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SCO Complaint in SCO v. Novell - as text
Monday, January 26 2004 @ 07:35 AM EST

Here is SCO's Complaint in the new SCO versus Novell slander to title lawsuit, as text.

It'll make the blood rush to your head a bit, not out of anger, but because of an Alice-in-Wonderland upside-down sensation. They are asking the court to punish Novell for making statements with "a knowing and intentional disregard for the truth".

What? Lying?

In Utah?

How long has that been going on?

Well, now, if lying is against the law in Utah, I need to call my lawyer and bring an action myself. I have just the corporate defendant in mind, too. Their executives' crimes in the fib category, Felony, Subsection I.A(2), have piled high up to the heavens.

I think I just figured out a way to monetize Groklaw. This could really start to add up. We could ask for triple damages, and attorneys fees. And with a fine for each lie, why, the Quote Database alone could be worth millions.

Why so puny a dream? Not millions. Billions! Be still, my heart. Quick, I need to incorporate and get some shareholders. I need to tell the press I'm doing it all for the shareholders.

While I'm counting my treasure, you might notice one more odd thing: David Boies isn't listed as one of the attorneys on this case.

********************************************
[Stamp: FILED 04 JAN 20]

Brent O. Hatch (5715)
Mark R. Clements (7172)
HATCH JAMES & DODGE, P.C.
[address, phone, fax]

Kevin P. McBride (4494)
[address, phone, fax]

Stephen N. Zack (pro hac vice pending)
Mark J. Heise (pro hac vice pending)
BOISE, SCHILLER & FLEXNER LLP
[address, phone, fax

Attorneys for Plaintiff The SCO Group, Inc.


********************
IN THE THIRD JUDICIAL DISTRICT COURT
OF SALT LAKE COUNTY, STATE OF UTAH
********************
THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff,

vs.

NOVELL, INC.
a Delaware corporation,

Defendant.
---------------------------------

COMPLAINT

(Jury Trial Demanded)

Civil No. 040900936

Judge: Anthony B. Quinn


----------------------------------

Plaintiff, The SCO Group, Inc. ("SCO") sues Defendant Novell, Inc. ("Novell")

and alleges as follows:

1. NATURE OF THIS ACTION

1. Through an Asset Purchase Agreement dated September 19, 1995, as amended ("Asset
Purchase Agreement," attached hereto with amendments as Exhibit "A") wherein Novell
received 6.1 million shares of SCO common stock, valued at the time at over $100 million
in consideration, SCO, through its predecessor in interest, acquired from Novell all right,
title, and interest in and to the UNIX and UnixWare business, operating system, source
code, and all copyrights related thereto, as well as all claims arising after the closing date
against any parties relating to any right, property, or asset included in the business.

2. In attachment E of Novell's Disclosure Schedule to the Asset Purchase Agreement (Exh.
A at Attachment E), Novell provided a list of approximately 106 copyright registrations
(encompassing 8 pages) covering products relating to the business transferred to SCO.

3. In the course of exercising its rights with respect to UNIX and UnixWare, SCO has filed
for copyright protection with the United States Copyright Office.

4. In a bad faith effort to interfere with SCO's exercise of its rights with respect to UNIX and
UnixWare technologies, Novell has, in disregard of its obligations under the Asset
Purchase Agreement, and subsequent to the Asset Purchase Agreement, filed for copyright
protection in the same UNIX technology covered by SCO's copyrights.

5. Recently, Novell repeatedly claimed publicly in press releases and otherwise that it, and
not SCO, owns the UNIX and UnixWare copyrights.

6. Novell has made such statements with the intent to cause customers and potential
customers of SCO to not do business with SCO and to slander and impugn the ownership
rights of SCO in UNIX and UnixWare, and to attempt, in bad faith, to block SCO's ability
to enforce its copyrights therein.

7. Novell's false and misleading representations that it owns the UNIX and UnixWare
copyrights has caused and is continuing to cause SCO to incur significant irreparable harm
to its valuable UNIX and UnixWare copyrights, to its business, and its reputation.

8. Through this action for slander of title against Defendant Novell, SCO seeks the following:
a) a preliminary and permanent injunction: (i) requiring Novell to assign to SCO all
subsequently registered copyrights Novell has registered in UNIX and UnixWare;
(ii) preventing Novell from representing in any forum that it has any ownership
interest whatsoever in the Unix and UnixWare copyrights; and (iii) requiring
Novell to retract or withdraw all representations it has made regarding its purported
ownership of the UNIX and UnixWare copyrights; and
b) actual, special, and punitive damages in an amount to be proven at trial based on
Novell's slander of SCO's title and interest in the Unix and UnixWare copyrights.

II. PARTIES JURISDICTION AND VENUE

9. Plaintiff SCO is a Delaware corporation with its principal place of business in Utah
County, State of Utah.

10. Defendant Novell is a Delaware corporation with its executive offices and headquarters in
Waltham, Massachusetts that does business in the State of Utah, has a registered agent in
Salt Lake County, Utah, and lists a sales office located at [address], Utah.

11. This Court has subject matter jurisdiction over this matter pursuant to section 78-3-4 of the
Utah Code.

12. This Court has personal jurisdiction over Novell because Novell transacts substantial
business in the State of Utah.

13. Venue is proper in this Court pursuant to section 78-13-7 of the Utah Code.

III. FACTUAL BACKGROUND

14. Schedule 1.1(a) to the Asset Purchase Agreement provides that SCO, through its
predecessor in interest, acquired from Novell:

I. All rights and ownership of UNIX and UnixWare, including but not
limited to all versions of UNIX and UnixWare and copies of UNIX
and UnixWare (including revisions and updates in process), and all
technical, design, development, installation, operation and
maintenance information concerning UNIX and UnixWare, including
source code, source documentation, source listings and annotations,
appropriate engineering notebooks, test data and test results, as well as
all reference materials and support materials normally distributed by
[Novell] to end-users and potential end-users in connection with the
distribution of UNIX and UnixWare...

II. All of [Novell's] claims arising after the Closing Date against any
parties relating to any right, property or asset included in the Business.

(Exh. A, at Schedule 1.1(a) I and II)

15. In Amendment No. 2 to the Asset Purchase Agreement, Novell and SCO made clear that
SCO owned all "copyrights and trademarks owned by Novell as of the date of the [Asset
Purchase Agreement] required for SCO to exercise its rights with respect to the acquisition
of UNIX and UnixWare technologies," and that Novell would no longer be liable should
any third party bring a claim against SCO "pertaining to said copyrights and trademarks"
(Exh. A, Amendment No. 2 to the Asset Purchase Agreement dated October 16, 1996 at 1)

16. Software technology is valuable only insofar as the intellectual property contained therein
is protected from unlawful misappropriation. Copyrights provide critical protection
against misappropriation established by the United States Congress under the Copyright
Act. SCO required the full copyright protection it purchased from Novell to enforce its
rights in UNIX and UnixWare technology, including proprietary source code, against
infringing parties.

17. Based on the clear and unambiguous terms of the Asset Purchase Agreement and
Amendment No. 2 thereto, SCO is the sole and exclusive owner of all copyrights related to
UNIX and UnixWare source code and all documentation and peripheral code and systems related thereto.

18. Novell, with full knowledge of SCO's exclusive ownership of the copyrights related to
UNIX and UnixWare, has embarked on a malicious campaign to damage SCO's ability to
protect its valuable copyrights in UNIX and UnixWare. In particular, Novell has
wrongfully asserted ownership over UNIX and UnixWare technologies by filing for
copyright protection in its own name, and has made numerous false and misleading public representations disparaging SCO's ownership of the UNIX and UnixWare copyrights and
claiming that it, and not SCO, owns the UNIX and UnixWare copyrights.

19. Novell's false oaths and misleading public representations and wrongful assertion of
ownership rights in UNIX and/or UnixWare include, but are not limited to, the following:
a) Despite the clear language of the Asset Purchase Agreement and Amendment No. 2
thereto, on May 28, 2003, Novell's Chairman, President, and CEO Jack Messman
("Messman") based at Novell's headquarters in Waltham, Massachusetts, publicly
claimed that Novell did not transfer the UNIX and UnixWare copyrights to SCO
and that "SCO is not the owner of the UNIX copyrights." Messman's statement
was published in several newspapers, including the Salt Lake Tribune and Deseret
News, and was timed by Messman to be released on the eve of the release of SCO's
quarterly statements.

b) In a letter dated June 6, 2003, directed from SCO to Novell, SCO brought to
Novell's attention Amendment 2 to the Asset Purchase Agreement that clearly
evidences that the UNIX copyrights were in fact transferred from Novell to SCO.

c) Following Novell's receipt of SCO's June 6, 2003, letter, Novell issued a press
release dated that same date which recanted Messman's prior statement claiming
Novell owned UNIX copyrights stating "[t]he amendment [to the Asset Purchase
Agreement] appears to support SCO's claim that ownership of certain copyrights
for UNIX did transfer to SCO in 1996."

d) In a letter of the same day, June 6, 2003, directed to SCO, Joseph Lasala, Novell's
General Counsel based at Novell's headquarters in Waltham, Massachusetts,
continued to call SCO's claims "absurd" and "unsubstantiated."

e) In a letter to SCO on June 26, 2003, from Joseph Lasala, Novell's General Counsel
based at Novell's headquarters in Waltham, Massachusetts, Novell acknowledged
that Amendment No. 2 "appears to support a claim" by SCO to "some copyrights",
but at the same time, Novell called SCO's claims of ownership of UNIX and
UnixWare "simply wrong" and declared "that we do not agree with SCO's public
statements in this matter."

f) In a letter from Joseph Lasala, Novell's General Counsel based at Novell's
headquarters in Waltham, Massachusetts, dated August 4, 2003, Novell responded
to SCO's registration of UNIX System V copyrights with the United States
Copyright Office, and explicitly "dispute[d] SCO's claim to ownership of the
copyrights."

g) Despite Amendment 2 of the Asset Purchase Agreement that clearly established
SCO's ownership of the copyrights, Novell continued with its unfounded and
malicious campaign to slander SCO's ownership of the copyrights. In fact, Novell,
again falsely asserted ownership of UNIX copyrights by submitting twelve
certifications beginning on September 22, 2003 through October 14, 2003, to the
United States Copyright Office. In these certifications, Novell publicly claimed to
be the copyright owner of several versions of UNIX, including the following:

(1) UNIX System V/386 Release 4 Version 3; (2) UNIX System V/386 Release 4 2;
(3) UNIX System V/386 Release 4 Version 4; (4) UNIX System V/386 Release 3
2; (5) UNIX System V/386 Release 3 0; (6) UNIX System V/386 Release 4 0; (7)
UNIX System V/386 Release 4 1ES; (8) UNIX System V Release 3 2/386; (9)
UNIX System V Release 3/386; (10) UNIX System V Release 4 2MP; (11) UNIX
System V Release 2; and (12) UNIX System V Release 4 1ES/386. Novell
published its false certifications to the world by placing them online at its website.

h) Also on October 10, 2003, Novell publicly filed under oath with the United States
Copyright Office four different iterations of a "Declaration Regarding Ownership"
of UNIX copyrights TXU-510-028, TXU-511-236, TXU-516-704, TXU-516-
705. In each of these sworn documents, Novell declared "that it retains all or
substantially all of the ownership of the copyrights in UNIX, including the U.S.
Copyright Registration referenced above."

i) In a press release dated December 22, 2003, Novell, despite its June 2003 statement
that SCO owns the copyrights, Novell stated that "it owns the copyrights in UNIX,
and has applied for and received copyright registrations pertaining to UNIX
consistent with that position."

j) In a press release dated January 13, 2004, Novell again knowingly and wrongfully
made the false claim that "it retained ownership of [UNIX] copyrights."

20. Novell's false oaths and wrongful claims of copyrights and ownership of UNIX nad
UnixWare are in bad faith and constitute a knowing and intentional disregard for the truth.

21. Novell's wrongful claims of copyrights and ownership in UNIX and UnixWare have
caused, and continue to cause, irreparable harm to SCO, in the following particulars:

a) Customers and potential customers of SCO are unable to ascertain the truth of
ownership in UNIX and UnixWare, and make decisions based thereon; and

b) SCO's efforts to protect its ownership of UNIX and UnixWare, and copyrights
therein, are subject to a false cloud of ownership created by Novell.


IV. CLAIM FOR RELIEF
(Slander of Title)

22. SCO realleges and incorporates all prior paragraphs by this reference as if fully set forth
herein.

23. SCO is the sole and exclusive owner of all copyrights related to UNIX and UnixWare
source code and all documentation and peripheral code and systems related thereto.

24. Novell has slandered SCO's title and rights to its UNIX and UnixWare copyrights and
damaged SCO's business reputation and relationships with potential customers by making
false oaths of ownership to public officials, and by repeatedly representing both to the
public in general and directly to several of SCO's customers and potential customers that
Novell, and not SCO, owns the UNIX and UnixWare copyrights.

25. Novell's representations regarding its purported ownership of UNIX and UnixWare are
patently false, and Novell made such representations intentionally, maliciously, and with
the utter disregard for the truthfulness thereof.

26. As a consequence of Novell's conduct as alleged herein, SCO has incurred actual and
special damages in an amount to be proven with at trial.

27. Novell's conduct as alleged herein was intentionally and maliciously designed to destroy
SCO's valuable rights to the UNIX and UnixWare copyrights and further destroy SCO's
business livelihood. As such, this Court should impose an award of punitive damages
against Novell in an amount to be proven at trial.


V. PRAYER FOR RELIEF

WHEREFORE, Plaintiff SCO prays this Court grant relief against Defendant Novell in
favor of SCO as follows:

1. For actual and special damages in an amount to be proven at trial for Novell's slander of
SCO's title to the UNIX and UnixWare copyrights;

2. For punitive damages in an amount to be proven at trial for Novell's malicious and willful
conduct as alleged herein.

3. For a preliminary and permanent injunction (a) requiring Novell to assign to SCO any and
all copyrights Novell has registered in UNIX and UnixWare; (b) preventing Novell from
representing in any forum that it has any ownership interest whatsoever in the UNIX and
UnixWare copyrights; and (c) requiring Novell to retract or withdraw all representations it
has made regarding its purported ownership of the UNIX and UnixWare copyrights.

4. For attorneys' fees, costs, pre- and post-judgment interest, and all other legal and equitable
relief deemed just and proper by this Court.


VI. JURY TRIAL DEMAND

SCO demands trial by jury on all issues so triable.

DATED this 20th day of January, 2004.

By: [Signature]
HATCH JAMES & DODGE
Brent O. Hatch
Mark R. Clements

BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Mark J. Heise

Kevin P. McBride

Attorneys for Plaintiff

Plaintiff's Address:
[address]










  


SCO Complaint in SCO v. Novell - as text | 331 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO Complaint in SCO v. Novell - as text
Authored by: nealywilly on Monday, January 26 2004 @ 08:51 AM EST
Maybe that should be MALICE in Wonderland.

nealywilly

[ Reply to This | # ]

SCOGs target buisness market
Authored by: phrostie on Monday, January 26 2004 @ 08:54 AM EST
it's a good thing that Novell is not trying to compete in SCOG's primary
market of litigation and stock manipulation.

---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/cad-linux

[ Reply to This | # ]

SCO shooting in foot (again)
Authored by: maroberts on Monday, January 26 2004 @ 09:00 AM EST
Does Novell hold letters from SCO asking for the copyright to the documents and
software in question?

If that is the case, isn't it the case that if both parties initial
interpretation of the wording was the same, SCO cannot claim that they
understood any different? They are just stretching the wording of the contract.
A judge surely interprets how that contract is understood by both parties, and
if both parties initially understood the same thing, then a subsequent legal
stretching of the wording has no effect.

[ Reply to This | # ]

Boise has a problem with Adelphia - today's WSJ
Authored by: Anonymous on Monday, January 26 2004 @ 09:00 AM EST
Boise has a problem with Adelphia - today's WSJ.

-anon

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: richg74 on Monday, January 26 2004 @ 09:02 AM EST
While I'm counting my treasure, you might notice one more odd thing: David Boies isn't listed as one of the attorneys on this case.

I've noticed that David Boies has become remarkably invisible in this affair in the last while. If my memory serves me, the last significant appearance he made was as part of one of the early teleconferences.

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: Wol on Monday, January 26 2004 @ 09:02 AM EST
Let's hope Novell treat this with the respect it deserves, attach a copy of the
entire contract (pointing out the inconsistencies with SCO's plaint), and files
for summary judgement (and dismissal).

It should be easy enough to point out where the contract EXcludes copyright, etc
etc :-)

Cheers,
Wol

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: hardcode57 on Monday, January 26 2004 @ 09:08 AM EST
Out of consideration for the courts, I hope that SCO are printing all their
filings on soft paper.

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: lanser on Monday, January 26 2004 @ 09:12 AM EST
Hi can someone tell me what a "pro hac vice pending" is/does?

regards
John

[ Reply to This | # ]

Not all suits/complaints are in good faith
Authored by: dkpatrick on Monday, January 26 2004 @ 09:26 AM EST
The issue with SCO's complaint(s) is/are not the purported facts but the PR and
SCO's real goal. I don't think they expect to win the suits at all. I think
they have a tiger by the tail. IBM didn't buy them out and IBM's successful
defense against the SCO suit means the end of SCO.

How do they get out of this pickle? More and more suits.

Why?

a. Someone might believe them and pay up
b. Some company might buy them out to avoid the aggravation
c. To avoid answering questions about prior claims ("I can't answer that.
It's in litigation")

So it seems to me that SCO's goal is a marketing ploy. The factual aspects have
been beaten to death. What needs greater attention is the effect it IS having on
the public perception of Linux (i.e. lawmakers) and the user community. I think
there is a body of analysts and consumers who will shy away from any hint of
litigation and wait until all the fighting stops. That benefits SCO and M$
because of the pressure it puts on IBM and other companies who are making money
from Open Source.

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: minkwe on Monday, January 26 2004 @ 09:27 AM EST
"2. In attachment E of Novell's Disclosure Schedule to the Asset Purchase Agreement (Exh. A at Attachment E), Novell provided a list of approximately 106 copyright registrations (encompassing 8 pages) covering products relating to the business transferred to SCO.

3. In the course of exercising its rights with respect to UNIX and UnixWare, SCO has filed for copyright protection with the United States Copyright Office."

They are trying to mislead the court by implying that they registered the copyrights that were transferred to them but everybody knows Novell transferred copyrights to documents but SCO registered copyrights to code. How can they possibly hope to win this?

---
SCO's lawsuit is a little like locking the door on Martin Luther King Jr.'s jail cell and expecting to stop the civil rights movement. [C|net]

[ Reply to This | # ]

Pro Hac Vice
Authored by: Anonymous on Monday, January 26 2004 @ 09:27 AM EST
I was wonering what pro hac vice meant so I looked it up.
It seems to be some sort of permission for out of state
attorney's to practice in state courts.

See:

http://www.utahbar.org/rules_ops_pols/pro_hac_vice.html

Reading the above made me wonder if the reason Boies has
disappeared is in there.

Also noticed this:

(c) In determining whether to enter or revoke the order of
admission pro hac vice, the court may consider any
relevant information, including whether non resident
counsel:
--snip--
(5) has caused delay or been disruptive

:-)

[ Reply to This | # ]

SCO v. Novell
Authored by: meat straw on Monday, January 26 2004 @ 09:32 AM EST
Maybe this sounds horrible, but I can't wait for this new case to begin; It's
going to be a melange of death and destruction for SCO, and may even produce a
more resounding crunching sound than SCO v. IBM.
I bet Novell is going to find SCO goes down easy when swallowed whole.

[ Reply to This | # ]

  • SCO v. Novell - Authored by: Anonymous on Tuesday, January 27 2004 @ 04:48 AM EST
OT: Get nothing to sell air - or perhaps even - pay us to sell air
Authored by: Anonymous on Monday, January 26 2004 @ 09:35 AM EST
What was that Darl said about "free models"??

http://www.vnunet.com/News/1152257

SCO Group, which last week took its 'Intellectual Property License for Linux' worldwide, is hoping to convince sceptical resellers to implement the scheme without receiving royalties.

So a reseller gets nothing for selling this license?

Stowell explained that resellers would be educated "with respect to SCO-identified copyright violations as protected by the governing laws".

"Once educated, the choice is only one of fiscal responsibility," he added. "Our resellers are strong in numbers and believe in the rights and privileges of copyrighted material."

Training will take a minimum of one day. The SCO licence costs $699 as a one-time payment per server, or $149 annually.


Do SCO provide free training?

If you a reseller, do you have to pay for "minimum of one day" training, before getting nothing for selling this license?


Maybe it's just me, but I get the impression that it's another strong indication that it is probably impossible to buy this SCO license, even if you wanted it. Which kind of makes you wonder about the whole scheme.

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: Anonymous on Monday, January 26 2004 @ 09:45 AM EST
21. Novell's wrongful claims of copyrights and ownership in UNIX and UnixWare have caused, and continue to cause, irreparable harm to SCO, in the following particulars:

a) Customers and potential customers of SCO are unable to ascertain the truth of ownership in UNIX and UnixWare, and make decisions based thereon; and

b) SCO's efforts to protect its ownership of UNIX and UnixWare, and copyrights therein, are subject to a false cloud of ownership created by Novell.

Yeah, this is upside down alright... this is exactly what SCO has been doing to Linux for the best part of a year. I hope this exact language turns up in whatever atomic bomb IBM lob back at SCO in the event they lose their current action. Also:

V. PRAYER FOR RELIEF

... 3. For a preliminary and permanent injunction (a) requiring Novell to assign to SCO any and all copyrights Novell has registered in UNIX and UnixWare

Lewis Mettler (Esq), the sometimes slightly raving lawyer who runs a blog about the case, pointed out some days ago that this requested restitution is not on the menu of results that can come from a 'slander of title' case, hinting once again that the SCO lawyers are poor matches for the sleek IBM legals.

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: Anonymous on Monday, January 26 2004 @ 09:53 AM EST
"6. Novell has made such statements with the intent to cause customers and
potential
customers of SCO to not do business with SCO "

Like I needed Novell to step in in order to NOT want to do business with scum
like SCO!.

I think SCO handled that part nicely just by themselfs, no help needed to become
the most hated IT company to ever exist on the planet.

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: TerryL on Monday, January 26 2004 @ 10:01 AM EST
I notice that that right from the start of the document there's an lack of precision over SCO's (Santa Cruz/Caldera) and which one of them bought what when from Novell.

I'm assuming that such "fog" won't bother legal eagles involved, any jury that eventually is unlucky enough to sit on this case might need a little help keeping their SCO's straight.

It would have been nice if legal documents had to spell out the full names of companies in such documents.

BTW - does the SCO in SCO Group stand for anything? I've never thought about it before, but is it just SCO for SCO's sake or something like... I don't know... Scheming, Conniving, Odious Group

---
All comment and ideas expressed are my own and do not necessarily reflect those of any other idiot...

[ Reply to This | # ]

Mostly but not quite OT but amusing
Authored by: jmc on Monday, January 26 2004 @ 10:22 AM EST

Even if M$ are behind SCO they have a bit more of a sense of fun....

See here.

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: k4_pacific on Monday, January 26 2004 @ 10:24 AM EST
********************
IN THE THIRD JUDICIAL DISTRICT COURT
OF SALT LAKE COUNTY, STATE OF UTAH
********************
THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff,

vs.

NOVELL, INC.
a Delaware corporation,

****

I thought they were both in Utah, did they move? Would they be bound by laws in
Utah or Delaware? Can they still fight this in Utah court?

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: blacklight on Monday, January 26 2004 @ 10:30 AM EST
I suspect that the SCO Group is suing Novell with the expectation that it will
drop the suit like a hot potato the minute that signs of an unfavorable outcome
rear their ugly heads. The SCO Group derives four benefits from suing: (1) to
the extent they are the plaintiff, they get some control over the pace of
litigation; (2) they keep the Baystar people from asking for their money back -
if the Baystar people do so, then the SCO Group faces a total collapse of both
their financial position and their current stock price; (3) they need to
establish or restablish some credibility for their AT&T UNIX codebase
copyrights claim in the court of public opinion. It is clear that the pressure
is on the SCO Group to sue rather than on Novell to sue; (4) it prevents an
overnight collapse of their public credibility or what's left of it so that the
pump and squeeze scheme can go on for a while longer.

Needless to say, dropping the lawsuit and trying to escape from court will
become a problematic undertaking once Novell files a countersuit alleging breach
of contract. However, the SCO Group's management's is acting as if it cares
only about surviving the present and that it will deal with the future when it
comes - mostly by trying to either dodge or stall.

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: maxhrk on Monday, January 26 2004 @ 10:31 AM EST
Y'all probably saw the three(or two) different articles on business week. No
doubt there the comments made by Dark Darl which can be use as evidence for IBM
to use as weapon against Dark Darl. Anyhoo, I am so determined and probably
predicted with great accurate that Scox will fall faster than that speed of
light in approx. of ten days from now.

I know it hard to tell since there no way we predict the outcome but it is based
on my best thinking of this. On other news, journalists are waking up from their
slumber. It took long time to wake up, man.

Such shocking revealing about the truth of 'low-level' talk. You all probably
heard about it on previous or two article on groklaw.net. Sadly. 'low-level'
obivious mean you are talking to janitor or security on the first floor and it
is called 'low-level' talk. Silly Darl try to fool us, Naturally if Darl said
he was talking on "High-level" instead of low level talk then that
would be meant as in talking with the CEO of Google.com However was kicked out
by security(probably true if It is confirmed). How sad, it seem Google.com's
CEO Think Dark Darl is a moron and need to be sucked into blackhole and begone
forever. Harrah. However..

However, from the look on stock market. It havent dropped like a rock but
instead is like a feather falling. With effect of FUD, Scox group can easily
blow a feather to stay afloat. It been strange I have seeing a stroll sell and
very few of buy on yahoo.com SCOX board. I wonder how in the hell did they
manage to make themselves stay afloat so easily. That, stock market, I do not
understand in some way though.

Funny, when I think why SCOX group said linux is 'un-american'. I think i
agrees with him a bit because Linux is not born as american, but is born in
finnish first. but got injected with various gene data comeing from different
country and now transform into what i should say 'I, for one, welcome overlord
borg linux!'.

Overlord borg linux should say 'resistance is futile.' Hail Borg linux!
*cough, sorry for this joke*

Novell, Clever Jedi master, did provoked SCOG to do the first move. From my
observation, Novell has good advantage. So Clever in provoking SCOG into doing
first move. I salute you, Novell and awards you for the best strategy ever in
2004. Oh Novell, i will be buying your SuSe product soon and So be at lookout
for my check coming to you.


SO finally, This Linus coming from finnish. I understand why Darl called his
baby 'un-american'. Why Dark Darl think it is? That is because Finnish want to
dominate america and pearch the way of finnish. So it can be 'united state of
Finnish' and i predict it will happen in 10 years.

I will say, "I am patriot of USF and darn proud to be one.'

(again on serious note, i think Dark Darl is 'un-american' and is a disgrace
to our american society. I think if i am president, i need to throw him in jail
beside with Saddam. I am sure they both will get along better, no doubt.)

Okay, remember, above what you read is not serious, it is just humour section I
give you for your own 'relief' purpose.

(Sorry if my jokes dont make you laugh. I cant think of any better jokes. :(
sadly. )




---

Sincerely,
Richard M.

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: meat straw on Monday, January 26 2004 @ 10:40 AM EST
Ha-ha! I meant plaintiff's counsel <snicker> but any role
he plays in the court room will do ;)

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: TerryL on Monday, January 26 2004 @ 10:53 AM EST
Reading through the other comments about this case and one comment made me think about what we'd seen in court so far. That is so far we've seen SCO field someone who (apparently) studied law and passed a bar exam stand up and face people on IBM's side who are Lawyers!

There is a difference I think.

Now, we haven't seen what Novell has to put in the field yet, but maybe thos "Pro Hac Vice" thingies mean that SCO noticed the difference and are getting some pro players on their bench for this one

---
All comment and ideas expressed are my own and do not necessarily reflect those of any other idiot...

[ Reply to This | # ]

SCOX today (26th)
Authored by: dcs on Monday, January 26 2004 @ 11:07 AM EST
I noticed that SCOX opened rather low today. It hasn't faired this badly since
last november. What happened? And what will SCO do? Do they hope to get enough
rope to actually fall to the ground before reaching the end of it??? :-)

---
Daniel C. Sobral

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: pooky on Monday, January 26 2004 @ 11:11 AM EST
Lesse...

", SCO, through its predecessor in interest, "

Wow. They finally admitted that they are, in fact, not The Santa Cruz
Operation.

"24. Novell has slandered SCO's title and rights to its UNIX and UnixWare
copyrights and damaged SCO's business reputation and relationships with
potential customers by making false oaths of ownership to public officials, and
by repeatedly representing both to the public in general and directly to several
of SCO's customers and potential ustomers that Novell, and not SCO, owns the
UNIX and UnixWare copyrights."

Now it's Novell's fault that no one believes what SCOG says. Never mind that
they have ever to show publicly any substantial proof to support their public
claims.

"2. In attachment E of Novell's Disclosure Schedule to the Asset Purchase
Agreement (Exh. A at Attachment E), Novell provided a list of approximately 106
copyright registrations encompassing 8 pages) covering products relating to the
business transferred to SCO."

Were back to the argument about what rights are needed to acquire UNIX and
UnixWare. If Novell intended to transfer the copyrights, why does Ammendment 2
not just explicitly say this? Like "All Copyrights owned by seller in
software products" without the condition?

Does SCOG actually think the Court a) will not read the entire contract and b)
does not read the papers?

-pooky

---
Veni, vidi, velcro.
"I came, I saw, I stuck around."

[ Reply to This | # ]

OT : Humor : SCO Complaint in SCO v. Novell - as text
Authored by: PeteS on Monday, January 26 2004 @ 11:29 AM EST
This is truly hilarious. The (wannabe) masters of spin.

SCO is now on my list of research subjects at a physics department, as they may
shed light on some hitherto unknown answers in particle physics.

(From a previous post)

Quantum SCO:
If we take a some very basic (and slightly paraphrased, with apologies to
Schroedinger) Quantum mechanics principles, then SCO becomes a fruitful case for
study, proving quantum mechanics can now be applied to corporations as well as
subatomic particles:

Rule 1. Quanta are in all states (and none, really) when unobserved.
Rule 2. Observing a quanta reserves the observed state for it alone.
Rule 3. All quanta have a mutually exclusive duality

Then Rule 1 shows:
We can never know what SCO will do next.
Rule 2 shows:
No-one else is stupid enough to do what SCO just did.
Rule 3 shows:
They are talking out of both sides of their mouth.


---
Recursion: n. See Recursion

[ Reply to This | # ]

Why Did Novell Wait To Get Sued?
Authored by: Anonymous on Monday, January 26 2004 @ 11:30 AM EST
Here's something I'd like someone with a little legal training to explain to me.

From the correspondence, it is apparent that Novell has been getting ready for a major legal fight with SCO for quite a while. They obviously knew that their actions threatened the viability of SCO's survival strategy, and that they were likely to wind up dancing with Darl in court.

So, why did they wait for SCO to sue them? If they believe -- and can apparently document -- that SCO is violating the terms of their agreement with Novell and falsely asserting ownership of Novell's property, why did they not initiate the inevitable lawsuit themselves?

I expect the answer is "because they can do more damage as defendants than as plaintiffs", but I would like to understand why that might be.

[ Reply to This | # ]

OT: SCO letter to congress
Authored by: meat straw on Monday, January 26 2004 @ 11:37 AM EST
Sorry if someone already posted this:
an article on infoworld's site has juicy observations
regarding the letter SCO sent to Washington.
www.infoworld.com/article/04/01/22/HNscocongress_1.html

[ Reply to This | # ]

Interesting Article on LamLaw
Authored by: fjaffe on Monday, January 26 2004 @ 11:38 AM EST
I found todays article on LAMLaw interesting. He is looking at whether or not there is a "Slander of Title" action possible against SCO. My favorite bit

SCO has a serious problem. Almost all of their public claims lack a nexus between the facts they claim are true and the legal conclusions they want others to accept.

[ Reply to This | # ]

Boise missing.
Authored by: cswiii on Monday, January 26 2004 @ 11:39 AM EST
All things considered, the fact that Boise's name doesn't show up in the top,
and the fact that he/the firm is represented "pro hac vice"
("for this occasion") by the other lawyers is not a new thing.

In fact, I may be wrong, I don't think I've seen a recent document anytime
recently with Boise's name actually up there.

I really wonder why they hired him. They've got to have something up their
sleeve. However, whatever their use, I don't see how they'll make it that far
down the legal process before their money runs out.

[ Reply to This | # ]

  • Boise missing. - Authored by: Anonymous on Monday, January 26 2004 @ 04:34 PM EST
SOT(slightly OT), Unix isn’t past its prime—yet
Authored by: phrostie on Monday, January 26 2004 @ 11:49 AM EST
a friend sent me this link/story. nothing really new, but i did note one line:
"UnixWare users don’t need to migrate right away, “but it’s not a platform
you want to be on long-term,” Haff said, because Microsoft Windows and then
Linux “ate the lunch” of low-end x86 Unix. “There’s no reason to run UnixWare
today unless you’re already on it,” he said. "

SCOG has never blamed MS and it's closed software for it's lack of business.




http://www.gcn.com/23_2/news/24714-1.html

---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/cad-linux

[ Reply to This | # ]

Who are the copyright infringers in open source?
Authored by: tcranbrook on Monday, January 26 2004 @ 11:58 AM EST
Here is an interesting discussion about open source software showing up in proporietary packages.

One interesting thing is about IBM screening code for open source content. I think it is a good indication about how thourgh and meticulous they are about code.

"Black Duck CEO Douglas Levin cited, for instance, a case reported by investment banker Broadview. When IBM acquired Think Dynamics, a painstaking manual examination of its code revealed 80 to 100 examples of open source code that Think Dynamics programmers had passed off as their own. As a result, the price of that company went down from 67 million dollars to 46 million--not a happy moment for its owners and shareholders, I'm sure.

Readers cannot miss, I'm sure, the irony that this very IBM, which was so diligent in tracking down license violations, is being accused of the same by SCO. Indeed, the absurdity of SCO's suit should be obvious, because who would try to hide infringing material in open source code? Obviously, the true danger lies in the other direction: code generously donated to the world by free software programmers is being hidden in binary files and used to pump up the profits of proprietary software vendors. "

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: the_flatlander on Monday, January 26 2004 @ 12:10 PM EST
Is it just me? Have you folks already covered this?

Does it seem that the SCOundrels are looking to get a court to declare:

23. SCO is the sole and exclusive owner of all copyrights related to UNIX and
UnixWare source code and all documentation and peripheral code and systems
related thereto.

Thus attempting to sucker the court into ruling on something that the SCOundrels
would otherwise have to pain-stakingly prove elsewhere, if they brought the suit
as a copyright case.

Maybe it is just how this sort of thing is done, but it looks to me like an
attempt to game the system. Tell the court they want one thing, then use the
court ruling in their favor, (as if that were likely to happen), to claim
another thing altogether. See? "Novell slandered our title, therefore
UNIX belongs to us unencumbered by history, or facts."

The Flatlander

I can hardly wait for Novell's counter suit.

[ Reply to This | # ]

OT. New interview with McBribe
Authored by: Anonymous on Monday, January 26 2004 @ 12:47 PM EST
H ere

Choice response are:

Q: Where do you go next?
A: Where we go next is down the end user side of enforcing our copyrights. We came out last summer and put out some code that the Linux community on one hand said, preposterous, that's [Berkeley software]. On the other hand, some people in the Linux community said, hold on, you may have some copyright issues there.... There are 2.5 million servers out there today that have this code in it. When are Linux customers going to clean that stuff up? So that's one issue, Linux is tainted, even by their own admission.


Why did not the inviewer ask who specifically admitted Linux has a problem

And this one

Q: Have you had direct talks with customers yet?
A: Very carefully over the last quarter, instead of sending out mass invoices, we stepped very carefully and really had a lot of direct one-on-one meetings with 15 or so companies. In the process of doing that, we learned a lot. We listened. We talked. And we went back and forth. About 20% of those companies signed licenses with us.


I guess Sun and MS is "about 20%"

And then this one when pressured to define what McBride means about sueing Google

Q: Which would mean?
A: We don't know where that goes yet. It's very premature to say what's going to happen there.


Can this man be sued for making "knowingly false statements" being the CEO of a company?

[ Reply to This | # ]

Attn PJ: Groklaw sidebar updates, and my suggestions
Authored by: Thomas Frayne on Monday, January 26 2004 @ 01:01 PM EST
I don't know when it was done. I just noticed.


The sidebar now contains:

Home: Groklaw's main page
Quote DB: Links for finding SCO's and other's quotes
Search: Search Groklaws stories and comments
Legal Research: General, and SCO Financial Information
Letter to SCO: September 23 2003 letter to McBride
IBM Timeline: Abstracts of legal filings in the IBM case
Why Groklaw: Interview with Pamela Jones, July 31, 2003
Research: for Groklaw's Reply to McBride's Open Letter
SCO Archives: Links to Groklaw stories, by date
Legal Docs: SCO v IBM In Roughly Chronological Order, Red Hat v SCO, BSDi
Documents, SCO Linux License, Tarent v. SCO -GERMANY
RH Timeline: Abstracts of legal filings in the RH case


My suggestions (all should focus on linking to the original documents or
analysis, and cross-referencing the sidebar topics):
1. Move entries from RH Timeline to the Legal Docs page, and Remove RH Timeline
from the sidebar.
2. Change "Why Groklaw" to "Press releases", and make
sections for SCO, Microsoft, Groklaw, OSDN, Other Open Source. Limit the links
to significant PR. Xref to Quote DB.
3. Expand Research to have sections for SCO lies and their refutations, and for
important general research.
4. Move entries from IBM Timeline to the Legal Docs page, and Remove IBM
Timeline from the sidebar.
5. Move Letter to SCO to Press Releases
6. IBM Timeline, Quote DB, and Research are out of date; they need to be brought
up to date ASAP to aid research related to the Feb. 6 hearing.


PJ, please don't even consider doing this yourself. I urge you to call for
volunteers to refine my suggestions and to make the changes decided upon.

[ Reply to This | # ]

grammar?
Authored by: josmith42 on Monday, January 26 2004 @ 01:04 PM EST
"6. Novell has made such statements with the intent to cause customers and potential customers of SCO to not do business with SCO and to slander and impugn the ownership rights of SCO in UNIX and UnixWare, and to attempt, in bad faith, to block SCO's ability to enforce its copyrights therein." [my emphasis]
IANAL, but does grammar count in law? SCO's lawyers have a split infinitive here. It should be "...customers of SCO not to do business..." Sorry for the nick-picky stuff, but it's hard not to see those things when both your parents majored in English. :-)

[ Reply to This | # ]

APA is governed by the laws of California
Authored by: Terry on Monday, January 26 2004 @ 01:15 PM EST
Let's see- SCOG is saying that Novell gave them the copyrights in amend 2 of
the APA. Novell says they didn't. Sounds like a contract dispute. The APA is to
be determined by the laws of Califoria - that's real specific.

Looks like SCOG chose the wrong court again!

[ Reply to This | # ]

OT: Newsflash ... SCO to sue SCO
Authored by: BsAtHome on Monday, January 26 2004 @ 01:27 PM EST

The SCO Group has decided to sue SCO and Caldera, in an attempt to clear up the ownership rights regarding UNIX(tm) and derivatives. A preliminary hearing before a Utah court is to be scheduled soon and will be concentrating on the following questions:

  • Who bought what, when and why
  • Why weren't we told that the UNIX(tm) business is a mess
  • Why did we sell Linux
  • Could someone please explain me what the GPL is
  • Who are those BSD guys and why do they own so much

We were not able to get detailed comments from either party at this time. However, the SCO Group stated that subpoenas were served to both management one remaining staff engineer. An insider, who wished to remain anonymous, noted: "When this mess is cleared we will put all our customers on notice.". The insider did not wish to comment whether this would influence their financial position in the future.



---
SCOop of the day, Groklaw Rulez

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: BsAtHome on Monday, January 26 2004 @ 02:12 PM EST

What would happen if SCOG went bankrupt? I can imagin, looking at a thread at the scox messageboard at yahoo finance, that this could be an escape for SCOG.

Just for the sake of argument, suppose that the suit against Novell is dismissed (likely when reading http://www.lamlaw.com/), then SCOG would nosedive. The financial injection of $50M could be subject to redemtion, leaving SCOG with a substantial loss. At the same time, Novell's chances of getting a hand on the 95% fees from the previous license deals would drain SCOG for all cash.

So, some questions:

  1. Would it make sense at all to plan to go bankrupt?
  2. Is there an advantage for SCOG to go bankrupt?
  3. What would happen to the IBM and RedHat case if SCOG goes belly-up?
  4. Can SCOG management be held personally liable for such an event?
  5. What is the status of Linux when the status quo of FUD is frozen because of bankruptcy?
  6. What happens to the shareholders?

---
SCOop of the day, Groklaw Rulez

[ Reply to This | # ]

Are They Rewriting the History of UNIX and Linux?
Authored by: Anonymous on Monday, January 26 2004 @ 02:55 PM EST
I worry that companies with deep pockets and huge PR machines
desperately want to rewrite the legal history of UNIX. Anticipate
misdirection and legal maneuvers to grab non-existent legal rights
where non have existed for over a decade. See, Caldera’s legal theory is
that unfettered ownership of modern UNIX distributions is possible; I
argue otherwise given the many sources and different IP licenses clearly
evident to an engineer looking at the source code. IANAL, though.

What IP could Novell NOT contractually transfer to old SCO in 1995 or
1996? Right the copyrights to SVRx and other code! Novell lacked
unfettered rights to most software components.

What IP could Novell legally transfer? Right again, the UNIX technical
documentation. Why? So old SCO could manage their current UNIX
licensees, market new/expanded UNIX licenses, and produce an
improved UNIX including contractually specified software components
within two years per the 1995 agreement.

The 1995 agreement specifically states that Novell keeps all patents and
copyrights while old SCO receives the UNIX and UNIXWARE trademarks.
The 1996 amendment states old SCO has the right to copy material (and
Novell is not liable) for the purpose of licensees acquiring their licensed
UNIX technology within the limits of the old SCO business model
specified in the 1995 agreement. Note that Novell has publicly
questioned the legal status of the 1996 amendment.

You are being manipulated to believe lies. The truth is simply put: 1)
their contract does not give the old SCO title to a specific copyright in
SVRx code and 2) Novell does not have the right to claim copyright to
most SVRx code. There have been tens of UNIX distributions over the
years and their code has been included from many sources under many
licenses. Finally, the old SCO, and later Caldera, had operated for seven
years within their contract with Novell…until Daryl took over in late
2002.

Because Novell never has owned the copyright to most SVRx code, no
one else can, given the history of many divergent versions of UNIX being
merged together from many sources since 1969. Today, every UNIX
distribution contains code from the likes of AT&T, UC Berkeley, and
licensees. I worry that Novell’s US copyright activities are rewriting UNIX
history within the legal system. US courts could end up giving Novell and
IBM legal rights they never had and do not deserve. UNIX is a
composition like a software encyclopedia.

Linux has a very different history than UNIX, thank God.

Caldera wants a jury to award them all IP rights in UNIX and any software
distributed with UNIX, specifically SVRx, when Novell NEVER had those
rights.

[ Reply to This | # ]

Complaint filed with the SCE. What did I miss?
Authored by: Thomas Frayne on Monday, January 26 2004 @ 03:03 PM EST
Please let me know of any links that I should have given the SEC.


Here is the form I filled in:

Names, Address, Telephone #s and Other Biographical Information
about Individuals Involved
Same as my September, 2003, complaint.

How you Learned about the Transaction or other Activity
This is an addendum to my complaint filed in September, 2003.
See
http://groups.google.com/groups?q=tomf+sec+complaint&hl=en&lr=&ie=UT
F-8&oe=UTF-8&selm=pan.2003.09.16.23.00.58.181511%40sjpc.org&rnum=1
Since then, I have found most of my information about SCO from the
www.Groklaw.net web site, and by researching links and documents found on that
site.

Details About the Transaction(S)
See unusual peaks in volume charted at
http://finance.yahoo.com/q/bc?s=SCOX&t=5d&l=on&z=m&q=l&c=
See my suspicion that SCO defied a court order on 1/12/04, detailed at
http://www.groklaw.net/article.php?story=20040116175813741#c53628 and
http://www.groklaw.net/article.php?story=20040124084105108#c58891
See the analysis of SCO's recent SEC filings at
http://www.groklaw.net/article.php?story=20040116175813741 You should also
follow the links. I think that SCO deliberately failed to mention the risks
related to Novell's copyright claims in multiple SCO SEC filings. SCO knew
about the risks, as is detailed in
http://www.groklaw.net/article.php?story=2004011411254734 and
http://www.novell.com/licensing/indemnity/legal.html See also,
http://www.groklaw.net/comment.php?mode=display&sid=20040120193211907&ti
tle=Summary+Part+1%2C&type=article&order=&pid=56101
See my analysis of SCO's risks at
http://www.groklaw.net/article.php?story=20040118125912991#c54838, and the
replies
See the analysis of SCO's threats against its Unix customers at
http://www.groklaw.net/article.php?story=20031221231403510 and
http://www.groklaw.net/article.php?story=20040106112439165
See the analysis of SCO's recent court filings by following links at
http://sco.tuxrocks.com/Legal.php for documents 88-98.
See the analysis of SCO's lies and self-contradictory statements at
http://www.groklaw.net/article.php?story=20040124062443733&query=list+of,
http://www.groklaw.net/article.php?story=20040116165112326&query=list+of+lie
s, and
http://www.groklaw.net/article.php?story=2004011515020247&query=list+lies

If on the Internet, All Relevant Internet Addresses
Listed above.

Use this area to add any additional information that you wish.
URGENT: It looks (from SCO's public pattern of behavior described above) like
SCO has abandoned all hope of winning their suit against IBM, or even avoiding
bankruptcy. I think that SCO insiders may be getting ready to transfer their
funds and flee the country before the February 6, 2004, court hearing. I urge
you to freeze their assets before they can do this.



Here is the canned response from the SEC:

This response confirms that the Division of Enforcement of the United States
Securities and Exchange Commission has received your complaint.

We are always interested in hearing from members of the public, and you may be
assured that the matter you have raised is being given careful consideration in
view of the Commission's overall enforcement responsibilities under the federal
securities laws. It is, however, the Commission's policy to conduct its
inquiries on a confidential basis. The Commission conducts its investigations in
this manner to preserve the integrity of its investigative process as well as to
protect persons against whom unfounded charges may be made or where the
Commission determines that enforcement action is not necessary or appropriate.
Subject to the provisions of the Freedom of Information Act, the existence or
non-existence of an investigation as well as information which may be gathered
thereunder is not disclosed unless made a matter of public record in proceedings
brought before the Commission or in the courts.

[ Reply to This | # ]

SCO Complaint in SCO v. Novell - as text
Authored by: Anonymous on Monday, January 26 2004 @ 03:21 PM EST
1. Through an Asset Purchase Agreement dated September 19, 1995, as amended ("Asset Purchase Agreement," attached hereto with amendments as Exhibit "A") wherein Novell received 6.1 million shares of SCO common stock, valued at the time at over $100 million in consideration, SCO, through its predecessor in interest, acquired from Novell all right, title, and interest in and to the UNIX and UnixWare business, operating system, source code, and all copyrights related thereto, as well as all claims arising after the closing date against any parties relating to any right, property, or asset included in the business.

1995 ? hmm, do they not mean "Santa Cruz Organisation" ?

The current SCO, is The SCO group, ie Caldera I wonder if Novell recieved any of their stock ?

This document seems to name the oldSCO and the SCrOtum Group as interchangable. Surely the judge (and hopefully Jury) will get explained to them in detail that the two companies are not related other than by asset purchase.

[ Reply to This | # ]

OT: German mainstream newspaper has article on SCO vs. Linux
Authored by: jmaurer on Monday, January 26 2004 @ 03:21 PM EST
The mainstream German national newspaper "Frankfurter Allgemeine Zeitung" (FAZ) has an article today about the SCO vs. Linux quarrel. It does not appear to be available online. Here are a few selected sentences. The translation into English is mine. Let's start with the heading:
SCO quarrels with Linux community
Lawsuit because of alleged copyright infringement / Difficult legal situation
This appears to be inaccurate: No copyright infringement claims have been brought forward in court, the IBM lawsuit is about contracts, and the Novell one about "slander of title", not about copyright infringement.
... SCO Santa Cruz Organization [sic] Inc. (California) has now sued the software company Novell because of alleged infringement of software rights, after IBM and Linux inventor Linus Torvalds. ...
It's a bit scary to have so many inaccuracies in a single sentence: The name of the company is wrong, Santa Cruz is a city in California, but has nothing to do with SCO, and they didn't sue Linus, as far as I am aware.
... Novell however insists to retain certain rights to Unix, stresses Horst Nebgen, CEO of Novell Deutschland GmbH (Düsseldorf). ...
At least they asked Novell's German subsidiary about the lawsuit.

[Skipping reasonably accurate description of the history of Unix ownership changes and Novell's indemnification plan.]

... Rumor has it that up to 6000 people have been directly sued by SCO so far. ...
Apparently, SCO's threatening letters have been slightly misinterpreted.

[Rumors about IBM going to offer desktop Linux and the confirmed IBM-Suse deal for POS systems skipped.]

It's sad that they skipped reporting about the legal action (the preliminary injunction) that has been brought forward against SCO in Germany.

Jens Maurer

[ Reply to This | # ]

How tight is Microsoft with SCO?
Authored by: lpletch on Monday, January 26 2004 @ 03:41 PM EST
Search Enterprise Linux has an interview with Martin Taylor. He is Microsoft Corp.'s platform strategist who came to LinuxWorld Conference & Expo with a flak jacket.

He was asked a few questions concerning SCO.

How tight is Microsoft with SCO?
Taylor: We have a relationship through our Services For Unix product, and outside of that, that's the extent of our relationship.

You understand the perception that Microsoft is somehow pulling the strings behind SCO's lawsuit against IBM?
Taylor: I wish we could be that smart, that Machiavellian in our approach to doing business. No, I really don't. We would never be and we won't be. That's not how we do business. I think SCO has an opportunity to look at their installed base and say 'Where are these guys going to go? To Linux, or Windows.' I'd love for things to happen, but SCO is really driving their own business model and God bless them. We're focusing on Windows Services for Unix.

Do you see any merit to their claims?
Taylor: I'm not the right guy to talk about that. I didn't go to law school.

Pulling strings? I wish we could be that smart.
If MS isn't involved, it seems they wish they were.

---
lpletch@adelphia.net

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News: SCO´s follow-up letter: more threats
Authored by: Drew on Monday, January 26 2004 @ 03:47 PM EST
Just saw this at newsforge: SCO´s follow-up to Just Sports´ letter asking for clarification from SCO. Direct link to the scanned threatening letter.

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Amendment 2 signatures
Authored by: mtflyboy on Monday, January 26 2004 @ 04:07 PM EST
I don't recall if this has been addressed here before, but an interesting
observation was made on the Yahoo financial board regarding the Novell/SCO
Amendment 2 signatures. There are two signature pages for the amendment, each
containing only one set of signatures. Is that legal for a contract or would
you need to find one copy with both sets of signatures?

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OT: Preliminary injunction against SCO from Tarent (Germany) in English
Authored by: jmaurer on Monday, January 26 2004 @ 04:22 PM EST
Here's the preliminary injunction against SCO Germany that the German company Tarent obtained last summer, in English. I'm not sure if people here are aware of its availability in English.

Jens Maurer

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SCO Complaint in SCO v. Novell - as text
Authored by: maxhrk on Monday, January 26 2004 @ 04:49 PM EST
funny, i try not to think bibical thing. After all i am just atheist but yet
Bible remind while i was to be cathotlic. do you think anything like this event
is too metaphorized with the old testament? it is like SCOG is going to be
banished from the 'linux' heaven. If you know what i am talking about, that is
it for the day. *wave*

---

Sincerely,
Richard M.

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Has SCO to Caldera Transfer Contract been posted
Authored by: alvah on Monday, January 26 2004 @ 05:20 PM EST
PJ or anyone else who might have the answer to this question.
Has the contract which transfered some form of "Unix" rights(???) to
Caldera(New SCO) from Tarantella(Old SCO) been posted anywhere where we can give
it an examination. If it has been posted I have not seen it and would like to
know what was in that transfer. This contract might shead new light on this
case.

Thanks

Alvah

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What did SCO Group Register?
Authored by: rand on Monday, January 26 2004 @ 05:31 PM EST
From the US Copyright Office -- please note how SCO Group filed their notice of registration change:
V3499 P806 (COHD)
Date Recorded: 23Jun03
Date Executed: as of 19Sep95; date of cert.: 6Jun03
Assignor: Novell, Inc.
Assignee: Santa Cruz Operation, Inc.
Note: UnixWare 2.0 & 295 other titles. Titles appear in V3499 D809-810. Asset purchase agreement.
Document Location: (In V3499 D806-810 P1-121)
This was undoubtedly submitted by SCO Group, as Novell was at the time telling SCOG that they weren't going to get the copyrights transferred, and Santa Cruz didn't even exist at the time of the registration.

SCOG wants it to appear like Novell transferred the copyrights to OldSCO via the APA, which is the only documentation SCOG submitted to "prove" the transfer.

This is probably what IBM is referring to with felonious registration charge in their defences and counter-suit. You can apparently submit almost anything pertaining to copyright issues you want to this database but you can't lie to Uncle Sam.

---
The Wright brothers were not the first to fly an aircraft...they were the first to LAND an aircraft. (IANAL and whatever)

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[OT] You have now just entered the Twilight Zone...
Authored by: sjohnson on Monday, January 26 2004 @ 06:09 PM EST
I found this research report view a Newsforge.com NewsVacc article. It's given The SCO Group an A rating with a Price Target of, get this, $133. I feel like I'm in some alternate reality.

Reseach Paper

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OT: Senator John Edward, trial lawyer scum
Authored by: Anonymous on Monday, January 26 2004 @ 06:18 PM EST
http://www.nationalreview.com/comment/copland200401260836.asp

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Mydoom / Novarg
Authored by: eric76 on Monday, January 26 2004 @ 07:08 PM EST

According to Mydoom worm spreading rapidly, the Mydoom/Novarg worm attacks sco.com. So it is quite possible that it is using the groklaw addresses intentionally.

Mydoom carries varying subjects such as "HELLO" or a blank subject, as well as a variety of messages and attachments. When loaded, it calls up Notepad and displays random characters, while creating a copy of itself and modifying the infected machine's Windows registry to run the code upon start-up. It may open a TCP port to listen for commands from a remote attacker, according to Dunham.

"It also attacks sco.com with a DDoS [denial-of-service] attack," said a statement from F-Secure.

It can spread by both e-mail and the Kazaa file-sharing system, several antivirus vendors said.

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Clever use of double negative?
Authored by: xtifr on Monday, January 26 2004 @ 08:03 PM EST

Let's put "clever" in quotes, as I think this would actually be a dumb approach, but IANAL, so I don't know what might actually fly in a court of law.

Schedule E is pretty clearly a list of things that were excluded from the original sale, and furthermore, doesn't list SysV anywhere. So, do you suppose that SCOldera thinks the negatives cancel out? "This list of stuff you did NOT sell us shows that you did NOT NOT sell us the SysV copyrights, so that means you actually DID sell them to us!"

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SCO Complaint in SCO v. Novell - as text
Authored by: grouch on Monday, January 26 2004 @ 09:25 PM EST
Perfect timing. As SCO v. IBM appears headed for a deep hole, SCO v. Novell will keep the FUDmill grinding right along. (Red Hat v. SCO seems to have frozen solid last fall and may not thaw even for PR before summer. That should give Red Hat time to clean up the little mess they made).

Sometime about autumn of this year, after suitable delays for amended complaints and multiple motions, replies to motions, memorandums to motions, hearings over whether discovery should include all data ever viewed by anyone who has ever seen the words "Novell", "Unix", "copyright" and "IP", rescheduling for lost dogs and stray cats, SCO will be forced to begin following something resembling legal procedure. At that point, expect a new lawsuit to begin.

It appears to me that Microsoft got a bargain. For the relative piddling sum they paid, at least publicly, it looks like SCO will be able to drag this thing out until Longhorn can arrive to gore "consumers". There should be enough sheep scared of the big bad SCO to maintain a wait and see attitude until some Next Generation Secure Computing Base can finally close the slaughterhouse door behind these sheeple.

Sometime in 2005 or 2006, those who are party to what was originally called Palladium (what's the name-of-the-month now?) will begin to reap profits from "content providers" such as RIAA and MPAA. I'm sure Disney will be thrilled to have complete remote control of your computer.

BTW, if you read the TCPA FAQ, you'll find the "Trusted Computer Group" consists of Microsoft, HP, Intel, AMD and IBM. IBM's alliance with open source now does not mean they will not seek the profits of DRM later. It's still a many-headed beast with an obligation to seek those profits. Their need to discredit and destroy SCO in this lawsuit does not change that. (See "IBM patents method for paying open source volunteers" for some recent strangeness. Maybe it's some kind of pre-emptive protective patent, but can you swear there will never be a Darl at IBM?).

SCO, Longhorn, DRM and that treacherous computing represent threats to our individual and collective freedom. Our main defense against those threats is the wide dissemination of information. Groklaw has probably been the most significant factor in blunting the PR attack by SCO. In addition to shedding analytical light on the FUD, Groklaw has no doubt influenced reporters elsewhere to go further than simply republish SCO's press releases. I just wish we had something with Groklaw's reach that would do the same for enlightening people about treacherous computing.

It's already becoming easier for 'Joe Average' to use Linux than MS XP. But that is not the perception among the masses. Even though it makes much more sense to use Linux for appliance-like computers, to protect novices from self-inflicted OS damage and to make it easy for them to just do the things they want from a computer, most people who should be using such a computer still believe that they must have MS. They still believe Linux is only for servers and hackers and geeks. If that perception continues until after the lock-in of treacherous computing arrives, free personal computing could be damaged for generations. Free software users, other than at corporate workstations, could be relegated to second-class citizens on the Internet.

SCO is just one battle. Don't confuse it with the war for personal computing freedom. Will you trade your freedom for .Net, NGSCP, or just to maintain compatibility with some MSOffice files or websites or the latest game? Do you know someone who is unaware of spyware they bought with their latest computer?

"All that is needed for evil to triumph is for good men to do nothing."

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Can SCO afford to win agains IBM?
Authored by: darkonc on Tuesday, January 27 2004 @ 12:13 AM EST
Although what I describe below is a bit absurd, it makes no less sense than many of the other things SCO has been soing this last year. Given what I'm reading, I'm wondering if SCO may have painted themselves into a financial corner with their legal delirum.

Their purchase agreement with Novell seems to say that Novell gets 85% of any income, and SCO gets 15% as an 'administrative' fee. I'd guess that any contingency payments are supposed to come out of that 15%. On the other hand, their contingency agreement with Boise would seem to give Boise & Co. more than 15% of any trial award. If that's accurate, then a win at trial could actually end up bankrupting SCO.

A buyout, on the other hand would be just fine, because any payment there would not (necessarily) be (at least in theory) a royalty payment.

Is my reading out to lunch?

---
Powerful, committed communication. Transformation touching the jewel within each person and bringing it to life..

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SCO trying to save their ass?
Authored by: q.kontinuum on Tuesday, January 27 2004 @ 02:25 AM EST
Hi!

I read on groklaw for several times that SCO might be sued for the fraud they
are commiting, because it is just too obvious to everyone that they do not hold
any evidence and that there is no chance of winning for them. Is it possible
they are using this case just to protect themselfe? I mean, can this case be
used to "proof" their good faith and their believe in their own
claims whenever the shareholders might want to sue them for this fraud?

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I know better now
Authored by: Steve Martin on Tuesday, January 27 2004 @ 06:41 AM EST

For quite a while now, I've been plagued by a nagging feeling that perhaps Darl McBride and the rest of the guys actually thought they were doing what they said they were doing... simply trying to protect their "IP" (whatever that is). I got my faith renewed today when I read this quote from McBride:

Listen real clearly to what’s happening here ... The situation is that we used to be the leader … we were where Red Hat [the No. 1 Linux distributor] is now. Linux then comes in, with Red Hat being the ringleader, and really attacks our [UNIX] market share and our marketplace. And they do it by simply taking our value and doing it for free. So, it’s really hard to compete with free. And so, then we come back in, and we start looking at this Linux beast, and we looked inside of it, and we realized, 'Hey, wait a minute, this is actually us—this is a substantial amount of our intellectual property showing up inside of Linux itself.' And that’s when we got our war paint on and said, 'We gotta go back and take this thing head-on.' (emphasis added)
What a bald-faced lie. Caldera / SCO Group was never where Red Hat is now as a Linux distributor, and McBride (and everyone else in the world) knows it. He's just trying once again to paint Caldera / The SCO Group as being the same company as The Santa Cruz Operation.

The end of The SCO Group cannot come too fast for me.

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

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SCO Complaint in SCO v. Novell - as text
Authored by: WillAtMH on Tuesday, January 27 2004 @ 08:37 AM EST
"7. Novell's false and misleading representations that it owns the UNIX and UnixWare copyrights has caused and is continuing to cause SCO to incur significant irreparable harm to its valuable UNIX and UnixWare copyrights, to its business, and its reputation."

It seems to me that SCO is doing far more to harm their reputation than Novell, IBM, Red Hat, or anyone else could. It sickens me that they are incapable of looking in the mirror.

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SCO Complaint in SCO v. Novell - as text
Authored by: Anonymous on Tuesday, January 27 2004 @ 11:15 AM EST
V. PRAYER FOR RELIEF

WHEREFORE, Plaintiff SCO prays this Court:

Hmmm. If I were Darl I would be praying to something higher than the court for
relief. The court cannot grant the relief he needs.

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SCO Complaint in SCO v. Novell - as text
Authored by: Turing_Machine on Tuesday, January 27 2004 @ 12:22 PM EST
You mean Microsoft? That contract is already signed.
<G>

---
No, I'm not interested in developing a powerful brain. All I'm after is just a
mediocre brain, something like the President of the AT&T --Alan Turing

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SCO Complaint in SCO v. Novell - as text
Authored by: Anonymous on Tuesday, January 27 2004 @ 01:12 PM EST
I occurs to me that Novell has been challenging SCO's ownership of the
copyrights to Unix/Unixware for some time and the SCO has been rather slow to
respond to that challenge.

The timing of SCO's lawsuit is probably strategic. On Feb. 6th, when the SCO
vs. IBM lawsuit parades into the courtroom again, SCO is going to ask that
proceedings on the SCO vs. IBM suit be put on-hold until the copyright
litigation with Novell is resolved. They've been sitting on this avenue of
litigation as a roadblock they could throw up to extend the SCO vs. IBM
discovery and specificity issues as long as possible. As soon as they have to
be specific, Linux coders will begin to purge every character of copied code
(presuming there actually IS any) and SCO's importance in the scheme of things
continues it's spiral into oblivion. A spiral that is likely to accellerate to
break-neck speeds as a result of them having made pariahs out of themselves.

As many have said, SCO doesn't appear to be truly hopeful of winning the IBM
lawsuit, lots of informed people will be surprised if there is a basis for it.
SCO has more to gain by extending the time-frame in which it can make
un-corroborated and outlandish accusations against Linux and stay in the
limelight.

Just something I've been mulling over.

--Flak

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I wrote the URL link howto. The SEC form does not allow HTML
Authored by: Thomas Frayne on Tuesday, January 27 2004 @ 01:43 PM EST
I should have mentioned that I did not use shortcuts because the SEC does not
allow HTML in its complaint form.

I have poor memory, and spent hours figuring how to make the shortcuts and
looking the method up again until I finally learned it. Then I had to do it
over again to find how to link directly to a mainline comment. When I forgot,
and had to spend time relearning the method, I posted a howto comment to Groklaw
to remind myself, and help others.

The other post in this thread was very helpful.

BTW, when I see a post with just the URL, I swipe it, click the new tab button
in Mozilla, middle-click the Navigation toolbar, and hit Enter. Not as good as
a shortcut, but not too bad.



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Computerworld Coverage
Authored by: Anonymous on Tuesday, January 27 2004 @ 02:37 PM EST

Computerworld has a nice article up today, basically slamming SCO:

But instead of filing a contract lawsuit, SCO has sued Novell for "slander of title."

...

Yes, that's a weird way to approach what's really a contract dispute over software copyrights. And that's telling, because there's only one reason why lawyers choose an oddball way of pursuing a suit. They do that when it looks like the straightforward approach won't work.

Judges like straightforward approaches. Juries do, too. And it's a judge and jury that will eventually have to decide what that 1995 contract said and who should own the Unix copyrights.

If SCO's lawyers could make a good case with a contract lawsuit, they would. Apparently, they can't.

It's nice to see people in the mainstream IT media who understand what's going on.

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SCO Complaint in SCO v. Novell - as text
Authored by: Anonymous on Tuesday, January 27 2004 @ 03:10 PM EST
Anyone else thinking it would be wonderful to see some FRCP 11 sanctions against
SCOG's wolves (er, attorneys)? You don't need to read any further than the
first paragraph of the complaint, wherein they state that Novel was given SCO
stock after defining "SCO" to mean SCO Group, without indicating
that it was reall Santa Cruz Operation stock Novel received. It's not exactly
earth shattering, but it's a misstatement they've had to correct in the IBM
litigation and that should not have been made here.

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