decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO's Memo in Opposition to Novell's Motion for a More Definite Statement
Sunday, May 28 2006 @ 10:38 PM EDT

SCO met its Friday deadline, and it has filed its Memorandum in Opposition to Novell's Motion for a More Definite Statement [PDF]. It also filed a Memorandum in Opposition to Novell's Motion to Stay, with a long tail of exhibits, which I'll put up next.

In its opposition to Novell's Motion for a More Definite Statement [PDF], SCO says in plain English to the court, we don't have to tell Novell in our complaint which unfair competition law we think they violated. We told them enough facts to meet the pleading requirements. Novell can find out in discovery which law or laws we have in mind. And we don't have to yet narrow ourselves down to a particular legal theory either. Specifically SCO states it this way in its introduction:

First, SCO is not required under the Federal Rules of Civil Procedure to specify statutory provisions or advance a particular legal theory for its unfair-competition claim. Second, SCO has met the requirements for pleading a claim under Federal Rule 8(a). Discovery is the appropriate means for Novell to probe SCO's claim.

So there. They'd prefer to keep their options open. Here's Rule 8, by the way, so you can follow along.

You'll note that there is a link on that page to Rule 11, which states:

(b) Representations to Court.

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions.

If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation....

I can't help but wonder if this Rule might not inspire a measure of vagueness, particularly in a lawyer who is relying on discovery for any hope of evidence in support of a claim and which he therefore doesn't wish to commit to with specificity until he hopefully has something in hand to avoid sanctions with. Not saying that this is what is happening, but just pointing out all the possibilities. Or maybe it's just about delay again. We've all seen how speedily discovery played out in SCO v. IBM, thanks to what I would describe as SCO's preference for the slowest boat to China. SCO here in Novell would like the judge to approve the same method of transport, so it can step on board that old rowboat once again.

However, SCO does provide, as you'll see, some hints, mentioning that it "modeled its claim on Utah's unfair-competition law." But which one? Yarro's law? The unfair competition law SCO's Chairman of the Board Ralph Yarro sponsored that was passed in Utah in 2004? If so, which part of it? Here's how it reads in part:

(4) (a) Except as provided in Subsection (4)(b), "unfair competition" means an intentional business act or practice that:
(i) (A) is unlawful, unfair, or fraudulent; and
(B) leads to a material diminution in value of intellectual property; and

(ii) is one of the following:

(A) cyber-terrorism;
(B) infringement of a patent, trademark, or trade name;
(C) a software license violation; or
(D) predatory hiring practices.

(b) Notwithstanding Subsection (4)(a), "unfair competition" does not include the departure and hiring of an employee by a competitor.

If it's Utah's law, and they don't specify A, B, C etc., Novell doesn't know if it is being accused of cyberterrorism or infringing a trademark. Don't assume. Remember SCO accused IBM of violating the Computer Fraud and Abuse Act just for downloading Linux software from SCO's website so it could use it as evidence. It's not wise to assume anything is too ridiculous or too low-down for SCO to try.

"Modeling" a claim on Utah's common law, as SCO says it has, isn't the same thing as picking a law and saying, That is the one. SCO is instead saying, so far as I can understand what they are saying, that at least Novell is guilty of unfair competition under Utah state law, and that having mentioned one, they've met any necessary threshold.

There is another issue, though, according to SCO, a threshold question it wants the court to settle before it ties itself to any particular state's law, namely which state is the appropriate one.

I note footnote one:

1. Contrary to Novell's assertion (at 2) that SCO has not alleged "where and when the alleged misappropriation took place," SCO has clearly alleged that the misppropriation took place "worldwide" when Novell "began distributing" Linux. (2d Am. Compl. ¶46.)

Well, that narrows it down nicely. To hear SCO tell it, Novell has potentially broken every unfair competition law on Planet Earth. So, Novell, defend yourself!

This may explain why Novell is asking precisely which law in which state(s) in which country(ies) on what continent(s) they are alleged to have been unfair to SCO, so they can analyze how to respond after studying the various law(s) and cases, because Novell's position is that unless it knows more than it currently does, it may omit certain affirmative defenses it otherwise would list. The thing is, there are certain affirmative defenses you only get to raise the first time you respond to a complaint. SCO's suggestion? Just put in a general denial, denying the facts SCO has set forth, and let's get on with discovery.

They do so love discovery.

But that suggestion doesn't resolve the important issue Novell has raised about affirmative defenses. What you might use as an affirmative defense against cyberterrorism, after all, wouldn't be useful as an affirmative defense against a trademark violation.

I don't know how much Novell will be able to pry out of SCO in discovery, anyway. It kind of reminds me of the way SCO told every court but the IBM court that it should go first, the "anywhere but here" strategy, as one of IBM's lawyers, Evan Chesler, described it. Remember that farce about how Autozone should go first? Around that same time period, September of 2004, I wrote that I thought I discerned their strategy: "I detect a water-torture strategy as well. Drip, drip, drip, more memoranda, more motions, more words until we all wave our little white flags from the parapet and beg them to stop at any cost. One thing is for sure. They can't appeal on the grounds that they didn't get to tell the court every last thought they could possibly dream up."

As for discovery, Novell's memorandum in support of its motion alleges that SCO won't tell them which unfair competition law SCO is thinking of in discovery either, because they've already asked them more than once and received only what Novell felt was a nonanswer. So the runaround begins.

As a reminder, this is the claim that the parties are talking about, from SCO's Second Amended Complaint:

FIFTH CLAIM FOR RELIEF (Unfair Competition)

121. SCO re-alleges and incorporates all prior paragraphs as if fully set forth herein.

122. Novell has knowingly, intentionally, and in bad faith engaged in a pattern of conduct aimed at depriving SCO of the value of its UNIX technology. Among other things, Novell has falsely claimed ownership of SCO's copyrights in UNIX and UnixWare, misappropriated SCO's UNIX technology in Linux and forced SCO to compete in the marketplace against its own intellectual property, and has wrongfully attempted to thwart SCO's rights and efforts to bring legal claims in defense of its UNIX intellectual property.

123. Novell's misconduct is likely to result in confusion, and in fact has resulted in confusion in the marketplace concerning UNIX, Linux, and other products.

124. As a direct result of Novell's unfair competition, SCO has and will continue to suffer damage to its business, reputation, and goodwill in an amount to be proved at trial.

125. Because Novell's misconduct is intentionally and maliciously designed to destroy SCO's valuable rights to the copyrights and further destroy SCO's business livelihood, this Court should impose punitive damages against Novell in an amount to be determined at trial.

126. SCO is entitled to and seeks restitutionary, injunctive, and other remedies as may be available under the applicable unfair-competition law.

Restitution means moolah, injunctive relief would be such things as making Novell stop saying it owns the copyrights to UNIX, etc., but it's the "other remedies that may be available under the applicable unfair-competition law" that Novell would most particularly like clarified. Which law is applicable?

As you'll recall, in Novell's Memorandum in Support of its Motion for a More Definite Statement, Novell revealed the following correspondence, beginning with a Dear Ted letter from Novell's outside attorney Kenneth Brakebill to SCO's Edward Normand:

We cannot tell from SCO's newest complaint what unfair competition law SCO is asserting against Novell. Paragraph 126, for example, simply references "the applicable unfair-competition law." Could you please clarify this so that Novell can avoid seeking such clarification through court briefing? Thanks.

He doesn't get an answer, so he asks again. Finally, nearly a month later, Normand sends him this answer:

Ken --

With respect to your question regarding choice of law, generally SCO had in mind the common law and statutory law of Utah with respect to unfair competition in its Second Amended Complaint, but in SCO's view the decision of which jurisdiction's law applies is a legal question for the Court to resolve, and therefore I cannot say that SCO has taken a position on the issue. If you are asking me now which jurisdiction's law of unfair competition SCO believes "should" apply to the claim, that is a different question and one the parties would address in any briefing in which the issue arises. If you are asking me your question in consideration of Novell's Answer, SCO's view is that Novell need not take a position in its Answer with respect to which jurisdiction's law applies. If Novell wants to take such a position, moreover, it can do so independent of any views SCO has on the issue. Please call me to discuss if you would like.

Does that sound like SCO would like Novell to pick a law and go first? Or that it would like Novell to try all the discovery methods, like interrogatories, requests for admission, depositions, etc., before it can find out what law they have allegedly broken? With what SCO alludes to as "briefing"? That means motion practice. So when SCO now tells the court Novell's remedy for finding out which law is being relied on is by discovery, does it seem a tad disingenous? After all, it's been a long three years of discovery in IBM and we still don't know what code is allegedly misused. Is there a similar strategy unfolding here too?

Maybe. SCO writes this:

In Dethmers, 23 F.Supp. 2d 974, for example, the plaintiff included a cause of action that claimed "statutory" misappropriation of a trade secret, without identifying a particular statute. Id. at 1007. When the defendant moved for a more definite statement, the plaintiff argued that the legal question of "what state's law is applicable to the claim" was a "threshold question" that required resolution by the court prior to any discussion of repleading. Id. Only after the court resolved the "threshold question" of choice of law did it conclude that a more definite statement of the claim was necessary. Id. at 1008. Like the plaintiff in Dethmers, SCO pleaded a claim of unfair competition under applicable state law. SCO is willing to address the issue of choice of law at a more appropriate time, 2 and understands that once the "threshold question" of choice of law is resolved, it may need to amend its unfair-competition claim.

When is a more appropriate time than now? SCO's answer seems to be that first Novell should answer, they should both do some discovery, and then when SCO knows where it wishes to plant its flag, it will ask the court to rule on the matter, after which it will ask to replead, and then Novell will find out.

Do you notice the similarity to the language Normand used in his email to Novell's attorney, Brakebill? I do too, and that tells me SCO is following some strategy in not providing specificity in this issue yet, a strategy it has worked out carefully in advance of that email from legal research on what they believe they can do. At a minimum, it wants the court to settle the "threshold question" of choice of law before it tells Novell exactly which law it will be trying to use. But I don't see it asking the court this exact minute to decide that question. It's like it wants Novell to commit itself first. But if it is a threshold question, why not settle it first?

I can't help but remember how hard SCO fought to have its slander of title complaint decided in state, not federal, court. We know, therefore, that SCO cares which court handles its litigation. It lost that battle. But which state? Is it wishing to apply the laws of some other state but Utah? Or is it a matter of state or federal? Can SCO really mean worldwide? I can't see how, legally, unless it just means it is free to pick any place, once it decides. Something is up, but all I can do is flag it as odd. They know what they have in mind, and we'll just have to stay in suspense for now, unless the judge grants Novell's motion. My best guess is that they indeed plan to use Utah's law, but until they get to root around in discovery, they'd prefer not to have to say which part or parts of it they wish to allege, so for now they say they are talking about facts alleged, sort of modeled on Utah's statute but they also mention Utah's common law.

I do find the Dethmer case a funny one to use. It got into some trouble in litigation, losing some patent claims, due to a lack of specificity. Maybe the part SCO likes is that Dethmer filed a complaint in 1996 and the date the case was terminated was 2004. You find in Pacer entries that read like this: "MOTION by plaintiff Dethmers Mfg Co for leave to file a third supplemental amended complaint (w/proposed amended complaint attached) assigned to Magistrate Judge Paul A. Zoss KFS." Imagine how that must make SCO glow: a third supplemental amended complaint!

Novell detailed further its efforts to get specificity from SCO in its Memorandum, referencing this correspondence:

As a result of these ambiguities, there are numerous potentially "applicable" unfair competition laws, each with their own set of elements, rules, standards and affirmative defenses. Yet SCO's Complaint provides no clue as to what the "applicable" law is.

After SCO filed its motion to amend its Complaint, Novell requested SCO's clarification of the applicable law. (Brakebill Decl. Ex. 2, Letter from Kenneth Brakebill to Edward Normand dated Jan. 24, 2006.) When SCO ignored this request, Novell again asked for clarification. (Brakebill Decl. Ex. 3, Letter from Kenneth Brakebill to Edward Normand dated Feb. 8, 2006.) Two weeks later, SCO responded with an evasive answer. Although SCO "generally" "had in mind" Utah law, SCO had not "taken a position on the issue" of "choice of law" and the question of "which jurisdiction's law of unfair competition SCO believes 'should' apply to the claim" should be addressed "in any briefing in which the issue arises." (Brakebill Decl. Ex. 4, E-mail message from Edward Normand to Kenneth Brakebill dated Feb. 19, 2006.) This circuitous response leaves Novell in the same position as no response at all. SCO has had several months to provide Novell with adequate notice of the laws it is seeking to use against Novell. By all appearances, SCO would like Novell to guess what unfair competition laws it has violated and to frame a response accordingly. As a result, Novell is left with no choice but to ask this court for an order requiring a more definite statement. ...

SCO's Complaint does not provide Novell with a sufficiently definite statement of its unfair competition claims. The Complaint seeks all remedies available under "applicable unfair-competition law" (see Brakebill Decl. Ex. 1, Comp., at ¶126), but does not specify which of the many unfair competition laws Novell has allegedly violated. Specifically, SCO has failed to allege whether Novell has violated Federal statutory law, such as the Lanham Act, or state law. SCO has also failed to state whether, if Novell has allegedly violated state law, whether that law is the unfair competition law of Utah, California, Massachusetts, Delaware or some other state where actionable conduct may have occurred. SCO has also not stated whether its allegations are based on state common law or state statutory law.

Without knowing the answer to these questions, Novell cannot determine whether SCO's Complaint fails to state a claim upon which relief can be granted, whether SCO's claim is untimely, what facts support or oppose SCO's claims, or what affirmative defenses Novell can assert.

SCO's answer so far is not clear. It references common law, but it says it also "modeled" its claim on Utah's statute:

As SCO represented to Novell, SCO modeled its claim on Utah's unfair-competition law. (See e-mail from E. Normand to K. Brakebill (Feb. 19, 2006)(Ex. 4 to Decl. of Kenneth W. Brakebill in Supp. of Novell, Inc.'s Mot. for a More Definite Statement).) The "gravamen" of a misappropriation claim, one of two common-law unfair-competition torts recognized in Utah, is "that a defendant has seized for its own benefit something of value that the plaintiff had built up through time, money, or effort, which is then generally used to compete against the plaintiff." Proctor & Gamble Co. v. Haugen, 947 F. Supp. 1551, 1554 (D. Utah 1996) (Winder, C.J.); see also Proctor & Gample Co. v. Haugen, 222 F. 3d 1262, 1280 (10th Cir. 2000) (affirming district court's construction of unfair-competition claim). SCO has stated facts sufficient to obtain relief under Utah's construction of the common-law tort of unfair competition and has therefore, again, met the pleading requirements of the Federal Rules.

In footnote 2, SCO adds this:

2. As Novell says (at 2-3), the choice of law question could be a difficult one, and therefore would require briefing beyond the scope of the immediate motion.

It's up to the judge to decide where to draw the line, but considering that this same court has some measure of experience with SCO's behavior in discovery in the IBM litigation, I don't think the court will view SCO's position with the same generous eyes it might otherwise have done. Of course, this case has a different Magistrate Judge, so maybe he is tabula rasa. Hopefully he is reading and doing his homework.

Remember that SCO is asking for the following relief:

126. SCO is entitled to and seeks restitutionary, injunctive, and other remedies as may be available under the applicable unfair-competition law.

And here SCO tells us that Novell's "misdeeds" include the following:

The second amended complaint lists dozens of examples of SCO's copyrights and intellectual property. (See, e.g., id, at Exs. A, B.) it sets forth eleven specific ways in which Novell asserted false claims of ownership of those copyrights (id. at ¶ 37(a)-(k)), and specifically alleges Novell's unauthorized use of that intellectual property (id. at ¶¶ 40-52). The second amended complaint also specifically alleges that this conduct has caused confusion on the part of current SCO customers, driven potential customers away from SCO, and cast a "false cloud of ownership" over SCO's attempts to enforce its intellectual-property rights against third parties.

SCO here is referencing its SCOsource program, and SCO is blaming Novell for SCOsource's failure to date to sign up companies other than the early ones. When I look at SCO's prayer for relief in its Second Amended Complaint, I see SCO positioning itself to try to get the court to force Novell to turn over the copyrights to Unix and then tell Novell it is permanently blocked from "copying, reproducing, modifying, sublicensing, and/or distributing SCO's UNIX and UnixWare technology except as expressly provided by the TLA". Considering that SCO's castle-in-Spain thinking includes its assertion that Unix code has somehow made its way into Linux through some sort of ladder methodology SCO has yet to fully explain, what I see is SCO hoping to convince the court to stop Novell from distributing Linux, with the hope that that will sufficiently terrorize the marketplace that folks will line up to give SCO some money, honey, under the SCOsource program.

These SCO dudes never give up, do they? No matter how much the world laughs at them or hates them, they stay on message. The message I hear is that SCO would like to disrupt Linux adoption as much as it can for as long as it can. The ultimate outcome may not even realistically matter to them. Is that not what this is all about at the end of the day? If Microsoft would just get its Vista product finished and out the door, maybe legal life could go back to normal, but as it is, I guess we all have to suffer a little bit longer. If SCO has its way, it would be a lot longer.


  


SCO's Memo in Opposition to Novell's Motion for a More Definite Statement | 322 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: jplatt39 on Sunday, May 28 2006 @ 10:46 PM EDT
If needed

[ Reply to This | # ]

OT Here
Authored by: jplatt39 on Sunday, May 28 2006 @ 10:50 PM EDT
Make links clickable: make sure the small box labelled Post Mode: reads HTML
formatted and follow the instructions at the bottom of the Post a comment page.
And have fun.

[ Reply to This | # ]

SCO's Memo in Opposition to Novell's Motion for a More Definite Statement
Authored by: mash_morgan on Sunday, May 28 2006 @ 10:58 PM EDT
Glad I'm in the UK.

Recently a Judge on a trial kicked out a prosecution case for almost the same
reason. The offences were not laid out.

[ Reply to This | # ]

Novell should cut to the chase
Authored by: kawabago on Sunday, May 28 2006 @ 11:36 PM EDT
If SCO can't show a Section 401? writing transfering the copyrights, the law
clearly states that the rights are not transferred. Without the copyrights, all
of SCO's other claims fall apart.

I would also love Novell to come back at them with a counterclaim of malicious
prosecution. I have no doubt the sparks will fly with Novell's next volley. On
the other hand, since noone believes SCO has a legal leg to stand on, they have
already become quite irrelevant. So a long drawn out discovery till SCO runs
out of money might be just fine with Novell. Either way, Novell wins.

[ Reply to This | # ]

Haven't we learned by now? Scox never has to specify
Authored by: Anonymous on Sunday, May 28 2006 @ 11:57 PM EDT
I don't know why that's true, but it is.

I have been following this case for years. I've seen it over and over and over:
the courts demand that scox provide specific allegations, and specific evidence.
Then scox, effectively, tells the courts to pound sand. And scox wins every
time. Scox is batting 1000 in that regard.

Scox will just muddy the waters. Now there will have to be some big debate, that
will drag on, and on, about what scox is entitled to. Scox will demand
discovery. Scox will say the courts didn't say what they said. Scox will say
they did provide specifics, when scox didn't. And so on.

Same old story, over and over.


[ Reply to This | # ]

In a twist on the "Anyplace but Here" approach...
Authored by: Anonymous on Monday, May 29 2006 @ 12:18 AM EDT
If they leave it open, can they then start trying different courts as in
"It's in Utah... no, sorry, we mean Washington... oops, wrong again, Texas
(they got good ole boys down there)... nope, let's try Alaska... um,
Azerbaijan?"

If they are left open to amend their complaint indefinately and a key element of
the complaint is to be the jurisdiction, could they keep moving it around in
order to delay or apply in multiple jurisdictions independently to effectively
re-try over and over again without invoking the double-jeopardy rule?

Or have I been taking too many cold tablets?

[ Reply to This | # ]

If *I* were the judge...
Authored by: Crocodile_Dundee on Monday, May 29 2006 @ 01:03 AM EDT
I would accept SCOG's argument that they don't need to be specific.

I would then allow Novel (but not SCO) to start discovery.

I would order that the partners of SCOG's law firm come to the steps of the
court every week day at noon, sit on the steps and write there, in their own
hand, 100 times, "I will learn to be specific in my claims". These
documents will then be filed, individually, in person, by the author, with the
court. If any partner is unable to attend for any reason, 10 other lawyers from
their company will come in place of each and every partner that cannot attend.

If SCOG is represented by another firm, the partners will assume these
responsibilities. If SCOG is unrepresented, the board of SCOG will take their
place (with other professional employees as proxies if they cannot attend).

This will continue until such time as the case is dropped, the firm no longer
represents SCOG, or Novel files a notice declaring that they are provisionally
satisfied with SCOG's claims. When this is accepted by the court, SCOG's
discovery may start, and the lawyers can stop writing their lines.

IF SCOG subsequently change their case, this process will recommence. Under no
circumstances will Novel's discovery period end prior to SCOG's.

We can dream :-)

---
---
That's not a law suit. *THIS* is a law suit!

[ Reply to This | # ]

SCO's Memo in Opposition to Novell's Motion for a More Definite Statement
Authored by: Anonymous on Monday, May 29 2006 @ 01:07 AM EDT
The citizens of the World and the United States are finally getting a glimpse
into what most of the legal lawsuits in this Country are really about and why
the Courts are clogged, of course this is "their" business and without
"process" there is no work.

What a landfill.

[ Reply to This | # ]

The Schedule was set a long time ago
Authored by: webster on Monday, May 29 2006 @ 01:24 AM EDT
.
1. Please stop screaming about delay. The schedule was ordered a long time
ago. Unless the schedule changes there is no delay.

2. The impatience arises from the delay in learning the specifics of SCO's
allegations. We might not learn that even if it is disclosed, but sealed.

3. SCO will have to specify to withstand the PSJ or, heaven forbid, a directed
verdict in a trial. The Judge is in control. Kimball was reluctant to do
anything dispositive before the end of discovery. He has changed the schedule,
but would be hard pressed to do so again. He does not want things to move fast.
He put off dispositive motions until later in IBM. He's working under a full
caseload. The SCO cases have to take their turns as scheduled. Meanwhile SCO
gets to dance and pretend. SCO can remain vague and file paper.

4. They hardly seem the Eager Plaintiff, in a rush for justice and loot. But
in the end, their actions betray a lack of substance and evidence. Their cause
is weak. They set out to destroy Linux with litigation. If litigation is all
they have to show, Kimball has scheduled, for SCO and their lawyers, their
doom.


---
webster

[ Reply to This | # ]

What happens next?
Authored by: Anonymous on Monday, May 29 2006 @ 02:18 AM EDT
If, after notice and a reasonable opportunity to respond

So, question. Does Novell's Motion for a More Definite Statement constitute "Notice"? Or is the idea that Novell's just asking for "Notice"?, and when the judge says "no, really, you have to explain what law you're suing under", that's notice, and then SCO gets "a reasonable opportunity to respond"? Or what? What happens now that this motion's been filed?

Also, something that I'm confused about. My understanding is that Utah's unfair-competition law was passed after many of the events the SCO-Novell case is about. If SCO is trying to go forward under Utah's unfair-competition law, does that mean that the events they can allege were violations of the law under are restricted because the unfair-competition law was not yet law at that point?

[ Reply to This | # ]

This reminds me of an old story...
Authored by: lsmft on Monday, May 29 2006 @ 02:31 AM EDT
at a small border crossing between Mexico and the US a mexican fellow would
ride his bicycle through the crossing and back every day. the customs agent had
a gut feeling that this guy was smggling something, and would always check
through what the fellow was bring through the crossing and find nada. Finally
after many many years the mexican dude came to the crossing for one last time to
let his old advisary know that he had retired, would no longer be crossing
every day and to bid him farwell. The agent said "you know I know you've
been smuggling all these years but I could never find anything now that your
retiring do you mind telling me exactly what it was you were smuggling".
Mexian fellow answers "si senor", every day i would ride my old
byclcle through the crossing and when i returned I would do so on a new bike.i
was smuggling bicycles. Reading what you said below reminds me of this story.


"These SCO dudes never give up, do they? No matter how much the world
laughs at them or hates them, they stay on message. The message I hear is that
SCO would like to disrupt Linux adoption as much as it can for as long as it
can. The ultimate outcome may not even realistically matter to them. Is that not
what this is all about at the end of the day? If Microsoft would just get its
Vista product finished and out the door, maybe legal life could go back to
normal, but as it is, I guess we all have to suffer a little bit longer. If SCO
has its way, it would be a lot longer."





[ Reply to This | # ]

SCO's Memo in Opposition to Novell's Motion for a More Definite Statement
Authored by: red floyd on Monday, May 29 2006 @ 03:09 AM EDT
How could Yarro's Law apply?

Didn't Novell start distributing SuSE before Yarro's Law was passed? Wouldn't ex post facto apply here, under the Fourteenth Amendment?

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United States of America.

[ Reply to This | # ]

Kafka Lives
Authored by: gbl on Monday, May 29 2006 @ 03:31 AM EDT
This sounds more like a chapter from The Trial by Kafka than the court system of a democratic country. The idea that a defendant can be dragged into court without any idea what they are accused of is disgusting.

---
If you love some code, set it free.

[ Reply to This | # ]

A Time to be Careful What You Ask For...
Authored by: sproggit on Monday, May 29 2006 @ 04:41 AM EDT
In a strange way that phrase,

"Be careful what you ask for ... you might just get it!"

could come to apply here, but in ways we are only just beginning to foresee.
Before we get specific about these motions in this case, let's take the 10,000ft
view for a moment.

What we have here are a selection of legal cases [those being brought by and
defended by The SCO Group] which raise the issues of intellectual property,
software patents, methods and concepts, etc [though I'll concede most of this
has been thrown out as we've worked through the cases].

But let's look for parallels and see what we find. As the taxation system of the
United States matured and stabilised [and this observation applies equally well
to other established western democracies] so the means emerged for a narrow band
of citizens to step around tax laws. This was done with tools such as offshore
accounts, holding companies, deferred tax payments, and a whole slew of other
tricks I have never even heard of.

Ever since the tax law settled and became a way of life for the US, this is how
it's been done.


Now, let's try and apply this working arrangement to software. [And this
argument has holes, by the way]. The United States implements draconian and
protective laws that enable Microsoft, TSG and others to attack the Free
Software and FOSS Communities. Development of all such software moves outside of
the United States. Other countries, such as Brazil, India, China, the
Philipines, maybe nations in Africa, all start up blossoming FOSS Ecosystems and
drive forward free software in new ways, never even imagined in the west.

The decreased cost of "doing business" enables both the companies and
governments in these nations to be more competitive than they previously were.
These nations require less "aid" from the United States and the World
Bank or the IMF and over the space of the next 10-20 years develop a network of
trade and business partnerships, all built on a free software ethos.

The United States and other western nations that sign up for this patent
nonsense [sic] gradually find themselves more and more encumbered by
legislation, until even the biggest software houses start to crumble, purely
because people in these nations start to import technologies from China, Brazil,
Africa, etc...


It might take 10-20 years to happen, but something similar to the above is more
than likely in the present climate. The US is certainly trying to exert
influence over China, but the simple truth is that the US needs China much more
than the other way around. If China insists on promoting free software [and they
will] then other nations will follow.

One of the reasons that this is going to become fascinating in the next 10-20
years relates to natural resources. In this time period things like energy, food
and raw materials will become increasingly important. The US is a huge consumer
of these natural resources and in turn exports technology, including advanced
software and computer systems, all around the world. But what would happen if
the actions in these court cases had the effect of forcing Brazil, China, India,
the Philipines and African nations to develop their own technology industries?
Write their own software?

Where would that leave the US? Or, more pointedly, how long would it take those
other countries to turn around and say, "We don't need you any more. We
like our resources. We'll just keep them, thanks all the same. Bye."

In a longer-term and bigger-picture sense, it is paradoxically the FOSS
community, within the western world, that is most likely to bridge the gap with
developing nations. The more the US [and Europe is not immune] push into these
restrictive trade practices, the weaker their long term position becomes. The
SCO Group don't see that yet - they're just interested in making a quick buck.


Whatever happens in this case - and regardless of how fascinating we find these
twists and turns - it's worth remembering that this law suit is being played out
on a world stage and that the ramifications will not stop at US borders. The
clearest single message to come out of this case so far is, "If you are a
company that wants to get into cutting edge software, don't do it in the
US..."


I mentioned at the outset that there was a "hole" in the argument
relating to off-shoring FOSS development. Actually, there are two. Firstly,
today, an awful lot of the luminaries in this community are US citizens who may
not want to move overseas. Secondly, it's possible that powerful lobbyists like
Microsoft will pay for laws to be enacted that make it harder for foreign free
software to be used in the US. Both are likely in the short term. The results?
More and better FOSS experts who are foreign nationals, resulting in that
precious "intellectual capital" going to reside in the heads of people
who pay taxes in other countries; and of course the accelerated growth of more
competitive FOSS-based businesses elsewhere in the world.

IMVHO [In My Very Humble Opinion] the US is staring down the sights of a
double-barrel shotgun and is earnestly taking aim at it's right foot. The left
foot is next up.



OK, so let's go back to this case. Firstly, and while the thought is with me,
another reason that business will abandon US shores and move overseas is simple.
In the US it's possible for a comptetitor to file a nuscience lawsuit against
you, demand 3 years of hugely expensive discovery, make all sorts of nasty
claims about you in public and not have to prove a thing. If you're as big,
wealthy and established as IBM, that might not be much of a distraction. For
anyone smaller, that might be enough to put you out of business. In the eyes of
the world the US civil law is being made to look like a complete fool. I hope
the lawmakers are paying attention.


I've not seen anything recently [can't recall anyway] that takes about TSGs
financial position. Last I heard I think they were losing money. For the last 14
years or so I have been studying, practising and teaching a small selection of
Chinese Martial Arts. One of the common themes in martial arts the world over is
knowing when and where to apply force to defeat an opponent.

"When pushed, pull..."

means that if someone is trying very hard to push you in one direction, don't
resist them, get yourself out of the way and then pull them in exactly the
direction they want to go. It's something they may not expect and are least
ready to cope with.

So TSG wants discovery, eh? Well, this could be interesting. If I were Novell
I'd be preparing a discovery list of my own. It would be very thorough, very
detailed, very broad [no specifics] and very, very, very, very, long. I'd tie up
TSG in months of discovery effort by asking them to produce every last scrap of
details relating to assets as they have moved through the selection in
predecessors in interest. I'd want meeting minutes, documents, registrations,
financial statements, the works. It would take TSG plenty of cycles to come up
with all that. It is 100% valid to ask for it and entirely relevant to the case.
It will also cost TSG a small fortune to prepare.

With any luck, at the rate of their cash burn, it would put them out of
business.

Of course, one of the interesting things, as we saw early on, is how TSG said
different things in different courts to different judges. Now, with any luck,
some of that will come home to roost.

[ Reply to This | # ]

What seems ridiculous to me is...
Authored by: jmc on Monday, May 29 2006 @ 04:49 AM EDT
14 pages to explain why they shouldn't expand on one sentence in place.

Surely they could have put the original claim in and if discovery showed up
something different, ask leave to file an amendment? (I know they got turned
down last time in the IBM case but that was because they wanted to add extra to
the case and it was something they knew about prior to filing).

But it's SCO we're talking about isn't it.

[ Reply to This | # ]

once again
Authored by: Anonymous on Monday, May 29 2006 @ 05:16 AM EDT
SCO claims "defendant did SOMETHING wrong and we aim to prove it as soon as
we are sure of what it is".

[ Reply to This | # ]

SCO'sLaw==The unfair competition law SCO's Chairman of the Board Ralph Yarro sponsored
Authored by: SilverWave on Monday, May 29 2006 @ 05:35 AM EDT
SCO'sLaw==The unfair competition law SCO's Chairman of the Board Ralph Yarro
sponsored ...

ah hah

if you are losing the game, rewrite the rules.


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

[ Reply to This | # ]

Can't Novell respond in equal vagueness ...
Authored by: Anonymous on Monday, May 29 2006 @ 06:10 AM EDT
... and raise "each and every affirmative response that might apply"?
Or could they just tell the court that that's what they would have to do to
defend against such vague claims?

At least Novell should point to the SCO vs. IBM process to make clear what will
happen when SCO gets it's way: their claims will become a moving target,
changing throughout discovery and maybe even longer. Im sure no judge wants that
in his court.

[ Reply to This | # ]

    Rule 8(a): Jurisdiction
    Authored by: Anonymous on Monday, May 29 2006 @ 07:41 AM EDT

    Under Rule 8(a), the pleading must state the grounds upon which the court's jurisdiction depends.

    But whether the court has jurisdiction or not depends on the location and nature of the actions on which the claim is based. The question of jurisdiction cannot just be set aside, or assumed to be unimportant. It is important, it depends on exactly what is alleged, and Rule 8a says it has to be in the pleading.

    [ Reply to This | # ]

    Spaghetti Law at High Noon
    Authored by: Anonymous on Monday, May 29 2006 @ 09:27 AM EDT
    Just throw some spaghetti law at the wall and see
    what sticks. TSOG cannot prove they own the IP
    they claim. TSOG cannot link any claimed IP to Linux
    or IBM wrongdoing. So, they proceed as though it
    is not worth looking at.

    IMHO, all these weird cases are layered and cross
    linked to the maximum extent under the law. They
    all serve some purpose.

    BSF does everything possible to hide the pea, but
    they are slowly exposing themselves and their
    client. Is that a plank they are walking, or a way
    out?

    [ Reply to This | # ]

    Specifics?
    Authored by: DaveJakeman on Monday, May 29 2006 @ 09:50 AM EDT
    We don't need no stinkin' specifics!

    The misappropriation took place "worldwide".

    So, all Novell has to do is to prove that either:

    1. No misappropriation took place, as Novell are the rightful owners of the
    copyrights;

    or:

    2. That alleged misappropriation did not occur under the Arctic icecap, the
    inner Congo, the Isle of Rum, SCO's boardroom or some other such place, so as to
    disprove SCO's silly notion that it occurred "worldwide". They only
    need to find one place in the whole wide world that the alleged misappropriation
    did not occur, to shoot down such a stupid notion.

    That's the penalty of using broad generalities: they are so easy to disprove.
    To make something stick, you must adhere to the truth, which of course means you
    are confined to the exact specifics of what occurred.

    The way to make everyone guilty of everything under the sun is to always talk in
    wide, broad generalities. It doesn't prove a thing, but that's the
    implication.

    "SCO has clearly alleged that the misapprapriation took place
    'worldwide'..."

    If SCO are allowed to get away with making such a ridiculous statement as that
    in a court filing, I will be lost for words. Maybe that is why it was confined
    to a footnote. It's just too obnoxious to be included in the main text.

    IMHO, there should be a rule that any Court may strike a claim on the grounds
    that it is not specific.

    SCO are flogging this one for all it's worth. Because they can.

    ---
    Champagne for my real friends, real pain for my sham friends - Francis Bacon
    ---
    Should one hear an accusation, try it out on the accuser.

    [ Reply to This | # ]

    Nobody takes SCO seriously
    Authored by: Anonymous on Monday, May 29 2006 @ 09:55 AM EDT

    We keep focusing on the theory that as long as SCO is in court, Linux is
    damaged, because it hasn't won in court.

    It's really the other way around. As long as SCO is in court, SCO and Microsoft
    are damaged, because they haven't won anything in court.

    Any further litigation SCO attempts gets stayed indefinitely, because it just
    duplicates allegations SCO hasn't proved yet. SCO no longer has any leverage.

    SCO is a joke. The market is treating them as such. It's already over.


    [ Reply to This | # ]

    SCO's Memo in Opposition to Novell's Motion for a More Definite Statement
    Authored by: rusty0101 on Monday, May 29 2006 @ 10:32 AM EDT
    Just thinking that perhaps Novell should put in a quick search for
    "unlawful competition" laws in all available jurisdictions, that have
    been overturned, or found to be unenforcable, and drag SCO into prosecuting them
    under that law. Once SCO has publically commited, get the paragraph eliminated,
    and so on.

    Surely there is one such law some place. Better would be dozens of such laws, so
    that they could start draging SCO through each of them.

    Another alternative would be to drag SCO to a law that has a history of
    excessively punishing the party that does not hold the relavent pattent, then
    show that SCO does not hold the relavent pattent.

    -Rusty

    [ Reply to This | # ]

    O.K., I completely understand now
    Authored by: Anonymous on Monday, May 29 2006 @ 11:03 AM EDT
    SCOX's SCOSource licensing business problems are all Novell's fault.

    Of course, SCOX had no hand in positioning things, taking actions and getting
    out information that could have damaged their own SCOSource licensing business.
    Uh uh, nosirree. They are as-pure-as-the-driven-snow angels of the computer
    industry. Pardon me while I throw up.

    [ Reply to This | # ]

    A disingenuous response
    Authored by: AllParadox on Monday, May 29 2006 @ 01:05 PM EDT
    The way I learned it, Fed.R.Civ.Proc. 8 (a)(2) requires:
    "a short and plain statement of the claim showing that the pleader is
    entitled to relief".

    You, Dear Reader, understand that I am a lawyer. You understand that when I say
    something is clear, by that I mean a minor insult: anyone with sufficient
    intelligence to read the sentence can see the plain meaning, and does not need
    to have it explained.

    In my opinion, not as a lawyer, but in my capacity as a citizen, this clause is
    mainly handled incompetently. The meaning of this phrase is clear. I believe
    our courts, and particularly our Federal Appellate Courts, get this one very
    wrong, all the time. The failure to follow this simple directive, by Federal
    District Judges, and by Federal Appellate Courts, is a source of tremendous
    numbers of billable hours for big law firms.

    As always, I am a big fan of Pozner and Dodd. I am also something of a
    contrarian. (Yes, really. Who could have guessed?)

    My preferred approach would have been sua sponte dismissal by Judge Kimball, on
    the grounds that "The SCO Group" has failed to follow Rule 8, by
    failing to clearly state the nature of their claim. Alternatively, dismissal
    after motion, again by Judge Kimball, after Novell has pointed out the failure
    to clearly state the nature of their claim.

    The purpose of Rule 8 was to prevent exactly the kind of rigmarole that is
    happening in Kimball's court right now.

    The "we don't have to tell you the nature of our claims, you have to guess
    them" strategy is directly contrary to the clear (there's that word again)
    meaning of the words, and to the clear intent of the rule.

    The pleadings should be promptly dismissed for failure to clearly state a claim.
    Afterwards, "The SCO Group" should be allowed to amend by identifying
    specific Common Law and statutory sources of relief. The goal is to get
    compliance, not punishment. If, after three tries, they can't figure it out,
    make the dismissal final, and let "The SCO Group" sue their own
    lawyers for malpractice and incompetence. (As if they could find a law firm
    stupid enough to get into the middle of this mess.)

    As for myself, I find the response from the attorneys for "The SCO
    Group" nauseating.

    It encapsulates and exemplifies almost everything I find wrong with Civil
    Practice in U.S. Federal Courts.

    ---
    PJ deletes insult posts, not differences of opinion.

    AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
    just my opinion.

    [ Reply to This | # ]

    Napoleonic law
    Authored by: Anonymous on Monday, May 29 2006 @ 01:10 PM EDT
    I was trying to think what this case reminded me of, then it clicked. It is like
    the situation, here, south of the border. An accusation can be leveled with the
    vaguest proof or less, then it is up to the defendent to prove that they did not
    do it. I have seen it happen. Someone can be run in by the police, just for
    being in the wrong place at the wrong time, with all sorts of excuses why there
    is no evidence and the poor victim has to come up with very solid proof that
    they really did not do it.

    Tufty

    [ Reply to This | # ]

    SCO refuses to sell licenses to people through SCOSource!
    Authored by: rocky on Monday, May 29 2006 @ 01:16 PM EDT
    I don't know from the legal side if it's possible to submit third party evidence
    or if it's possible to get it to Novell somehow, but many people tried and tried
    to buy SCOSource licenses from SCO and couldn't. Back when this SCOSource
    business first started up, I remember many people here on the Groklaw
    discussions telling about how they had written and called and tried to buy one
    of those $699 pieces of paper, and absolutely could not.

    The bogus SCO responses ranged from "We don't have the purchasing system
    set up yet."(even though they were bragging about other purchasers) to
    "Our computers are down right now."(which supposedly lasted for weeks)
    to "We can't sell to individuals." (even though they were certainly
    threatening individuals and demanding that they needed to buy them). Did anyone
    actually go through the documented procedure of sending certified or
    return-receipt letters, asking to buy a license? That would be clear enough
    evidence to show that SCOSource refuses to sell anything and should be able to
    get all of those claims against IBM and Novell about interfering with their
    business thrown out.

    [ Reply to This | # ]

    Ambush or wiggle room
    Authored by: Anonymous on Monday, May 29 2006 @ 02:52 PM EDT
    One theory, one hinted at in PJ's article, is that SCO is being vague, because
    they are hoping to ambush Novell. (because Novell doesn't know whether to
    prepare for allegation A, B, C, D, E, or ...)

    Another theory, one that I'm leaning towards, and I think is hinted at by page 5
    of the PDF, is that SCO is desperately looking for wiggle room. SCO doesn't
    want to pick between A, B, C, D, E, or ..., because they expect that most or
    many of them will lead nowhere, and they want to be able to pick the one with
    the best possibility of success, as late as possible (i.e. once as much info is
    known to them [via discovery etc] as possible)

    Quatermass
    IANAL IMHO etc

    [ Reply to This | # ]

    SCO's Memo in Opposition to Novell's Motion for a More Definite Statement
    Authored by: Steve Martin on Monday, May 29 2006 @ 07:03 PM EDT

    Second, SCO has met the requirements for pleading a claim under Federal Rule 8(a). Discovery is the appropriate means for Novell to probe SCO's claim.

    So let me get this straight. The SCO Group makes a claim in court that Novell has violated some unfair competition law. When Novell asks "Which one?", TSG in effect says "we'll tell you in discovery, we don't have to tell you now."

    Hardly seems like "good faith" to me.

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

    [ Reply to This | # ]

    Are Boies, Schiller & Flexner redefining normal legal practice?
    Authored by: Anonymous on Monday, May 29 2006 @ 07:18 PM EDT
    I think many Groklaw readers are astounded at how long the SCO vs. Linux lawsuit
    has gone. I am. It seems that Boies et al have discovered that you can take
    people to court without saying what law they've violated or specifically what
    they've done wrong. This approach seems to have a key advantage in that the
    defense doesn't know what to defend against.

    If it's a good strategy, will it become the de facto strategy for plaintiffs? If
    not why? Could you fault your lawyer for not using the strategy?

    [ Reply to This | # ]

    All this for SCO maybe for naught
    Authored by: Anonymous on Monday, May 29 2006 @ 07:32 PM EDT
    I don't think SCO has a leg to stand on since Novell via SuSe filed against SCO
    with respect to their United Linux efforts in France and if they loose there
    they SCO are toast and much of what they are attempting to do in the U.S.A will
    go up in smoke.

    [ Reply to This | # ]

    SCO's Memo in Opposition to Novell's Motion for a More Definite Statement
    Authored by: Anonymous on Monday, May 29 2006 @ 09:57 PM EDT
    And the judges will (AGAIN) let SCOG get away with it and go on a multi year
    fishing expedition that will cost Novell millions, because they don't have the
    backbone to say "umm NO. You sue, you say what it is about NOW. You
    provide your evidence with specificity or you shut the fudge up."

    [ Reply to This | # ]

    it has a name
    Authored by: jig on Tuesday, May 30 2006 @ 01:21 AM EDT

    it's the invisible boxer routine.

    not sure why the judge would allow it continue. a complaint has basic
    constituients that must be addressed for procedure to move forward, fairly.

    i'm thinking that the judge will just rule this needs to be sent to arbitration
    and won't further dirty case law with a decision on the rest of the sleight of
    hand.

    [ Reply to This | # ]

    SCO's Strategy
    Authored by: Anonymous on Tuesday, May 30 2006 @ 06:12 AM EDT
    It seems obvious to me.

    SCO wants Novel to define all the possible laws that might fall under the unfair
    competition label with suitable defenses for each. They can then pick the one
    with the weakest defence and claim it was that one.

    Either that or choose a law that Novell missed, and claim that since Novell
    didn't provide a defense againset it, they must have admitted it and therefore
    they are guilty Your Honour. Taa Daa. SCO wins without any need to prove
    anything.

    That is how the justice system works. Right?

    [ Reply to This | # ]

    Question...
    Authored by: jesse on Tuesday, May 30 2006 @ 10:18 AM EDT
    Among other things, Novell has falsely claimed ownership of SCO's copyrights in UNIX and UnixWare, misappropriated SCO's UNIX technology in Linux and forced SCO to compete in the marketplace against its own intellectual property...

    Does this mean that SCO is suing because Novel is using or distributing Linux...? and if so, would that make Novel a third party (the WRONG party) since SCO is already suing IBM over this?

    [ Reply to This | # ]

    Keep It Coming
    Authored by: sproggit on Tuesday, May 30 2006 @ 03:42 PM EDT
    Thanks, all, for so many enlightening and challenging responses to my original
    thoughts.

    With the original post I had two real ideas to share. The first was a high-level
    observation that if we step back from the specifics of this case, then the
    future could hold some challenging times for the US software industry. I'll
    happily concede that the evidence I used to back up that argument might not be
    perfect, but I'm pretty confident of the basic premise - that taking steps to
    exclude FOSS and other protectionist measures designed to support monopolies
    [whether corporate or nationalist in scope] could have some seriously negative
    long-term effects for the participants. I think examples of this cut across many
    industries, not just IT but many others.

    It's my humble opinion that, in the case of the software industry specifically
    [unique in all the technology landscape] the results would be most extreme. This
    is because the only things one needs to develop software are : a PC, programming
    experience - and of course a good idea. Internet connectivity is a nice-to-have
    but not essential. This low-cost-of-entry can put weaker and third-world
    economies onto an equal footing with established western powers. If you think
    statistically, and we were to take the [fictional] notion that 0.001% of a
    population became highly capable software engineers, then simple math tells me
    that China and India will each have more software engineers than the US, Canada,
    UK, etc, *combined*. My observation was that short-term protectionist measures
    [software patents brought in by those lobbyists and politicians who go in search
    of a quick buck] could and probably will have very significant down-stream
    implications for the US [and others] in the future. As we've explored some of
    the examples and illustrations, I think there is plenty of evidence out there to
    support that view. But we'd need an economist/historian to be sure...

    The second view - that a slow-down in discovery might work in Novell's interests
    - has been robustly challenged by PJ and her observation that "there will
    always be another PIPE fairy" ready to spring aid. This is a very good
    observation, and it got me thinking. PJ has a habit of creating that effect...

    I'm going to - very respectfully - challenge that prediction and offer the
    following arguments for my case. Let's see if we can explore this together -
    since it might yield some interesting thoughts on where some of this might
    go...

    1. Strength of Claim
    As the case has progressed, the "legal assertions" that TSG have made
    regarding their ownership of various software assets have been called into
    question and challenged by companies such as Novell. We've seen in the case of
    the licences purchased by Sun and Microsoft that Novell has asked the court for
    those monies to be set aside until claims over the payments [and rightful
    recipient] can be resolved. This rather makes any further claims made by TSG
    that much harder to sell.

    2. Public Awareness.
    By public awareness I'm thinking primarily of Wall Street, as well as the legal
    and technology communities, not to mention the political elite [Senators, etc]
    has increased significantly, first as the claims became more outlandish, then as
    the net widened in an attempt to haul in a bigger catch. The time for wild and
    unfounded claims is long gone. When was the last time that anyone heard of Darl
    McBride standing up and repeating his claim for "millions of lines of
    code" or "literal copying"? Right... so TSGs claims to have
    something of value that requires re-licensing or additional cash injections
    looks precarious.

    3. Investors.
    In this I'm not thinking of TSGs remaining shareholders [but boy, if I met one
    of those, would I laugh myself silly or what?] but investors in companies such
    as Microsoft, especially large institutional stockholders. How would those
    investors view a further "investment" by Microsoft in The SCO Group?
    Would they consider it a valid and sensible application of their invested
    dollar? Something tells me that this would not be the case and that anyone
    wishing to funnel cash to TSG is at the moment working feverishly to think up a
    scheme to do so. All the obvious mechanisms are disappearing fast.

    4. The Law.
    I might struggle slightly to convey this point properly, but here's a
    "comparison". Suppose Person A takes a gun and shoots Person B. In
    this simplified example, they are guilty of murder. But then suppose Person A
    takes a large sum of money and pays Person C [a hitman] to shoot person B.
    Person C completes their end of the "contract". Person A is still
    guilty. The precise nature of the crime varies, but the guilt is still there and
    self-evident.

    So if a theoretical company wanted to give money to The SCO Group to continue a
    "suspect" campaign, the increased scrutiny around this case would make
    it much harder [impossible] to achieve this without being caught in the act. If
    that same company were already subject to oversight on, for example, anti-trust
    violations, then behaviour such as this would certainly not find immediate
    favour with regulators or the courts.

    5. The Target.
    We observed earlier that this case is moving fast, both in terms of accusations
    [which are moving quickly since they are quite wild and therefore difficult to
    pin down] and in terms of key evidence and claims, which render much of the
    "older" history here obsolete. I need some examples to illustrate this
    point, so how about the earlier claim from The SCO Group that the GPL was
    illegal and unconstitutional. IBM responded by pointing out that the GPL was the
    only legal means by which The SCO Group had been distributing IBM-copyrighted
    Code, so if The SCO Group really did want the GPL declared illegal and not
    relevant, they were opening themselves to a whole slew of copyright claims. [I
    think that's my favourite IBM move to date. Certainly the coolest]. So suddenly
    the target moved away from "The GPL" and on to other things. As it has
    continued to move ever since. Couldn't tell you what the target is right now
    without checking the date and time first... What I'm suggesting here is that as
    the case has progressed we've seen the accusations get narrower and narrower in
    scope. IBM have a limiting motion before the courts now. GNU/Linux, per se, is
    no longer the target. So does this change in emphasis hold the same appeal for
    the PIPE fairies out there?

    6. What Value?
    Let's imagine, purely for the sake of a theoretical discussion, that a large
    software company acted in the role of PIPE fairy in the past and had funded The
    SCO Group to the tune of a few millions of dollars, with our strategy being to
    cast FUD upon the GNU/Linux Operating System and FOSS in general. Say 50 million
    or so should cover that little investment. Well, the investment was made and
    much has happened since. The predicted "doom" of GNU/Linux didn't
    really happen. Companies didn't stop using GNU/Linux "overnight" as
    some sponsored shills might have led us to believe. In fact, if anything, the
    legal validity of the GNU/Linux OS has been strengthened [for example, the truly
    massive scrutiny to which the kernel has been subjected has produced precious
    little in the way of alleged "methods or concepts" - let alone code]
    and if anyone had any doubts about the willingness of the industry to
    "stand behind" GNU/Linux and support it, I think those doubts have
    been answered. So to get back to the question, exactly what value would a
    further investment realise? It's becoming self-evident that this horse is dead
    on it's feet. Would you send good money after bad? Would you spend more millions
    in the hope that this FUD campaign would yield more or better results, or would
    you quietly move away from this mess?


    I'm pretty sure that there are other reasons why large and anonymous donations
    of cash are not likely to turn up in TSGs finances any time in the near future.
    I could easily be wrong [and have been in several earlier predictions on these
    cases] but instinct tells me that funding may well dry up for one or several of
    the above reasons [or perhaps others not suggested here].



    One thing I'm not at all sure on - and would love to get some feedback if anyone
    knows - is what happens to the claims if The SCO Group are declared bankrupt and
    unable to complete their case before this whole sorry mess finishes? Does it
    matter when the cash runs out? I know that the financial deal was settled with
    the legal team to get them to the original court case, but what incentive would
    BSF have in going "all out" if they think the case is weak and the
    odds stacked against them? Fear of a suit? From whom - if their client is
    bankrupt and dead in the water? If that happens the only person likely to
    complain would be the PIPE fairy! Seriously, I do think it would be interesting
    to understand the potential consequences of a bankruptcy, especially with
    reference to the timing of any such liquidation.

    Anyone care to take a shot at answering that???

    [ Reply to This | # ]

    • Keep It Coming - Authored by: Anonymous on Tuesday, May 30 2006 @ 07:02 PM EDT
    Groklaw © Copyright 2003-2013 Pamela Jones.
    All trademarks and copyrights on this page are owned by their respective owners.
    Comments are owned by the individual posters.

    PJ's articles are licensed under a Creative Commons License. ( Details )