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SCO's Redacted Memo in Opposition to Novell's SJ Motion, and Novell's Reply
Thursday, February 21 2008 @ 02:16 AM EST

Goodies galore in the SCO v. Novell case. We finally get to read the redacted version of SCO's Memorandum in Opposition to Novell's Motion for Summary Judgment on its Fourth Claim for Relief, and simultaneously Novell's Reply, plus exhibits, exhibits, exhibits, all PDFs. I'm just starting to read them myself, so we can read them together. OCR help on all this would be grand, if you can.

Here are all the filings:
494 - Filed & Entered:   02/19/2008
Terminated: 02/20/2008
Motion for Leave to File Excess Pages
Docket Text: Ex Parte (Not Sealed) MOTION for Leave to File Excess Pages (Overlength Reply Memorandum in Support of Novell's Motion for Summary Judgment on its Fourth Claim for Relief) filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order) Motions referred to Brooke C. Wells.(Sneddon, Heather)

495 - Filed & Entered:   02/19/2008
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [478] MOTION for Summary Judgment on Novell's Fourth Claim for Relief [REDACTED] filed by Defendant Novell, Inc.. (Sneddon, Heather)

496 - Filed & Entered:   02/19/2008
Declaration
Docket Text: DECLARATION of David E. Melaugh re [478] MOTION for Summary Judgment on Novell's Fourth Claim for Relief filed by Novell, Inc.. (Attachments: # (1) Exhibit 3, # (2) Exhibit 4, # (3) Exhibit 5, # (4) Exhibit 6, # (5) Exhibit 7, # (6) Exhibit 8, # (7) Exhibit 9, # (8) Exhibit 10, # (9) Exhibit 11, # (10) Exhibit 12)(Sneddon, Heather)

497 - Filed & Entered:   02/19/2008
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of Reply Memorandum in Support of Novell's Motion for Summary Judgment on its Fourth Claim for Relief and Reply Declaration of David E. Melaugh [FILED UNDER SEAL] filed by Defendant Novell, Inc. (Sneddon, Heather)

500 - Filed: 02/19/2008
Entered: 02/20/2008
Sealed Document
Docket Text: **SEALED DOCUMENT** Reply Declaration in Support of [478] MOTION for Summary Judgment on Novell's Fourth Claim for Relief filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (jwt)

498 - Filed & Entered:   02/20/2008
Order on Motion for Leave to File Excess Pages
Docket Text: ORDER granting [494] Motion for Leave to File Excess Pages. Signed by Judge Dale A. Kimball on 2/20/08. (jwt)

501 - Filed & Entered:   02/20/2008
Redacted Document
Docket Text: REDACTION to [490] Sealed Entry, SCO's Memorandum in Opposition to Novell's Motion for Summary Judgment on its Fourth Claim for Relief by Plaintiff SCO Group. (Normand, Edward)

Yes, it's out of order like this in the docket, and I don't know what happened to #499, but if we are patient, we'll find out in time.


  


SCO's Redacted Memo in Opposition to Novell's SJ Motion, and Novell's Reply | 195 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic Discussions here
Authored by: kh on Thursday, February 21 2008 @ 02:33 AM EST
Try and make clickable links if you can.

[ Reply to This | # ]

Corrections thread
Authored by: Aladdin Sane on Thursday, February 21 2008 @ 02:39 AM EST
Please note corrections here.

Please state the nature of the correction in the Title: field of your comment.

---
Form follows function.

[ Reply to This | # ]

[NP] Discuss Groklaw News Picks
Authored by: Aladdin Sane on Thursday, February 21 2008 @ 02:41 AM EST

Comment on Groklaw's News Picks here.

Please note which News Pick you are commenting on.

Thanks.

---
Form follows function.

[ Reply to This | # ]

"SCOsource [is] an extortion racket...
Authored by: Anonymous on Thursday, February 21 2008 @ 02:56 AM EST
...based on property SCO does not even own."

Teehee.

[ Reply to This | # ]

What a convincing argument thay make...
Authored by: lego_boy on Thursday, February 21 2008 @ 04:17 AM EST
From 501 (SCO's Memorandum in Opposition to Novell's Motion for Summary Judgment on its Fourth Claim for Relief) and so VERY persuasive:

Section IV, part B (page 65)
Novell's proposed declaration concerns
past conduct not likely to recur

[ Reply to This | # ]

Redacted...
Authored by: mattflaschen on Thursday, February 21 2008 @ 04:23 AM EST
Of course, it's obligatory to speculate on what the redacted parts say. I think
A1 it probably reads:

More than xxM of the License Fee Microsoft Paid
Is Tied Directly to Pre-APA SVRX Rights.

So, assuming I'm right, that's at least 10 million dollars for SVRX.
Definitely not de minimis, if Novell gets their way.

[ Reply to This | # ]

  • Redacted... - Authored by: Anonymous on Thursday, February 21 2008 @ 11:40 AM EST
Arbitration letter
Authored by: mattflaschen on Thursday, February 21 2008 @ 04:30 AM EST
The arbitration letter Declaration of David E. Melaugh (496) Exhibit 4 is
interesting. Novell quotes in their reply the line, "As I understand it,
SUSE has contended in the arbitration that, if SCO acquired the UNIX copyrights
from its 100% parent NOVELL, SCO "divested itself" of these copyrights
when it signed the UnitedLinux agreements. As I assume the Tribunal is aware,
in August the Utah court ruled that SCO did not acquire the UNIX copyrights.
Unless and until that ruling is overturned on appeal, an arbitral hearing on
whether SCO "divested itself" of copyrights that it never owned would
be largely pointless and a waste of the parties' and the Tribunals' time and
effort. It would also, of course, be a drain on the limited financial resources
of the debtor."

Of course, the arbitral hearing is, at its core, about whether SUSE infringes
SCO's copyright. Whether copyrights were divested or licensed to UnitedLinux is
only one aspect of that.

This complaint by SCO sounds dangerously close to, "Why are you kicking us
while we're down? We all know that the infringement claim is bogus for at least
two reasons. Don't make us go forward with it."

Of course, the infringement claim was brought by SCO.

[ Reply to This | # ]

Unusually forthright language for a legal document
Authored by: Anonymous on Thursday, February 21 2008 @ 06:01 AM EST

From Document 495, page 14 of 16 of the pdf (numbered page 12 in the original document):

"What the facts show, in contrast, is that, at every turn, Novell has objected to SCOsource as an extortion racket based on property SCO does not even own."

I think it's true that SCOsource can fairly be described as an "extortion racket" because in ordinary use, "extortion" includes "obtaining (money etc) by intimidation" and "racket" can be applied to any fraudulent scheme. But I'm surprised that lawyers, normally so cautious in their choice of words, are so forthright.

[ Reply to This | # ]

Gotta hurt
Authored by: Anonymous on Thursday, February 21 2008 @ 06:03 AM EST
1) None of the infringing code identified by SCO at trial including any post apa
new code written by SCO, so all the MS and SUN and SCOSource money must be
Novell's.

2) SCO says they are not longer selling SCOSource licesenes so barring that is a
moot point. But Novell points out that they just got a 100 million $ offer that
requires them to continue in the SCOSource biz.

Ouch

Dennis h

[ Reply to This | # ]

The Decletory Relief Novell Seeks Is Not Moot
Authored by: Anonymous on Thursday, February 21 2008 @ 06:07 AM EST
495:

SCO claims that the relief Novell seeks is moot because the SCOcource program is
"discontinued". That is directly controverted by SCO's bankrupcy
filings.
SCO is currently seeking approval of a deal that will contractually obligate SCO
to "agressively" pursue its claims against the Linux community.

[ Reply to This | # ]

"Incidental"?
Authored by: Steve Martin on Thursday, February 21 2008 @ 06:57 AM EST

TSG states

Were the "SVRX License" parts of the Sun and Microsoft Agreements entered into "incidentally" to UnixWare? Yes. SCO had the authority to license UnixWare (the latest version of UNIX System V) with SVRX prior products (the older versions of UNIX System V) listed in the license. [...] Other evidence confirms the incidental and secondary nature of the SVRX components of the Sun and Microsoft Agreements.
Two things:
  1. Just because TSG allegedly had the authority to license UnixWare didn't mean that they actually licensed UnixWare to Sun and Microsoft. This is weasel wording. If SVRX products were "listed in the license", was UnixWare as well? If not, then they were not licensing UnixWare, only System V, and this argument fails. Licensing System V does not automatically confer license rights to UnixWare; if it did, the language regarding licensing System V "incidentally to UnixWare" would be meaningless.
  2. If "other evidence confirms the incidental and secondary nature" of SVRX in these agreements, why did TSG tell the SEC (and investors) that these agreements were for licensing (and sublicensing) "UNIX System V source code"?

Further down, discussing estoppel:

There was no suggestion — including in the internal reports made by Novell's own in-house counsel — that SCO did not have the right to undertake the SCOsource program or that Novelll would have to approve any such SCOsource agreements. In fact, the Novell lawyer with whom SCO had several discussions before launching the program admitted that Novell was fairly apprised of the program at the time of the discussions. SCO reasonably proceeded with the program, and Novell asserted its alleged rights only many months later.
Well, ya know, if TSG told Novell at the time that it was going after Linux users, Novell probably was concerned, but would not have had legal standing to object. If, however, TSG had told Novell up front that it would be suing System V customers, it might have made a difference.

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

[ Reply to This | # ]

Dear Tibbits
Authored by: Anonymous on Thursday, February 21 2008 @ 08:14 AM EST

Notice how the opening in the letters to Ryan Tibbits changes from

Dear Mr. Tibbits ( Ex. 9, Ex. 10)

to

Dear Tibbits ( Ex. 11 )

[ Reply to This | # ]

    Ouch
    Authored by: DarkPhoenix on Thursday, February 21 2008 @ 09:17 AM EST
    Gotta hate when the opposition can quote you to disprove your own claims!
    Sometimes trying to be clever can backfire, badly.

    ---
    Please note that sections in quotes are NOT copied verbatim from articles, but
    are my interpretations of the articles.

    [ Reply to This | # ]

    OCR?
    Authored by: Steve Martin on Thursday, February 21 2008 @ 10:59 AM EST
    If anyone can OCR these docs, I'll do the HTML.




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

    [ Reply to This | # ]

    • 501 - Authored by: kh on Thursday, February 21 2008 @ 05:44 PM EST
    • OCR? - Authored by: Laomedon on Thursday, February 21 2008 @ 05:44 PM EST
      • OCR? - Authored by: Laomedon on Thursday, February 21 2008 @ 05:56 PM EST
    Odd that they used Unisys as an example
    Authored by: Anonymous on Thursday, February 21 2008 @ 01:29 PM EST
    I think they're being quite clever in choosing Unisys as the example contract in
    Section IV. Unisys was hardly the typical Unixware source licensee; the
    original unixware license to Unisys was in the context of a joint project with
    USL/Novell to build a massively parallel version of Unixware (with European
    Community partnership (amadeus project)).

    Not even close to the typical licensee which was simply porting SVR4/Unixware to
    their custom hardware.

    Therefore, the Unisys contract cannot be considered as a typical license
    agreement. Novell may have not asked for Unixware royalty payments from Unisys
    because the project was cancelled after being delivered to about 20 customers.

    [ Reply to This | # ]

    Guess on what happened to #499.
    Authored by: Erwan on Thursday, February 21 2008 @ 02:36 PM EST

    It seems that [500] is the sealed Reply Declaration redacted as [496].

    I guess that [499] is the sealed Reply to Response redacted as [495].

    How likely am I to be right? Will [499] show up soon as sealed document rather than sealed entry? (see wording for the [490] entry))

    ---
    Erwan

    [ Reply to This | # ]

    Whole lotta nothin' goin on.
    Authored by: Anonymous on Thursday, February 21 2008 @ 04:53 PM EST
    #79 in SCO's objection pretty much sums up their whole strategy.

    Unable to present any acual evidence to support their arguments, SCO constructs
    an amazing strawman by drawing up a list of things Novell's Greg Jones never
    said. And to 'prove' this strawman, they point out that in his deposition, Greg
    Jones confirms he never said them.

    Let me see how this works... PJ has never said that I do not own Groklaw and
    all of its contents. Therefore, you must all take out my GrokSource License
    ($699 per word) so I don't sue you all for bazillions. Grovel before the
    almighty anonymous, slaves!

    [ Reply to This | # ]

    AHHHHH
    Authored by: GLJason on Thursday, February 21 2008 @ 05:56 PM EST

    SCO is claiming that UnixWare is simply SVRX renamed, not a particular version of UNIX based on SVRX. Put simply, that is not what the APA says. Check out Schedule 2.2(b)(f) to the APA:

    < blockquote> (f) SVRx Converted Units. The parties agree that SCO will have the opportunity to convert existing SVRx-based customers to a UnixWare derived product, thus depriving Seller of the economic benefit of the SVRx licenses. The process for determining if a customer is validly converted is as follows:

    The conversion of an SVRx customer to UnixWare will validly occur and result in the UnixWare based revenue flowing to SCO, without giving rise to a continued obligation to make payment to Seller of royalties due under the SVRx licenses, only if the following are true (note: if the customer continues to sell their SVRx based product separately, then these SVRx revenues continue to flow to Novell):

    (i) The customer ships a binary copy of a Golden Master of UnixWare, Eiger, MXU or White Box, or

    (ii) The product is derived from a source version of UnixWare, Eiger, MXU or White Box and (i) none of the original SVRx code provided by Novell to the customer, under the SVRx license, is included in the new product or (ii) Buyer shall demonstrate to Seller's reasonable satisfaction that an insignificant amount of original SVRx code is so included and the adoption of UnixWare is so substantial as to constitute a valid conversion.

    In addition, an SVRx customer can be defined as having converted to UnixWare only if one of the above is satisfied and only if support is provided for NDS (client/server where appropriate) in the resulting product.

    So SCO has two options to show that the MS and Sun licenses are not SVRX.

    1. It must be a binary copy of a golden master of UnixWare
    2. No SVRX code is in the product or the SELLER (Novell) is satisfied that the amount of SVRX code is insignificant
    Clearly Novell is not satisfied that the amount is insignificant and Microsoft and Sun were not buying binary copies of UnixWare. Also their products must have support for Novell Directory Services in the resulting products.

    This is basically the mirror of SCO's claims against IBM, except Novell has a case. SCO complained that IBM couldn't contribute its own code derived from SVRX even if it didn't include any SVRX code. On the other hand SCO is claiming that the license is UnixWare only even though they are licensing SVRX code included in UnixWare. This would be like IBM attempting to GPL the entirety of AIX even though it probably includes code derived from the original licensed SVRX.

    [ Reply to This | # ]

    Been there, done that
    Authored by: Anonymous on Thursday, February 21 2008 @ 06:13 PM EST
    In the U.S.A. there was a tax levied on blank CD-ROMs for precisely the same
    scheme.

    I don't think John Cage got anything for 72 minutes of silence.

    [ Reply to This | # ]

    Unix licenses? What Unix licenses?
    Authored by: GLJason on Thursday, February 21 2008 @ 06:24 PM EST

    Point 1: SCO licenses, including the EV1 license, always mention Linux infringing "SCO IP" which is derived from UnixWare and Unix System V (i.e. SVRX). Other letters mentioned System V ABI code as an example, which clearly is from SVRX and not UnixWare specific. Certainly by requesting a license fee when your only example is SVRX code would not lead to the conclusion that they are UnixWare only and that SVRX is incidental to the UnixWare license.

    Point 2: To my knowledge SCO has never offered one shred of evidence that Linux ever infringed on UnixWare specific code that was not included in SVRX. I don't know if SCO has even ever made that claim. They've "fully complied" with court orders to do so and there just wasn't any UnixWare specific code given in response.

    Someone should be going to jail for fraud. This scheme included letters mailed through the U.S. Postal Service, which makes it a federal crime. Officers of The SCO Group should be looking at some hard time for making these outrageous and false statements. I think their plan is to so completely contradict reality that they can either plead stupidity or insanity.

    SCO's interpretation is that it may license and sublicense UnixWare code to organizations with or without existing SVRX licenses and Novell has no say in the matter. Contradicting contract interpretations should not be read to render provisions of the contract meaningless. If you read the APA with SCO's interpretation, the clauses for conversion to UnixWare licenses, buyouts and Novell's right of refusal with regard to new SVRX licenses become meaningless.

    [ Reply to This | # ]

    SCO's Redacted Memo in Opposition (condensed version)
    Authored by: Anonymous on Thursday, February 21 2008 @ 08:07 PM EST
    Its all about Unixware. Its always been about Unixware, we've said that from day
    one, and shame on Novell for trying to twist that to somehow mean SVRX.

    Unixware incorporates all prior versions of UNIX SVRX, therefore SVRX licenses
    are automatically Unixware licenses after 1995.

    Contracts are not licenses. Even if a contract IS a license, if it does not
    mention all versions of SVRX listed in the APA specifically by name and version
    number, then it is not an SVRX license.

    If a quote from a license, taken separately and out of context, does not itself
    constitute a license, then the whole license should be disregarded in favor of
    the quote.

    The SCOsource license is so vague that no one can definitively pin down what its
    for. Therefore, Novell is wrong.

    The words are unimportant, all that matters is intent, and Chris Sontag already
    told you that we intended it to mean Unixware. Chris said it, so it must be
    true.

    An SCOsource license isn’t to avoid litigation, its to “excuse infringement”,
    and therefore is not a license, it’s a release.

    We don’t own the copyrights, but we own the right to sue based on the
    copyrights. Any monies paid for protection from those claims is because of our
    'ownership' rights, and not related in any way to copyrights, SVRX or Novell.

    [ Reply to This | # ]
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