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Followups on Novell's New Litigator and Apple
Sunday, June 12 2005 @ 04:04 PM EDT

You will enjoy reading Lamlaw's entry for June 10, ("Novell Hires Another Lawyer for the Team - Guess What He's Good At? (Groklaw)"), because he believes that Novell may be getting ready to sue SCO for slander of title. He agrees with my guess that they didn't hire a litigator now just to watch the judge finish off the current litigation.

Novell has, he believes, the necessary pieces to turn around and sue SCO for slander of title, if they first bring an action to clear the Unix title and then, after winning that, sue for slander of title and get their special damages paid by SCO, for all the annoyance SCO brought them. Neither litigation would fall under SCO's legal fee cap either.

And I also found some interesting followup to the Apple-goes-Intel story, which I placed as an update to the original article, but wish to draw to your attention here. There has been enough discussion about Intel and DRM that Intel has issued another statement.

First, Lamlaw:

Is the SCO v Novell case about to be dismissed?  I have certainly suggested the same a number of times.

And remember the much earlier argument that came up in the case regarding "special damages"?  Well, special damages do include legal fees spent in an effort to defend your title.  So in the likely event that Novell gets the Slander action dismissed because SCO can not prove they were assigned those copyrights (meaning Novell still has them), then Novell has the requisite special damages necessary to sue SCO for slander.

Of course, we are just speculating, right?

Sure, of course we are.

But something is up.

An earlier Lamlaw entry on May 27 explains what he sees as a practical course for Novell to clear the air of what we on Groklaw have come to jokingly call "the gestank of SCO." Even if SCO's complaint is dismissed, there would remain a cloud over Novell's title to Unix, simply because SCO brought a kind of action, slander of title, that doesn't naturally clear up the title the way a breach of contract action could have. He first states his opinion that, if SCO wanted to bring a slander of title action, it didn't set it up appropriately, skipping some necessary steps. First, he says, they should have asked Novell to turn over the copyrights and sorted out the matter of who owned them and whether SCO could prove they needed them for their business. After winning that, if they could have, then SCO could have sued them for slander of title. Instead, they put the cart before the horse, maybe, he theorizes, because there is no horse:

SCO has just tried to skip reality and skip the proper process for first proving you own something and then proving that someone else wrongfully interfered with that ownership.   

Well, my guess is that SCO will have their case dismissed.

The opinion from the court may very well mention the inability to prove malice or even the inability to prove that the assignments were made. But what the judge may be thinking is that SCO brought the wrong suit.  Cart before the horse, in other words.

Sometimes people put the cart before the horse because they get in a hurry.  Other times they do so because they do not have a horse at all and they just hope no one will notice.   The world noticed.  And I bet the judge has too.

I doubt the judge will use the cart/horse analogy in his decision.  But you can bet he is thinking about it. 

Maybe the SCO v. Novell case is the horse and the SCO v. IBM case is the cart.  (Another pair of objects, right.) Of course, the IBM suit was filed before the Novell one.  So SCO has two carts out front and no horses in sight.  And this judge is being asked to ride them both.  What do you want to bet he jumps off one of them pretty quick?  And then you have one big accident in the muddy street?  A train wreck?  House of cards collapsing?  Call it what you want.  But it is very likely this judge can see what is ahead.  (And to stick to the analogy, the judge can see what is not behind him.)

The legal system does turn slow.

But if this judge is prudent, and I have no reason to suggest otherwise, he will proceed properly and with caution making sure his tracks are properly covered.  The suggestion has been made by Marbux over at Groklaw that this judge has reached a point where he is now managing these cases.  That may be the case.  And if you were trying to ride two carts down the street at the same time and no horses were in sight, you would think seriously about doing that too.  (Maybe it is not just two carts.  Autozone is there.  The axle on DaimlerChrysler broke. And the Red Hat case too.  But at least Red Hat brought their cart to the street because SCO claimed to have an extra horse.)

I do not see any horses.

And you have to give Groklaw a lot of credit here too.  Groklaw has been looking for horses too.  No doubt, Groklaw, as well as many others, may have hoped that no horses would show up (and none have).  But, the investigation has been sincere just the same.

That is true. The search has been sincere, and had I found any horses, I would have written about it straightforwardly. I just can't find any.

Apple Followup

Here's the update material I added to the Apple/Intel story plus a bit more:

Some more reactions to add to the early hype -- CIO Today's "PowerPC's Legacy Lives On," which offers some theories on what went wrong. Linspire's Michael Robertson's "Apple's Colossal Disappointment" says that there will be specially designed Intel chips for the Mac, to make sure there will be no white box possibilities:

My disappointment was captured by an Apple spokesman who commented on what the switch does not mean: "We will not allow running Mac OS X on anything other than an Apple Mac." Future "Mactel" computers will have specially designated Intel chips, not generic x86 compatible chips found in common PCs. My sources say that Jobs is going to use Intel's cryptographic technology called LaGrande to make sure OS X will only boot on Apple-branded hardware. This is a similar technique to the one that Microsoft used to make sure Linux could not be loaded on Xbox - see: MM on Linux on Xbox.

The bottom line is that PC buyers will unfortunately not have the option to install and experience OS X. There will be no low-cost laptops from budget-minded Taiwanese manufacturers. There will be no generic AMD or Via white boxes sold by the millions capable of running OS X. Apple will not be reaching the 95% of the world buying Intel-compatible machines.

And here's another view from IT Jungle:

The sad truth is that IBM and Apple should have long since ported Mac OS to the Power-based server line created by Big Blue, and IBM should have listened to Apple and created a low-powered, 64-bit PowerPC chip that could run Mac OS X in a laptop without cooking a user's legs. IBM most certainly could have done this, but it has had other priorities--like ramping up performance on the Power5 chips as much as possible to compete in the Unix and proprietary midrange and enterprise server space or selling low-powered chips for embedded devices. IBM's PowerPC 970 and its supposed kicker, the PowerPC 970MP with dual cores, was a high volume product in relation to Power5, but it probably didn't make IBM as much money or Big Blue would have fought to retain the Apple business. For all we know, IBM made such promises. It doesn't matter. This should have happened in 1995.

So why will it take 18 months to roll out the Intel-based Apple machines? Because Apple thinks it is a hardware manufacturer, and it is in love with the idea of designing and building computers. And that is fair enough. Let's face it: Apple has the sexiest computers on the market, whether they are desktops or iPods or xServes. But if Apple is really interested in taking the X86/X64 market by storm, it may be time to let Mac OS X go--and really let it go. At the very least, Apple might be smart to create an open source community and let that community do a port of all the relevant pieces of Mac OS X to all kinds of X86 and X64 machines. For native Intel code, this would be a great strategy.

Cringely thinks it's about taking on Microsoft, and that Intel will buy Apple. Since Apple says it's about chips, here's an article on chips and heat. Intel has a statement on Dave Farber's interesting-people list, reinforcing that it does not have DRM embedded in the chip, in response to a thread of skepticism about exactly what their earlier statement meant. You might also find this Intel page fascinating, on DTCP, Digital Transmission Content Protection, and how wondrous it is. But the page adds this information:

Intel had decided copy protection shouldn't be implemented in hardware - an approach that would require platform changes. Instead Intel proposed a software solution that would be clad with 'tamper-resistant' software to provide protection for the implementation.

In a way, it's surprising a company known for its silicon would suggest a software solution. But Intel knew a major objective for CE companies was for the solution to be extremely lightweight and inexpensive. CE devices can range hugely in price, from an inexpensive digital recorder for kids to a $5,000 home theatre system. Consequently, any copy protection solution had to work for the cheapest device and add practically nothing to its price. . . .

An immediate concern was that content owners might want to prevent all copying and mark everything "copy never." This would defeat most of what the PC and CE industry were trying to do and, most importantly, frustrate the consumer. Consumers expected DVD and digital recording technologies to perform just like VCRs and tape recorders. They expected to be able to make reasonable use of content, including making copies of content. Consequently, part of the initial work was figuring out what kinds of content should be marked "copy never," "copy one generation," and "copy freely." The 5C began work to strike policy and legal agreements that would define and enforce the use of DTCP. An organization for handling all these policy and licensing issues was created. This organization, the Digital Transmission Licensing Administrator, is a limited liability corporation charged with licensing and administering the DTCP technology.

So Intel enables software "protection", cryptography, which they claim hackers can't break, not a hardware solution, to which the consumer may well respond: However you do it, how are you guys planning to protect fair use? And what is in it for us? Here's the Digital Transmission Licensing Administrator's May 2005 Adaptor's License [PDF] and their Statement [PDF] about it when it was released, in which they detail and explain all the ways they have figured out to make companies using their encryption system pay them for the privilege and set out their compliance rules and the ways to sue one another if things go South. That's the proprietary way. I suggest you read the two documents after you first read the GPL, and then ask yourself which world you wish to live in. Here's [PDF] how it works, sort of. If you really want to know, you have to pay for a license first. This isn't necessarily the system Apple would use, of course. All of this is just to say, the world is dividing into two camps, closed and closely monitoring consumers, with all the privacy issues that implies, and the Free World.

We also learn from IP, in this post, that the Apple developer kit is based on Pentium 4. And finally, ZDNet's Dana Blankenhorn has a theory on why he thinks IBM didn't care about losing the Apple account, in his article, "Could Apple loss be IBM's gain?":

The chip business is moving in two directions at once, toward mass production and mass customization.

A Microsoft order for XBox chips means mass production. Orders for FPGA chips onto which a process may be programmed represent  mass customization.

An order for Mac chips falls somewhere between the two. Extensive development is needed for one customer, but is production really high enough to beat Moore's Second Law, the idea that costs rise with complexity, and grow exponentially?

It's possible that IBM concluded, not any more. Given Apple's proprietary model, the contract may not have been worth fighting for.

Check out this article on the Cell processor.


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