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SCO Slammed in Slander of Title Suit
SillySlashdotName writes "Judge Kimball has stated that The SCO Group has failed to meet the requirements of the law in its complaint against Novell and has dismissed the case but gives TSG 30 days to try to meet the legal requirements. More info on groklaw." EWeek also has a story.
RTFA - the request to remand to state court was denied. Novell's motion to dismiss was also denied.
It will be fun to hear the special damages they will come up with. If Novell had not created a "cloud of ownership", they could have what, doubled their SCOsource revenue from $11,000 to $22,000?!?
Give us some warning when linking to a PDF file, please. It's very annoying to try to open it in a new tab, have it download instead, and end up with a file that opens in xpdf as 21 blank pages!
That is true only if it is dismissed WITHOUT PREJUDICE. Which in this case it is.
However, if the judge then says DISMISSED WITH PREJUDICE, then that's it... the plaintiff cannot refile.
Well, you see, according to SCO, they really, really wanted to have the issue tried in fedetral court before Judge Kimball, but gosh darn it, the rules require them to ask for it to be remanded to the state court. So they're glad they lost the remand.
Give a man a fire, and he'll be warm for a day, but set him on fire, and he'll be warm for the rest of his life.
Nah, DISMISSED WITH PREJUDICE just means you can't refile on that exact same damage. SCO can find things to sue about for years to come if they have cash. To be truely done with them they either have to run out of money or the parties they are suing have to win an injunction against SCO baring them from bringing suit against a named list of potential litigants.
There are 4 boxes to use in the defense of liberty: soap, ballot, jury, ammo. Use in that order. Starting now.
There's a link to groklaw right in the article, for pete's sake. A cursory visit to the website would reveal the writeup is grossly misleading.
From Judge: "Accordingly, Novell's motion to dismiss SCO's slander of title claim for failure to specifically plead special damages is granted without prejudice." Also: CONCLUSION For the reasons stated above, Plaintiff's Motion to Remand is DENIED, and Defendant's Motion to Dismiss is DENIED as to Plaintiff's pleading of falsity and GRANTED as to Plaintiff's pleading of special damages. Plaintiff is granted 30 days from the date of this Order to amend its Complaint to more specifically plead special damages.
Actually, not all dismissed cases can be refiled. If it is dismissed without prejudice, as this one was, they can refile the suit, and in fact the judge went so far as to say they have 30 days to do so. If he had dismissed it with prejudice, the case would be completely thrown out and could not be refiled.
There is also another opportunity which the judge hinted at in his order and which PJ at Groklaw pointed out. He said that he cannot completely throw the case out at the dismissal stage, but that Novell had made some persuasive arguments. The hint is that once SCO amends its complaint, Novell should file for a summary judgement. That will produce a ruling on the case's merits (or lack thereof).
You're right, we don't really want a dismissal. We really want a judgement, and I would expect Novell will ask for exactly that in the very near future.
There are 10 kinds of people in the world: those who understand binary and those who don't.
Judge Kimball:
"Accordingly, Novell's motion to dismiss SCO's slander of title claim for failure to specifically plead special damages is granted without prejudice."
And the Conclusion:
For the reasons stated above, Plaintiff's Motion to Remand is DENIED, and Defendant's Motion to Dismiss is DENIED as to Plaintiff's pleading of falsity and GRANTED as to Plaintiff's pleading of special damages. Plaintiff is granted 30 days from the date of this Order to amend its Complaint to more specifically plead special damages.
The rats are fleeing the sinking ship -> http://finance.yahoo.com/q/bc?s=SCOX&t=6m&l=off&z= l&q=l&c=
Call and press 2 for tech support, it will be busy (do they even have employees answering the phones still?) and then leave a message expressing your concern for their terrible product and how it offers no value to the customer. They are egotistic and self-centered and have no concern for giving value to the customer.
Africa +353 (0) 1260 6300
Americas 1 (800) 726-8649 (831) 427-6730
Europe +353 (0) 1260 6300
Middle East +353 (0) 1260 6300
Pacific Rim 1 (800) 726-8649 (831) 427-6730
It's called "Shorting". And ISTR that NASDAQ rules prevent shorting a stock when it's below 5.
Plus, there are no shortable shares available.
The only reason we have the rights we have is that people just like us died to gain those rights. -- Cheerio Boy
Riiiiight... companies are hesitating to use Linux.
Like McDonalds. 30000 fast food shops. Just decided to go Linux.
(Though i can't imagine why they didn't choose a BSD, which is far more mature, robust, and secure.)
--
Don't like it? Respond with words, not karma.
See here
SCO vs Daimler Chrysler
SCO vs AutoZone
SCO vs IBM
RedHat vs SCO
SCO vs Novell isn't over yet since SCO can resurrect it by properly pleading
its case, but even a well plead case looks like it would lose. Just my
uneducated take on things legal.
*sigh* back to work...
You apparently have to be in McBride's mind to see it though. Here is a quote from their press release:
"McBride said SCO has been diligent in providing the courts with samples of the code it believes IBM has contributed to Linux. He said IBM has not been as forthcoming."
Oh, man! I wore my nice shoes today, and I didn't appreciate stepping in all this horses*** Darl is throwing around.
We may experience some slight turbulence and then...explode. -Capt. Mal Reynolds
Sticking feathers up your butt does not make you a chicken - Tyler Durden
To prevail in a copyright infringement suit, you need to prove two things:
- You own the copyright
- The copyrighted material was copied or distributed by the defendant
SCO's having trouble on both. Fail either one and they lose.Proving #2 is going to be nearly impossible for anyone in the future if IBM wins summary judgement or judgement at trial on their 10th counterclaim. Likewise, if Redhat wins.
Attempting to sue before these are decided may allow scumbags to spread a lot of hype, but any such case would probably be stayed until the IBM and Redhat cases are settled.
PJRC: Electronic Projects, 8051 Microcontroller Tools
Damn, this was some heavy reading! Here's my armchair legal analysis.
First, Novell sold a lot of Unix(tm) intellectual property rights to TSG. Novell and TSG signed a contract for this, the Asset Purchase Agreement (APA). Later on, Novell and TSG signed an amedement, APA Amendment 2 (APA-2). Dunno whatever happened to APA Amendment 1.
The original APA says that no copyrights are transferred as part of the sale. APA-2 says that the sale does include some copyrights -- whatever copyrights that TSG needs to enforce its other rights for the property that they paid good money for.
Fast-forward to 2003. TSG starts its campaign: "we own the Unix copyrights. Pay us $$$$$$$$$." Novell puts out its own press releases: "actually, we (Novell) still own the actual copyrights. You don't have to listen to TSG".
TSG gets pissed off about this, says that Novell is lying about TSG's Unix copyrights and that Novell is fucking with TSG's business of selling licenses to those copyrights. TSG sues Novell about this.
TSG: "We paid for those copyrights, see APA-2"
Novell: "No, actually, APA-2 says that we promise to give you whatever copyrights you need later, APA-2 doesn't actually transfer specific copyrights."
The case ends up in Federal court, Judge Kimball. TSG wants the case to be in State court. Novell wants the case to stay in Federal court.
Kimball says: "this case is about whether APA-2 actually transferred the copyrights or not. That's a federal issue. So it stays here in federal court."
Next, Novell says: "it's so CLEARLY OBVIOUS that APA-2 does not transfer copyrights that it's okay for us to state publicly that TSG doesn't own the copyrights. Please tell TSG to stuff their lawsuit and go screw."
Kimball says: "not so fast, Novell. It's not OBVIOUS at all. Maybe APA-2 actually transferred the copyrights but MAYBE NOT. We're going to need a trial to figure that out. Since we're going to need a trial, I'm not going to dismiss the lawsuit on those grounds at this stage."
Next, Novell says: "and oh yeah, TSG's lawsuit is deficient because they weren't specific about how they were damaged -- just because they are trying to license this Unix(tm) property, and we issue press releases pissing all over the idea that Unix(tm) is THEIR property after they paid $100 million for it, that's not enough. See FRCP mumble."
Judge Kimball says: "Novell's got a point. SCO, your legalese has syntax errors and fails to validate. I'm not saying your content is bogus, I'm saying your syntax is wrong. You have 30 days to re-format your lawsuit so that it's valid FRCP".
So, the deal is:
TSG can continue to sue Novell for dumping on TSG's claims that TSG owns the Unix copyrights. TSG must pursue this lawsuit in federal court, because it's a federal issue whether those copyrights actually transferred or not.
Novell's claim that "Novell still owns the copyrights" might be legally potent or it might not. It will take a trial to determine this. But Novell can't make TSG's lawsuit go away at this stage just by claiming this. It might be true, but it's not OBVIOUS that it's true.
TSG has the right to sue Novell for slandering TSG's title to Unix(tm). But their current complaint is defective. They have 30 days for their lawyers to submit a new, more specific complaint. Then the case will proceed, in federal court, and the court can actually do some more work on the question of whether APA-2 transferred the copyrights or not.
Well, that's unless the doctrines of Collateral Estoppel or Res Judicata kick in. Remember that there's a large part of the rules of Civil Procedure that require a party to bring all of their claims at the same time.
--AC
Well, spending $4,000,000 to make $11,000 (as the groklaw article reports) is not a substainable business model. They're spending 36,000% of their income on lawsuits.
Wow... say it with me... thrity-six-thousand-percent.
When will Windows be ready for the desktop?
I can't get to the e-week article but I have read the 29 pages of the judge's order.
I know it's unpopular to say anything good about TSG, and I hate TSG as much as the next slashdotter. More, probably. But to me, this opinion does look positive for TSG.
The court denied Novell's motion to dismiss the case, and then granted TSG leave to re-file their case with specific information on special damages.
What they're pleased about is the court's refusal to dismiss the part of the case revolving around the copyright ownership because of ambiguities in the language of APA Amendment 2. Novell had wanted the copyrights ruled to be under the ownership of Novell, which would have caused the whole SCO case against IBM to collapse. The court did say in the decision that the amendment seems to be a promise to transfer the copyrights rather than an actual transfer, but that an ambiguity of wording requires further review:
"The APA Amendment No. 2 excludes from transfer "[a]ll copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the [APA] required for [SCO's predecessor] to exercise its rights with respect to the acquisition of UNIX and Unixware technologies." The Amendment does not identify which copyrights are required for SCO to exercise its rights with respect to the acquisition of UNIX and Unixware and provides no date for the transfer.
While the court seems to lean towards Novell on this overall point, I would honestly be inclined to think that the copyrights to Unix code would come along with such a transfer, although I would hope that I'd be a bit more intelligent and actually spell it out. The big question, of course, is: Did this document actually convey a transfer of copyright, even without a clear declaration to it (remember that it is an amendment to a contract of sale)? It doesn't seem to me that SCO has a lot of room here, but it might just be able to wiggle out.
You can never go home again... but I guess you can shop there.
All the dismissal says is that SCO didn't provide an indication of 'special' damages incurred as a result of Novell's actions. They provided only an indication of 'general' damages. They have 30 days to remedy this omission. If SCO lawyers are worth their salt they'll be able to produce some evidence of special damages, and even if those don't hold up during a trial, the evidence will allow them to win this preliminary battle and move on. Note that Judge Kimball spent a lot of time, though, talking about whether Novell did in fact transfer copyright. The language used in the original SCO/Novell contract is uncomfortably vague, and it's not clear exactly what was transferred and what wasn't (SCO was apparently supposed to specify by a certain date what copyrights it was assuming ownership of). Although SCO entered press releases into evidence that are supposed to tell us what everyone was thinking at the time, it's not clear from the language of the contract really what was transferred and what was intended to be transferred. I'd hate to bet the farm on this if I were SCO. It seems pretty tenuous.
---- Richard L. Goerwitz III
Further, SCOs motion to remand to state court was their argument that this is a contract, not a copyright case. The judge disagreed - it is about copyright, specifically your point about whether the ammended APA constitutes a transfer or not. So it stays in federal court where Novell can argue that it doesn't.
The judge scattered throughout the decision that it doesn't look like the ammended APA is a proper transfer to him, but he denied the claim on falsity because he felt that it was premature and the parties should have their arguments heard in court. The message to SCO was pretty clear: "When this get's to court, your ducks better be forming a better line than they are right now."
IANALBIAAGLR
The court denied Novell's motion to dismiss the case, and then granted TSG leave to re-file their case with specific information on special damages.
Actually, Novell filed two motions to dismiss, and the court denied one and granted without prejudice the other. The granted motion was about special damages, which SCO apparently failed to prove. I don't know whether the extra thirty days are required by the law or not, but there may be a reason why they didn't do file this information in the first place (i.e. there were no special damages). It looks like if SCO doesn't file this in thirty days, the dismissal holds.
More significantly, SCO did get an extension in the IBM case. Trial has been pushed back to November 2005, and discovery has been extended. So we have another year and a half of FUD ahead.
There's still Red Hat vs. SCO, SCO vs. AutoZone, and SCO vs. Damlier-Chrysler. By now, corporate Linux users have figured out that there's no reason to pay SCO money until SCO wins all of these cases. Hence the $11,000 total revenue from SCOsource.
In which case, they're dead. US Code Title 17, Section 204 is quite clear in that the transfer of copyright must be clear. Judge Kimball hinted strongly that the Novell-OldSCO APA and Amendment 2 are not adequately clear.
"Judge Kimball has stated that The SCO Group has failed to meet the requirements of the law in its complaint against Novell and has dismissed the case but gives TSG 30 days to try to meet the legal requirements."
This is total crap. That's not what happened at all!
Go to groklaw to get the real poop.
1. SCO lost its fight to get the case sent back to state court.
2. Judge Kimball says he can't grant Novell's motion to dismiss at this stage.
3. Judge Kimball says that SCO didn't plead the damages part adequately and he gives them 30 days to try, try again.
From reading the title one would think that SCO lost it's case and the whole thing was over.
Pretty cheezy if you ask me!
Let's all wait until SCO really loses (which I'm pretty sure they will.) before we start slapping each other on our backs.
The race isn't always to the swift... but that's the way to bet!
Yes. McD's is (was?) one of SCO's biggest customers and supporters. SCO has used them for years as a reference for new customers and also has used them as a case study on their website.