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Novell Poised To Strike On Slander Of Title Claim

timothy posted more than 9 years ago | from the hope-that-works dept.

Caldera 221

Xenographic writes "As seen in this Groklaw article, Novell is moving to dismiss SCO's slander of title claim with prejudice. They key to it is that SCO needs Novell's claims to be "knowingly false" to establish malice. Since the judge's own order on the motion to remand (see also part 2) questions whether there really was ever actually a copyright transfer, Novell's assertion that there was no transfer cannot be knowingly false, so SCO's case falls apart. Unfortunately, as Novell points out, the judge would be doing this without actually deciding the underlying issue of who owns what copyrights, and SCO could file a completely different suit for breach of contract or something, even though SCO would be unable to refile this slander of title suit. As an aside, I should mention that this isn't the first or only controversy over defamation we've seen in this fiasco by any means."

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221 comments

Whats the deal now (-1, Redundant)

Anonymous Coward | more than 9 years ago | (#9938597)

It kindof funny ya know. Novel may get sued by SCO for Linux. Yet Novel Sold some kindof Unix rights to SCO. Hmmm what again was the deal?

Why not just make this go away? (1, Interesting)

ralf1 (718128) | more than 9 years ago | (#9938609)

SCOX has a market cap of 65 million dollars. Why can't IBM (or Novell with their newfound 500 million) just buy these clowns?

Re:Why not just make this go away? (2, Interesting)

Anonymous Coward | more than 9 years ago | (#9938624)

Because that's exactly what SCO wants them to do, and IBM wants to show everyone not to mess with the Big Blue.

Re:Why not just make this go away? (0)

Anonymous Coward | more than 9 years ago | (#9938628)

because they want to be bought

Re:Why not just make this go away? (5, Insightful)

Rupan (723469) | more than 9 years ago | (#9938646)

Because that is exactly what they want. They want to walk out of this with golden parachutes, completely in the right. Darl: "Look, Novell bought us because it knew that our IP claims were legitimate!". No, I don't think that Novell either should or will buy out SCO.

I think they'll crush them into the ground. Then spit on them.

Re:Why not just make this go away? (1)

sphealey (2855) | more than 9 years ago | (#9938998)

Because that is exactly what they want. They want to walk out of this with golden parachutes, completely in the right.
The senior executives of The SCO Group (TSG) have already rewarded themselves handsomely with huge salaries (I believe Mr. McBride's is 1.2 M/yr) and fast-exercising stock options. I would have to think they have nice fat jobs awaiting at places like the AdTI when the legal fight is all over too, collecting a nice honorarium and medical benefits courtesy of some sugar daddy. Any guesses who?

sPh

Re:Why not just make this go away? (3, Interesting)

garcia (6573) | more than 9 years ago | (#9938647)

Buying out SCO was speculated early on but it never happened as it would have likely shown that the Linux supporters believed that there were enough violations to need to do that.

SCO likely wanted to be bought out so that they could bail from their rapidly sinking ship.

Re:Why not just make this go away? (2, Interesting)

dxrd (793416) | more than 9 years ago | (#9938651)

What the hell for ? Soon the markets would be full of litigating would-be "companies" like SCO.

Re:Why not just make this go away? (5, Insightful)

I confirm I'm not a (720413) | more than 9 years ago | (#9938654)

Why can't IBM ... just buy these clowns?

"Pour encourager les autres". It would send a clear message to every Self-serving Cynical Organisation that playing fast-and-loose with the law against legitimate businesses is an acceptable and profitable activity.

Best result here is for SCO to die horribly - and publically[1].

([1] OK, my best result is Darl et al serving time, but I'll settle for Joe Q WallStreet knowing that SCO's business model was suicide)

Re:Why not just make this go away? (2, Insightful)

garcia (6573) | more than 9 years ago | (#9938677)

([1] OK, my best result is Darl et al serving time, but I'll settle for Joe Q WallStreet knowing that SCO's business model was suicide)

Lying, cheating, stealing, and then cooking the books to cover it has been a suicide business model for years yet it doesn't stop companies from continuing to do it.

Re:Why not just make this go away? (5, Insightful)

southpolesammy (150094) | more than 9 years ago | (#9938745)

That's because the risks most definitely do not outweigh the rewards. For example, the Ken Lay's, Bernie Ebbers', John Rigas', and Darl McBride's of this world aren't going to go broke anytime soon, even if they destroy the bank accounts and viability of all the employees of the companies they mis-managed. Instead, they might have to spend some minimal amount of time at a country club prison, followed by having to spend the rest of their lives in comfortable luxury, while the employees whose careers and retirement accounts they've destroyed will struggle to make ends meet for the rest of their lives.

The only acceptable punishment for these people is the complete destruction of their lives and their families lives. It's no less damaging than what they did to their employees. Pure Hammurabi code here.

Re:Why not just make this go away? (2, Insightful)

Kafka_Canada (106443) | more than 9 years ago | (#9938840)

And that's only for the ones who got caught. The risk-reward ratio changes dramatically when only x% of crooks get caught, and furthermore we all know that nobody thinks he'll be the dummy who gets found out.

Still, regulations, the possibility of prison time, the destruction of one's career, etc., do serve as some deterrent, and I don't think it's overly optimistic to think that the overwhelming majority of exces and investors will play it straight, whether for fear of repercussions or by their own integrity.

Re:Why not just make this go away? (1)

liquidpele (663430) | more than 9 years ago | (#9938916)

This is starting to change a little though.
After the whole Worldcom and Enron crap, I believe bush threw in some legislation that makes CEO's legally responsible for illegal actions.

Re:Why not just make this go away? (1)

Fearless Freep (94727) | more than 9 years ago | (#9939118)


I have determined "Reptilian" to be the worst movie of all time.


You don't watch enough bad movies....

Re:Why not just make this go away? (3, Insightful)

iamacat (583406) | more than 9 years ago | (#9939339)

The only acceptable punishment for these people is the complete destruction of their lives and their families lives.

This kind of assumes I can kill my relatives if I think they are about to do anything I will be destroyed for. Hopefully you don't have a gun-carrying uncle with an unusual fondness for DMCA.

I don't know if jail is the right answer either. I would be scared to stay in a "country club" where Darl might try to fsck my unauthorized backdoors.

The thing is, all SCO/Darl did is hand in some papers to court. The judge could have consulted slashdot, Grocklaw or just his/her own common sense and told Darl to use the papers to clean his own backdoor. That's also what would happen in most countries, or in US 10-20 years ago. Except for slashdot, Grocklaw or female judges that is.

The real solution is to clean up the legal system so that you need a darn good evidence to start a lawsuit, you need to convince a skeptical judge before you even contact another party with an C&D letter and you have to pay the costs government wasted on your case if you fail.

Re:Why not just make this go away? (2)

I confirm I'm not a (720413) | more than 9 years ago | (#9938764)

Lying, cheating, stealing, and then cooking the books to cover it has been a suicide business model for years yet it doesn't stop companies from continuing to do it.

I can't argue with that, but... no, dammit, I can't argue with that.

I do feel that there's an element of IBM "proving" that's it really is the biggest, baddest kid on the block, even if it plays nice with those Linux-Hippy Children next door, but you're quite right - there were sound legal reasons IBM & co should not have settled earlier.

Re:Why not just make this go away? (2, Insightful)

sphealey (2855) | more than 9 years ago | (#9938971)

Lying, cheating, stealing, and then cooking the books to cover it has been a suicide business model for years yet it doesn't stop companies from continuing to do it.
Sadly, when a capable but amoral person sets out to behave this way his chance of success (where "success" is defined as cash dollars > 100 million) is pretty high. And his chance of paying any price is fairly low. That has been true for thousands of years: 98% of people are honest, but the 5% of the remaining 2% who are capable can steal from the honest fairly effectively.

sPh

Re:Why not just make this go away? (5, Interesting)

Anonymous Coward | more than 9 years ago | (#9938664)

the whole point of the suit is
  1. discredit open source (GPL specifically), and
  2. get bought out

while the first won't work, the second promises a lot of dough to SCO's lawyers. Remember, they will get 20% [slashdot.org]?

look at it the other way: would you rather IBM donate 65mil to EFF or to this scum?

Re:Why not just make this go away? (1)

Nurseman (161297) | more than 9 years ago | (#9939022)

the whole point of the suit is 1. discredit open source (GPL specifically), and

I am not so sure that this hasn't happened. I think the old "nobody ever got fired for choosing IBM" thoery applies here.
Even though as a geek I think I know better, how is some non tech guy running a small buisness going to feel about Linux?. Wouldn't it be "safer" for him to just choose MS ?
I think they, SCO/MS, along with mainstream press (Forbes, Eweek, etc) have done a good job in slimeing Linux. Hopefully another crushing defeat of SCO AND IBM's win on the counter claim of non infringment will repair some of this damage.

Re:Why not just make this go away? (3, Insightful)

Tim C (15259) | more than 9 years ago | (#9938666)

But if you're sure of winning, and have a point to prove, then buying them is

a) a waste of money
b) likely to be seen by some at least as implicit admission that they had a case

Re:Why not just make this go away? (1)

zoefff (61970) | more than 9 years ago | (#9939039)

I can't agree with 'a) a waste of money', because you get some IP (unix) for it (which you can use to sue other companies ;) ) and you save yourself some laywer costs.

Re:Why not just make this go away? (1)

Dan Ost (415913) | more than 9 years ago | (#9939268)

Well, the lawyers are on retainer, so they're not costing IBM any more than
usual and it's questionable that SCO actually owns any IP. SCO owns
copywrite on the code that it wrote, but they didn't write UNIX and the
UNIX copywrites that they claim to own are probably indefinsible (although
I'd like to see them try because that would probably open up the BSDi
settlement which I'd really like to see).

Re:Why not just make this go away? (1)

compactable (714182) | more than 9 years ago | (#9938674)

Novell is moving to dismiss SCO's slander of title claim with prejudice

... it is going away (-;

Re:Why not just make this go away? (4, Insightful)

southpolesammy (150094) | more than 9 years ago | (#9938687)

Because buying them validates the barratry business model. If you want all current and potential litigious bastards to go away forever, you do not pump money into their friends' bank accounts because it makes them more likely to take up the cause if there's a greater possibility of a big paycheck at the end of it.

Instead, you want to make sure that IBM and others continue to use their formidable might to squash these bugs into oblivion.

Re:Why not just make this go away? (4, Insightful)

Shirotae (44882) | more than 9 years ago | (#9938732)

If you dig into the copious records, you will find that being bought by IBM is one of the things SCO set out to achieve. The idea was that various people would walk off with a large pile of cash from IBM just to get rid of them. They have now discovered that it is not that easy to squeeze cash out of IBM by being irritating.

The principle is much like that of not paying a blackmailer or extortionist. If you pay one, they will queue up for their handout. If you grind the first one into the dust, others are not so likey to try it on.

Re:Why not just make this go away? (0)

Anonymous Coward | more than 9 years ago | (#9939097)

The principle is much like that of not paying a blackmailer or extortionist. If you pay one, they will queue up...

This is like terrorism. You give in to one and they'll not stop from there...like those terrorists who kidnaps people in Iraq.

Darl = terrorist... call in the troops and bomb the shit out of them.

Re:Why not just make this go away? (3, Informative)

Tanktalus (794810) | more than 9 years ago | (#9939259)

IBM has a policy that says "no" to frivolous lawsuits. Generally speaking, just having the policy discourages most people.

Others, who are not quite as quick on the uptake, must be fought simply to prove that the policy is valid.

SCO just happens to be one of the latter group.

Re:Why not just make this go away? (0)

Anonymous Coward | more than 9 years ago | (#9938752)

many wars have been fought between two parties using another parties front ... ( eg the korean and vietnam wars ) ... and conspiracy theories asside I think this whole SCO issue is just a campaign funded by Micro$oft to slow the uptake of Linux ...and the longer and more drawn and higher profile the battle the better for Micro$oft ...

Re:Why not just make this go away? (2, Interesting)

grunt107 (739510) | more than 9 years ago | (#9938773)

As others have replied, IBM (and others) will not save SCO from themselves. To send a message.
I applaud their efforts.
Now, if SCO would have played nice at the beginning they WOULD be absorbed by now (maybe even IBM).
What everyone is waiting for now is the Ch11/13 of SCO so they can tear it into pieces and buy the parts they want.

Re:Why not just make this go away? (5, Interesting)

isn't my name (514234) | more than 9 years ago | (#9939411)

What everyone is waiting for now is the Ch11/13 of SCO so they can tear it into pieces and buy the parts they want.

Actually, what I'm waiting for is for IBM to "pierce the corporate veil" and go after Canopy's assets. (Google the phrase or seach for it on Groklaw for detailed discussions.) Under normal circumstances an incorporated entity shields the assets and freedom of the entities that created the corporation from legal attack. That is why you may see corporations paying out millions when they lose a big lawsuit, but you don't see the officers of that corporation personally liable, except perhaps in extreme circumstances like Enron.

Canopy (The private parent group that owns SCO) has already made out well. SCO could go belly up today and Canopy and Ralph Yarro who runs it would be ahead of the game. However, there are a number of things which make it appear that Yarro and Canopy may have helped to direct the SCO attacks--including the early involvement of the Canopy legal counsel, the Vultus acquisition, and a number of others.

I think the odds are against IBM being able to pierce that corporate veil and go after Canopy. However, if it can, it will really send a message to those that might consider another scam like this. The message would be that you could lose your personal fortunes. Even an unsuccessful attempt to pierce the veil would have a welcome chilling effect on similar future actions.

Now, as to the fire sale when SCO enters bankrupcy, my hope is that it will happen after SCO loses some court cases that make it clear eithre that it doesn't even own the IP (and the Novell dismissal with prejudice judgement would not do that) and/or that there is no Unix IP in Linux. Because if that isn't settled, all someone has to do is pick up that IP at the firesale and start all over.

Don't negotiate with terrorists (4, Interesting)

Anonymous Coward | more than 9 years ago | (#9938790)

Don't reward hostage-taking, basically. I am probably getting close to invoking some current-events version of Godwin's law, but the analogy really seems fitting. If IBM or Novell buys out SCO it will only encourage other companies to try similar shakedowns in the future.

Re:Why not just make this go away? (2, Interesting)

Stumbles (602007) | more than 9 years ago | (#9938800)

Why would IBM or Novell want to fritter away 65 million for obsolete technology? Because that's pretty much all SCOG has. If you look at their recent updates to Unixware, if were not for all the GPL applications and code they included with the OS, it would be pretty useless. And as you may or may not know, all that GPL code SCOG included can be had for free.

Re:Why not just make this go away? (1)

Secrity (742221) | more than 9 years ago | (#9939132)

That is exactly what Canopy wanted IBM to do, and IBM didn't take the bait. TO me it looks like (and sounds like) Canopy was trying to cash out of a bad investment and had SCO create an opportunity to persuade a large company to buy out SCO. Canopy/SCO's gambit didn't work. Why should IBM allow a pipsqeak Unix/litigation company to bully them? It appears that Canopy bet SCO in a bluff atempting to get IBM to buy them out, and Canopy lost the gamble. Now Canopy and SCO are attempting to follow through on their bluff in an attempt to mitigate their losses.

Re:Why not just make this go away? (0)

Anonymous Coward | more than 9 years ago | (#9939353)

Because...we dont talk to terrorists...

So the keyword is... (-1, Redundant)

Anonymous Coward | more than 9 years ago | (#9938610)

Knowingly?

ROB "CMNDRTACO" MALDA GETS VIOLATED (0, Flamebait)

JismTroll (588456) | more than 9 years ago | (#9938617)

Rob "CmdrTaco" Malda stepped off the bus and was led into the yard of the Main
State Correctional Institute. He had been given ten years for participating in
a stock fraud. Five with good behavior. Years spent basking in the glow of a
CRT had been hard on him. His body was frail, his skin pallid. He knew he could
never make it through ten years in the general population with his virginity
intact. He had to get into solitary.

As soon as the burly guard unshackled him he made his move. Exhaling a feminine
"hmmph" he weakly slapped the guard. He was quickly taken to the ground,
receiving a swift kick to the ribs before being restrained. As he was dragged
to the solitary confinement cell he felt nothing but relief. "At least in
solitary," he thought "I'll be safe." Unfortunately for Rob he had picked the
wrong guard to mess with.

The next few days were uneventful. The time in his cell he spent evenly between
sleeping, reading a "Perl for Dummies" book he had gotten from the book cart,
and masturbating furiously. His self-flagellation was interrupted on the fourth
day. The burly guard he had attacked earlier stepped into his cell. The gleam
in the guards eye and the mean grin on his face made Rob's pecker quickly
shrivel in his hand. "You fucked with the wrong man when you fucked with
Michael Simms," said the guard. "The inmates here call me The Asshole for a
reason. Now come with me, punk."

The guard led him down the hall to one of several empty shower stalls. He
roughly threw Rob in the stall and locked the door. Rob was petrified. His mind
raced as he imagined the myriad of different tortures that could be in store
for him. His worst fears were confirmed when the guard returned. In his hands
were a short black dress, black stilleto heels, and a curly blonde wig. "Strip
down and put this on, bitch." Rob did as instructed and was pleased to notice
that the dress fit well and the heels gave him a nice slimming effect. The
burly guard admired the drag queen. "The GNAA is gonna love you!"

The guard left the shower stall, only to return minutes later. He opened the
door and led 20 large black men into the stall. "Rob, meet the Gay Nigger
Association of America. GNAA, meet Rob. I'm sure you all will get along fine."
With that the guard slammed the shower door closed and walked away laughing.

The men approached Rob, backing him into a corner. The apparent leader stepped
forward. "No matter what I'm gonna fuck that purdy lil' ass of yours. Now I can
fuck it dry or you can lube it up for me." Rob knew he had no choice. He
kneeled in front of the leader, who began to slap his face with his 10 black
inches. Puss from syphilictic sores quickly covered Rob's cheeks. When the
leader was sufficiently aroused he placed his throbbing cock up to Rob's lips.
As soon as Rob opened his mouth the leader violently shoved his manhood to the
back of Rob's throat and exclaimed "Swallow my shit you cracker bitch!" Rob
gagged as he was violently face fucked.

Just when he was about to pass out the leader pulled out, turned him around and
shoved his cock into Rob's ass. Rob began to scream in agony but his cries were
quickly muffled by one of the other gang member's cocks. They rode him like
that for the better part of an hour. When one man finished another quickly took
his place. Just as Rob was getting used to the throbbing pain in his anus the
men stopped. One man lay down on the floor and Rob was told to get on top of
him and take his dick inside him. Exhausted and humiliated, Rob had no will
left to fight. As soon as he inserted the penis another man came up behind him
and began to force his cock into Rob's already filled anus. Again his screams
of agony were muffled, this time by a smelly black anus.

For another hour he was violated in this way. When the men were finished with
him he couldn't walk and his mouth was filled with dingleberries and ass hairs.
Before they all left the leader had some parting words for Rob: "Thanks for
that sweet piece of ass, punk. We'll see you again tomorrow. Oh by the way, we
all have AIDS." It was going to be a long ten years for Rob.

Free Software and the Idiots who Buy It (5, Informative)

Bad Move (774329) | more than 9 years ago | (#9938619)

Read Rob Enderle's SCO Keynote [sco.com].

Re:Free Software and the Idiots who Buy It (4, Insightful)

I confirm I'm not a (720413) | more than 9 years ago | (#9938700)

Mods, do not be mislead by the title (lifted wholesale from the original Enderle Troll article at www.sco.com) - this is an informative post, that links to Rob Enderle's now (in)famous speech at SCO Forum last Tuesday. I've been looking for this transcript for a few days now - kudos to Bad Move for posting this.

Re:Free Software and the Idiots who Buy It (0)

Anonymous Coward | more than 9 years ago | (#9938827)

how come enderle mentions groklaw "spies" once every 3 sentences?

Nice, my company blocks sco.com! (0)

Anonymous Coward | more than 9 years ago | (#9938833)

Never noticed this before as I live in Europe and read /. at home. The message I got:

URL Denied
You have attempted to access a page that is blocked by the Global outbound proxy servers.

Re:Free Software and the Idiots who Buy It (1)

16K Ram Pack (690082) | more than 9 years ago | (#9938900)

I'm aching to know IBM's opinions about his comments.

Any /.ers work with Mr Enderle?

Re:Free Software and the Idiots who Buy It (3, Funny)

Mr. No Skills (591753) | more than 9 years ago | (#9939003)

"I watched the tapes of the Nuremburg experiments that showcased how people put in positions of authority could be ordered to torture and kill other people and that the majority of those tested in the study failed the "humanity" test."

What's the name of that law about when the argument gets to comparing the opponent with Nazi's?

Re:Free Software and the Idiots who Buy It (0)

Anonymous Coward | more than 9 years ago | (#9939062)

"That is both wrong and not Godwin's Law."

Re:Free Software and the Idiots who Buy It (5, Informative)

ecklesweb (713901) | more than 9 years ago | (#9939078)

That would be Godwin's law:

As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.


Of course, there's also Freiler's Maxim:

Those that incorrectly invoke Godwin as proof that they have won the debate have in fact run out of relevant points to make, and have, by invoking Godwin, admitted defeat.

Re:Free Software and the Idiots who Buy It (0, Redundant)

PetiePooo (606423) | more than 9 years ago | (#9939099)

  1. "I watched the tapes of the Nuremburg experiments that showcased how people put in positions of authority could be ordered to torture and kill other people and that the majority of those tested in the study failed the "humanity" test."
  1. What's the name of that law about when the argument gets to comparing the opponent with Nazi's?
Godwin's [wikipedia.org] Law [faqs.org]

1. What is Godwin's Law?

Godwin's Law is a natural law of Usenet named after Mike Godwin (godwin@eff.org) concerning Usenet "discussions". It reads, according to the Jargon File:
  1. As a Usenet discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.
LOL! Good catch.

Re:Free Software and the Idiots who Buy It (2, Informative)

Anonymous Coward | more than 9 years ago | (#9939274)

In case anybody is wondering, he is probably referring to Milgram's experiment [wikipedia.org].

Re:Free Software and the Idiots who Buy It (3, Informative)

Graf Typo (232832) | more than 9 years ago | (#9939026)

Heise [heise.de] thinks that in the keynote he mixes up the Nuremberg trials (he can't even spell it) with the Milgram experiment [wikipedia.org].

Ouch!

Re:Free Software and the Idiots who Buy It (1)

'nother poster (700681) | more than 9 years ago | (#9939404)

I am not sure if he is refering to the Milgram experiment, the Nuremburg Code, or the Nuremburg Trials. The Nuremburg Code addresses the ethical framework for performing scientific experiments on humans.

Re:Free Software and the Idiots who Buy It (0)

Anonymous Coward | more than 9 years ago | (#9939093)

Untitled Document, a Saga by Rob Enderle!

Re:Free Software and the Idiots who Buy It (3, Insightful)

BroncoInCalifornia (605476) | more than 9 years ago | (#9939204)

I read that speech a few days ago. It was bizarre. It sounds like he was drunk. In a lot of places it was hard to figure out what he was trying to say.

His tales of working at Rohm/IBM were interesting. He holds a very big grudge towards IBM. He held a lot of different positions. It sounds like he was unstable. Reading between the lines it sound like they finally got tired of his act and showed him the door.

He spent a lot of times talking about spys in the audience. He then did not understand or pretended not to understand "free" software. He talked about software that was free as in beer instead of free as in speech.

Re:Free Software and the Idiots who Buy It (1)

Kafka_Canada (106443) | more than 9 years ago | (#9939206)

Hah, that's hilarious, thanks for posting it. That guy comes across as the most infantile, half-witted paranoiac. I'm sort of amazed they'd put that up on a public server at their domain, let alone have him talk on their behalf. Honestly, he writes like some weirdo internet conspiracy theorist, raving about death threats and Nazis and other schizoid fantasies, and contradicting himself every third sentence.

I'd sort of enjoy reading more of it -- can you link any? It's like an inside view of a demented teenager with a learning disability, or a psycho-thriller novel.

Re:Free Software and the Idiots who Buy It (1)

daw (7006) | more than 9 years ago | (#9939391)

Paranoid is really only half of it; it's part of this exaggerated and self-aggrandizing worldview in which he stars as a sort of gun-toting messiah figure who is unfairly punished for his vast contributions to mankind by getting periodically nailed to a cross.

Maybe he was not drunk but forgot to take his haldol.

hrm... (-1, Redundant)

Anonymous Coward | more than 9 years ago | (#9938645)

"boopa booie boopa booie howard stern's penis boopa booie" - Peter Griffin

Strike 2... (3, Insightful)

grunt107 (739510) | more than 9 years ago | (#9938668)

SCO can't allege malice, a necessary element, given the Court's earlier Order.

That is 1 damning excerpt! If the court has ruled that malice cannot be proven, and slander MUST have malice, logic dictates SCO loses again (FUD: courts are not always logical).

Another nice point was Novell's allusions to the Red Hat and IBM cases - kinda like saying 'Since I appear honest and forthright to you, your honor, I wish to state my endorsements of the positions offered by these fine 2 companies in their battle with the plaintiff in OUR case'
Brilliant!!!

Same judge in the IBM case (2, Informative)

Shirotae (44882) | more than 9 years ago | (#9938792)

Another goods thing about Novell exposing SCO's games is that Judge Kimball is also presiding over the SCO v IBM case.

GNAA PRESS RELEASE (-1, Offtopic)

Anonymous Coward | more than 9 years ago | (#9938680)

GNAA Press release:

GNAA claims responsibility for kidnap of Olsen Twins [olsentwins.net]

By Gary Niger

Lindon, Utah - GNAA (Gay Nigger Association of America) this afternoon announced one of their loyal members was
responsible for kidnapping the twins [jaboobie.com] inside a popular New York Club, Vudu Lounge (Websites [clubplanet.com]).

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The best solution... (3, Funny)

Short Circuit (52384) | more than 9 years ago | (#9938692)

...would be for the copyright claim to be determined. I'd hate to see SCO go out of business before it was determined who owns the IP it claims.

Re:The best solution... (1)

PReDiToR (687141) | more than 9 years ago | (#9938888)

I'd hate to see SCO go out of business before it was determined who owns the IP it claims.

I know who owns every piece of code in GNU/Linux.

You point to the bit in question and I'll tell you who owns it, fair enough?

Re:The best solution... (1)

Short Circuit (52384) | more than 9 years ago | (#9939181)

I agree with you, and I've messed with kernel source myself. However, I was thinking more in the legal sense.

Re:The best solution... (0)

Anonymous Coward | more than 9 years ago | (#9938963)

...would be for the copyright claim to be determined. I'd hate to see SCO go out of business before it was determined who owns the IP it claims.

Better change that to: Before it was determined which IP it claims?

I'm confused (1)

hartba (715804) | more than 9 years ago | (#9938710)

So, if Novell didn't sell SCO the copywrights, exactly what did Novell sell them? If SCO thought they were buying the copywrights and Novell says they didn't, but some sort of transaction did indeed take place, what did SCO end up with?

Probably a Unix cd and 1099 fee AOL hours. Seriously though, it seems that Novell is headed for even bigger trouble depending on the way this plays out.

Re:I'm confused (1)

pe1rxq (141710) | more than 9 years ago | (#9938728)

They got the right to redistribute their own version and collect license fees from licensees (and pay a large part of those to Novell :)

Jeroen

ps copyright has no w.

Re:I'm confused (4, Interesting)

k98sven (324383) | more than 9 years ago | (#9938777)

So, if Novell didn't sell SCO the copywrights, exactly what did Novell sell them? If SCO thought they were buying the copywrights and Novell says they didn't, but some sort of transaction did indeed take place, what did SCO end up with?

The Unix business. Selling Unix licenses and providing support for existing licensees.

Novell doesn't feel they need the Unix copyrights to be able to do that. SCO thinks otherwise.

Disadvantage of US vs British legal system (5, Informative)

doodlelogic (773522) | more than 9 years ago | (#9938740)

While generally you guys get a lot of things right (constitutional protection, etc), one thing that maddens me about these "only in the USA" stories is the freedom you give to lawyers to run amok with cases and spend all their clients money, forcing the other side to spend even more.

Here in the UK (well England and Wales at least), as you may know, the loser in litigation generally has to pick up the winner's legal fees. Where the claim was, e.g. an abuse of process, the fees can be payable on a punitive ("indemnity") basis. If either side is on a shaky financial footing, they can be forced to pay money into court to cover their opponent's litigation risk.

Is anyone thinking of taking these sort of rules into the US system? Or would that not work with the constitution?

Re:Disadvantage of US vs British legal system (1)

Short Circuit (52384) | more than 9 years ago | (#9938785)

IANAL, but I imagine most would abhor such a fundamental change in the system they went to school for 6 years to learn.

And most congressmen are lawyers, IIRC.

Re:Disadvantage of US vs British legal system (1)

Dan Ost (415913) | more than 9 years ago | (#9939307)

Law school is only 6 years if you could the 4 years of undergraduate work
where they don't study law at all (most law students I've met either studied
political science, philosophy, or music before entering law school).

Re:Disadvantage of US vs British legal system (1)

GabeK (701376) | more than 9 years ago | (#9938801)

It would put a whole lot of lawyers in the poor house, since our people would stop suing everybody for everything. I would imagine that there is no Constitutional reason why it couldn't happen, but I doubt that anything can be done on a national level. Perhaps at the state level...even still - change doesn't come easy with some things.

Re:Disadvantage of US vs British legal system (1, Interesting)

Anonymous Coward | more than 9 years ago | (#9938803)

Here in the UK (well England and Wales at least), as you may know, the loser in litigation generally has to pick up the winner's legal fees. Where the claim was, e.g. an abuse of process, the fees can be payable on a punitive ("indemnity") basis. If either side is on a shaky financial footing, they can be forced to pay money into court to cover their opponent's litigation risk.

So, for example, almost any software manufacturer
other than Microsoft could be deemed to be on
a 'shaky financial footing', and have to come up with the cash to cover their opponent's litigation
risk. Who do you think would be their opponent in
99.9% of the cases? (Hint: Starts with Micro and
ends with soft) How many companies would survive
long enough to even get to the trial?

Re:Disadvantage of US vs British legal system (1)

doodlelogic (773522) | more than 9 years ago | (#9939296)

So, for example, almost any software manufacturer other than Microsoft could be deemed to be on a 'shaky financial footing', and have to come up with the cash to cover their opponent's litigation risk. Who do you think would be their opponent in 99.9% of the cases? (Hint: Starts with Micro and ends with soft) How many companies would survive long enough to even get to the trial?

Good point. The judge attempts to balance things out in "the interests of justice" and would therefore look at the strength of the claim before requiring a payment into court. Basically if the case is strong enough to not be struck out at summary judgment, but still pretty weak, the litigant will be forced to chip in (if short on funds). If the case is very strong, more likely to require a payment into court from a financially weak defendant.

Re:Disadvantage of US vs British legal system (4, Interesting)

grasshoppa (657393) | more than 9 years ago | (#9938821)

I'd vote to support this.

If a case is dismissed with prejudice, I would be all for the looser paying the winner's legal fees. Plus wages of those on the winning side who were working on the case.

Seems fair to me, and it would cut down on this absolute bullshit we have to deal with right now.

Re:Disadvantage of US vs British legal system (-1)

Anonymous Coward | more than 9 years ago | (#9938869)

I believe the word that you're attempting to spell is "loser".

Re:Disadvantage of US vs British legal system (5, Interesting)

groot (198923) | more than 9 years ago | (#9938822)

The theory behind the US system is that it allows the individual with limited means to sue (hopefully rightly) a much superior (financially) opponent without fear of retribution. If the British system were to be imposed it would have a chilling effect on these types of cases such as malpractice, employee being illegally fired, and class action such as health damage due to materials, such as the asbetos or silicon implants,etc.

However like anything else, it is subject to abuse.

--laz

Re:Disadvantage of US vs British legal system (5, Informative)

gowen (141411) | more than 9 years ago | (#9938876)

If the British system were to be imposed it would have a chilling effect on these types of cases such as malpractice, employee being illegally fired, and class action such as health damage due to materials, such as the asbetos or silicon implants,etc.
Except, of course, we Brits have already noticed this, and set up a process to avoid it. Firstly, the awarding of costs is always at the discretion of the judge, and they rarely, if ever, force a personal litigant to pay the entire costs of a corporate defendant, except when they feel the case is malicious.

Secondly, the government Legal Aid scheme exists to fund such actions, if the Legal Aid Service's lawyers think you have a good case. Like a State Defender, but for prosecutions and civil cases.

Re:Disadvantage of US vs British legal system (0)

Anonymous Coward | more than 9 years ago | (#9939175)

Firstly, the awarding of costs is always at the discretion of the judge,... So it is not a loser pays system, it is a judge decides system? ...and they rarely, if ever, force a personal litigant to pay the entire costs of a corporate defendant, except when they feel the case is malicious. One of the main chilling effect of loser pays is no cap on your possible losses as a plaintiff. Having a single judge determine the plaintiffs monetary liability at the end of the case does nothing to address that problem. Secondly, the government Legal Aid scheme exists to fund such actions, if the Legal Aid Service's lawyers think you have a good case. Like a State Defender, but for prosecutions and civil cases. Public defenders for civil suits. Now that is a sure fire solution to frivolous litigation.

Re:Disadvantage of US vs British legal system (2, Informative)

gowen (141411) | more than 9 years ago | (#9939214)

Public defenders for civil suits. Now that is a sure fire solution to frivolous litigation.
I'm sorry, are you illiterate? Let me restate:
Legal Aid scheme exists to fund such actions,
if the Legal Aid Service's lawyers think you have a good case
See that there. Thats why there are few frivolous cases funded by Legal Aid. Let me explain in words a fool like you might even understand:

If you go to them with a frivolous case, they tell you to fuck off.

Re:Disadvantage of US vs British legal system (2, Insightful)

MonsoonDawn (795807) | more than 9 years ago | (#9939300)

You're assuming that US Citizens trust their legal system and judges as much as the British do. We don't. In jurisprudence and many other areas of government, US citizens heavily favor formal rules-based approaches. The British tend to favor a more informal approach that gives the executors more discretion.

Re:Disadvantage of US vs British legal system (0)

Anonymous Coward | more than 9 years ago | (#9938948)

In the British system employees being wrongly fired cases are heard in a special court called an "Employment Tribunal" which does not award costs unless one side has brought or defended a case frivolously.

Big chill please (0)

Anonymous Coward | more than 9 years ago | (#9938962)

If the British system were to be imposed it would have a chilling effect on these types of cases such as malpractice, employee being illegally fired, ...

Yes, it would have a very chilling effect on lawyers' wallets ...

Re:Disadvantage of US vs British legal system (2, Informative)

will_die (586523) | more than 9 years ago | (#9938841)

They come up ever so often under the term of tort reform and "looser pays". The biggest problem is that most of this comes down to a state decision, however it is something that we in the USA will have to solve because of the problems it is leading to in the area of medical and social affairs.
As an example of how bad it is, the Las Vegas casinos were offered information on terrorist activities around various casinos, they declinded because once they know about the threats they will have more problems with the lawyers if anything happens then then whatever possible damage the terrorist could do.
Here is one article on 2004 US election [newsbatch.com]. The American tort reform association [atra.org] has article detailing the various changes that various stats are doing.

It looks like SCO's PR is now biting their own ass (5, Interesting)

compactable (714182) | more than 9 years ago | (#9938751)

Several times the documents submitted show that SCO's "media machine" has been detrimental to them in court:

[Melaugh] tells the judge that he did a LexisNexis news search for the words IBM and SCO and got 2,845 results, starting with the month and year that SCO filed the lawsuit. Next, he narrowed it down by choosing as cutoff date the first Novell public statement, and he still got 317 articles. They present the judge with beginning chunks of the first 50 of each search, asking that he take judicial note of the huge media frenzy around SCO.

This is a public dispute, and it was SCO who made it so not only by suing IBM, but by sending the 1500 threatening letters and sounding off in the media. "SCO has done everything it can to stoke that firestorm." Additionally, it has started or is defending against "at least six lawsuits before five judges in four states and two countries."Under those circumstances, Novell has the legal right to speak without being threatened with litigation for doing so.

... I always wondered if this would bite them in the ass someday ...

So I can clearlynot choose the wine in front of me (2, Interesting)

mccalli (323026) | more than 9 years ago | (#9938838)

Interest move - sounds like Novell are interested in dodging the case without having the issue of copyrights decided.

Why? What possible advantage would there be in this to them? Are they just trying to avoid costs of ongoing litigation (understandable)? Because I can't otherwise see any use in a decision along these lines - I would have thought it's just setting the stage for another ownership row later on.

Cheers,
Ian

Re:So I can clearlynot choose the wine in front of (5, Interesting)

LMCBoy (185365) | more than 9 years ago | (#9938933)

Interest move - sounds like Novell are interested in dodging the case without having the issue of copyrights decided.

Why?


Simple, because Novell have been sued for slander of title, not for copyright infringement. They have to defend against the case brought against them in court, not the case brought against them in the press.

I find it helps a lot to stop listening to what SCO say, and pay exclusive attention to what they do.

Re:So I can clearlynot choose the wine in front of (1)

iabervon (1971) | more than 9 years ago | (#9939109)

I'd guess that they're worried that the ownership of the copyrights wouldn't be decided in this trial anyway, since (as this motion points out) it is not necessarily a direct issue. Novell doesn't want to argue about the copyright situation and then have the court decide the case without a determination of the ownership of the copyrights, since that would just delay things further.

The court could, in fact, listen to a complete argument of who owns the copyrights, and then rule simply that SCO didn't have an uncontended claim to them. Novell wants to make sure that, if the judge is simply going to rule on whether SCO's claim is uncontended, Novell doesn't spend a long time in court arguing something that doesn't get ruled on.

Re:So I can clearlynot choose the wine in front of (3, Interesting)

maximino (767005) | more than 9 years ago | (#9939135)

Well, one thing to keep in mind is that "slander of title" is a really goofy cause of action to persue in this instance. A slander of title action is usually filed in the real estate context, where someone maliciously claims an interest in your property or files a lien against it, thus torpedoing your sale of the property. As far as I'm aware, it's never been used in an instance like this.

The suit that SCO should have filed was a breach of contract suit against Novell. Then they would make the arguments that they're making now -- e.g., that they paid so much money, that they need the copyrights, etc. -- and the relief they would seek would be a judicially recognized transfer of UNIX copyrights. I don't think they'd win, but they'd have a better shot than in any of the other litigation they're involved in. Honestly, this whole transaction was poorly drafted.

So the question now becomes why we've got this suit rather than the proper one. The reason is that filing that breach of contract suit eviscerates all of their other lawsuits. Remember IBM? AutoZone? Well, it'll be hard for SCO to be in one court arguing that they should be given copyrights and in others claiming violation of the copyrights that they will have Real Soon Now. (SCO's lawyers would argue this regardless.) Not to mention all those forms filed with the SEC and so forth. So the short answer is that if Novell can defeat the wrong lawsuit they probably won't ever have to face a proper one.

You miss one thing. (1)

schon (31600) | more than 9 years ago | (#9939310)

"slander of title" is a really goofy cause of action to persue in this instance.

Agreed. When SCOX filed this suit, everybody said "WTF is slander of title?!?!?"

The suit that SCO should have filed was a breach of contract suit against Novell. Then they would make the arguments that they're making now

This assumes that they actually expect to win.

I don't think they'd win

They don't think they'd win either - otherwise they would have gone this route.

this whole transaction was poorly drafted.

No - it was their best play. They know the Unix copyrights didn't transfer to them, and the first order of business of any other suit would be a ruling on the status of the copyright (notice that they fought tooth and nail to keep this suit in state court - which wouldn't be allowed to rule on copyright ownership.) Once that was decided (against them) it would be game over for every lawsuit they have.

This way, they still get another kick at the cat. Remember, they're not going for the win here, because they know they can't. The sole purpose of these lawsuits is FUD - and to do that, they need to drag them out as long as possible.

Re:So I can clearlynot choose the wine in front of (4, Interesting)

Jaywalk (94910) | more than 9 years ago | (#9939227)

sounds like Novell are interested in dodging the case without having the issue of copyrights decided. . . . Why? What possible advantage would there be in this to them?
Think chess game. This is not a checkmate; more like taking a bishop. But if you have a choice between easily taking a bishop and pressing for a difficult checkmate, take the bishop and look for a better opening.

By having this case dismissed, Novell shuts down SCO's preferred line of attack. First of all, SCO will need to start over with a new suit, meaning more cash burn from SCO's rapidly depleting coffers. Second, it buys time for SCO's position on other fronts (like IBM's tenth counterclaim [groklaw.net]) to weaken. If IBM can prove there's no UNIX in Linux, the issue of who owns the UNIX copyrights becomes moot. Finally, it means that SCO will have to open a suit explicitly stating that they want to prove they own the copyrights, a very difficult position since the documentation doesn't seem to support that claim.

Remember, the job of Novell's lawyers is not to defend Linux. It is to defend Novell. It's only in the current circumstances that the two interests happen to coincide.

Filed copyrights? (2, Interesting)

Armchair Dissident (557503) | more than 9 years ago | (#9938892)

Perhaps I'm missing something, but I thought that the reason SCO bought the slander of title case against Novell was because Novell didn't just publicly state that they owned the copyrights, but they filed the copyrights in with the copyright office with the intent to use the filings to undermine SCO's case(s).

If this slander case does get dismissed, does this mean that the copyright filing stands unchallenged? Or is there another route SCO can go down in order to have the filing retracted?

I'm not sure how copyright filings work in the US, as we don't have a similar system in the UK! (or not that I know of anyway)

Re:Filed copyrights? (4, Interesting)

Anonytroll (751214) | more than 9 years ago | (#9938924)

You got that a bit wrong there, iirc.
Novell had the copyrights all along, yet SCO
  • Asked Novell repeatedly to hand them over.
  • Filed them at the copyright office after they couldn't get them.
  • Asked the judge in this case to assign all copyrights to them, arguing that they really really were transferred from Novell to Caldera - which they weren't.

Re:Filed copyrights? (2, Interesting)

iabervon (1971) | more than 9 years ago | (#9939325)

If this case gets dismissed, SCO can sue for copyright infringement. In fact, suing for slander of title is a weird thing to do in such a situation; it would be a bit like complaining that the guy who stole your car isn't maintaining it well. Slander of title is normally used when somebody else is telling people he owns the house you have the deed to; making it stick depends on there being some clear and unambiguous certification of ownership that you have and the other person does not, which pretty much means that it can never be used for copyrights unless the copyright dispute has already been settled and the loser is failing to abide by the outcome.

The stocks again (4, Insightful)

akaiONE (467100) | more than 9 years ago | (#9938938)

Lets be honest. The people on Wallstreet are probably an indicator to what newSCO will do next. If their stock trade bad for a reasonable time (1-2 months) their "media machine" will roll out a new story to boost their stockprice. So, right now newSCO isn't doing too well on the exchange.


Lets have a look at their 6 months movement.
This little chart [nasdaq.com] shows how newSCO's stock is doing. Their recent pressreleases and blabbering during the SCOforum left a certain spike upwards, then things settled again, and the price is currently at around $4.30. Compared to such companies as Novell, wich you can see the comparison of here [nasdaq.com], there clearly is a trend that whenever newSCO releases some FUD to the general public and the eager-to-cover media their stock is up for a short time, and the companies they are in legal battles with are down. Then it all slowly goes back as it was before. IBM [nasdaq.com], RedHat [nasdaq.com] and Novell are all three doing rather well [nasdaq.com] in comparison to newSCO.


It's sad to see how this hunger for money drive a former great company into the ground. I hope both investors and current stockholders realize that the only thing that is going to save newSCO is to focus on their product [sco.com] and shuffle Darl and his litigation off into the void.

Re:The stocks again (1)

toolshed7 (756496) | more than 9 years ago | (#9939178)

I mean how do people like Darl sleep at night. I guess I am just to honest and have to much pride in being a human, an American human at that. I mean this guy surely knows that he is just spreading FUD. Does this guy have a family? How can you look them in the eye, when you just lie and try and pump your stock like that(no offense to lawyers, it is part of your job description I know). Well, what comes around goes around. Being a liar or spreading lies and FUD, will bite you in the ass sooner or later. A little karma never hurt nobody.

Can u pleeze lern englitch b4 u attempt 2 type? (-1, Flamebait)

Anonymous Coward | more than 9 years ago | (#9939018)

It's painful to read your disabled grammar and attempt to enjoy the article simultaneously! PLEASE - consult someone who has command of the English language to properly teach you how to form a sentence without double and triple adjectives!! Jesus H CHRIST!

Re:Can u pleeze lern englitch b4 u attempt 2 type? (-1, Troll)

Anonymous Coward | more than 9 years ago | (#9939271)

ur sux fag lixor mah dixor.

SCO doesn't want to file a contract suit here (3, Insightful)

Todd Knarr (15451) | more than 9 years ago | (#9939088)

The last thing SCO wants is to file a contract suit against Novell here. The only ones they could file that would touch on the copyrights at all would all involve a claim of "They're obliged to transfer the copyrights, make them.". If they don't make that claim, there's nothing else in the APA to hang a case on. If they do make that claim, they instantly kill all their other cases because it's an admission that they don't own the copyrights right now.

A little history ... (-1, Troll)

Anonymous Coward | more than 9 years ago | (#9939168)

In the late 1970's Microsoft licensed UNIX source code from AT&T which at the time was not licensing the name UNIX. Therefore Microsoft created the name Xenix. Microsoft did not sell Xenix to end-users but instead licensed the software to software OEMs such as Intel, Tandy, Altos and SCO who then provided a finished version of their own Xenix to the end-users or other customers. SCO introduced its first version of Xenix named SCO Xenix System V for the Intel 8086 and 8088 in 1983. Today SCO Xenix is one of the more commonly used and found versions of Xenix.

Linux was based on Minix. A UnixLite OS designed to run on PCs. However, it was really only a teaching tool. Andrew Tanenbaum repeatedly refused to add the new (legitimate) features the users and even developers asked for. Linus Torvalds set out simply to add functionality to his own version of Minix (the copyright allows use to do so for your own personal use, but you cannot sell or distibute it).

Over time, in adding functionality to Minix, Linus Torvalds found that he had created an entirely new kernel. I was very similar to Minix but used none of the Minix source code. Torvalds had originally called it freax, for "`free' + `freak' + the obligatory `-x'. The operator of the FTP server where Linus' new kernel made its debut didn't like the name and simply called it Linux (Linus + Unix). People seemed to like the name so it stuck.
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