATT & TAYLOR, LLP
/s/ Sean T. Greecher
James L. Patton (No. 2202)
Michael R. Nestor (No. 3526)
Sean T. Greecher (No. 4484)
[address, telephone]
-and- MORRISON & FOERSTER LLP
Adam A. Lewis
[address, telephone]
-and-
MORRISON & FOERSTER LLP
Larren M. Nashelsky
[address, telephone]
Counsel for Novell, Inc. and SUSE Linux GmbH
11
1
A more accurate statement is that SUSE seeks a ruling that SCO assigned ownership of any
UNIX copyrights needed to use UnitedLinux to a joint venture company, which in turn licensed
those copyrights to SUSE and the other UnitedLinux partners. (Motion at 3.)
2
The SCO Trustee suggests that SUSE is attempting to "prevent the Trustee from asserting
claims that the Trustee has determined not to pursue at this time." (Objection p. 8, fn. 4.) The
SCO Trustee has provided no notice of a "determination" to abandon SCO's copyright claims.
On the contrary, the SCO Trustee contends that SCO's claims "should be pursued aggressively."
(Id. ¶ 15.)
3
The SCO Trustee suggests that this Court should defer to his views as to how the litigation
should proceed. (Objection ¶¶ 15, 24, 28.) However, the SCO Trustee is not a neutral, although
appointed by the Court. Rather, the SCO Trustee's role is to advocate the interests of SCO and
the bankruptcy estate. Of course, freedom to sue with immunity from countersuit is in the
interest of any litigant. But it is not "equal footing."
4
As Mr. Petrofsky noted in his recent motion (Dkt. No. 990), information about the estate's
current condition or resources is lacking because required reports have not been filed, although
some money was apparently received from the recent Autozone settlement (Dkts. 935, 971).
5
The SCO Trustee asserts -- without any real explanation -- that the Arbitration will be "costly
and protracted" because it is in the "second of a four-phase proceeding." (Objection ¶ 24.) SCO
fails to note that the current Phase 2 should resolve all of SUSE's claims for declaratory relief,
including whether SCO is precluded from asserting copyright infringement claims because the
relevant copyrights are (a) not owned by SCO; (b) already licensed to SUSE; or (c) required to
be made available to the public by the General Public License that SCO agreed to respect. Phase
3 was reserved for detailed technical issues if such issues need to be resolved (which SCO has
asserted is unlikely). Phase 4 is limited to damages. Thus, Phase 2 is by far the most important,
especially as to the ownership and value of the UNIX copyright and of SCO's related claims.
6
The SCO Trustee suggests in a footnote that it would be a waste of resources to continue the
Arbitration if the District Court determines in the upcoming trial that SCO did not acquire
ownership of the UNIX copyrights. (Objection p. 9, fn. 5.) But as noted above, SCO is unlikely
to incur major expenses in the Arbitration until after the March trial is completed, due to the
start-up time required to get the Arbitration back on track.
7
The closed quotation mark following "Software" and before the parenthetical does not appear
in the District Court opinion, but clearly belongs here, as otherwise there would be no matching
pair for the open quotation mark earlier in this sentence.
8
The District Court included a quotation mark before "[e]ach," but it does not belong here as
there is no matching pair and the quote does not begin until two lines later ("use, copy...").
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Authored by: Anonymous on Friday, December 25 2009 @ 02:33 AM EST |
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Authored by: Steven W on Friday, December 25 2009 @ 02:43 AM EST |
The commenter deleted his comment [ Reply to This | # ]
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Authored by: Steven W on Friday, December 25 2009 @ 02:44 AM EST |
[ Reply to This | # ]
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Authored by: Steven W on Friday, December 25 2009 @ 02:45 AM EST |
[ Reply to This | # ]
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Authored by: Anonymous on Friday, December 25 2009 @ 03:17 AM EST |
I don't see how in any fair courtroom SUSE could lose this motion. But
should it happen in a Delaware bankruptcy courtroom that has shown so far very
little regard for anyone's interests but SCO's,
Quite
so.
Something that really puzzles me is the line Cahn is taking. Yes,
part of his role is to secure the maximum value out of the bankrupt company for
creditors. But that's not his only duty. He was brought in to replace existing
management because their ethics and honesty were questionable. He's supposed to
bring some integrity to the proceedings.
He has not done that. He has
enough information to know that the proceedings against IBM and others are
entirely without merit - verging on barratry. The fact that a jury trial has
elements of a lottery, and could result in a windfall for SCO, is not a
justification for a Trustee to proceed with those cases. [ Reply to This | # ]
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- incorrect - Authored by: Anonymous on Saturday, December 26 2009 @ 09:06 AM EST
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- Right on! - Authored by: PJ on Friday, December 25 2009 @ 11:07 PM EST
- Right on! - Authored by: Anonymous on Saturday, December 26 2009 @ 10:55 AM EST
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- Right on! - Authored by: bstone on Friday, December 25 2009 @ 08:18 AM EST
- Right on! - Authored by: Anonymous on Friday, December 25 2009 @ 11:14 AM EST
- Not quite - Authored by: Anonymous on Saturday, December 26 2009 @ 11:57 AM EST
- Does Cahn grok FOSS? - Authored by: jbb on Friday, December 25 2009 @ 05:43 AM EST
- Is it necessarily going to be up to Gross (Deleware) - Authored by: Anonymous on Friday, December 25 2009 @ 07:52 AM EST
- Is Cahn right? - Authored by: Anonymous on Friday, December 25 2009 @ 08:42 AM EST
- Is Cahn right? - Authored by: Anonymous on Friday, December 25 2009 @ 12:35 PM EST
- Cahn is right. - Authored by: Anonymous on Friday, December 25 2009 @ 02:29 PM EST
- Is Cahn right? - Authored by: PJ on Friday, December 25 2009 @ 09:05 PM EST
- Is Cahn right? - Authored by: Anonymous on Saturday, December 26 2009 @ 09:09 AM EST
- Not according to Judge Gross - Authored by: jbb on Friday, December 25 2009 @ 02:13 PM EST
- Quite. - Authored by: Anonymous on Friday, December 25 2009 @ 02:18 PM EST
- Quite. - Authored by: proceng on Friday, December 25 2009 @ 04:10 PM EST
- Quite. - Authored by: Anonymous on Friday, December 25 2009 @ 04:46 PM EST
- Quite. - Authored by: PJ on Friday, December 25 2009 @ 08:46 PM EST
- Quite? - Authored by: Anonymous on Friday, December 25 2009 @ 09:12 PM EST
- Unix != Linux - Authored by: Anonymous on Friday, December 25 2009 @ 11:05 PM EST
- Quite? - Authored by: PJ on Friday, December 25 2009 @ 11:16 PM EST
- Quite? - Authored by: wvhillbilly on Saturday, December 26 2009 @ 10:03 AM EST
- EU Lawyers? - Authored by: complex_number on Saturday, December 26 2009 @ 08:55 AM EST
- Is Cahn right? - Authored by: wvhillbilly on Friday, December 25 2009 @ 11:38 PM EST
- Is Cahn right? - Authored by: Steve Martin on Saturday, December 26 2009 @ 03:40 PM EST
- Right on! - Authored by: Anonymous on Friday, December 25 2009 @ 01:27 PM EST
- Right on! - Authored by: wvhillbilly on Friday, December 25 2009 @ 11:53 PM EST
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Authored by: webster on Friday, December 25 2009 @ 08:55 AM EST |
.
This United Linux Contract has to be resolved before the trial. If not, it will
distort the trial. Novell can argue the contract as limiting claims and
damages. SCO will have to admit they are in the contract. Novell can argue the
only way to dodge the contract is through arbitration which SCO is avoiding.
Novell can argue the inference from this, SCO is bound, with no good SCO
response.
SCO hopes to keep it out of any trial, win a hollow victory that inspires some
investment, then somehow skip the arbitration. Cahn must be dealing with the
nuisance value.
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- Skip Arbitration - Authored by: Anonymous on Friday, December 25 2009 @ 02:21 PM EST
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Authored by: Anonymous on Friday, December 25 2009 @ 10:52 AM EST |
Does Cahn feel he will lose the arbitration?
That in itself should be telling to an impartial judge, who, I would think,
would also point out that if SCO wins the arbitration, it would strengthen the
estate's financial position, and, thus, is worth pursuing.
If Cahn is so eager to pursue the Utah lawsuits for the prospect of winning, he
should be willing to do the same thing with the arbitration for the same
possible outcome.
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Authored by: Anonymous on Friday, December 25 2009 @ 01:36 PM EST |
SUSE's lawyers missed a trick by using "decimate" when they should
have used something like "destroy".
(At least they didn't call anything "exponential".)[ Reply to This | # ]
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Authored by: Anonymous on Friday, December 25 2009 @ 03:12 PM EST |
"...the Arbitration have somehow been undermined by the Tenth Circuit's
reversal of the summary judgment on copyright ownership..."
And here is the whole of reasoning that's going on from the POV of the
Trustee.
It's clear his understanding of the issues have been distorted by how things
have been presented by SCO, and so his judgement is based on flawed
information (lies, as I said WRT Tibbits, since I myself know that he knows or
should have known about the GPL position of Caldera). This is a bad
situation, since the Trustee is supposedly the Court's assertion of
management control of the Debtors. His judgement influences the Court.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, December 25 2009 @ 03:46 PM EST |
Completing the SUSE Arbitration is essential to determine both
the
ownership and the value of the UNIX copyrights that supposedly
constitute
SCO's most important asset.
"You are old," said the
youth, "And your jaws are too weak
For anything tougher than suet;
Yet
you finished the goose, with the bones and the beak—
Pray, how did you
manage to do it?"
"In my youth," said his father, "I took to the
law,
And argued each case with my wife;
And the muscular strength which
it gave to my jaw,
Has lasted the rest of my life."
Lewis Carroll:
Alice's Adventures in Wonderland Chapter V
q.v. definition of
barratry, elsewhere this page[ Reply to This | # ]
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Authored by: The Mad Hatter r on Saturday, December 26 2009 @ 07:50 PM EST |
Judge Gross doesn't understand FOSS.
Judge Cahn doesn't understand FOSS.
I'm leaving out the judge in Utah, since Judge Gross and Judge Cahn have the
immediate effect. Judge Stewart only come into play of the arbitration is
sidelined. Logic says that the arbitration should go first - but part of that
knowledge is based on how the GPL can and will affect all of the other cases
that SCO wants to launch.
And there are people at SCO who would like to carry through on this, either
because they believed in it from the beginning, or because they've gotten so
peeved at us for throwing darts at them, that they aren't thinking clearly
anymore. I would expect that those people would be pushing for anything but the
arbitration to go first, and Judge Cahn has to listen to them - in effect they
are his employees until he has finished his duties for the court with this
company.
So these people are telling Judge Cahn that the arbitration is a sideline, that
it's not important. And since they are supposed to be the experts, he is
probably working with them.
The point that most of us seem to forget is that Judgel Cahn knew he was being
sent to clean the Augean Stables when he was given this job. If the company
wasn't a total mess, it should have been able to climb out of Chapter 11 by now.
If there wasn't something apparently worth salvaging it should have been put
into Chapter 7. That Judge Cross did neither, but called in Judge Cahn as
Chapter 11 trustee, is a very good indication that Judge Gross knows that
there's something very wrong here. But not what. I think that part of Judge
Cahn's job is to determine, and report upon the what.
Unfortunately I would expect that to be a closed session. We could probably sell
tickets for $100.00 per seat, to be able to watch history unfold.
---
Wayne
http://crankyoldnutcase.blogspot.com/
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Authored by: Gringo on Monday, December 28 2009 @ 08:54 AM EST |
As I recall, one of SCO's arguments in support of their
position that they
own the Unix copyrights was a circular
argument based on the APA saying they
had "all the
copyrights they need" to carry on the Unix business. They go
on
to say that they need the copyrights to sue people with,
and therefore own the
copyrights to that extent. However,
the arbitration
has the potential outcome
of demonstrating that even if SCO
did own the copyrights, they can not be used
to sue people
the way SCO intends, thereby eliminating SCO's demonstrated
"need" for the copyrights.
Since SCO will argue they need the copyrights
at
trial, the arbitration must be resolved before any such
trial can take
place. If it happens that the trial precedes
the arbitration in spite of my
advice, SCO should not be
permitted to argue
during the trial that there is
any value or utility to their
purpose in the copyrights that they seek. [ Reply to This | # ]
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Authored by: Gringo on Monday, December 28 2009 @ 09:43 AM EST |
Cahn has been working these past six months at a furious
pace, putting some
order into SCO's books and legal affairs.
He sees a light at the end of the
long, dark tunnel. SCO
will finally get its "day in court" to prove they they
do,
in fact, own the Unix copyrights. With win at trial, they
will finally be
able to go after the billions of dollars
owed them by those who stole their IP.
Of course they need a
little investment to realize their grand dreams, or
perhaps
there is now finally some significant value in the
litigation they can
sell outright to someone willing to
speculate. Unfortunately for them, any
potential buyer or
investor may see
that there are a few complications on the
road ahead, but
the information about these potential road blocks is buried
in
a stack of legal documents going back nearly six years.
Who knows that with a
good fast talking sales pitch the
potential buyer/investor may fail to find the
relavant
information in time before closing in that enormous stack,
where
much of the most damaging information has sunk to the
bottom. That is why PJ
has been working so hard, "Answering
SCO Bit by Bit" to inform potential buyers
and investors of
the facts in this case.
Novel however, is not willing
to leave things up to the
chance that a buyer/investor will read Groklaw. They
come
out with both their Motion to Set Aside Judgment Re
SCOsource Monies and
SUSE's Reply in Support of Motion to
Lift Stay. Now we would like to believe
that these
instruments have a every chance of having a profund impact
on the
course of SCO's litigation, but thinking
pessimistically, maybe they will not
be given the weight we
would hope for. However, merely putting these documents
at
the top of the stack where they cannot be ignored
immediately
puts out the
"light at the end of the tunnel" that Cahn
thought he could see, plunging SCO's
vision of billions into
a tunnel of impenetrable murky blackness where no buyer
or
investor would ever dare tread. It was a bad Christmas for
Judge Cahn and
team SCO. [ Reply to This | # ]
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