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The Day After & Motion to Intervene Denied as "Wholly Inappropriate" - updated
Thursday, July 17 2008 @ 01:40 PM EDT

The media is beginning to cover the Order in the SCO v. Novell trial. Here's a sampling:
  • Information Week: "In a decision Wednesday, Utah District Court Judge Dale Kimball, who had previously ruled that Novell, and not SCO, owns the rights to Unix, found that SCO improperly collected Unix royalties that rightfully belonged to Novell. Kimball ordered SCO to pay Novell $2.5 million in restitution....SCO may have gotten off lightly...."
  • The Inquirer: "However, Judge Kimball's ruling granted Novell only a fraction of the amount it sought at trial, which was more than $20 million. He accepted SCO's argument that its licence deal with Microsoft and its SCOsource licence sales were primarily about Unixware, although those necessarily implicated SVRX licences as well."

Remember when SCO began its media blitz? Stories everywhere. The world thought it was exciting to imagine Linux on the ropes. Now, when SCO is told it behaved improperly and must pay millions, only a few even note it. No one cares about SCO in failure, except for some who feel disgust, like Matt Asay.

What a strange ride it's been. You'd think the folks that wrote all those stories about SCO eating Linux's lunch would at least place a notice on their Corrections Page: "Um. About that lunch stuff, we were totally duped by SCO. They haven't won anything. The best they can do is not lose as big as they could have."

Wait. Hold the presses. Todd Weiss reports the SCO loss as a loss in an article titled SCO loses another round in Unix fight, must pay $2.55M to Novell in ComputerWorld:

At the beginning of its massive legal fight against Linux in 2003, The SCO Group Inc. imagined a day when companies like IBM, Novell Inc. and others would pay it large amounts of cash for alleged infringements on SCO-owned Unix code.

Instead, even as those legal fights meander through U.S. courts, the tables were turned and SCO yesterday was ordered to pay $2.55 million to Novell for collecting Unix licensing revenue from Sun Microsystems Inc. that it wasn't entitled to collect.

That is what just happened. The company that told the world they couldn't wait for their day in court got it, and they lost. And there's more to come.

Anyway, we're still here, and we're not going anywhere. I know SCO is not over yet. Don't forget, the Novell litigation was a sideshow. Covering SCO is a marathon, not a sprint. The main event is IBM, still to come. And I expect SCO to have to pay through the nose to them for what turned out to be frivolous litigation, since the Order yesterday said that SCO has made no claims about UnixWare against IBM, and it doesn't own the copyrights to what it did sue IBM over.

I see everyone notices SCO got off light, and no word yet from Novell.

I think they have to appeal, frankly, if they can find a way. Otherwise, SCO will sell the litigation rights to whoever was really behind this, or a surrogate, and off we go again. But it's their decision. SCO will try to be bad no matter what anyone does. So, at this point, they have to figure out what is worth doing. If SCO pays Novell, they are pretty much wiped out of cash, from my calculations, unless some PIPE Fairy showers them with more. I think a rational question would be, though, why would anyone wish to loan money to a company that was just ruled guilty of conversion of Novell's money? Maybe a buyout by a true believer with a gambling problem.

I don't believe it's true that UnixWare was what SCOsource was primarily about. I don't know about the Microsoft deal, because we are not allowed to read it. But I followed SCOsource closely, and UnixWare was involved at the beginning, but no one bought that first SCOsource offering. That was even brought out at trial. Statements to the media by SCO were that it was about UNIX System V. It shifted fairly early, and that's when they filed for the copyrights, all of which but one were for System V, not UnixWare. That fact alone tells me they are not identical, nor were they in SCO's mind at the time, so I think it can hardly be argued that SVRX was incidental to SCOsource or that UnixWare is just the latest version of UNIX System V. If it were, you wouldn't need separate copyrights. However, the order on that point was complex, so I'm guessing Novell is analyzing closely what they can and can't do about it.

[Update: I thought this was funny, from eWeek:

Both parties may be able to appeal the decision, suggesting that the long, overdrawn case could continue to hobble along even longer than it already has. To quote Steven Vaughan-Nichols, "Like the 11th chapter of a bad horror movie, the SCO zombie keeps stumbling forward moaning "Linux," instead of "brains."

But someone sent me Maureen O'Gara's latest, a very hilarious snip. She of course is warning that Linux end users are at risk, because SCO can now sue them for infringing UnixWare. Heh heh. Folks, they could have sued for post-APA UnixWare five years ago. In fact, that is part of what SCOsource was allegedly about. Remember? That's the story. So it's nothing new that SCO can sue over UnixWare. And yet, they never did. If you look at the IBM case, not one line of infringed code from UnixWare was listed by SCO. Would that be for a reason? Like there isn't any? You think?

Seriously. If SCO had any claims like that, they could have brought them long ago, half a decade ago, literally. The fact that they didn't speaks volumes.

That's not to say they won't try. Winning doesn't seem to matter to SCO, just suing. And the whole world will know they dug it up from the bottom of the barrel, after all else failed. It is a little hard to avoid the distinct impression of trying to destroy Linux, as opposed to any valid claim of infringement. - end update.]

There was another order, about the motion to intervene:

541 - Filed: 07/15/2008
Entered: 07/16/2008
Order on Motion for Miscellaneous Relief
Docket Text: ORDER denying [540] Motion to Intervene and Reconsideration or Clarification. Signed by Judge Dale A. Kimball on 7/15/08. (jwt)

That took only five days. This way the parties don't have to spend money to oppose. Some of you were asking if they would have to do that, and here is your answer: no. The judge can rule on a motion without having to wait to hear from the parties, and he just did. Here it is as text.

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

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

________________________

THE SCO GROUP, INC.,

Plaintiff,

vs.

NOVELL, INC.,

Defendant.

___________________________

ORDER

Civil Case No. 2:04CV139DAK

__________________________________________

Jonathan Lee Richins, a federal prisoner at FCI Williamsburg, filed a pro se Motion to Intervene As Plaintiff under Federal Rule of Civil Procedure 24(a) and a Motion for Reconsideration or Clarification en banc. Rule 24(a) requires a court to permit anyone to intervene who “is given an unconditional right to intervene by a federal statute; or . . . claims and interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(b).

Riches does not cite to any statute, federal or otherwise, that gives him an unconditional right to intervene. In addition, Riches does not assert an actual interest in the case. Riches claims to have an interest in “the UnixWare software and defendants [sic] refusing Royalty payments.” To the extent that he has such an interest, it is clearly not relevant to or impacted by the dispute between SCO and Novell. There is no issue in this case with respect to Novell refusing royalty payments to individuals. At most, Riches claims to have information that pertains to the case. This does not provide a basis for intervention in the case. Riches would similarly not be entitled to permissive intervention in this case as none of his allegations have anything in common with the questions of law or fact pertaining to this case.

The court concludes that the motion to intervene is wholly inappropriate and it is DENIED. Riches’ Motion for Reconsideration is also DENIED as it is moot.

DATED this 15th day of July, 2008.

BY THE COURT:

____[signature]____
DALE A. KIMBALL
United States District Judge


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