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Believe It Or Not: SCO Moves to Partly Reopen SCO v. IBM ~ by pj - as text, updated 2Xs
Friday, November 04 2011 @ 08:44 PM EDT

Believe it or not, SCO isn't dead yet. SCO Group, by its lawyers Boies Schiller & Flexner and Hatch & Dodge, has just asked the US District Court for the District of Utah to reopen [PDF] its litigation against IBM:
SCO respectfully moves the Court to reopen this case in order to proceed with SCO’s unfair competition claim concerning the Project Monterey joint venture and with SCO’s tortious interference claims alleging that IBM interfered with SCO’s market position and business relationships.
Its reasons are in the redacted Memorandum in Support [update: SCO has once again filed an inadequately redacted document, so I've pulled the PDF until they replace it] [update 2: here it is properly redacted], so some of it is for the court's eyes only. But it's about two claims, evidently, "the Project Monterey joint venture (the 'Project Monterey Claim') and with SCO’s tortious interference claims alleging that IBM interfered with SCO’s market and business relationships":
The Project Monterey Claim and the Tortious Interference Claims are unaffected by the final judgment entered in SCO v. Novell, Civil No. 2:04CV139 (the “Novell Litigation”), which the Tenth Circuit has now affirmed. This Court need not await the resolution of that litigation, because it has ended.
I gather this means they won't be appealing the SCO v. Novell decision, the deadline for which is November 28th, I believe. And it's not asking to reopen SCO's claims exactly, except via two IBM summary judgement motions, while leaving the rest of IBM's claims frozen in limbo. It's not the first time SCO tried this. But who exactly is "The SCO Group" nowadays?

In the Memorandum, SCO says these are the motions that it wants to revive:
SCO respectfully requests that the Court rule on IBM’s Motion for Summary Judgment on SCO’s Unfair Competition Claim (SCO’s Sixth Cause of Action), dated September 25, 2006 (Docket No. 782), which motion is directed at the Project Monterey Claim, and IBM’s Motion for Summary Judgment on SCO’s Interference Claims (SCO’s Seventh, Eighth and Ninth Causes of Action), dated September 25, 2006 (Docket No. 783), which motion is directed at the Tortious Interference Claims.
It's desirous of reviving two of *IBM* claims, then.

Don't the living dead ever get tired?

Here's the page where you can find the summary judgment motions. And here's the transcript of the oral argument on the two IBM summary judgment motions SCO now wants to piggyback on.

[ Update 2: Here's the memorandum in support of IBM's summary judgment motion on SCO's unfair competition claims. Note that IBM revealed that SCO Group was never a party to the Project Monterey agreement with IBM, in that under the contract, Santa Cruz had to get IBM's written approval for any assignment in a change of control, and when Santa Cruz sold off assets to Caldera, it never did that, and in June of 2001, IBM sent them a letter saying that IBM did *not* consent to the contract being assigned to Caldera:

31. Santa Cruz did not obtain IBM's prior written consent to an assignment of the JDA. Instead, Santa Cruz informed IBM of the sale of its Server Software and Professional Services divisions and its UNIX-related assets to Caldera in a letter dated June 6, 2001.(Ex. 244.)

32. IBM declined to consent to the assignment of Santa Cruz's rights and obligations under the JDA. Pursuant to Section 22.12 of the JDA, IBM's consent was necessary for such assignment to take effect. On the contrary, IBM invoked its right to cancel the JDA under Section 15.2 in a letter dated June 19, 2001. (Ex. 220.)

And here's where you can find IBM's memorandum in support of its summary judgment motion on SCO's tortious interference claims. - End update.]

The last time SCO tried to raise these two IBM summary judgment motions, IBM opposed, and it, significantly enough, argued that if the Novell ruling was upheld, it would end SCO's claims, period:

SCO's claims in this case depend on the outcome of SCO's appeal in the Novell Litigation. If affirmed, Judge Stewart's judgment will foreclose them. Moreover, they are closely related to IBM's stayed counterclaims and should not be litigated in the absence of IBM's counterclaims.
After outlining the history of the claims for the newly assigned judge, IBM explained why it made no sense to try the case piecemeal, if any SCO claims ever need to be tried at all, after the appeal:
17. SCO's claim that this case should proceed now as to SCO's unfair competition and tortious inference claims turns on the proposition that those claims do not depend on the outcome of the appeal in the Novell Litigation. That is wrong. Not only do those claims depend on the outcome of SCO's appeal, but also they are precluded if Judge Stewart's judgment is affirmed.

18. SCO's unfair competition claim (Count VI) is a mix of SCO's other causes of action, including the breach of contract and copyright infringement claims that SCO concedes are dependent on the outcome of the Novell Litigation. For example, SCO's unfair competition claim accuses IBM of misappropriating source code, breaching contracts and contributing source code to Linux. The code at issue on those claims is covered by the copyrights Judge Stewart ruled are owned by Novell (not SCO), and Judge Stewart found Novell had the right to waive the alleged breaches of contract. Thus, SCO's unfair competition claim necessarily depends on the outcome of the Novell Litigation.

19. SCO's unfair competition claim would depend on the outcome of the Novell Litigation even if the claim related solely to "Project Monterey". The crux of SCO's Monterey allegations is that IBM exceeded the scope of its license to certain UNIX SVr4 code (licensed to IBM by The Santa Cruz Operation during Project Monterey) by copying the code into IBM's AIX for POWER product. But SCO has never properly identified any such code that is not covered by copyrights determined in the Novell Litigation to be owned by Novell. Thus, if the judgment against SCO in the Novell Litigation is affirmed, SCO's Monterey allegations are untenable. At an absolute minimum, the outcome of the Novell Litigation will affect the shape of SCO's Monterey allegations.

20. SCO's three tortious interference claims (Counts VII to IX) are likewise dependent on the Novell Litigation. Count VIII accuses IBM of inducing Novell to assert copyright and waiver rights that SCO argues Novell does not have under the APA. The Novell Litigation forecloses this claim because it makes clear that Novell has the rights IBM is alleged to have induced Novell to exercise: Novell owns the copyrights, and it has the right to waive SCO's claims. Moreover, the judgment on appeal in the Novell Litigation precludes any claim by SCO that it would have been an act of bad faith for IBM to induce Novell to assert ownership of the copyrights or to waive SCO's claims.

21. SCO's other interference claims, Counts VII and IX, depend on the proposition that IBM acted improperly in contributing its own source code to Linux. Count VII alleges IBM interfered with SCO's business relationships with 175 companies (besides Novell) by urging them to use Linux (instead of SCO's UNIX products) while knowing that such use would violate their UNIX licenses. Count IX alleges that IBM interfered with SCO's business relationships with six other entities by urging them not to do business with SCO because of SCO's efforts to protect the UNIX code allegedly misappropriated by Linux. Pursuant to Judge Stewart's judgment in the Novell Litigation, SCO is precluded from challenging IBM's contributions of its own code to Linux, because Novell waived such claims and because Novell, not SCO, owns the copyrights in the allegedly infringed UNIX and UnixWare code.

22. In addition to the fact that SCO's unfair competition and tortious interference claims are dependent on the outcome of the Novell Litigation, it would make no sense to proceed as to those claims in the absence of IBM's counterclaims, which are stayed as a result of SCO's bankruptcy filing. IBM's counterclaims (which SCO ignores) are not only closely related to the claims in the Novell Litigation, but also they are closely related to SCO's unfair competition and tortious interference claims and they should all be tried together (if any of SCO's claims are to be tried).

23. As stated, SCO's unfair competition claim purports to incorporate conduct underlying SCO's other claims, including its allegations that IBM breached its SVRX Agreements, infringed certain UNIX copyrights, and interfered with SCO's relationships with its customers by contributing code to the Linux operating system. IBM's counterclaims accuse SCO of (1) breaching the same contracts IBM is alleged to have breached; (2) misusing the copyrights IBM is alleged to have infringed; and (3) interfering with IBM's relationships with the same customer base that SCO's accuses IBM of interfering with. In short, IBM's defenses to SCO's claims form the basis of IBM's counterclaims against SCO.

24. Given the connection between the claims and counterclaims in this case and the Novell Litigation, proceeding with this case before the Tenth Circuit rules in the Novell Litigation has nothing to recommend it. If, as we believe, a decision by the Tenth Circuit affirming the jury's decision and Judge Stewart's final judgment would foreclose SCO's claims against IBM and permit the entry of summary judgment on a number of IBM's counterclaims against SCO, proceeding on these claims now would be a waste of time and money. But even if one of SCO's claims was not dependent on the Novell Litigation, there is nothing to be gained from proceeding with it now. The interrelationships between and among the claims and counterclaims in this case and the Novell Litigation are not easily untangled. The mere exercise of untangling them would by itself require the unnecessary expenditure of judicial resources.

And there is simply no good reason even to try to untangle them at this point, where it may never be necessary to do so. SCO's approach would require the Court to decide motions/objections -- which concern highly-technical subject matter and comprise thousands of pages of briefing -- that otherwise may not need to be decided. The fact that Judge Kimball elected not to decide these motions pending SCO's first appeal to the Tenth Circuit speaks volumes.

25. IBM supports the expeditious resolution of this case. But the best way to bring that about is not to proceed piecemeal as to four of SCO's claims, especially where, as here, those claims depend upon the outcome of the Novell Litigation and are intimately related to IBM's counterclaims, which remain stayed due to SCO's bankruptcy filing. We respectfully submit that the most sensible way to proceed here is for SCO to seek expeditious resolution of its appeal in the Novell Litigation, just as it did when it appealed Judge Kimball's summary judgment ruling. Within 30 days of the final resolution of the Novell Litigation, the parties should formally report to the Court concerning their views as to the effect of the Novell Litigation on this case, just as they did in 2007 following Judge Kimball's summary judgment ruling in the Novell Litigation.

Judge Tena Campbell, the new judge post-appeal, ruled that SCO's motion was premature. And significantly, she agreed with IBM that it was all intertwined:
The court, having reviewed orders and pleadings in the Novell litigation as well as pleadings in the IBM litigation, finds that the claims in the Novell litigation are inextricably intertwined with the claims in the IBM litigation. Accordingly, proceeding in the IBM litigation in the piecemeal manner suggested by SCO Group would be improper, would be an inefficient use of judicial resources, and would risk conflicting decisions.
Until the Novell case was final, nothing could go forward in the IBM litigation, but after that, either party could ask to open the case. SCO is, however, not asking to open the entire case, just the two parts it wants to use, so it still seems to be trying to do something piecemeal.

The IBM counterclaims that would result in SCO paying IBM huge damages... well, SCO doesn't ask to bring those to the courtroom. Instead it argues that Project Monterey didn't happen until 1998, *after* the 1995 foundational date in the SCO v. Novell dispute regarding the Novell copyrights. Note that IBM says that SCO never showed any code that didn't tie to those earlier copyrights, though. SCO now says, "The Project Monterey Claim does not depend on SCO's ownership of the copyrights to the versions of UNIX that existed in 1995 and is not subject to Novell's rights to waive SCO's contract claims against IBM." Why doesn't it depend on those copyrights, if the code at issue is only about code under the Novell copyrights?

As to the tortious interference claim, SCO's argument is similar, but more complex, as it alleges that the torts alleged happened in 2003 and are not dependent on ownership of copyrights:

To the extent that SCO's Tortious Interference Claims are based on IBM's disclosure of pre-1996 UNIX technologies whose copyrights Novell owns under the Novell Final Judgment, SCO does not need ownership of those copyrights in order to bring tort claims based on IBM's obligation to SCO to keep those technologies confidential. In addition, the Tortious Interference Claims are based on IBM's disclosure of technologies whose copyrights Novell does not own, including derivatives of the UNIX source code that IBM licensed through the AT&T licensing agreements and UnixWare technologies that SCO developed after 1995 and contributed to Project Monterey.

Similarly, to the extent that SCO's Tortious Interference Claims are based on IBM's disclosure of technologies subject to the confidentiality restrictions in the AT&T licensing agreements, Novell's waiver rights under the Novell Final Judgment affect only the contract claims that SCO brought against IBM -- not SCO's tort claims based on those improper disclosures. The fact that Novell waived those contract claims years after the disclosures started does not diminish the impropriety of the disclosures or the damage they caused to SCO. Indeed, insofar as IBM requires the waiver to avoid liability for breach of contract, Novell's waiver only highlights the wrongfulness of IBM's conduct. In addition, the Tortious Interference Claims are also based on IBM's disclosure of confidential UnixWare technologies that SCO developed after 1995 and that are unrelated to IBM's AT&T licensing agreements for UNIX.

These are to some extent new claims, to my eyes, not a reopening of claims earlier raised in the case. SCO appears to be trying to rewrite, taking into consideration the objections IBM earlier raised and claiming that they involved code that came after 1995. That's news to me. The judge said either party could ask to reopen, but I wonder if this is what she meant. We'll find out, because IBM will respond to this motion, then there will be oral argument presumably, and then the judge will rule.

Here are the documents:

11/04/2011 - 1095 - MOTION to Reopen Case filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 11/04/2011)

11/04/2011 - 1096 - NOTICE OF CONVENTIONAL FILING of The SCO Group, Inc.'s Memorandum in Support of Its Motion to Reopen the Case filed by Plaintiff SCO Group re 1095 MOTION to Reopen Case (Hatch, Brent) (Entered: 11/04/2011)

11/04/2011 - 1097 - MEMORANDUM in Support re 1095 MOTION to Reopen Case REDACTED filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A - Filed Under Seal)(Hatch, Brent) (Entered: 11/04/2011)

Judge Dale Kimball, who was the presiding judge prior to the appeal, ruled against SCO when it tried in 2005 to amend its complaint against IBM a third time to include claims regarding Project Monterey, saying it was too late to raise the issues since SCO "either knew or should have known about the conduct at issue before it filed its original Complaint". So I'm not clear on what SCO is thinking, but what is new about that? Let's just tactfully say, it seems like a stretch. Maybe that's the explanation behind trying to revive IBM claims instead of any of its own. As in convoluted back door. SCO offers to supplement with new filings, if the judge wants. Right.

I'm still reading the memorandum, but I figured we could read it together, and if there are more highlights, I'll swing back by and add them. After I throw up.

Brent Hatch signed the memorandum. Here are all the lawyers listed on this document, so they can have their rightful place in history:

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

BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Edward Normand

This is as creepy as Miss Havesham's moldy wedding feast's remnants.

Back in April, when the deal to sell SCO assets to Unxis happened, the CEO, Richard A. Bolandz, was asked by Steven J. Vaughan-Nichols about litigation plans, and he claimed they had none such:

Bolandz replied, “UnXis has no intention to pursue any litigation related to the SCO Group assets acquired by the company. We are all about world leadership in technology not litigation.”...

"There is no place for litigation in our vision or plan,” Bolandz continued.

Didn't UnXis also get the SCO Group name? In the SCO bankruptcy filings since the sale, the entity formerly known as The SCO Group calls itself TSG. But UnXis *didn't* get the litigation against IBM. It's listed on the Excluded Assets. So who exactly is this asking to reopen the IBM litigation now? The filings say it's "The SCO GROUP, INC., by and through the Chapter 11 Trustee in Bankruptcy, Edward N. Cahn." Maybe the lawyers forgot themselves that they need to change the name. They can do that later, I suppose, but it's odd to anyone like me, who actually keeps track of the details.

Update: As mentioned above, I've pulled the PDF of the memorandum, because "SCO Group" failed to properly redact the filing. I wonder how many times SCO can do this before someone notices it's not the first time? It also quotes from the section of the March 5, 2007 oral argument on the two IBM summary judgment motions, where the public had been asked to leave due to confidential documents being discussed, without redacting that part. Note my curled lip.

Anyway, here's the redacted memorandum as text, with its weird pagination and its failed redactions preserved:

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

Brent O. Hatch (5715)
[email]
Mark F. James (5295)
[email]
HATCH, JAMES & DODGE, PC
[address, phone, fax]

David Boies (admitted pro hac vice)
[email]
Robert Silver (admitted pro hac vice)
[email]
Edward Normand (admitted pro hac vice)
[email]
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Stuart Singer (admitted pro hac vice)
[email]
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Counsel for The SCO Group, Inc.

____________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC., by and through the
Chapter 11 Trustee in Bankruptcy, Edward N.
Cahn,

Plaintiff/Counterclaim-Defendant,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

_____________________

THE SCO GROUP, INC.'S
MEMORANDUM IN SUPPORT OF ITS
MOTION TO REOPEN THE CASE

Civil No.: 2:03CV0294

Honorable Tena Campbell

(REDACTED)

TABLE OF CONTENTS

BACKGROUND ............................................ iii

ARGUMENT................................................1

A. Scope of the Novell Final Judgment........................2

B. The Project Monterey Claim........................3

C. Status of the Project Monterey Claim......................6

D. The Tortious Interference Claims. ..................7

E. Status of the Tortious Interference Claims. ..........10

CONCLUSION................................11

ii

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc. ("SCO"), respectfully submits this Motion to Reopen the Case in order to proceed with SCO's unfair competition claim concerning the Project Monterey joint venture (the "Project Monterey Claim") and with SCO's tortious interference claims alleging that IBM interfered with SCO's market and business relationships (the "Tortious Inference Claims"). The Project Monterey Claim and the Tortious Interference Claims are unaffected by the final judgment entered in SCO v. Novell, Civil No. 2:04CV139 (the "Novell Litigation"), which the Tenth Circuit has now affirmed. This Court need not await the resolution of that litigation, because it has ended.

BACKGROUND

In March 2010, District Judge Ted Stewart presided over a trial in the Novell Litigation to resolve two issues relevant to this case: (1) whether SCO owns the copyrights to versions of the UNIX operating system in existence when Novell sold the UNIX operating system and business to SCO in 1995, and (2) whether as part of the same 1995 transaction Novell retained rights to waive SCO's claims against IBM that are based on IBM's breach of its licensing agreements, executed in the 1980s, pursuant to which IBM licensed pre-1996 versions of UNIX.

On March 30, 2010, the jury returned a verdict finding that Novell had not transferred to SCO the copyrights to the versions of UNIX that existed at the time of the sale in 1995. On June 10, 2010, Judge Stewart issued findings of fact and conclusions of law, finding that Novell had the right to waive SCO's claims against IBM that are based on IBM's breach of its licensing agreements pursuant to which it licensed pre-1996 versions of UNIX.

iii

Judge Stewart issued a Final Judgment embodying the jury verdict and his findings of fact and conclusions of law (the "Novell Final Judgment"). On July 7, 2010, SCO appealed the Novell Final Judgment to the Tenth Circuit Court of Appeals.

While SCO's appeal of the Novell Final Judgment was pending, SCO filed a Motion for a Status Conference in the instant case, in order to "apprise the Court of the [Novell] Final Judgment" and "request a status conference for the Court to consider the appropriate time and manner to proceed with un-stayed claims in the instant action that are not affected by the Novell Litigation." (Docket No. 1089 at 1.)

On August 10, 2010, IBM opposed SCO's Motion for a Status Conference on the grounds that "SCO's claims depend on the outcome of SCO's appeal in the Novell Litigation" and "should not be litigated in the absence of IBM's counterclaims." (Docket No. 1091 at 1.) IBM did not dispute the fact that its counterclaims in this case are stayed by the Bankruptcy Code, 11 U.S.C. §§ 101.

On September 10, 2010, while SCO's appeal of the Novell Final Judgment was pending, this Court denied SCO's Motion for a Status Conference, finding that "the claims in the Novell litigation are inextricably intertwined with the claims in the IBM litigation." (Docket No. 1093 at 1.) The Court also stated: "When the Tenth Circuit Court of Appeals has issued its decision in the Novell litigation (No. 10-4122), either party may move the court to re-open the case. Until then, the matter will remain administratively closed." (Id. at 1-2.)

On August 30, 2011, the Tenth Circuit affirmed the Novell Final Judgment. On September 22, 2011, the Tenth Circuit issued the mandate for the Novell Litigation, bringing

iv

closure to that case. Consistent with the Court's order, SCO now moves the Court to reopen this case.

v

ARGUMENT

SCO respectfully moves the Court to reopen this case in order to proceed with SCO's unfair competition claim concerning the Project Monterey joint venture and with SCO's tortious interference claims alleging that IBM interfered with SCO's market position and business relationships.

SCO and IBM formed Project Monterey in late 1998 -- three years after the 1995 Novell-to-SCO transaction at issue in the Novell Litigation. IBM's tortious interference also started years after that transaction.

The Project Monterey Claim and the Tortious Interference Claims do not depend on SCO's ownership of the copyrights to the versions of UNIX that existed in 1995 and are not subject to Novell's right to waive SCO's contract claims against IBM. SCO recognizes that its other claims in this case are foreclosed by the Novell Final Judgment.

SCO respectfully requests that the Court rule on IBM's Motion for Summary Judgment on SCO's Unfair Competition Claim (SCO's Sixth Cause of Action), dated September 25, 2006 (Docket No. 782), which motion is directed at the Project Monterey Claim, and IBM's Motion for Summary Judgment on SCO's Interference Claims (SCO's Seventh, Eighth and Ninth Causes of Action), dated September 25, 2006 (Docket No. 783), which motion is directed at the Tortious Interference Claims.

Although SCO's oppositions to those two summary judgment motions set forth the grounds for the Project Monterey Claim and the Tortious Interference Claims in detail, including numerous IBM internal emails chronicling IBM's wrongful conduct, SCO is prepared to provide

1

such additional briefing or oral argument as the Court may find helpful, especially in light of the Novell Final Judgment.

A. Scope of the Novell Final Judgment.

The Novell Final Judgment drew a bright line with respect to the ownership of UNIX copyrights as between Novell and SCO, as delineated in the 1995 Asset Purchase Agreement between those parties. The Novell Final Judgment adopted Novell's theory that Novell retained the copyrights to UNIX technologies that existed, and that Novell sold to SCO, in 1995. Novell never disputed that SCO owns the copyrights to the UNIX technologies SCO developed after the 1995 sale. In fact, Novell insisted that SCO owns those copyrights. In addition, Novell did not dispute the fact that it sold and transferred to SCO the source code for all versions of UNIX that existed in 1995, including the versions whose copyrights Novell owns under the Novell Final Judgment.

Similarly, the Novell Final Judgment adopted Novell's theory that it had retained waiver rights over claims that are based on breach of certain agreements pursuant to which IBM and other licensees licensed pre-1996 versions of UNIX. Novell's waiver rights thus pertain to SCO's efforts to declare IBM in breach of such licensing agreements (executed in 1985 and 1986).

The Novell Final Judgment thus mooted claims in this case insofar as they were based on SCO's ownership of copyrights to pre-1996 versions of UNIX or were based on IBM's breach of the licensing agreements pursuant to which IBM licensed pre-1996 versions of UNIX. The Project Monterey Claim and the Tortious Interference Claims are not such claims.

2

B. The Project Monterey Claim.

In its unfair competition claim, SCO alleges that IBM misappropriated SCO's valuable UNIX technologies in connection with a joint venture between the parties known as Project Monterey.

In October 1998, IBM and SCO formed Project Monterey in order to develop a UNIX-based computer operating system that would capitalize on the emergence of Intel computer processors (or "chips") as a cost-effective alternative to RISC processors. At that time, Intel was developing its next-generation processor, a 64-bit processor known as Itanium or IA-64. IBM and SCO decided jointly to develop an operating system for the IA-64 platform (the "Project Monterey Operating System"), with the ultimate goal of transitioning their respective UNIX customers to the new processor on the Project Monterey Operating System. This venture was Project Monterey.

In 1998, IBM had almost no presence in the market for UNIX operating systems on Intel chips. Instead, IBM had focused its efforts on its UNIX-based operating system named AIX 5L, which ran on IBM's proprietary RISC-type processor named Power ("AIX for Power"). In contrast, SCO not only was the worldwide UNIX market leader in units sold, but was also, as IBM recognized in 1998, the [redacted] IBM recognized the critical need to have its own Intel offering.

In order for IBM to transition its AIX for Power customers to the Project Monterey Operating System, the parties agreed that IBM would earn a license to use SCO's UNIX technologies in AIX for Power, as these technologies would facilitate the transition. The parties also agreed that IBM would obtain this license only after making a generally available ("GA")

3

release -- that is, a general commercial release, as opposed to a beta release -- of the Project Monterey Operating System. SCO agreed to provide this license to IBM, contingent on the commercial release of the Project Monterey Operating System, because SCO was to be compensated through revenue it would receive from the sales of the Project Monterey Operating System and related products.

Despite its partnership with SCO, IBM subsequently decided that Linux -- an upstart open-source operating system that was trying to compete with SCO's existing UNIX products (UnixWare and OpenServer) and that would compete with the Project Monterey Operating System once it was completed -- offered IBM a more profitable entryway into the UNIX-on-Intel market. While IBM secretly abandoned Project Monterey in favor of its new Linux Strategy, IBM decided that it could not openly withdraw from Project Monterey, for fear of raising legal issues and forfeiting the opportunity to obtain the right to use the UNIX technologies that SCO was bringing to the Project, including technologies that SCO had recently developed precisely for the upcoming IA-64 processors. As one IBM executive explained, [redacted].

Accordingly, while outwardly pretending to remain committed to Project Monterey, IBM in fact was surreptitiously working behind the scenes to undermine the joint venture to the benefit of its competing products, Linux and AIX for Power. IBM's pattern of deception unfairly deprived SCO of the opportunity to find other partners, upgrade its UNIX products to compete with Linux, and avoid wasting resources on a specious and unproductive "joint" venture.

4

In addition, IBM directly misappropriated the UNIX technologies that SCO contributed to Project Monterey, by making a sham GA release of the Project Monterey Operating System. IBM's fictional GA release of the Project Monterey Operating System was of a non-functional product that lacked even a compiler a feature indisputably essential to the operation of an operating system. IBM's own witnesses in this case admitted that an operating system without a compiler cannot legitimately even be called an operating system. Among other IBM efforts to cover up the sham and justify its misappropriation, IBM concocted a price for the "released" Project Monterey product, and even went so far as to send SCO a single check of $256 for the revenues from the purportedly commercial release of the Project Monterey Operating System.

IBM's own internal communications chronicle the deception that IBM perpetrated upon SCO and the public in order to obtain and profit from the UNIX technologies that SCO had contributed to Project Monterey. For example:

[redacted]

At oral argument on IBM's pending motion for summary judgment, counsel for SCO walked Judge Kimball through these and other IBM documents revealing the depth and extent of

5

IBM's deception. (Argument Tr. (Ex. A) at 28:18-34:3.) Immediately following SCO's argument, Judge Kimball asked IBM counsel: "What do you say about these documents here?" IBM counsel first responded: "If I may be clear about the documents, Your Honor, if I may approach I could not see them, frankly, from over there." (Id. at 46:8-46:14.) After peering at the blow-ups of the documents in the courtroom, IBM counsel responded: "Your Honor, what I say about the documents is the following," and then proceeded to discuss only "the nature of the license IBM obtained pursuant to the JDA," without addressing any of the obvious admissions made in the documents. (Id. at 46:15-47:23.)

It remains undisputed, moreover, that IBM incorporated the misappropriated UNIX technologies into its AIX for Power operating system in competition with SCO starting in May 2001, and that IBM continued to sell AIX for Power with these valuable technologies at least through the time Judge Kimball heard the foregoing oral argument, in March 2007. As IBM executives admitted, the Project Monterey Operating System was never released as a generally available or commercial product -- and never would be.

C. Status of the Project Monterey Claim.

The Project Monterey Claim does not depend on SCO's ownership of the copyrights to the versions of UNIX that existed in 1995 and is not subject to Novell's rights to waive SCO's contract claims against IBM.

SCO submitted uncontroverted proof that IBM incorporated into AIX for Power valuable UNIX technologies that SCO developed after 1995 and whose copyrights indisputably belong to SCO -- technologies that were critical for IBM to remain competitive. In his expert report, under

6

the heading "Source Code IBM Copied from UNIX System V into AIX for Power," SCO expert Marc Rochkind concluded:

[redacted]
Gemini64 was a technology that SCO developed after 1995, precisely for the Intel 64-bit processors that did not even exist until after that year.

In addition, IBM misappropriated UNIX source code into its AIX for Power operating system. While Novell owns the copyrights to the UNIX source code that existed in 1995, SCO indisputably owns the UNIX source code itself, even after the Novell Final Judgment.

The Project Monterey Claim therefore is ripe for adjudication.

D. The Tortious Interference Claims.

The Tortious Interference Claims allege that IBM interfered with SCO's position as the leader in the UNIX-on-Intel market by wrongfully disclosing confidential UNIX technologies to Linux, in order to transform Linux from an upstart operating system for hobbyists to a commercial-grade alternative to SCO's UnixWare and OpenServer operating systems -- thereby interfering with SCO's existing customers and prospective business opportunities. These Claims also allege that IBM pressured and encouraged SCO partners and customers to terminate or reduce their relationships with SCO, when SCO pursued remedies for the misappropriation of confidential UNIX technologies into Linux.

7

In the 1980s, pursuant to its standard UNIX licensing agreements, AT&T granted IBM licenses to two pre-1996 versions of UNIX. It was undisputed in the Novell Litigation that AT&T sold all its UNIX licensing agreements, including the IBM agreements, to Novell, which in turn sold them to SCO in the 1995 transaction at issue in the Novell Litigation. SCO is thus the successor-in-interest to AT&T with respect to its UNIX licensing agreements with IBM.

Those agreements required IBM to treat the licensed source code and other UNIX technologies, including the methods and concepts and know-how embodied in the source code, as strictly confidential. Those licensing agreements also required IBM to apply those same confidentiality restrictions to any derivative (such as AIX) that IBM developed based on the licensed UNIX source code. IBM's own internal documents dating back to the 1980s, as well as the testimony of its former licensing executives, reveal that IBM acknowledged and originally adhered to those strict restrictions.

In the late 1990s, however, notwithstanding its long history of developing and protecting proprietary software, IBM decided to embrace Linux and the open-source movement. In making this strategic shift, IBM recognized that SCO was the undisputed leader of the UNIX-on-Intel market and that Linux was far from being a commercial product that could compete with SCO's UnixWare and OpenServer operating systems. Instead of making the huge investments that would be required legitimately to transform Linux into a commercial product, IBM made deliberated decisions to contribute valuable confidential UNIX technologies to Linux, including technologies that even today are essential to UnixWare and OpenServer.

Starting approximately in 2000, notwithstanding its obligations to SCO under the AT&T UNIX licensing agreements, IBM made substantial disclosures of technologies it was required to

8

keep confidential under those agreements. In addition, IBM misappropriated into Linux confidential UnixWare technologies that SCO contributed to Project Monterey (and that IBM also misappropriated into AIX for Power, as explained above). Because technologies that IBM disclosed to Linux lay at the heart of SCO's UnixWare and OpenServer products, IBM knew that its disclosures to Linux would divert SCO's existing and prospective UnixWare and OpenServer customers to Linux, decimate SCO's leadership position in the UNIX-on-Intel market, and threaten the survival of SCO's UNIX business.

Indeed, thanks in large part to IBM's improper disclosures and contributions to Linux, Linux became an operating system that could be used -- at a much lower price -- for the same commercial functions as UnixWare and OpenServer. Following those disclosures and contributions, as corporations transitioned their computer systems from UnixWare and OpenServer to Linux, SCO's revenues plummeted 74 percent.

In 2003, after the effects of its improper conduct became evident, IBM further isolated SCO in the market by pressuring and encouraging other companies to cease or reduce their business relationships with SCO. It was only at this point -- nearly four years into IBM's wrongful efforts to improve Linux at the expense of SCO -- that IBM even became aware of Novell's rights to waive SCO's contract claims against IBM. After SCO asserted that it would take action to protect its business, IBM asked Novell to exercise those rights and Novell agreed. Shortly thereafter Novell announced that it would be purchasing one of the world's leading Linux companies with a $50 million investment by IBM. Novell completed the purchase, with that investment, in January 2004.

9

E. Status of the Tortious Interference Claims.

The Tortious Interference Claims do not depend on SCO's ownership of the copyrights to the versions of UNIX that existed in 1995 and are not subject to Novell's rights to waive SCO's contract claims for IBM's breach of its licensing agreements for UNIX.

To the extent that SCO's Tortious Interference Claims are based on IBM's disclosure of pre-1996 UNIX technologies whose copyrights Novell owns under the Novell Final Judgment, SCO does not need ownership of those copyrights in order to bring tort claims based on IBM's obligation to SCO to keep those technologies confidential. In addition, the Tortious Interference Claims are based on IBM's disclosure of technologies whose copyrights Novell does not own, including derivatives of the UNIX source code that IBM licensed through the AT&T licensing agreements and UnixWare technologies that SCO developed after 1995 and contributed to Project Monterey.

Similarly, to the extent that SCO's Tortious Interference Claims are based on IBM's disclosure of technologies subject to the confidentiality restrictions in the AT&T licensing agreements, Novell's waiver rights under the Novell Final Judgment affect only the contract claims that SCO brought against IBM -- not SCO's tort claims based on those improper disclosures. The fact that Novell waived those contract claims years after the disclosures started does not diminish the impropriety of the disclosures or the damage they caused to SCO. Indeed, insofar as IBM requires the waiver to avoid liability for breach of contract, Novell's waiver only highlights the wrongfulness of IBM's conduct. In addition, the Tortious Interference Claims are also based on IBM's disclosure of confidential UnixWare technologies that SCO developed after 1995 and that are unrelated to IBM's AT&T licensing agreements for UNIX.

10

CONCLUSION

For the reasons set forth above, SCO respectfully asks the Court to reopen the case in order to proceed with the Project Monterey Claim and the Tortious Interference Claims. Should the Court grant this request, SCO stands ready to provide such additional briefing and argument, and to participate in a status or scheduling conference, as the Court may consider helpful.

DATED this 4th day of November, 2011.

By: /s/ Brent O. Hatch
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Edward Normand

Counsel for The SCO Group, Inc.

11

CERTIFICATE OF SERVICE

I, Brent O. Hatch, hereby certify that on this 4th day of November, 2011, a true and correct copy of the foregoing SCO's Memorandum in Support of Its Motion to Reopen the Case was filed with the Court and served via electronic mail to the following recipients:

David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Amy F. Sorenson
Snell & Wilmer LLP
[address]

Counsel for Defendant and Counterclaim-Plaintiff International Business
Machines Corporation.

By: /s/ Brent O. Hatch
Brent O. Hatch
HATCH, JAMES & DODGE, P.C.
[address, phone, fax]

12


  


Believe It Or Not: SCO Moves to Partly Reopen SCO v. IBM ~ by pj - as text, updated 2Xs | 352 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Believe It Or Not: SCO Moves to Reopen SCO v. IBM
Authored by: ndowens04 on Friday, November 04 2011 @ 08:59 PM EDT
Not another Living Dead show, Halloween is over, it is too
late.

[ Reply to This | # ]

Scombies Attack!
Authored by: kawabago on Friday, November 04 2011 @ 09:00 PM EDT
The rotting corpse of a once inconsequential software
publisher has risen from the dead to attack the living,
again!!! You buy them out, sell off their assets and they
keep coming back like a vol-de-mort of corporate greed! I
guess you have to shoot to their lawyers too. Need help?

[ Reply to This | # ]

Newspics
Authored by: henrik on Friday, November 04 2011 @ 09:19 PM EDT
Please mention the name of the news story in the title of
your post.

[ Reply to This | # ]

Believe It Or Not: SCO Moves to Reopen SCO v. IBM
Authored by: Kilz on Friday, November 04 2011 @ 09:37 PM EDT
While Novell owns the copyrights to the UNIX source code that existed in 1995, SCO indisputably owns the UNIX source code itself, even after the Novell Final Judgment.
So , without the copyrights, how are they going to win anything? If Novell owns the copyright, they can let anyone copy it.

[ Reply to This | # ]

Believe It Or Not: SCO Moves to Reopen SCO v. IBM
Authored by: Kilz on Friday, November 04 2011 @ 09:42 PM EDT
AT&T sold all its UNIX licensing agreements, including the IBM agreements, to Novell, which in turn sold them to SCO in the 1995 transaction at issue in the Novell Litigation. SCO is thus the successor-in-interest to AT&T with respect to its UNIX licensing agreements with IBM.
No, SCO was to administer the contracts as Novels agent. They didnt transfer any of the agreements to SCO. Otherwise Novell would have no claim to the 95% licensing fees from the existing contracts.

[ Reply to This | # ]

Chutzpah, redefined
Authored by: benw on Friday, November 04 2011 @ 09:53 PM EDT
Here's where my jaw dropped:

"In 2003, after the effects of its improper conduct became evident, IBM
further isolated SCO in the market by pressuring and encouraging other companies
to cease or reduce their business relationships with SCO. It was only at this
point – nearly four years into IBM’s wrongful efforts to improve Linux at the
expense of SCO – that IBM even became aware of Novell’s rights to waive SCO’s
contract claims against IBM."

Amazing.

[ Reply to This | # ]

Corrections here please
Authored by: jbb on Friday, November 04 2011 @ 09:53 PM EDT
I'll start. I think this article was penned by PJ.

---
[ ] Obey DRM Restrictions
[X] Ignore DRM Restrictions

[ Reply to This | # ]

Project Monterey
Authored by: rsteinmetz70112 on Friday, November 04 2011 @ 10:38 PM EDT
SCO's amended complaint included some general allegations related to
"secrets" allegedly "stolen" from SCO and that IBM used
Project Monterey to dupe SCO.

See their Amended Complaint starting at 55.
http://sco.tuxrocks.com/Docs/IBM/Doc-25.html
[Note that this is from a link in a Groklaw SCO Timeline 25]
These are summarized in the Fourth and Fifth Causes of Action.

The logic is not clear and all of the dots are not connected but SCO has alleged
that Project Monterey was a part of IBM's alleged improper conduct.

The rejected amendment to the complaint expand on these claims.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Inviting the Commendatore to Dinner
Authored by: benw on Friday, November 04 2011 @ 10:40 PM EDT
Even for SCO, there's something a bit strange about this. It's almost as if
they're asking to be put out of their misery here -- or BSF is. This isn't even
a speculative, unwinnable, shoot-the-moon case like Novell was. This is a case
they've already effectively lost.

[ Reply to This | # ]

Is SCO even a company any more?
Authored by: Kilz on Friday, November 04 2011 @ 10:53 PM EDT
Shouldnt they be way , way , way out of any money to operate? If so how can even
the bankruptcy court allow this to continue?

[ Reply to This | # ]

Believe It Or Not: SCO Moves to Reopen SCO v. IBM
Authored by: mupi on Friday, November 04 2011 @ 11:14 PM EDT
Sounds to me like SCO wants to reopen THEIR part of the case,
while keeping IBM from pursuing the counterclaim portions.
And wasn't SCO directed by Novell to stop pursing IBM? Or is
this somehow immune to that?

[ Reply to This | # ]

Believe It Or Not: SCO Moves to Reopen SCO v. IBM ~ by pj - updated
Authored by: wvhillbilly on Friday, November 04 2011 @ 11:34 PM EDT
What's Cahn doing back in this? I thought the SCO bankruptcy was all settled
after they sold everything but the litigation to UNXIS.

This is crazier than some of my dreams.

---
"It is written." always trumps, "Um, ah, well, I thought..."

[ Reply to This | # ]

OT here
Authored by: SpaceLifeForm on Saturday, November 05 2011 @ 02:36 AM EDT

Here's an Echo.

---

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

[ Reply to This | # ]

That is not dead which doth eternal lie...
Authored by: Anonymous on Saturday, November 05 2011 @ 04:00 AM EDT
SCO; why, oh why are they continually allowed to get away with so many lies in
their statements...

[ Reply to This | # ]

Monty foresaw this
Authored by: Anonymous on Saturday, November 05 2011 @ 04:07 AM EDT
http://www.youtube.com/watch?v=l1knR3X_Luo

:-)

[ Reply to This | # ]

My first thought was 'who cares?'.
Authored by: Ian Al on Saturday, November 05 2011 @ 05:38 AM EDT
My thought on finishing the article is that this is the most important
question.

Well done PJ for popping in the 'knew or should have known' reference. I was
already warming up the search engine when I got to that part. The judge was
referring to the fact that SCO was not permitted to amend their claims about
Monterey because they knew or should have known all about it when they were
conjuring up their original claims.

What the judge did not refer to was the fact that IBM had used the terms of the
Monterey agreement in a fully legal way in all respects. IBM followed the
agreement in closing down the Monterey project before SCO bought the Unixware
business. The agreement specifically covered both joint rights to code use and
the change of ownership of the Santa Cruz business. Santa Cruz was very much a
junior partner to the agreement. SCO knew that the project had ended well before
the negotiations to buy the business from Santa Cruz. Due diligence would have
shown that no Monterey rights could transfer under the Santa Cruz -> Caldera
APA.

Back to my most excellent question; 'who cares?'. BS&F would seem to reap
further major losses from the action. Could it be that Ed is back in love with
Ralphy after Ralphy tried to sue him? I don't think Ed Cahn holds Ralphy in any
regard at all even though Yarro is a major creditor to the litigation.

Could Ed be secretly in the pay of the Micro-pipe-fairy? Ed will not see the
fall-back of payment by the courts as sufficient encouragement to carry on doing
anything now that the creditors money is all gone and he cannot be paid by the
estate. Ed must be behind this: all the other management are gone. Does Ed
believe there is a chance of money from IBM by revivifying those claims of IBM
that give a back-door route to claiming again what SCO claimed before and were
rebuffed by Judge Kimball?

I believe that the Micro-pipe-fairy has patently moved on to other unfair
battlefields, so who is left to care? It can only be Ed. Can he really believe
that IBM will pay him to go away by initiating claims that have so little chance
of survival, let alone success? Does he really think that he will have more
success in accusing IBM of unfair business practices and contract violations
than did SCO?

Yes indeed, who cares and why?

---
Regards
Ian Al
Software Patent: code for Profit!

[ Reply to This | # ]

Comes transcriptions here
Authored by: kattemann on Saturday, November 05 2011 @ 06:34 AM EDT
Use simple HTML and post as plain text, so copy-paste works.
Thanks!

[ Reply to This | # ]

I had forgotten how good PJ is at this.
Authored by: GriffMG on Saturday, November 05 2011 @ 06:36 AM EDT
It's nice to see your detailed analysis and picking apart of tSCOGs work.

Missed it.

Thanks PJ

---
Keep B-) ing

[ Reply to This | # ]

Rob Enderle Is Back In The Lawsuit!
Authored by: sk43 on Saturday, November 05 2011 @ 07:37 AM EDT
Exhibit [IBM-835-61] was submitted as part of IBM's Motion for SJ on SCO's
Tortious Interference With Contract Claims (Nos. 7, 8, 9) [IBM-836]. This
exhibit is actual a copy of the notorious Exhibit 90 that was submitted by SCO
during the deposition of Ryan Tibbitts on the same subject matter. Exhibit 90
is a list of a number of entities with whose current or future business
relationships with SCO IBM allegedly intefered.

On PDF page 14, we find the following in regard to one particular entity:

"Business Relationships: 'Rob Enderle (with Gartner)'"

"IBM Interference: 'Rob Enderle stated that he was working at Garner Group
and the high-level Gartner executives treated him unfairly because he supported
SCO's side of the lawsuit.'"

"Witness: 'Darl McBride'"

The fact that Enderle worked for Forrester, not Gartner, should be of no
consequence, right? What is it that Rob said? Oh yes: "SCO Should
Win". Who knows - it could still happen!

[ Reply to This | # ]

Other Questions that need Answering
Authored by: complex_number on Saturday, November 05 2011 @ 09:00 AM EDT
won't that also open it for IBM?

Will we see IBM request/mandate that ALL its counterclaims are re-opened if SCO
gets its way?

When will SCO be wound up (goto Chap 7)? After all tjhey have no income or
assets.

Don't SCO (uNixs or the Trustee) owe Novell a whole heap of money? Wont' this
action make Novell/Attachemate but in and try to get their monies paid over?

Frankly, this is getting rather silly and the SCO Lawyers should really tell
SCO(or whoever is pulling the strings), that it is time to give up. SCO Lost and
it is time to move on. But the US Legal system does not seem to be able to be
able to give one side or the other proper closure.


---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

SSDD
Authored by: rsi on Saturday, November 05 2011 @ 10:41 AM EDT
Same "Stuff", Different Day!

Nothing they do surprises me anymore!

I don't see how they can afford to keep this company in business, let alone keep
these unwarranted, ridiculous, insane lawsuits active.

I sincerely hope that this foolishness does NOT go unnoticed by the bankruptcy
court in Delaware. There does have to be a limit to their tolerance.

[ Reply to This | # ]

  • SSDD - Authored by: PJ on Saturday, November 05 2011 @ 10:56 AM EDT
    • SSDD - Authored by: rsi on Saturday, November 05 2011 @ 11:11 AM EDT
      • SSDD - Authored by: Anonymous on Saturday, November 05 2011 @ 04:35 PM EDT
    • SSDD - Authored by: tknarr on Saturday, November 05 2011 @ 12:07 PM EDT
    • SSDD - Authored by: red floyd on Monday, November 07 2011 @ 12:17 PM EST
Wow. Is this all downside to IBM?
Authored by: Anonymous on Saturday, November 05 2011 @ 10:43 AM EDT
Maybe they are hoping for a settlement, because it looks to
me like it is all downside for IBM. TSG is bankrupt. Not a
dime. IBM has no chance of ever recovering any judgement.
TSG does not have to pay a dime for the litigation, it's all
on the Boise Boys nickle. TSG can sue with impunity, they
might make some money and it won't cost them a thing no
matter how badly they lose.

It is sick that the courts allow themselves to be abused
like this. This mess is really the fault of the judges that
let SCO's baseless claims go on for so long, then the
bankruptcy judge that protected them so that they could
continue to sue.

There has to be a huge trail of bribes here. I wonder if we
will ever find out the truth?

[ Reply to This | # ]

Believe It Or Not: SCO Moves to Partly Reopen SCO v. IBM ~ by pj - updated
Authored by: kpl on Saturday, November 05 2011 @ 10:52 AM EDT
This is less like a zombie attack and more like
something out of Monty Python:

SCO: I'm not dead yet!

Court: you're not fooling anyone ya know!

SCO: I feel happy! I Feel fine!

Court: THUMP!


---
---------------------------
Latine loqui coactus sum
---------------------------

[ Reply to This | # ]

Biggest laugh I have had today - IBM will bury them
Authored by: SilverWave on Saturday, November 05 2011 @ 12:25 PM EDT
As is fitting re the living dead.

;-)

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

[ Reply to This | # ]

The Tortious Interference Claims
Authored by: Anonymous on Saturday, November 05 2011 @ 08:02 PM EDT
After laying out the facts about Novell having the right to waive and that Novell retained the copyrights, they go into this bit:

In the 1980s, pursuant to its standard UNIX licensing agreements, AT&T granted IBM licenses to two pre-1996 versions of UNIX. It was undisputed in the Novell Litigation that AT&T sold all its UNIX licensing agreements, including the IBM agreements, to Novell, which in turn sold them to SCO in the 1995 transaction at issue in the Novell Litigation. SCO is thus the successor-in-interest to AT&T with respect to its UNIX licensing agreements with IBM.

Everything in that section reads like a joke.

[ Reply to This | # ]

All I want
Authored by: inode_buddha on Saturday, November 05 2011 @ 08:15 PM EDT
All I want at this point is to see the Lanham act counterclaims put back into
play somehow... And then see them thru to the end, unblinking methodical and
clinical.

Just to serve as a warning, of course. Especially with regard to patent
activities.

Because when you think about it, and human nature, that's what they're *really*
afraid of.
.

---
-inode_buddha

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

SCO's Project Monterey Claims do Hold a Little Water
Authored by: rsteinmetz70112 on Saturday, November 05 2011 @ 09:55 PM EDT
SCO rather circuitously is alleging that through Project Monterey IBM duped SCO
into expending resources to develop a product that IBM had no intention of
promoting.

Further SCO alleges that IBM used SCO's "trade secrets" to enhance a
competing product.

The first of these allegations seems improbable but may or may not be true. The
second seems demonstrably false.

Neither seem to hinge on the Novell copyrights.

I'll now duck for cover.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Project Trillian
Authored by: Anonymous on Saturday, November 05 2011 @ 10:21 PM EDT
With SCO bringing up Gemini64, which to my understanding was an early attempt to their software ready for what was to be the Itanic Itanium. I can't help but recall that Caldera was an active participant in Project Trillian, which I believe started in the late 90's. Project Trillian was meant to and succeeded in getting a port of the Linux kernel to work on the same processor.

[ Reply to This | # ]

  • Press Release - Authored by: Anonymous on Saturday, November 05 2011 @ 10:32 PM EDT
Believe It Or Not: SCO Moves to Partly Reopen SCO v. IBM ~ by pj - as text, updated 2Xs
Authored by: JamesK on Sunday, November 06 2011 @ 07:25 AM EST
Ripley clearly has nothing that compares with this! ;-)

---
IANALAIDPOOTV

(I am not a lawyer and I don't play one on TV)

[ Reply to This | # ]

Believe It Or Not: SCO Moves to Partly Reopen SCO v. IBM ~ by pj - as text, updated 2Xs
Authored by: Anonymous on Sunday, November 06 2011 @ 09:13 AM EST
"On August 30, 2011, the Tenth Circuit affirmed the Novell Final Judgment.
On September 22, 2011, the Tenth Circuit issued the mandate for the Novell
Litigation, bringing closure to that case."

Is there some location where these rulings are posted?
Thanks,
ED

[ Reply to This | # ]

Believe It Or Not: SCO Moves to Partly Reopen SCO v. IBM ~ by pj - as text, updated 2Xs
Authored by: rebentisch on Sunday, November 06 2011 @ 09:28 AM EST
Why do US courts still enable them to waste our time? It's not even entertaining
anymore. The case just demonstrates a defunct litigation system and undermines
trust in the US legal system.

[ Reply to This | # ]

MORs
Authored by: sproggit on Sunday, November 06 2011 @ 04:13 PM EST
I get confused... I know that the SCO corpse sold of their Unix assets to Unxis
and retained the litigation side of things. I presume that means that Judge
Edward Cahn is still in charge of the corpse.

Unless there has been a Chapter 7, or unless there has been something exciting
happen that we missed, does that mean that SCO are still in Chapter 11?

If that's the case, should they have been filing MORs?

The reason for asking is obvious - I am wondering exactly how much cash they
have got left to continue this particular party. Did they get enough of a
windfall from the sale of the unix business to keep these dream alive?

And if they did get a windfall, one can only presume that Judge Gross, presiding
over the bankruptcy, didn't think that there was any reason for SCO to hand that
money over to any of the creditors, right? After all, what's Chapter 11 if not
an excuse to *not* pay creditors what the are owed???

Does anyone have access to the financials and/or is anyone able to give a view
as to precisely what these children have left in the piggy bank?

[ Reply to This | # ]

  • Good question... - Authored by: Anonymous on Sunday, November 06 2011 @ 06:37 PM EST
  • MORs - Authored by: benw on Monday, November 07 2011 @ 06:54 PM EST
Believe It Or Not: SCO Moves to Partly Reopen SCO v. IBM ~ by pj - as text, updated 2Xs
Authored by: Anonymous on Sunday, November 06 2011 @ 05:59 PM EST
I guess that Darl's money ran out and he can't get a job?
Totally bizarre.

[ Reply to This | # ]

Believe It Or Not: SCO Moves to Partly Reopen SCO v. IBM ~ by pj - as text, updated 2Xs
Authored by: dmarker on Sunday, November 06 2011 @ 06:06 PM EST

Well, I guess that clarifies aspects of their strategy.

It seems that after they realized they weren't going to get $billions for their
so called Unix ownership rights plus from claims of Linux infringement, they had
run themselves into a debt end.

They found a devious way to off load their liabilities but retained the right to
core aspects of the IBM litigation as they appear to still believe that IBM will
settle sooner or later, even if just to get rid of them.

So, will be see Baystar II come up with more litigation funds - I think yes but
done far more deviously & better hidden this time. I suspect the required
funding is already in place.

Big business at its absolute worst.

DSM

[ Reply to This | # ]

Is it April 1st already?
Authored by: Anonymous on Sunday, November 06 2011 @ 10:32 PM EST
I had to reread that title before I believed it.

[ Reply to This | # ]

Believe It Or Not: SCO Moves to Partly Reopen SCO v. IBM ~ by pj - as text, updated 2Xs
Authored by: Anonymous on Monday, November 07 2011 @ 03:23 AM EST
But is this case being brought on behalf of the company formerly known as TSG
which was a party to that agreement or on behalf of the new company calling
itself TSG which was not a party to that agreement?

Did that contract with BSG transfer to the new company or was is explicitly
excluded from the sale of assets and liabilities?

Didn't the litigation stay with the old company?

[ Reply to This | # ]

So what are we missing?
Authored by: Anonymous on Monday, November 07 2011 @ 06:19 PM EST
There is absolutely no logical reason to pusue this, so what's the *real* deal?

Tinfoil hat theories are welcome, because the normal hat is empty...

[ Reply to This | # ]

the undead are never dead :)
Authored by: Anonymous on Monday, November 07 2011 @ 08:17 PM EST
Sorry Pammie, I couldn't resist ... Christopher Lee :)

[ Reply to This | # ]

Don't the living dead ever get tired?
Authored by: Anonymous on Monday, November 07 2011 @ 08:28 PM EST
It's phrases like that, that keep me coming back to GL ... :)

[ Reply to This | # ]

Spurious Theory
Authored by: Anonymous on Tuesday, November 08 2011 @ 04:47 AM EST
Maybe SCO is just doing due-diligence for its shareholders, they wouldn't want
to be sued for failing to find the pot of gold at the end of their rainbow.

[ Reply to This | # ]

Believe It Or Not: SCO Moves to Partly Reopen SCO v. IBM ~ by pj - as text, updated 2Xs
Authored by: benw on Tuesday, November 08 2011 @ 06:37 PM EST
Another thing I noted:

"I gather this means they won't be appealing the SCO v. Novell decision,
the
deadline for which is November 28th, I believe."

Well ... this would be a logical assumption, and it would be pointless as well
as
extremely unethical for them to appeal that decision having gone down this
road. So, I wouldn't count on anything until November 28th is past.

[ Reply to This | # ]

Believe It Or Not: SCO Moves to Partly Reopen SCO v. IBM ~ by pj - as text, updated 2Xs
Authored by: Anonymous on Thursday, November 10 2011 @ 04:51 AM EST
@ SCO.. give it a rest... As in, you lost!! Take that into consideration before
you make yourselves the laughing stock of everyone's jokes. As if you aren't
already that!! Seriously!!!.

[ Reply to This | # ]

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