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Did SCO Get Linux-mob Justice?

CmdrTaco posted more than 6 years ago | from the look-everyone-kick-this-horse-corpse dept.

320

An anonymous reader writes "According to Fortune's legal blogger Roger Parloff, "once in awhile a judicial ruling comes down that's so wrong at such a basic level that you're just left scratching your head". He claims that Judge Kimball's "102-page ruling (about SCO) was greeted with widespread rejoicing and I-told-you-so's", but "the problem is not that Judge Kimball's view of the facts is wrong". Was the ruling unfair?"

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320 comments

Don't forget... (2, Funny)

SCO$699FeeTroll (695565) | more than 6 years ago | (#21586851)

...to pay your $699 licensing fee you cock-smoking teabaggers.

Re:Don't forget... (0)

Anonymous Coward | more than 6 years ago | (#21587273)

Hey, haven't seen you around in a while =)

Y'all should mod him up just because he's been here so long he's like family

Re:Don't forget... (1)

smitty_one_each (243267) | more than 6 years ago | (#21587357)

What ever happened to the Sporks, and SpanishInquisition?
"Those were the days..."

Re:Don't forget... (1)

sconeu (64226) | more than 6 years ago | (#21587683)

Not to mention the Glorious MEEPT! and OOG the Open Source Caveman!

This is almost 2 months old!!! (2, Informative)

trolltalk.com (1108067) | more than 6 years ago | (#21586877)

Since when is 2-month-old news that we already read about (cf: "widespread rejoicing") news?

Since when?... (5, Funny)

msauve (701917) | more than 6 years ago | (#21587227)

Since Darl figured out how to create a slashdot account.

Re:Since when?... (5, Insightful)

trolltalk.com (1108067) | more than 6 years ago | (#21587373)

I'm just amazed at how many supposedly-knowledgeable people continue to fall for what is utter BS. Anyone reading the comments posted to the article within hours of its' first appearance would have seen the whole thing torn apart - in particular, the legal requirement for a transfer of copywrite to include a written transfer, and that, withut that, judge Kimball could NOT rule in favour of SCO even if he wanted to.

This is the same level of "journalism" as pretendrle and mogtroll. Uninformed. Ditto with all those "analysts" who also came out with buy recommendations, talking through their goatse.cx orifices.

The one thing this experience has taught is that many and "analyst", "journalist", "expert" or "lawyer" is just another opinionated asshole, too lazy to do any fact-checking.

  1. Boies could have checked the facts and told SCO "you have no case."
  2. All the analysts could have checked the facts and told the world "SCO has no case."

While the average slashdotter may not be a lawyer, we seem to have a better grasp of legal fundamentals than many of the "experts". Why? Because we write code, and we know the consequences of overlooking a missed semicolon, a typo, or starting from wrong assumptions. Lawyers, on the other hand, don't have a financial incentive to give good advice or dig too deeply when it means generating less revenue.

Shakespeare had it right. "First, we kill all the lawyers."

I must be new here... (1)

sm62704 (957197) | more than 6 years ago | (#21587743)

I actually RTFA - or started to. Five wordy paragraphs later, without one shred of information beyond what was in the slashdot summary, I decided to stop wasting my time. I can hear Roger Parloff when he returned from the vacation he mentions in the piece: "OMFG My SCO stock has tanked! And I thought that with all that revenue from selling Linux licenses I'd get a dividend!"

-mcgrew

1st post (-1, Troll)

Anonymous Coward | more than 6 years ago | (#21586885)

did I get it?

Re:1st post (2, Funny)

robot_love (1089921) | more than 6 years ago | (#21586931)

Sure, you got it. Good job.

unfair? (5, Funny)

gEvil (beta) (945888) | more than 6 years ago | (#21586897)

Was the ruling unfair?

Hmmm, I can't think of a more appropriate place to ask that question...

Re:unfair? (0)

orclevegam (940336) | more than 6 years ago | (#21587197)

Hmmm, I can't think of a more appropriate place to ask that question...

Groklaw? At least there there's pretty good odds of getting a post by someone who doesn't need to preface their statements with IANAL.

Re:unfair? (1)

smitty_one_each (243267) | more than 6 years ago | (#21587425)

Fa(ir|re) is what you pay to ride a bus.
Happiness is inversely proportional to one's expectation of fairness from the universe.
Conversely, one should export fairness in all directions.

Nope (4, Funny)

$RANDOMLUSER (804576) | more than 6 years ago | (#21586907)

SCO (and Darl in particular) didn't get enough mob justice. I'm thinking keelhauling is about right.

Re:Nope (2, Funny)

confused one (671304) | more than 6 years ago | (#21587025)

For keelhauling to be properly effective (as it was intended), you'd have to find an old ship with a barnacle encrusted hull.

Re:Nope (1)

the eric conspiracy (20178) | more than 6 years ago | (#21587127)

This [navy.mil] should work.

Re:Nope (1)

Jeremiah Cornelius (137) | more than 6 years ago | (#21587163)

Today McBride, tomorrow Cheney!

Re:Nope (1)

spun (1352) | more than 6 years ago | (#21587439)

Except the Constitution has always had copper plating to keep the barnacles off. How about we use the Vasa [wikipedia.org] ? It might not be floating anymore, or covered in barnacles, but it gives off hundreds of kilograms of sulfuric acid every year. We could even give him goggles to protect his eyes...

Re:Nope (2, Funny)

peragrin (659227) | more than 6 years ago | (#21587539)

give him? oh hell no those goggles cost $699 a pair to make. we can sell them at cost however.

Re:Nope (1)

bhima (46039) | more than 6 years ago | (#21587157)

You get said parties ready for said keelhauling and I swear to the fucking gods I will provide an old ship with a barnacle encrusted hull to do the keelhauling with.

Bring Roger Parloff too.

Re:Nope (2, Funny)

$RANDOMLUSER (804576) | more than 6 years ago | (#21587249)

And the guy who chose that light grey font and white background on TFA's site, too.

Re:Nope (1)

gstoddart (321705) | more than 6 years ago | (#21587131)

SCO (and Darl in particular) didn't get enough mob justice. I'm thinking keelhauling is about right.

Arrr ... ye be thinkin' of Pirate justice or possibly them scallywags in the British Navy.

Ye average mob will mostly just stone you or lynch you with things at hand. Thar be too much planning involved in keelhauling as it involves a boat, plenty of rope and fewer landlubbers. =)

Cheers

Re:Nope (1)

OriginalArlen (726444) | more than 6 years ago | (#21587423)

My thoughts exactly. If SCO hadreceived the mob justice they so richly deserved [elizabethan-era.org.uk] , they'd have had Elizabethan justice: hung (gently, so as not to snap the vertebrae), their privy members cut off and burnt on a brazier in front of them, drawn (disembowled, preferably in the words of a contemporary witness whilst "alive and seeing"), these also being burnt on a brazier in front of them, before quartering, from the bottom up. (Precise descriptions of that are available from your friendly local google, if you've a strong stomach or had the kind of day at work that I just had.) All this at Marble Arch, before a bayoing, frenzied mob of 20000-30000 kernel developers.

Link to said ruling (4, Informative)

oahazmatt (868057) | more than 6 years ago | (#21586911)

Link to said ruling [wordpress.com]

How? (1)

wanderingknight (1103573) | more than 6 years ago | (#21586929)

How can it be unfair when THEY were the ones at fault? When THEY were the ones lying and making false claims? Whatever they get now is perfectly fair game.

I say we kick the horse till its guts get sprayed all over SCO's main building.

Re:How? (3, Insightful)

oahazmatt (868057) | more than 6 years ago | (#21587103)

How can it be unfair when THEY were the ones at fault? When THEY were the ones lying and making false claims? Whatever they get now is perfectly fair game.
Contrary to how the US Justice System is viewed today, despite the actions of any party accused or convicted of wrong-doing, there is a widely-held belief that party should be judged with objectively and conviction be dealt without malicious intent or a decision be made against the party based on personal opinion.

Re:How? (1)

badasscat (563442) | more than 6 years ago | (#21587321)

Contrary to how the US Justice System is viewed today, despite the actions of any party accused or convicted of wrong-doing, there is a widely-held belief that party should be judged with objectively and conviction be dealt without malicious intent or a decision be made against the party based on personal opinion.

Yes, the point being, there already was an objective decision... and now what's to be decided are penalties. And penalties, my friend, are not decided objectively - they are decided based upon a standing court decision.

Personally, I think a knee to Darl's nuts would be a pretty good start.

Re:How? (1)

oahazmatt (868057) | more than 6 years ago | (#21587443)

That's why I chose the words "a widely-held belief" rather than "rock-hard evidence". :)

No. (4, Insightful)

Scareduck (177470) | more than 6 years ago | (#21587001)

His hyperventilation amounts to ignoring SCO's inflated claims of ownership to everything, failure to prove they owned what they claimed -- which, by the way, they were never able to show in court what it was that they claimed they owned! This is legal wankery at its lowest, folks. Nothing to see here. Move on.

Re:No. (2, Informative)

orclevegam (940336) | more than 6 years ago | (#21587161)

His hyperventilation amounts to ignoring SCO's inflated claims of ownership to everything, failure to prove they owned what they claimed -- which, by the way, they were never able to show in court what it was that they claimed they owned! This is legal wankery at its lowest, folks. Nothing to see here. Move on.

To be fair, he was criticizing an apparent failure to follow proper legal process in ruling against a trial jury for SCO, he never claimed they were or weren't guilty, just that from the evidence it probably should have gone to trial.

Of course as far as I'm concerned, we should just go find a nice tree and a bit of rope. I'd classify SCO as either terminally stupid, or patent/copyright trolls, either way we're better off without them.

Re:No. (3, Interesting)

timster (32400) | more than 6 years ago | (#21587261)

he never claimed they were or weren't guilty, just that from the evidence it probably should have gone to trial.

And that is just a flat-out stupid thing for him to say. There was no evidence! SCO invented this absurd "methods and concepts" legal theory out of whole cloth, but that's not evidence.

Re:No. (1)

orclevegam (940336) | more than 6 years ago | (#21587343)

And that is just a flat-out stupid thing for him to say. There was no evidence! SCO invented this absurd "methods and concepts" legal theory out of whole cloth, but that's not evidence.
According to TFA the issue had to do with the ambiguity in the contract between SCO and Novell and that the legal process requires viewing of the plaintiff's claims in the light most favorable to the plaintiff. Essentially his argument was that the judge was falsely taking on the role of jury in finding against SCOs contract dispute with Novell, and that it should have proceeded to a jury trial even if SCO was ultimately found to have no case.

Re:No. (5, Informative)

trolltalk.com (1108067) | more than 6 years ago | (#21587555)

The right to a jury trial is not universal. A jury is only needed if there are questions of fact to be decided - juries decide facts, judges decide the application of laws.

In this case, the law was quite clear - without a written transfer of copyright, there were no facts in question for a jury to decide, just the application of the law, which is for a judge.

SCO's theory of an "implied transfer of copyright", without citing a single legal statute, or a judgement or precedent that was not later reversed on appeal, left no legal basis for a jury trial.

Re:No. (1)

orclevegam (940336) | more than 6 years ago | (#21587673)

The right to a jury trial is not universal. A jury is only needed if there are questions of fact to be decided - juries decide facts, judges decide the application of laws.

In this case, the law was quite clear - without a written transfer of copyright, there were no facts in question for a jury to decide, just the application of the law, which is for a judge.

SCO's theory of an "implied transfer of copyright", without citing a single legal statute, or a judgement or precedent that was not later reversed on appeal, left no legal basis for a jury trial.

Well, TFA seems to disagree with your interpretation, but since IANAL, I can't really refute your point. We'll know for sure of course if this thing ever makes it to appeal and another judge overturns this ruling based on the logic in TFA, or leaves it in place based on the logic you present.

Re:No. (3, Insightful)

Kozar_The_Malignant (738483) | more than 6 years ago | (#21587597)

To be fair, he was criticizing an apparent failure to follow proper legal process in ruling against a trial jury for SCO, he never claimed they were or weren't guilty, just that from the evidence it probably should have gone to trial

Then that is a matter for appeal. The trial judge ruled on a matter of law. If one of the parties thinks the ruling was in error, take it up to the next level. That's how it is done. The Court of Appeal can:

  1. Decline to hear the appeal - original trial court ruling stands
  2. Hear the appeal and deny it - original trial court ruling stands
  3. Hear the appeal and grant it - original trial court ruling reversed
  4. Hear the appeal and send the matter back to the trial court for a rehearing of the ruling on appeal
  5. Hear the appeal and order some sort of baby-splitting

All of which is always subject to further appeal. All it takes is lawyers and money; guns optional.

Re:No. (1)

GooberToo (74388) | more than 6 years ago | (#21587839)

that from the evidence it probably should have gone to trial.

How so? Just about every claim they made was either blown out of the water or proven to be unsubstantiated conjecture with rabid attempts at fishing expeditions; which were normally granted into SCO's favor.

Perhaps I missed the damning evidence to which you refer but last I heard, the only evidence I've seen is SCO is a puppet for MS, they have no supporting facts. And every fact which has not been shot down at this point is hotly debated by those that seem to actually own the IP in the first place.

So please, explain to me what evidence would possibly support the need to send this to trial? Seriously, this is not a troll. As I said, perhaps I missed something over the years but every time I've checked, SCO has never had anything of substance to back up their wildly exaggerated claims.

Re:No. (3, Insightful)

thewiz (24994) | more than 6 years ago | (#21587367)

Actually, the reason this wasn't mob justice is because we didn't use our torches and pitchforks.

First Russia Post (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#21587019)


Uw moeder is een paddestoel.

Some bad reasoning behind a good call (maybe) (3, Insightful)

ProteusQ (665382) | more than 6 years ago | (#21587029)

That's my understanding of the article. It has more to say to law students than FOSS advocates. The title, however, is inflammatory, probably just to make us read it.

Re:Some bad reasoning behind a good call (maybe) (1)

nomadic (141991) | more than 6 years ago | (#21587559)

That's my understanding of the article. It has more to say to law students than FOSS advocates. The title, however, is inflammatory, probably just to make us read it.

Well don't worry, it doesn't matter how little they know of the issue, a FOSS advocate will generally have an opinion on everything under the sun. Skimming through the blog he seems to make sense, if the judge was making decisions regarding the credibility of witnesses he was exceeding his authority in the summary judgment phase.

Re:Some bad reasoning behind a good call (maybe) (0)

Anonymous Coward | more than 6 years ago | (#21587655)

Empiricism is a religion which states that belief in non-belief is not a contradiction.

Just like standing still is a sport in which running is non-running.

At least if you're the sort of idiot that thinks all beliefs are religions and all activities are sports.

Re:Some bad reasoning behind a good call (maybe) (0)

Anonymous Coward | more than 6 years ago | (#21587807)

It might have been bad reasoning behind a good call if the reasoning stated in TFA was the reasoning that judge Kimball actually used.
Read the actual ruling and compare to TFA, you'll find that TFA was off base.

Not quite yet (1)

stabiesoft (733417) | more than 6 years ago | (#21587033)

Justice will be served when the bankruptcy is complete. If SCO would have bothered to have evidence of the copying, they had a case. They never showed any evidence, just said they had it. They deserve everything they get.

Re:Not quite yet (1)

orclevegam (940336) | more than 6 years ago | (#21587285)

Justice will be served when the bankruptcy is complete. If SCO would have bothered to have evidence of the copying, they had a case. They never showed any evidence, just said they had it. They deserve everything they get.

I really really wish I could agree with you but I can't. For justice to be properly served this should move through the court system exactly according to the legal process and at every juncture SCO should be found to be presenting a case completely without merit. For them to essentially lose by default for going into bankruptcy isn't justice, it's the easy way out for them. They should have to stand before a judge and jury and try to prove their bull, preferably while being made to appear every bit as foolish as we all know them to be.

Re:Not quite yet (1)

scubamage (727538) | more than 6 years ago | (#21587409)

Even when bankrupt justice won't be served. Tens of thousands of people will lose their jobs, some may lose their homes (of course no one on SCO's executive board will have to worry about that). Ultimately, the execs were the ones who made the decision to go after the frivolous lawsuits, but they're not the ones who're going to pay when the company is done with its death throes. Its easy to look at SCO as a big evil company, but its not. Its a group of thousands of people with just a splash of evil at its helm. I feel bad because of the innocent people who're going to have to pay for the actions of the ones who are steering.

Re:Not quite yet (1, Insightful)

iamacat (583406) | more than 6 years ago | (#21587795)

We are all screwed if majority of people consider themselves not responsible for what they do at least 40 hours/week. SCO execs would not have money to launch all those lawsuits if tens of thousands of drones were not willing to ignore their moral compass and stick with coding, sales, custodial services in HQ... The job market is not so bad that you can not find another job to feed your family. You might have to take a salary cut or even work out of profession (most good engineers are smart enough to run a Subway franchise), but the options are there.

So next time you get yelled at by an angry customer, don't just say you have no authority or responsibility to address their complaint. As long as you choose to work for the company with sucky products or service, it is your responsibility as it is people's right to yell at you for getting them screwed. A huge employee turnover coupled with cost of training replacements will soon clue in the execs on need for improvement.

TACO??? (1, Funny)

someone1234 (830754) | more than 6 years ago | (#21587047)

If you know it is a dead horse, who do you beat it?

Re:TACO??? (3, Funny)

Spy der Mann (805235) | more than 6 years ago | (#21587289)

who do you beat it?

I am not understand you're question! :P

No A$$hole Rule (5, Insightful)

vinn (4370) | more than 6 years ago | (#21587053)

Anyone ever hear of the book "No Asshole Rule"? It applies to hiring and firing staff (and if you're a manager you should probably browse through it.) On a real gut level I think corporations should abide by the ideas in that book. If you can't play nice in the playground with the other kids, you deserve to get your face punched in. Similarly, if you build your business on open source software, you play nice by going to the software developers and saying, "We think you're infringing this IP.. can you work with us to fix that?" If you wanna be the asshole that goes around suing everyone, blatantly lying to the press, and tell Wall Street another set of lies then you deserve to file bankruptcy.

Re:No A$$hole Rule (1)

kernelphr34k (1179539) | more than 6 years ago | (#21587091)

I fully agree with this statement!

Well said! :-)

Re:No A$$hole Rule (1)

jimicus (737525) | more than 6 years ago | (#21587291)

Dude, you missed the <AOL> tag.

Re:No A$$hole Rule (1)

bmajik (96670) | more than 6 years ago | (#21587705)

The laws aren't there to protect the people or entities that never piss off the masses.

It is the dissenting point of views, the unpopular ones... those are the ones that need legal protections, and why ths US isn't a democracy.

Yodeling (4, Insightful)

Roadmaster (96317) | more than 6 years ago | (#21587073)

It looks as if this guy believes the judge plainly shouldn't have ruled on the issues he did. I think he should put his money where his mouth is and, pro-bono, file an appeal on SCO's behalf reverting Kimball's decision and repeating the entire 5-year process. My guess is he won't; a good way to generate buzz about your writings is to be on the opposing side of a losing argument, and doing your best to confound things and give reasonings as to why everybody else (against SCO) is wrong. I believe this behavior is known in certain circles as "trolling". That, folks, is why everybody hates lawyers; they just complicate things and can make a problem many times worse, all while taking 5 years to do it.

Re:Yodeling (1)

darkmeridian (119044) | more than 6 years ago | (#21587365)

The blogger is not trolling. He actually makes a good point: judges are not allowed to play the fact-finder on summary judgment--this would deprive the litigants their right to a jury trial. That's legal minutiae, however, to those who hate SCO and are happy to see it lose. SCO pretty much was losing this thing and a jury trial would have just dragged everything longer. Summary judgment probably saves everyone a lot of time. BUT the thing is that we have to be consistent in our applications of law so we get fair trials, not judicial viligantism. That's the point the blogger was making, and after reading the decision, I agree with the assessment.

Re:Yodeling (1)

Ravensfire (209905) | more than 6 years ago | (#21587445)

It looks as if this guy believes the judge plainly shouldn't have ruled on the issues he did. I think he should put his money where his mouth is and, pro-bono, file an appeal on SCO's behalf reverting Kimball's decision and repeating the entire 5-year process.

In the article, he addresses the appeal point. Kimball denied SCO's request to immediately appeal the decision. They can still appeal it, but only after the jury trial concludes and they'll be able to appeal everything. If the author's notes on cash and burn rate are accurate, SCO doesn't have the time for that. -- Ravensfire

He seems to have missed the point (5, Informative)

terrymr (316118) | more than 6 years ago | (#21587085)

As I understand it copyrights can only be transferred by contract where there is explicit language transferring the copyright. Sco was arguing for an "implied" transfer which as far as I know isn't allowed in copyright law. Therefore everybody's testimony is irrelevant absent an agreement which explicitly transfered the copyrights to Sco.

Caldera knew this when they bought the unix business from the Santa Cruz Operation - They were asked if they planned to opensource unix at the conference call and said they'd like to but didn't have the necessary copyrights to do so.

Re:He seems to have missed the point (1)

poot_rootbeer (188613) | more than 6 years ago | (#21587279)

As I understand it copyrights can only be transferred by contract where there is explicit language transferring the copyright. Sco was arguing for an "implied" transfer which as far as I know isn't allowed in copyright law. Therefore everybody's testimony is irrelevant absent an agreement which explicitly transfered the copyrights to Sco.

IANAL and I haven't been scrutinizing this case closely as it's happened, but my understanding is that the "UNIX source code and copyrights" being disputed were actually never Novell's property in the first place, which would have invalidated the sale of such assets to SCO regardless of whether they were explicitly included in the sales contract.

Article date: September 10, 2007, 6:14 am (4, Insightful)

Anonymous Coward | more than 6 years ago | (#21587089)

  • That blog article is almost three months old: September 2007.
  • That blog article has a provocative title but little substance.
  • That blog article is horribly biased.
  • That blog article claims that Judge Kimball did not know what he was talking about (especially regarding the APA), while he was praised by others (who are not part of the "Linux-mob") for this deep analysis of the facts.

That blog article is just old FUD.

Judge Kimball praised (1)

sconeu (64226) | more than 6 years ago | (#21587603)

That blog article claims that Judge Kimball did not know what he was talking about (especially regarding the APA), while he was praised by others (who are not part of the "Linux-mob") for this deep analysis of the facts.

In particular, he was praised by Judge Gross, the Delaware judge handing the SCOX BK case.

Wonder what Groklaw would say 'bout this (1)

CodeShark (17400) | more than 6 years ago | (#21587111)

Or if Groklaw has already tossed through the claims in this article, which, if I am reading it correctly is basically saying that on the core copyright issue, Judge Kimball got it wrong. But even then, I wonder how much it really matters, because when push came to shove, IIRC SCO couldn't or wouldn't even produce verifiable copyright violations that matter even a whit because they also distributed the same code under the GPL.


Thoughts?

Was this guy for real? (0)

Anonymous Coward | more than 6 years ago | (#21587113)

I had no idea fortune blogs were big on comedy. Most the people who know the facts have been scratching their heads since day one of the SCO suicide.

all copyrights and trademarks, except for the trademarks UNIX and UnixWare.


"all copyrights" clearly means all copyrights, especially so in light of the specific transfer of the trademarks.

Corporate Lawyer Lynches Judge (0)

Anonymous Coward | more than 6 years ago | (#21587137)

I just see a pro corporate lawyer who read the ruling looking for weak, but irrelevant things to attack, then a flamebait title is added to the top which isn't supported anywhere in the article. Lame. I guess it will get Fortune a few extra hits, but this isn't honest journalism.

Nyet (2, Funny)

sacrilicious (316896) | more than 6 years ago | (#21587139)

An anonymous reader writes ... Was the ruling unfair?

Hey anonymous reader, why don't you write down allllll your thoughts on this matter and mail them to five years ago when I might have cared.

Why Are People Angry At The Author? (2, Insightful)

M$ Mole (158889) | more than 6 years ago | (#21587143)

He actually makes a good point. From a legal standpoint, the judge (most likely) should not have granted Novell's motion for a summary judgment. The judge (probably) should have let the matter go to trial. From a "rules of the bench/bar" standpoint, the author is probably correct.

Heck, he even allows that the RESULT of the ruling is most likely correct, but the act of the ruling itself is the issue.

Re:Why Are People Angry At The Author? (1)

jimicus (737525) | more than 6 years ago | (#21587329)

I think you've got to bear in mind the background of the case. By the time Novell filed this motion for summary judgement, SCO had spent years making all sorts of legal noise but had not produced one iota of evidence.

Re:Why Are People Angry At The Author? (1)

AKAImBatman (238306) | more than 6 years ago | (#21587475)

After reading through the author's argument, I agree that he did have a point. However, upon further reflection I believe the real issue is that SCO made it clear that they didn't actually want a trial. They wanted to delay things as long as possible so that they could continue to harass IBM and Autozone in hopes that SOMETHING would pop up in their favor.

Asking for a jury was one method of continuing these delay tactics. The judge saw right through the matter and made a summary judgment instead.

Rule #1: Don't piss off the judge.
Rule #2: Don't make it look like you were trying to piss off the judge if you want any hope of appeal.
Rule #3: Don't piss off the public at large or they won't come to help you if the legal system fails.

SCO effectively loaded a double-barreled shotgun and began shooting off their limbs. Just to make sure that they couldn't still bite anyone, they knocked out their teeth as well. I expect smashing their larynx is next on the list, least they bark at anyone.

Re:Why Are People Angry At The Author? (2, Insightful)

miffo.swe (547642) | more than 6 years ago | (#21587507)

The reason for the ruling was simple, SCO had no evidence supporting its claims about anything. Most of SCO witnesses was third part and so their testimoney was pure hearsay. This while IBM could line up both witnesses and piles of documentation including notes from real metings about the APA and other stuff.

In the five years SCO has had access to just about every single line of code ever written by IBM they still couldnt find a shred of evidence of the "literal copying". Add to that the BSD vs AT&T agreement wich gave all BSD code green light, the fact that UNIX is a very well specified standard that will make much of the code for anyone implementing it look similar in some places and the fact that SCO has not showed any evidence to the court and this is a very clear cut case.

This trial should have been done in weeks but the Judge really took his time whitewashing Linux from any possible doubt.

I expect this story isnt over by a long shot. I really believe this wont end until all the loose ends are tied together. That includes the pump and dump scheme and Microsofts financing a clearly frivilous lawsuit to kill a competitor.

"Mob justice" Good grief! (4, Insightful)

dogsbreath (730413) | more than 6 years ago | (#21587155)

SCO has had several years in court and nothing that they have come up with in terms of a legal theory to support their position has had any lift to it. This is hardly "mob justice". If anything, there should be complaints that Judge K give them too much slack.

It is about time that the slow turning wheels of justice move to end the long suffering of IBM, Novell, the linux community, and open source in general.

Some of the things that get glazed over... (1, Informative)

bconway (63464) | more than 6 years ago | (#21587159)

Pretty telling, actually.

The then-CEOs of both Santa Cruz and Novell (yes, of Novell too) each supported SCO's position in their testimony -- i.e., the position Judge Kimball rejected without even letting a jury hear it. Each former CEO said that it was his understanding that Novell had sold Santa Cruz the entire UNIX operating system business, including copyrights. Here's how Novell's then CEO Robert Frankenberg testified:

Q. Was your initial intent in the transaction that Novell would transfer copyrights to UNIX and UnixWare technology to Santa Cruz?

A. Yes.

Q. Was that your intent at the time when the APA was signed?

A. Yes.

Q. Was it your intent when that transaction closed?

A. Yes.

Q. And did that remain your intent, as you view it, at all relevant times?

A. Yes.

Q. That never changed?

A. No.

Re:Some of the things that get glazed over... (1)

yipper (159272) | more than 6 years ago | (#21587237)


If that's what Frankenberg wanted to accomplish he should have read the agreements more closely. What ultimately was signed did not produce that result.

Re:Some of the things that get glazed over... (1)

DannyO152 (544940) | more than 6 years ago | (#21587481)

Exactly. Is Parloff an attorney? Did he miss the bar exam question as to which take precedence, signed documents or the feelings of people years later?

That's not what he said at the time (0)

Anonymous Coward | more than 6 years ago | (#21587453)

Frankenberg also approved a Novell board minutes, immediately after the sale, saying that Novell retained the copyrights.

So maybe he __originally__ intended to transfer the copyright, and maybe years later he only remembers that part, but both the APA and the board minutes say the copyrights were not transfered.

In any case, Frankenberg's testimony is not admissable to contradict the APA. If a contract says something is and something isn't, parole evidence is only admissible to explain ambiguities, not to contradict it. In this case the APA says the copyrights don't transfer, so Frankenberg's testimony that he wanted to transfer them at some point isn't admissible to interpret the APA.

Quatermass
IANAL IMHO etc.

Re:Some of the things that get glazed over... (5, Informative)

gnasher719 (869701) | more than 6 years ago | (#21587611)

There are a few things that you are missing:

1. Yes, Novell always wanted to sell the whole business including copyrights. Unfortunately, SCO's predecessor didn't have the money to afford paying for the copyrights, so the copyrights were excluded. So the question that the CEO was asked isn't the one that counts: He was asked "what was your intention to sell". He was not asked "and what _did_ you actually sell". 2. Novell and SCO signed a contract. And that contract is absolutely one hundred percent clear: Copyrights were not included. That's what the words of the contract say. Now the wording of the contract is undisputed. SCO can argue as much as they want what the contract _means_, but there is no disagreement about the text. As the text of the contract is undisputed, the judge can and must decide what the contract means as a matter of law. No jury required, no jury actually allowed because there are no disputed facts. With the written contract available, there is no need for any witnesses. Actually, the judge is required by law to _ignore_ all witnesses that contradict the clear text of the contract. TFA claims that "nobody remembers anymore what the contract means". That is nonsense. The text of the contract is available, so you just give it to the judge to read and the judge will tell exactly what it means. That's why you write down contracts, so that you don't rely on people's memories.

3. Even if a contract claims to sell the copyrights, copyrights need to be transferred by a separate transfer document. That is a legal requirement. As SCO cannot show such a transfer document, Novell still holds the copyrights. Now SCO could have tried to sue Novell to have the copyrights transferred, but they haven't. The copyrights are Novell's until Novell signs a transfer document, no matter what the contract says.

It isn't that hard to write down intent ... (1)

Pinky's Brain (1158667) | more than 6 years ago | (#21587675)

The human mind is a funny thing ... letters on paper are a little more trustworthy.

The contract while perhaps somewhat strange is not ambigious. Including a superset and subsequently excluding a subset does not a contradiction make (the "without limitation" part is extrapolation from a legal dictionary, which is not law ... when English language and logic speak plainly to the meaning of text a legal dictionary can not overrule that).

Re:Some of the things that get glazed over... (0)

Anonymous Coward | more than 6 years ago | (#21587695)

the testimony is interesting, but no matter how they "felt" they legally had to abide by the terms of the contract, with the approved and signed amendments, which clearly did not give the copyrights to SCO, specifically excluding them.

Corporate Juries (3, Insightful)

Doc Ruby (173196) | more than 6 years ago | (#21587183)

How is that "accused's right to a jury of their peers" supposed to work when a corporation like SCO is accused? Is it supposed to be composed of CEOs, or board members, or representatives of other corporations whose execs and directors vote on the testimony?

That one flaw shows what a farce it is to treat corporations as "persons" with the same rights as humans. As if there were any shortage of reasons. Like this corporate flackery from _Fortune_'s Parloff, which is whining that a judge didn't waste even more years, time of people in juries and elsewhere in the legal system already overworked subsidizing corporate warfare like SCO's desperate, doomed extortion of IBM.

Re:Corporate Juries (1)

grommit (97148) | more than 6 years ago | (#21587781)

It's simple really, a jury of a company's peers is a group of companies. So, gather together the articles of corporation for a bunch of companies and place them on chairs in the courtroom.

Fobes+Daniel Lyons=FUD (2, Informative)

christurkel (520220) | more than 6 years ago | (#21587263)

This is the same Fobres that employs Daniel Lyons who has repeatedly attacked Groklaw since the case started and defended Maureen O'Gara's stalking of Pamela Jones.

Somebody walk me through this... (2, Insightful)

greenguy (162630) | more than 6 years ago | (#21587269)

Judge Kimball is a "Linux-mob?"

I stopped RTFA after first paragraph. (2, Insightful)

weave (48069) | more than 6 years ago | (#21587271)

"... effectively dooming most of SCO's claims in closely related cases against IBM Corp. (IBM), AutoZone (AZO), and Red Hat (RHT), too "

Er, idiot, Redhat sued SCO, not visa-versa.

If he can't understand the difference between plaintiff and defendant, why should I consider any of his other opinions?

In other breaking news from 4 months ago... (0)

Anonymous Coward | more than 6 years ago | (#21587275)

GMail [google.com] recently announced a Vulnerability [slashdot.org] [Slashdot]

Fortune's headlines are even worse than /.'s (2, Insightful)

Per Abrahamsen (1397) | more than 6 years ago | (#21587307)

Neither "Linux" not "mob" is mentioned anywhere in the article, except for the headline.

The article is about the Novell vs SCO case, it advocate well that the issue of ownership is UNIX(TM) is far from clear cut, and leaps to the conclusion that it should have been decided by a jury rather than by a judge.

A jury is *closer* to to "mob-justice" than a judge, and Linux is rather irrelevant to the question of ownership of UNIX(TM), the headline makes no sense.

Was the headline selected by someone else than the author? Does Fortune get significant money from click hits? If so, maybe an editor chosed the headline to infuriate the Linux "mob".

hmm (1, Interesting)

abigsmurf (919188) | more than 6 years ago | (#21587309)

I suspect very few of the "call the Waaaambulance" type people here have actually read the article. There's actually quite compelling evidence of shady or unfair goings on in that trial. Completely striking the testimony of one of the main negotiators because of a family member with vested interests (having a wife work at one company is worse than you working for another company?) does seem extremely odd. It's not even slight testimony, it essentially was confirmation that SCO were told and led to believe they had ownership of Unix rights. Although this testimony could've had holes picked in, to completely discount something so incredibly important to the case is odd.

Re:hmm (1)

geekoid (135745) | more than 6 years ago | (#21587493)

"told an led to believe"

Here is a clue "When you sign a contract READ IT and UNDERSTAND IT first." It was very clear the there was no contract or evidence of any kind the Unix copyright had been bought by SCO.

"Completely striking the testimony of one of the main negotiators because of a family member with vested interests..."
That's pretty normal in a court. I mean they did have a stake in the out come.

It is the legal documents that count in court. (1)

raidient (751898) | more than 6 years ago | (#21587583)

"There's actually quite compelling evidence of shady or unfair goings on in that trial."

I think you are correct, however I seem to recall that SGOG was involved in all of them.

Standard of fairness? (1)

HangingChad (677530) | more than 6 years ago | (#21587313)

According to Fortune's legal blogger Roger Parloff

Who would be in a better position to determine the definition of "fair" as it applies to SCO? A seasoned federal judge who spent years listening to SCO's side of the case? Or paid blogger who pulls his legal opinions out of his wazzu?

How come... (0)

Anonymous Coward | more than 6 years ago | (#21587315)

... SCO had to pay 95% of the money from Unix sales to Novel if they owned it all?

What actually happened (3, Informative)

Animats (122034) | more than 6 years ago | (#21587317)

This is old. It's from September.

What actually came out about the asset purchase agreement was straightforward. The written agreement says Novell didn't transfer the UNIX copyright to SCO. Earlier discussions between Novell and SCO had discussed transferring the copyright, and SCO wanted to do that. But Novell wanted all the money up front before irrevocably transferring the copyright. (In case SCO went bankrupt or didn't pay, of course.) SCO didn't have enough cash to pay in full. So the actual agreement as signed called for payments to be made over time, and no copyright transfer, just a license. Some people on both sides thought the copyright had been transferred, because that's what had been discussed in early meetings, but that's not what was actually in the signed documents.

Once all this came out in court, the Judge ruled for Novell.

Legally, He's Right (3, Informative)

Anonymous Coward | more than 6 years ago | (#21587389)

I'm posting this anonymously since I work in the legal field.

The article is right. This wasn't a trial. It was a motion for summary judgment, which has a very strict standard. In order to get to summary judgment, the side trying to get the case thrown out has to say that even if everything the other side alleges is true, they don't meet the elements of their claim. The language is that there is no "general issue of material fact" in their case. (It's Rule 56(c) of the Federal Rules of Civil Procedure [cornell.edu] for those of you playing at home.) Basically, there has to be absolutely no chance that a reasonable jury could ever apply the law correctly and still find for the other side. (That's Anderson v. Liberty Lobby, 477 U.S. 242 (1986), a case which is cited in damn near every summary judgment brief I've ever seen.)

The problem is that the judge can't say "I think that this witness isn't credible" in order to find for summary judgment -- that's a function of the jury which is the factfinder. All a judge can do on summary judgement is say that the case law doesn't give the other side a claim even if everything they say is true.

The SCO decision has a lot of parts of it where Judge Kimball makes credibility judgments. That's not his place at that phase in the case, and he shouldn't be deciding those issues -- the jury should. That's the problem.

Ultimately, it doesn't matter. SCO was wrong on the law anyway, and even if those goes up for appeal, it's probably not going to get overturned. (Even though an appellate court has to review summary judgment orders de novo -- they don't need to defer to the decision of the trial court.) As a matter of law, SCO doesn't have a case.

That still doesn't mean that Judge Kimball should have been inquiring into the credibility of witnesses. It may not matter in this case, but it's bad procedure, and in another case it could easily have been grounds for reversal on appeal.

PJ - mob leader (0)

Anonymous Coward | more than 6 years ago | (#21587393)

And who was the leader of this bloodthirsty mob of zealots who don't know anything about the law? That's right, it was Groklaw's arch-censor PJ.

By stamping out all contrary opinion on her supposedly "open" site Groklaw, PJ (and to a lesser extent, MathFox) managed to generate hate, FUD, and viciousness against SCO on a never before seen scale.

The result? A complete miscarriage of justice, not to mention putting many hard-working SCO employees (many of whom had families and mortgages) out of work. Will PJ be using any of her Groklaw fortune to help out these families?

Re:PJ - mob leader (1)

Aardpig (622459) | more than 6 years ago | (#21587729)

Go away, Darl.

I, anal (1)

doggo (34827) | more than 6 years ago | (#21587509)

I am not a lawyer... thankfully.

I've rarely seen a bigger flamebait post here (1)

postbigbang (761081) | more than 6 years ago | (#21587547)

There are lots of idiot analysts and journalists out there.

This post had kerosene poured on it.

It makes you wish for less people running around with lit matches.

what is 'fair' (1)

dingleberrie (545813) | more than 6 years ago | (#21587553)

Fairness is generally adjusted by the number of items you are willing to consider.

Article's author got his facts wrong (1)

iamacat (583406) | more than 6 years ago | (#21587569)

Sevens amendment only gives you absolute jury trial rights in criminal cases, where you are involuntarily dragged to court by the government and have your life or freedom at stake. On the other hand, in civil cases the rights of both parties are to be considered equally. A citizen or company has a right to be free of arbitrary, repeated harassment by the party that was shown to have abused the court system over and over again. SCO has certainly shown to be a corporate crackpot by repeatedly changing claims, extorting money from numerous businesses for software they did not own and ultimately failing to prove anything in a very lengthy and expensive case against IBM. Certainly we can not fault the judge for being more skeptical about their new allegations than he would about a company without a history of court abuse? If it looked like more of the same old crap, certainly it's not prudent to waste time and money of numerous Novell employees as well as involuntarily detained jurors on yet another crackpot case?

Rubbish. (4, Insightful)

Jaywalk (94910) | more than 6 years ago | (#21587691)

Starting from the deliberately inflammatory headline -- note that he never tries to explain how a ruling by a District Court judge after three years of trial amounts to "mob justice" -- Parloff is scrounging for a pro-SCO angle here. He finally settles on this:

And as any second-semester law student knows, a judge can grant such a motion only when, as innumerable courts in every state and federal jurisdiction have repeatedly written, "the evidence, viewed in the light most favorable to the party opposing the motion [i.e., SCO, in this situation], shows there are no genuine issues of material fact."
That's right, as far as it goes. Kimball actually said that SCO didn't have any genuine issues of material fact on their side. Parloff then goes on to pull up some stuff he thinks qualifies as "issues of material fact":

The then-CEOs of both Santa Cruz and Novell (yes, of Novell too) each supported SCO's position in their testimony -- i.e., the position Judge Kimball rejected without even letting a jury hear it.
True enough. The trouble is that the CEOs weren't involved in writing that contract. All the lawyers who were actually involved (on both sides) agreed with Novell. As did all the contemporaneous documents.

But the key issue is that none of that matters. The contract has specific language, called an "integration clause" saying that only what's in the contract matters. Anything outside the contract, like who remembers what, is irrelevant. The contract cannot possibly be read to say that SCO owns the copyrights because the contract explicitly says that copyrights are not to be transferred. Parloff actually touches on this near the bottom of his article, but then dismisses it based on SCO's argument that -- elsewhere in the contract -- it says "all rights and ownership". Now he's just being coy because the actual wording is something more like "all rights and ownership, except those included in section X". And copyright law is very explicit about the kind of language you have to use to transfer copyrights.

It's not always possible to tell a shill from an honest journalist, but SCO and their obvious shills (like Maureen O'Gara) started making claims that Kimball was legally incompetent and often overturned on appeal (not true) at about the same time Parloff came up with this bit of legal opinion. None of the regular press came to the same conclusion. Since he's playing the same riff, I'm guessing he's with the band.

his story sucks, the comments are worth a read (1)

hAckz0r (989977) | more than 6 years ago | (#21587713)

Its difficult to see how one person can get so much so wrong, yet he obviously is not stupid, just in somebody's pocket. He obviously went to a lot of trouble to throw together a bunch of unrelated facts in order to build his alternate universe that he was trying to sell to the public. The problem is he even contradicts himself and totally ignores the facts of the case.


The comments on the other hand are quite intense and full of REAL facts to back them up. The meat of the case can be gleaned in just a short perusal of the responses.

Remember to bring your evidence (1)

Nomen Publicus (1150725) | more than 6 years ago | (#21587751)

The fact that he did not immediately order Darl to be taken out back and given a damn good beating was the only fault in the ruling.

Note to Darl. Next time remember to bring your evidence with you are next in court.

What every first year law student should know (0)

Anonymous Coward | more than 6 years ago | (#21587819)

A contract is binding. If the contract is sufficiently clear, it isn't necessary to hear any witnesses testify about the intent of the contract. SCO's attempt to drag in testimony was an attempt to show that the contract was either ambiguous or didn't reflect the intent of the drafters of the contract.

The author says the contract is ambiguous. Judge K. begs to differ.

Even if we examine the intent of various company executives, there is one major problem for SCO. The reason that the whole business unit was not sold to Santa Cruz was that they couldn't afford it. If they had been able to buy the whole business unit, then they would have received the copyrights and we would be having a different discussion.

Novell was worried about Santa Cruz's ability to stay in business. The result was that the contract was written in such a way that Novell would be protected if Santa Cruz went bankrupt. That's why Novell kept the copyrights.

As a matter of law, (which is something Judge K. can rule on without a jury) an explicit conveyance is required to transfer ownership of a copyright. SCO could present no such document. The best they could do was present a half-baked theory and a bunch of irrelevant testimony. And yes, Judge K. can rule that testimony is not relevant even if there is a jury present. (As an example, most people are familiar with the concept that hearsay evidence isn't admissible.)

The author snatches a bunch of stuff out of context and then concludes that Judge K. made mistakes that any first year law student would avoid. With all due respect, the author has clearly never been a first year law student.

OK.... (1)

Seraphim_72 (622457) | more than 6 years ago | (#21587849)

Please allow me to introduce myself
Im a man of wealth and taste
Ive been around for a long, long year
Stole many a mans soul and faith
And I was round when jesus christ
Had his moment of doubt and pain

Oooooooh, my bad, I thought someone just wanted the lyrics. Sorry about that. Carry on.
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