|
|
| The SCO Attempt to Amend its Novell Complaint - Why Now? |
 |
|
Saturday, January 07 2006 @ 11:05 AM EST
|
The media is beginning to react to SCO's request to the court to amend its complaint against Novell to include a copyright infringement claim and some contract-related claims. For example, here is Matthew Aslett's very thorough account, and here's Stephen Shankland's. Why now, everyone is asking?
For example, in Shankland's article, he quotes an attorney who is deeply puzzled and wonders if SCO will even be allowed to do it: "It doesn't make sense, unless the strategy was to bring added pressure on Novell to settle," said Brian Ferguson, an intellectual property attorney with McDermott, Will & Emery who has been monitoring the SCO case. "Usually you have your claims well put together before you bring the lawsuit."
Trying to add the new claims won't be easy, he added. "They're going to have a very long row to hoe to prove to the court that they should be able to amend the complaint to add these claims when they could have and should have been brought when they filed the original lawsuit," Ferguson said. "Most courts do not look favorably on this type of action."
I had written I thought the request would be granted, because the Novell litigation is still in the early phase (it just feels like it's been going on forever, but mostly what's happened so far has been motion practice) but I generally bow to contrary opinions by lawyers, unless SCO is paying them, or at least highlight them, so I thought I should include that quotation here, so you know it looks like I may be wrong. I believe I can shed light on this mystery of why now, though, thanks to a recent survey by Merrill Lynch, reported by Heise: 11 percent of CIOs said that vendors had either pointed out to them the legal risk supposedly inherent in the use of Linux or used this alleged fact, most frequently in the case of Microsoft (7 percent), to try and put pressure on them. So, we can call a spade a spade, thanks to Merrill Lynch: Microsoft is apparently using the litigation to advance its own software in a very ugly way. Questions about antitrust violations flood my brain. What does it mean, Microsoft used the supposed legal risk to "try and put pressure on them"? I don't believe it means pressure to buy their software. If any of you know more details about what kind of pressure Microsoft is trying to bring to bear, Groklaw is interested in knowing more details. I've heard rumors, but it would be useful to have concrete facts. Of course, now that Merrill Lynch has published the survey, any party to litigation that has an interest in the subject of any Microsoft involvement in the SCO litigation could just go to Merrill Lynch and start sending subpoenas, I would imagine. But anyway, the longer it takes, the more Microsoft benefits, I gather, or at least that is the proposition. SCO may be committing suicide by litigation, but someone else is trying to benefit, according to these CIOs. Whether Microsoft helped plan everything, or just saw an opportunity and hitched a ride en route, or are keeping SCO going with money transfusions is yet to be known, but in time, it is likely to all come out. What we now know for sure, though, is that CIOs are reporting Microsoft is trying to benefit from the "legal uncertainty" regarding Linux, an "uncertainty" created -- apparently out of thin air, from all I can see -- by SCO. What isn't going to show up in the survey, I suspect, are all the times Microsoft succeeded in making sales that way. So SCO has now thrown up in the air some new claims against Novell. And this is going to take a while. The new claims are in a case that won't be decided for a long time, since discovery in that case has just begun. Remember the extended discovery in the IBM litigation? Get it now? In the IBM case, SCO eventually ran into a judge's astonishment at a lack of evidence for copyright infringement claims, and I don't doubt the Novell case will end the same way, but in the meantime, for the two years or whatever it takes to get to the end of discovery, the claims float in the air, and CIOs will get pressured. Is it working? Not according to the Merrill Lynch survey: A survey among 75 CIOs (Chief Information Officers) from the United States and 25 from Europe undertaken by Merrill Lynch seems to indicate that the legal wrangling surrounding Linux is unable to dent the success of the open-source system. Although more than half the number of persons questioned said they were unsure whether legal uncertainties with regard to Linux obtained or not, a good 80 percent of them said that this legal state of affairs constituted no obstacle to their application of the system. If the PIPE Fairy reads this survey that shows CIOs are overwhelmingly not buying into the "legal uncertainty" message, will she stop leaving money under SCO's pillow? Lamlaw has an interesting take: Nothing is getting easier here for SCO. There are reasons why this course of action was not first taken by SCO lawyers. Maybe they (SCO lawyers) thought they could not prove they had the copyrights. Do you suppose? Maybe they (SCO lawyers) thought they would not be successful in getting a court to order Novell to assign SCO the copyrights. Do you suppose? Maybe they (SCO lawyers) thought that SCO management would not pay them the millions upfront without some showing of how SCO is going to increase their revenue fairly quickly. Do you suppose? After all the extortion plan promised an immediate increase in revenue without having to prove anything at all. Maybe they (SCO lawyers) thought that creating a real stink in the courts would precipitate a juicy settlement without the associated obligation to prove basis rights. Do you suppose?
And now Novell will be asking the court to set aside $30-40 million just in case Novell is right about those license revenues. SCO management has often said they have enough money to pay their lawyers. But they have not said they have enough to pay Novell the license fees it is due plus their lawyers. Sounds like insolvency to me.
|
|
|
|
| Authored by: TonyW on Saturday, January 07 2006 @ 11:13 AM EST |
| Please follow instructions in red to make links clickable [ Reply to This | # ]
|
- Coldplay - Verified? - Authored by: TonyW on Saturday, January 07 2006 @ 11:24 AM EST
- Off Topic Posts here - Authored by: hardmath on Saturday, January 07 2006 @ 11:31 AM EST
- Sony getting nailed again. Three Canadian Class Action suits in the making. - Authored by: Torinir on Saturday, January 07 2006 @ 11:47 AM EST
- Teenager may face appeal over email attacks - Authored by: tiger99 on Saturday, January 07 2006 @ 12:11 PM EST
- "Yahoo and Google eye bigger role in everyday computing" - Authored by: Anonymous on Saturday, January 07 2006 @ 01:01 PM EST
- Opera - "Embeddable browser aims AJAX at Linux devices" - Authored by: Anonymous on Saturday, January 07 2006 @ 07:51 PM EST
- "RIM stock rises on report of strong handset sales" - Authored by: Anonymous on Saturday, January 07 2006 @ 09:24 PM EST
- Current 'Sony balancing act' link - Authored by: Anonymous on Saturday, January 07 2006 @ 10:32 PM EST
- Linux Web sites? - Authored by: Anonymous on Saturday, January 07 2006 @ 10:54 PM EST
- Linux Web sites? - Authored by: Anonymous on Sunday, January 08 2006 @ 11:46 AM EST
- Edubuntu 5.10 a winner: quick review - Authored by: bbaston on Sunday, January 08 2006 @ 12:02 AM EST
- posting a news topic from cnn ???? - Authored by: Anonymous on Sunday, January 08 2006 @ 12:08 AM EST
- IP attorney: Why SCO has no case - Authored by: stend on Monday, January 09 2006 @ 07:21 PM EST
| |
| Authored by: TonyW on Saturday, January 07 2006 @ 11:14 AM EST |
| If any. [ Reply to This | # ]
|
- Corections Here - Authored by: Anonymous on Monday, January 09 2006 @ 12:38 PM EST
| |
| Authored by: TonyW on Saturday, January 07 2006 @ 11:19 AM EST |
If the PIPE Fairy reads this survey that shows CIOs are
overwhelmingly not buying into the "legal uncertainty" message, will she stop
leaving money under SCO's pillow?
I don't think so. Even if
the CIOs are overwhelming rejecting it, there are still some that are taken in
by the FUD. They still getting some results for their money. And money is one
thing they have plenty of.[ Reply to This | # ]
|
| |
| Authored by: Chris Lingard on Saturday, January 07 2006 @ 11:32 AM EST |
A small query on this motion. SUSE are a German company; owned by Novell,
but still a German company.
For an American to sue an alien, you
should use Federal court in Washington DC. You cannot sue outside of the USA
from a State or Federal court in the 50 States. So can the Utah Federal court
listen to claims against SUSE?
And now that they admit the Copyrights
were not transfered; what about the three years litigation against IBM. All a
bad mistake, lets start again? Surely IBM can use this to have most of the case
struck from the record?
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 07 2006 @ 11:56 AM EST |
| While I would normally be very prepared to believed that MS was behind this, I
note that a small part of the Merrill Lynch report was left out of your
quote. MS was not the only company that had been trying to play hardball about
Linux being encumbered - someone else was quoted as having tried it on by 4% of
the respondees. And that someone was unidentified ! [ Reply to This | # ]
|
- 4% - Authored by: Anonymous on Saturday, January 07 2006 @ 12:14 PM EST
- Sun? - Authored by: tiger99 on Saturday, January 07 2006 @ 12:21 PM EST
- Sun? - Authored by: Anonymous on Saturday, January 07 2006 @ 12:49 PM EST
- Sun? - Authored by: PJ on Saturday, January 07 2006 @ 01:15 PM EST
- Sun? - Authored by: Anonymous on Saturday, January 07 2006 @ 02:48 PM EST
- Sun? - Authored by: Anonymous on Saturday, January 07 2006 @ 04:16 PM EST
- Sun? - Authored by: Tyro on Saturday, January 07 2006 @ 09:08 PM EST
- Sun? - Authored by: PJ on Saturday, January 07 2006 @ 10:41 PM EST
- Sun? - Authored by: PJ on Saturday, January 07 2006 @ 10:56 PM EST
- Sun? - Authored by: Anonymous on Sunday, January 08 2006 @ 02:29 AM EST
- Sun? - Authored by: PJ on Monday, January 09 2006 @ 10:22 PM EST
- Sun? - Authored by: Anonymous on Tuesday, January 10 2006 @ 03:02 PM EST
- Sun! - Authored by: jbb on Saturday, January 07 2006 @ 01:24 PM EST
- Sun! - Authored by: Anonymous on Saturday, January 07 2006 @ 04:33 PM EST
- Sun! - Authored by: alangmead on Saturday, January 07 2006 @ 07:03 PM EST
- Sun! - Authored by: PJ on Saturday, January 07 2006 @ 11:00 PM EST
- Sun! - Authored by: Anonymous on Sunday, January 08 2006 @ 03:21 PM EST
- PS on this. - Authored by: Anonymous on Sunday, January 08 2006 @ 05:29 PM EST
- Sun! - Authored by: PJ on Monday, January 09 2006 @ 10:28 PM EST
- Sun! - Authored by: Anonymous on Monday, January 09 2006 @ 05:42 AM EST
- The SCO Attempt to Amend its Novell Complaint - Why Now? - Authored by: Anonymous on Saturday, January 07 2006 @ 12:35 PM EST
- The 4% Solution - Authored by: Fogey on Saturday, January 07 2006 @ 05:22 PM EST
- prolly bill himself - Authored by: Anonymous on Sunday, January 08 2006 @ 12:46 AM EST
| |
| Authored by: Anonymous on Saturday, January 07 2006 @ 11:58 AM EST |
IMHO it's desparation on SCO's part and good 'ol fashion greed on Microsoft's
part by funneling money through the backdoor to fund this whole mess.
FUD could be used against Microsoft since no one knows if their products are
totally unencumbered -- no one outside the walls of Redmond has ever seen all
the code for Windows which could contain illegally used code from other
sources.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 07 2006 @ 12:01 PM EST |
Sorry I just do not understand.
If I recall correct Novel sold or licened something to Old
SCO who then sold or licened something to New SCO.
What I do not understand is why the court does not find
that New SCO has no standing to sue Novel as Novel had no
agreement with New SCO. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 07 2006 @ 12:12 PM EST |
The "why now" question is easy; The SCO Group (AKA Caldera)
Was afraid of Novell getting a PSJ.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 07 2006 @ 12:25 PM EST |
Maybe SCO is doing this because they are poised to loose allot of bus. from the
Novell and Swiss deal and they are trying to stop it...
Thoughts???[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 07 2006 @ 12:29 PM EST |
Againt Microsoft, that is. Would that be possible? [ Reply to This | # ]
|
| |
| Authored by: webster on Saturday, January 07 2006 @ 12:50 PM EST |
.
1. Why now?
IBM won't settle. It may have to go to resolution by trial or motion. The
bluff did not work so now it is time for the real facts and issues. SCO must
pull back to reality and facts. This claim is really what they need despite the
fact that it betrays their earlier lie. If nothing else, they should get delay
out of this.
2. M$ litigation-cloud argument against Linux:
No doubt IBM, RH, Novell are way ahead of Merrill Lynch on such surveys even
if they were informal. I'm sure they can tell us sales lost, sales delayed,
names,dates, and amounts. Certainly with their own clients IBM knows whether
they are putting in Red Hat or M$ and why.
3. Will the judge permit filing the new claim?
.....Yes: The suit is absurd without it. It fits the facts. You can't resolve
dispute without it. SCO needs it. It gets him off the hook for not dismissing
slander of title at his first few opportunities.
.....No: It should have been filed before. Nothing new has transpired. These
awkward, absurd suits, have been driven by PR and FUD not legal considerations.
Let SCO lay in it. SCO has caused great delay, expense and waste with their
awkward legal strategy - bluff and "cosmetic" lawsuits. They
shouldn't file it without paying Novell legal expenses heretofore and escrowing
the license fees. It is anopportunity for an "IBM-Marriottian
Compromise:"
"Sounds reasonable, Judge, if they pay our legal fees and put the license
fees in the constructive trust."
4. Great moniker - the PIPE Fairy. Yes - who invested $50+ millions without
due diligence and copyrights? Someone with the deepest pockets and a rooting
interest. IBM knows.
---
webster
[ Reply to This | # ]
|
| |
| Authored by: jbb on Saturday, January 07 2006 @ 01:39 PM EST |
| SCO/BSF are afraid of Novell's request for an injunction
that
will
effectively bankrupt SCO. They want to ask the judge
for a quid pro
quo: the escrow account in exchange
for shutting down SUSE Linux.
The FUD value of shutting down SUSE would be huge. SCO/BSF
will argue that
it would be unfair to bankrupt them without
also shutting down SUSE.
Methinks the judges in this case will need to exercise some
judgment when
considering these requests.
---
Anyone who has the power
to make you believe absurdities has the power to make you commit injustices. [ Reply to This | # ]
|
| |
| Authored by: AllParadox on Saturday, January 07 2006 @ 03:22 PM EST |
I have been anticipating a motion to amend complaint from "The SCO
Group" for a long time now, for the most prosaic of reasons: human nature.
It is in the nature of being mortal that we cannot know all things. Frankly, we
do pretty well just to get by, day-to-day.
A diligent pre-filing investigation will always leave something out. An immense
number of things, actually. The vast majority are irrelevant. Frequently, a
handful are critical.
The only cure is an amended complaint.
Sometimes, the absence is tactical or strategic, as it should be. We, and our
machinations, are wonderfully complicated and subtle. Judges often see
"Perry Mason" moments due to a finesse, where the other side admits a
critical flaw because of a trial tactic. The admission wold not have happened
if the complaint had been directly stated. An amended complaint is then
appropriate.
What I did not anticipate was the Press response. Some reporter actually made
the effort to contact an attorney, and get an opinion about a late
motion-to-amend-complaint. What was not said was how many attorneys the
"journalist" had to call to get that answer.
Ask enough attorneys, and eventually you will get the answer you want to hear.
Long term LawGrokkers are familiar with the process by now. We LawGrokkers are
not surprised at the motion. For high-dollar, technically complicated cases, we
expect such behaviors, and the high likelihood that it will be granted at this
stage of the proceeding. One may have wisdom about some things without being an
attorney.
I am also *extremely* curious about the source of $10,000,000 in new money for
"The SCO Group". I am familiar with venture capitalists and
investors, having dealt with them both as clients and as opponents. I am not
talking about witless day-traders following will-o-the-wisp Technicals. Venture
capitalists are a shrewd and cautious lot. They very carefully evaluate their
risks.
IMNSHO, nothing about the situation of "The SCO Group" justifies an
additional investment of US$100,000, much less US$10 million. The history of
SCO vs. IBM is one long-running disaster. The history of SCO vs. Novell is no
better, and in some ways, is worse. In particular, the assignment of copyrights
looks very bad, indeed.
On the up side for "The SCO Group", there is ... nothing. After
numerous requirements to identify the substance of their claims, they have
retreated into classic delaying techniques; complaint amendments and additional
discovery. The foundation and basis for their IP claims has evaporated during
the proceedings. Documents discovered by LawGrokkers have shattered any hope of
reliable ownership of most of the copyrights in Unix. Very little remains.
In SCO v. IBM, "The SCO Group" has abandoned all trade-secret claims.
Effectively, they have abandoned all copyright claims. All that remains is a
claim of contract violation, on a contract not negotiated by "The SCO
Group". "The SCO Group" never anticipated receiving so much as a
penny on the IBM contract when they negotiated the purchasing the Unix business
from old SCO. A Gazillion dollar judgment is incredibly unlikely now. Any jury
verdict for more than a few thousand dollars would be silly.
The cancellation of trade-secret and copyright claims in SCO v. IBM has already
buffered us Linux users from "The SCO Group".
Strategy: open, notorious, and hostile use of Linux, derived from IBM
distributions; suit by "The SCO Group". Join IBM as a necessary
party. Whole case thrown out on the basis of "Res Judicata". Damages
against attorneys for "The SCO Group" for frivolous conduct. (Seek
legal advice before trying, your mileage *will* vary.)
There is very little in the way of copyrights that Novell can transfer to
"The SCO Group" that is free, clear, and unambiguous. Holding a gun
to Kimball's head while he signs an order in SCO v. Novell, giving everything to
"The SCO Group", would be a waste of time.
From all accounts, Unix customers of "The SCO Group" are leaving as
quickly as they can. Without clear IP rights, without a going Unix business,
"The SCO Group" has no value: none. B,S,F are extremely unlikely to
represent "The SCO Group" in other lawsuits, just for lack of money,
so the company is an easy target for practically any opposing law firm.
Criminal consequences for managers of "The SCO Group", president
McBride, Ralph Yarro, anyone else involved in decisions, are vanishing small.
Yarro has already mollified the Love family and other shareholders: they settled
for money and it is over. The management folks are not putting in their own
money to protect themselves, because that much money is not necessary.
As of now, only one group would get value for a US$10 million investment in
"The SCO Group": Microsoft, its employees, and investors.
This whole thing smells bad.
---
PJ deletes insult posts, not differences of opinion.
AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 07 2006 @ 03:28 PM EST |
They held off on this until they had run the delay ploy in IBM as long as they
could. Now that IBM has reached the specificity phase, SCO needs a new wookie.
So they file claims in Novell that are interdependent on IBM, start the infinite
discovery game all over again, and probably gain enough time to get them all
the way to bankruptcy.
This will slow down both cases.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 07 2006 @ 04:44 PM EST |
"So, we can call a spade a spade, thanks to Merrill Lynch: Microsoft is
apparently using the litigation to advance its own software in a very ugly
way."
from your own words above.
Because of false accusations by SCO, linux has lost some business....[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 07 2006 @ 05:32 PM EST |
| So, we can call a spade a spade, thanks to Merrill Lynch: Microsoft is
apparently using the litigation to advance its own software in a very ugly way.
Questions about antitrust violations flood my brain. What does it mean,
Microsoft used the supposed legal risk to "try and put pressure on them"? I
don't believe it means pressure to buy their software. If any of you know more
details about what kind of pressure Microsoft is trying to bring to bear,
Groklaw is interested in knowing more details.
When I cancelled SCO
support contracts for a moderate number of licenses, I was badgered by SCO to
explain what we were doing and what we expected to migrate to. Finally, I told
them we were moving to propertiery and closed source solutions, a flat out lie.
I lied to them for two reasons. First, it isn't any of their business why we
were terminating our business relationship (mainly because I was not happy with
the support we received and we were getting rid of SCO anyway), second, if I
told them the truth, I'd risk having my company targeted for a suit. [ Reply to This | # ]
|
- pressure - Authored by: Anonymous on Saturday, January 07 2006 @ 06:02 PM EST
- pressure - Authored by: Anonymous on Saturday, January 07 2006 @ 07:56 PM EST
- pressure - Authored by: Anonymous on Saturday, January 07 2006 @ 08:07 PM EST
- Goons - Authored by: Anonymous on Sunday, January 08 2006 @ 07:11 PM EST
- pressure - Authored by: Tyro on Saturday, January 07 2006 @ 09:40 PM EST
- pressure - Authored by: Anonymous on Saturday, January 07 2006 @ 10:37 PM EST
| |
| Authored by: peope on Saturday, January 07 2006 @ 06:15 PM EST |
My guess is that a copyright issue in front of the courts would be a recognition
that the copyrights are in dispute.
SCO wanted to act as if the copyrights where clearly theirs which could have
impacts on other cases and their PR and stock value.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 07 2006 @ 06:23 PM EST |
PART 1: 2006/01/04
On to plan B.
Plan A, the one that was supposed to make
everyone in the world pay SCO without any
proof of any reason for doing so, has failed.
But at least I have to hand it to the SCO
lawyers for coming up with a plan B that will
require the Novell case to go to trial.
When SCO first sued Novell for slander, the
issue came up why SCO did not just sue Novell
for specific performance if SCO thought they
had some right to the Unix copyrights but
they were not assigned them. If it were not
for Plan A, SCO could have just asked Novell
for those copyrights a second time and if
refused again, then sue. But they did not do
that. Instead, they plowed ahead claiming the
world violated SCO's copyrights,threatening
everyone and suing some. Now SCO lawyers have
to eat crow pie and ask the court to give
them the copyrights they waived before the
world during Plan A, the extortion plan.
What's next?
The court will permit SCO to file its amended
complaint. However, SCO's history shows
deceit, dishonesty and illegal activity on
these issues in the recent past. And both the
Novell and IBM lawyers will be more than glad
to point all of this out to the judge. Does
it matter?
In matters of law (as opposed to equity) it
sometimes does not matter. But, here, SCO has
to ask the court to order Novell to do
something now that SCO has been claiming all
along was unnecessary or had already been
done. SCO lawyers are "asking" to go to court
and claim they were not given those
assignments in the first place.
Does SCO have a case to get the court to
order Novell to assign those copyrights? If
SCO had originally filed for breach of
contract and thus for specific performance,
SCO might have been successful. But when SCO
shows Plan A to the world and the court sees
Plan A too, the court is less likely to do
so.
Keep in mind that all during this time Novell
retained a substantial financial interest in
those old Unix licenses. They are not simply
a bystander. Should SCO even hint of giving
existing licensees a bunch of legal trouble,
it is justifiable that Novell would refuse to
participate. No court is going to find a
substantial financial interest without
appropriate power to go along and protect it.
That is particularly so when specific
language appears in the agreements. No court
is going to find that Novell does not hold
power to protect its financial interests.
In the end what does all this mean?
It means the Novell case will have to go to
trial. SCO allegations are unlikely be
resolved via summary judgments, etc. It is
simple to find that the copyright assignment
was not executed, the document does not
exist. But it is much more difficult to
decide as a matter of law that Novell should
be required to execute the assignment. By the
way, the remedies requested by legal
proceedings are often referred to as the
"prayer". Now you know why.
Interesting questions remain. Will or can the
IBM case proceed? The short answer is not
completely, in part it may. As long as the
holder of those copyrights is in dispute or
just who may bring legal actions claiming
they have been violated is in dispute, many
of the issues in the IBM case cannot be
resolved. Even if the IBM case is primarily
based on contract issues, and it is, SCO's
request to amend the complaint against Novell
could result in significant delays.
Between those delays SCO is just likely to
die.
Specific performance is a remedy in what is
called the court of equity. It is not a
separate courtroom. But the jury does not
decide the issues. The judge does. In matters
of pure law, dirty hands do not matter. In
matters of equity they do. So when the judge
does get around to deciding whether Novell
should be required to assign those
copyrights, the SCO dirty hands become an
issue. Suing for Slander of Title when SCO
did not even had the copyrights? Publicly
claiming IBM and Red Hat violated SCO's
copyrights when SCO must now ask the court to
assign those same copyrights to SCO?
Novell is asking, or about to ask formally,
that$30-$40 million be set aside now in a
trust to make sure that if Novell is correct
in having claims on some of those licenses
(including those which were paid to avoid law
suits coming from SCO), SCO is going to be
all but broke. Involuntary bankruptcy can be
triggered very easily once the assurance of
being paid dries up for a few creditors. That
is very likely to occur if and when Novell
gets some moneys set aside to cover its claim
on license fees.
When that happens, the trustee in bankruptcy
is going to be calling the shots. And the
trustee (approved by the bankruptcy court) is
not going to engage in extortion. He is going
to want to see some meat on those ole bones.
SCO as a company in the software industry is
toast. And SCO as a corporation is toast too.
The end game is coming up. It may be a slow
excruciating death. Or, it may die without
notice (settlement).
PART 2: 2006/01/07
But what about the original slander suit?
It is likely that Novell will bring a motion
for Summary Judgment in regard to the
original slander claim. Since SCO can no
longer claim to hold the copyrights (after
all they are now asking the court for
permission to amend their complaint to ask
for an order forcing Novell to assign them
the copyrights), that original charge is a
dead duck. It was a dead duck from the start.
But the judge was holding out for one last
search through the files.
I guess the very real likelihood of having
the original slander suit resolved via
summary judgment put urgency on amending the
complaint against Novell to include some
charge that is not going to be dispensed with
summarily.
Most interesting is the difficulty in
convincing the judge (any judge) that SCO
deserves the extraordinary remedy of forcing
Novell to assign those copyrights when SCO
has prematurely sued AutoZone and
DaimlerChrysler, made public claims regarding
copyright violations by IBM and Red Hat, yet
now must admit (yes, it is an admission) that
it never thought it had the copyrights to
begin with.
Novell only needs to argue that SCO does not
deserve the extraordinary remedy of specific
performance because of unclean hands. In
otherwords, the court needs only to refuse to
act. The court only needs to refuse to
participate in the process of suing a bunch
of organizations and later on file the
necessary actions to gain the rights on which
the earlier suits depend. It is very easy for
a judge not to act. And if the judge does not
order the copyright assignments to SCO, all
that beef about Novell's possible violation
of copyrights goes away. (Not to mention IBM,
Red Hatand AutoZone.)
[ Reply to This | # ]
|
| |
| Authored by: skidrash on Saturday, January 07 2006 @ 06:43 PM EST |
Shankland claims the amendments accuse Novell of violating SCOG copyrights
through its Linux activities.
All the Linux related things are NOT copyright
"this technology (no specific code) which is derived from a derivative of a
SCO product is infringing".
A far different thing than "Linux violates SCO copyrights".
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 07 2006 @ 07:17 PM EST |
It would be beneficial to know the exact wording of ML's survey and who paid for
it... a push survey is usually used in political campaigns to slime the other
side... tSCOg has been known to play fast & loose with the rules of
engagement.[ Reply to This | # ]
|
| |
| Authored by: Glenn on Saturday, January 07 2006 @ 07:49 PM EST |
I asked Lewis in an email if this SCO motion isn't legally admitting that no
copyrights were conferred to the Old SCO in the original transaction or by the
Amendments.
He thinks this is the case and that Novell could probably obtain a summary
judgement based upon that filing. This couls turn out to be very interesting.
Glenn[ Reply to This | # ]
|
| |
| Authored by: Latesigner on Saturday, January 07 2006 @ 08:25 PM EST |
All the discovery in the IBM case says that Novell never sold the copyrights.
The sold the right to develop UNIX programs and to act as the license fee
collector to old SCO and that was it.
---
The only way to have an "ownership" society is to make slaves of the rest of us.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 07 2006 @ 10:47 PM EST |
What is the prospect of the judge dismissing the current case and giving leave
to SCO to to file this motion as part of a new suit? Thay way the copyright
dispute would not be available to delay other trials.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, January 08 2006 @ 05:28 AM EST |
Aren't they saying, in effect, "Hand over those copyrights so we can sue
you more thoroughly?"[ Reply to This | # ]
|
| |
| Authored by: kbwojo on Sunday, January 08 2006 @ 09:25 AM EST |
I recall a past discussion about SCO wanting this trial to start at a later date
then Novell wanted. It looks like part of SCO's new claim's against Novell would
be dependant upon a ruling on IBM's contributions to Linux. If the Judge accepts
the new amended complaint then I would imagine that SCO now has a reason to
delay this until after the IBM trial. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, January 08 2006 @ 09:42 AM EST |
At least Lamlaw has the stones to say in public that BOTH SCO and their
attorneys were attempting to Extort the world from the very beginning.
So when is the mainstream Press going to shift into 'dirty laundry' mode and run
with this?
Or am I dreaming again?[ Reply to This | # ]
|
| |
| Authored by: ragewinter on Sunday, January 08 2006 @ 01:34 PM EST |
If you have ever watched the world series of poker, you can watch players
with big reserves "bully" other players out of the competition constantly.
Isn't
that what we're seeing all over the place in our economy, and what makes
people upset with the RIAA and SCO? When it's Godzilla vs a 5-year-old kid,
the only hope the kid has is that a journalist will champion his cause before
he gets killed.
Don't get me wrong: I think journalists are great, and
thank heavens that
we have constitutional laws protecting them so they can
shine the light. But I
think we need a more basic protection. When high-powered
attorneys
threaten to put you out of business or ruin your life, the
journalists may not
be fast enough to save you personally, even though they may
win the war.
Perhaps the market will teach the bullies a mean lesson.
I'm CERTAIN the
media would make a big deal about it if Wall-Mart started suing
people for
not shopping there, because the average person understands retail
shopping
pretty well. At the core of the SCOG issue is the fact that most
people don't
understand technology and law, and they don't care to. So they
can't easily
discern the lies and see the bullying that is really going
on.
To people with a knowledge of the linux development process and
software, certain executives from SCOG may appear to be ouright lying,
mentally handicapped, or severely misinformed. I'm quite embarassed that
they
live in my state. However, many folks I know don't 'get' the arguments
being
made on either side. They only see a summary of the accusations being
made, in
large print. They heard it on TV and thaey have no idea beyond that.
That's why
FUD works at all.
Civil court is pay-as-you-go. So the oppressed guy may
well have a
harder time righting his wrong. But it's a step further when the
bullies go
threatening to take you to court for not shopping at their store.
And when an
attorney, who is supposed to know the law, puts that threat on his
letterhead,
well, how is he different from the guy who threatens to break your
window if
you don't pay protection money?
In my opinion plantiffs with
MASSIVE resources should be naturally
enjoined from filing a suit against
"smaller fish" until a judge says they have
provided enough assurance that they
are not bullying. I don't really think MS,
for example, should have a natural
right to take me to court, because it's very
similar to them having a natural
right to take all my stuff. Very few individuals
have the resources to fight a
company like SCOG in court, and they're not
even very big! The defense fees
alone can be crippling.
It's easy to tell, for example, that I am a
little fish compared to SCOG or
MS or IBM. But who would stop them if they
tried to financially destroy me on
a whim, or by mistake? If they decided to
ruin my life, would the police arrest
them? If they made up some stuff and said
I stole all their ideas using mind
control over the internet, how much would I
have to spend to clear myself of
the false charges, as a fraction of my net
worth, vs their cost, as a fraction of
their net assets, to ruin
me?
It's not a new tactic. It's at least as old as the bible: "Thou
shalt not bear
false witness." That's NOT just a phrase about telling the
truth--notice how it
specifically applies to this exact behavior of making up
a false accusation.
Like bawling loudly to the press that people stole your
intellectual property,
and going on and on about it, and sending out
threatening letters. This is a
tried-and-true tactic of evil since the dawn of
time--make up lies and bear
false witness. Whether you believe in God or not,
it's evidence that people
thousands of years ago were not fond of that kind of
bullying, either.
When a patent attorney signs a patent application he
knows is not useful
or original, he's breaking that long established rule of
human behavior. It's
not just a harmless lie; it's a falsification, attempting
to deprive the real
inventor (or the community) of use of an idea. Or a
bargaining chip for a
future false accusation.
When the RIAA sends you
a nasty letter threatening legal horror, personal
complications, and financial
ruin in your life if you don't pay them (even
though you may not have done
anything!) they are doing the same thing.
When companies put out press releases
claiming that they "lost" X millions of
dollars" due to their customers
excercising the right to fair use, (when they
don't really know that, for a
fact, even) they are doing the same thing to their
customers as a
whole.
PJ, you explain things so nicely and patiently. I admire you for
your
optimism. You take the time and make the issues easy for even my mom to
understand. And you're probably doing the most good that can be done, by
shining that light around the room. You let people know what's going on--as
long as they will read about it. You are amazing and you have my
thanks.
But I'm cynical that we need more than just great journalism.
There are
many individual casualties--people who's lives and businesses get
ruined. We
wouldn't put up with giant financial interests ruining people's life
if they used
a baseball bat, so why do we permit it if they use
attorneys?
If I knew how to write a good proposal for a law to say
"great big fish
can't sue teensy tiny fish unless they pay the defense in
advance and appeal
in advance, and they pay attorney fees if they lose" I would
write it so. And if I
knew how to get my representatives to do anything other
than solicit money
from me "for the party." I would beg them to take that law
to the white house
and try to get it to pass. But I honestly don't know how. If
you do know how,
please tell me. And if you know much about this party they
keep referring to,
please give me the address and time, because I love a good
party. [ Reply to This | # ]
|
| |
| Authored by: eggplant37 on Sunday, January 08 2006 @ 02:29 PM EST |
| Don't forget to mention SJVN's take on it
all. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, January 09 2006 @ 07:52 AM EST |
I just hope the DOJ is watching because Microsoft is just
sitting back and grinning at this whole mess while they
continue their illegal monopoly on the desktop.
All this IP legal wrangling was started by SCO and
microsoft and now microsoft has companies setting up their
own IP departments and now they are starting their own
legal wranglings over patents.
this has also created problem for just open source
software in general. at least my company has gotten a lot
more stict about installing open source software. so now
to get the tools I need I have to feel like a criminal and
sometimes risk my job. thanks sco and microsoft.
the other part of the problem is these companies are brain
dead because they have to to listen to these microsoft
paid so called journalist and billy gates himself about
the "future" of computing. I could care less what billy
says the future will be - the real innovation is going by
open source folks - but they aren't bought, paid, or sold
by corporations, government, or microsoft so you will
never hear what they are doing.
So welcome to billy gates "future" of computing. the one
constant that follows billy wherever he goes. (Apple and
Microsoft in the beginning.)
Litigation.
[ Reply to This | # ]
|
| |
| Authored by: blacklight on Monday, January 09 2006 @ 08:55 AM EST |
SCOG has no choice but to amend its complaint, given that both judges Kimball
and Wells have stated that it is not at all clear that the APA and Amendment 2
include the copyrights transfer that SCOG claims took place. I don't think that
SCOG's unamended slander suit would have stood up to a summary judgment.
The Novell litigation is a lot less complex than the IBM litigation, but it is
more life threatening to SCOG and can be resolved a lot more quickly than the
IBM litigation (in SCOG's disfavor). Novell is like a great shark that is
circling a sinking boat and occasionally ramming it, while IBM is a hurricane
that is building up in the distance that can be seen to be clearly moving in the
direction of the boat.
The passengers' only hope is to make it to shore (get a settlement) before they
become shark finger food (most immediate danger). Once they get to shore,
they'll have to find suitable shelter to survive the hurricane. As for the boat,
forget it.
---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, January 09 2006 @ 11:23 AM EST |
UnitedLinux was formed by Caldera, Conectiva, SUSE LINUX and Turbolinux to build
a single, world-wide Linux standard that customers and partners could work with
for world-class, enterprise deployment of Linux.
see http://www.unitedlinux.com/
Wow - Suse was bought by Novell and Caldera was renamed to TSCO.
Has the SCOGroup during the act of renaming lost its corporate memory? How can
it now sue one of its ex-partners?[ Reply to This | # ]
|
|
|
|
|
