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Novell Poised To Strike On Slander Of Title Claim
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."
SCOX has a market cap of 65 million dollars. Why can't IBM (or Novell with their newfound 500 million) just buy these clowns?
"Would you, could you, with a goat?" Dr Seuss
Read Rob Enderle's SCO Keynote.
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!!!
...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.
tasks(723) drafts(105) languages(484) examples(29106)
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.
60 percent of the time, my comments are right everytime.
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?
[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.
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.
Another goods thing about Novell exposing SCO's games is that Judge Kimball is also presiding over the SCO v IBM case.
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.
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
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)
The ways of gods are mysteriously indistinguishable from chance.
Comment removed based on user account deletion
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.
Liberal (adj.): Free from bigotry; open to progress; tolerant of others.
Lets have a look at their 6 months movement.
This little chart 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, 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, RedHat and Novell are all three doing rather well 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 and shuffle Darl and his litigation off into the void.
"-Who said sit down?!"
-- S. Ballmer @ MSDC 2003.
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
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.
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.
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.
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) 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.
===== Murphy's Law is recursive. =====
"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.
Linux was inspired by Minux. But to say it is "based on" Minux is to say that every work of art done by every student since the beginning of time is "based on" the work of the teacher. I don't know many teachers who would take that position.
Minux is a microkernel; Linux is a monolithic kernel. Changing one into the other would be like taking a dog and morphing it into a horse - very unlikely.
sPh
In fairness to accuracy, it mentions Groklaw Spies exactly twice. But it's interesting when people start frothing and spitting and blathering about the "spies" in our midst. We see it from the paranoids at SCO and in our own US government all the time; we even see it from the Linux "hardcore" here at Slashdot. What it indicates is the desperation of someone who has run out of remotely reasonable arguments for whatever case they are trying to make. In SCOs case, it shows that these people have been scraping the bottom of the barrel for some time, and are now resorting to the only thing they have left, irrational paranoia. How does showing up at a conference make you a spy? Speaking of "spies" didn't I here that Darl himself (not one of his clones?) showed up in the back row of a presentation at some Linux get-together down Australia way not too long ago?
"Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
extern warranty;
main()
{
(void)warranty;
}
There is absolutely no basis for your idea that Linus "added functionality to" Minix or that Linux was "baed" on Minix. Linus ran Minix, he didn't use it as a base for the Linux code. Given the massive structural differences between the two (Linux is a monolithic kernel, Minix is a micro kernel system) that should be quite apparent.
Over on the British Side of the Pond we have this Law that says if you repeatedly sue ppl and repeatedly have your cases thrown out, you can be blocked from sueing any one else unles you can get a Judge to aggre that you have a good case.
Do you have anything simaler in the US and could this be used against SCO to stop them starting any new suits.
Wouldn't it be nice if schools got all the money they wanted and the army had to hold jumble sales for guns
If you develop on the platform your IP may belong to the world and the value of that IP is part of your Linux price. I'm waiting for the day that someone at GM realizes that Linux developers there regularly talk to their Ford counterparts to solve critical problems and, because may they need to, provide access and confidential information about the company in the process. The Ford executives shouldn't feel too smug because similar information is flowing out of them. And key technologies may not belong to either because of this practice. [emphasis mine]
Wow, I don't know if I could point out a more misunderstood statement regarding the GPL than this.
In the first place, developing on Linux doesn't obligate you to release your code under the GPL. So, unless you're an idiot and release your code to the world, you could market and sell Linux applications without ever revealing your source. But that would be selfish - you've benefitted greatly from the benevolence of others, yet you feel no need to give back to the same community that gave so much to you? Let me guess, you're still trying to avoid paying taxes, too?
Basically, the GPL prevents IP theft. The terms are simple - if you steal our code, you have to make your code available to the public, or risk a lawsuit. In fact, GPL'ing a piece of software is a sort of insurance policy against code theft - if someone copies my GPL'd code into their product, I can then demand they distribute their source code as well. Hence, it serves as a deterrent to the corporate parasites and leeches who make their living by stealing and repackaging the work of others.
No, using GPL'd software for development won't give your IP to the world, as you suggest. But, the GPL ensures that code leeches can't steal the work of others for the sake of personal profit. You, Rob, didn't write the Linux kernel, nor the GNU utilities and libraries, and hence, have no right to use code you haven't written against the will of the author. Why is this so hard to understand? All the GPL says is that if you use someone else's code, you have to respect their terms. Is that really so hard?
The society for a thought-free internet welcomes you.
And this is where Rob finally talks truth. Granted, you have to dig through a winding path of inference and congecture to get to it.
Actually - I'm not being completely truthfull. Rob did have another valid point:
However, I find it disingenious on Enderle's part to not immediately note that SCO is pioneering this business strategy. Or that Microsoft published the play book.
the original expletive-laced version was sanitized early yesterday--you can still see the invective, but they've removed the four-letter words, thus taking it down from profane and delusional to merely delusional....
Linux came out of the terminal app linus was developing on his minix system, he didn't build it on top of Minix. Even Tannenbaum, creator of Minix denies this
if (!signature) { throw std::runtime_error("No sig!"); }
To make SCO lose the suit, Novell can attack either or all of these. An obvious way to win the suit would be for Novell to get the issue of copyright decided. If Novell can prove that they own the copyright (by getting the judge to consider whether the APA with amendments satisfy the federal rules for a copyright transfer or not) then SCO has lost (and Novell might have a case for a counter suit...).
So while you're right that they aren't sued for copyright infringement, that is irrelevant - the ownership of the copyright can still potentially decide the case.
However deciding the ownership of the copyright could potentially drag out - it would likely require discovery, and we know from SCO vs IBM that SCO are good at dragging out discovery.
What Novell has chosen instead is to try the quick option, while still leaving the more painfull option open for later. They try for the dismissal now, arguing that regardless of who owns the copyright, the ownership isn't clear (pointing out that the judge too said it wasn't clear) which would in itself mean that SCO can't win the case because they can't prove malice. They also argue that informing about the dispute is priviledged communication (meaning you can't sue for slander over it, amongst other things) and as such the statements they made can't be slander.
They then claim that this can be decided as a matter of law based on filings so far, and their references to public statement, without need for discovery.
The worst thing that can happen to Novell is that the judge decides that the matter isn't quite so clear cut, and Novell can try for a summary judgement again later in the process after some discovery.
The worst thing that can happen to SCO is that their case is dead, dismissed with predjudice, preventing them from refiling the same or similar claims against Novell. This would essentially permanently cast doubt on whether they actually own any copyrights at all, making it near impossible for them to try to enforce copyright claims against anyone else, meaning that Novell gets almost the same benefits with much less risk (each unused opportunity to kill SCO's claims increases the chance that Novell might get screwed over by a mistake later, so why take the risk)
(ObDisclaimer: IANAL)
Operation Piece The Canopy:
I agree that IBM should go after Canopy partners and Darl's personal assets. Even if they don't win, it will teach others not to do this again.
Their moves were pretty clearly means of pumping the stock, and perhaps the SEC will have to investigate criminally first (assuming bush isn't making them wear skirts). A good criminal case with Darl doing time, followed by a civil case with darl settling in exchange for implicating Canopy, RBS, and microsoft would be priceless.
Follow it up with going after Canopy funds (ka-ching!) and committing the proceeds to linux development at IBM. I see a *real* 2 billion dollar lawsuit there, one that could be backed up by a singing Darl in jail, and a group of assholes with the cash on hand.
IBM just needs to stop one step short of going after Microsoft. Maybe expose them just enough to make them worry that the Justice dept under kerry might re-open the anti-trust case. IBM doesn't want to sue MS, but they could expose info that could make them wriggle and stop fucking with the open market like this again.
It would take several years to do all this, and some political moves in Washignton, but if the IBM lawyers had any sense of adventure they would go for it - it would be a hell of a story.
And Tannenbaum notoriously didn't think much of Linus's design... Famously, Linus would not have got high marks for such a system if he were Tannenbaum's student ;-)
Real Daleks don't climb stairs - they level the building.
Wow! Nice link! That's one disturbing piece of work. I took enough psych to see that the man is clearly egomaniacal, I'm curious if he's borderline delusional. Anyone with more training have an insight?
Nor is this well formed apologetics as he fundamentally contradicts himself more than once. For example, he attacks the working man since he asserts that the majority of Linux users are not entrepeneurs. Not that the majority of any OS users are entrepeneurs but ok. So he calls people who work for a living "zombies". Later he proposes to be championing the case of the working man. Dude, you just called him a zombie! (And you wonder why people threaten you?)
Also enjoyed the inference that many Linux users are clueless morons who don't code or play video games!? First, the fact that Linux finally has some non-coders using it is an indication that it is getting more user-friendly. Secondly, do you really want to compare the coding skills of the average Linux user with, say, the average XP user? (Not bashing any of the bright coders who do use XP but you also realize that you do not represent the average user.) And video games? Ooo, how sinister is that? What does that have to do with anything? (However you can make the case that Osama Binladen doesn't play video games. Is it such a stretch to think that non-gamers might be terrorists?)
But let's not throw out the good with the bad. His point that no one has the right to threaten him (or anyone else) with violence is just. Point taken. This is an area where the OSS advocates need to take note and clean up their image a little.
You still get the feeling he's using the image to try to paint Linux advocates as the bully and SCO/Microsoft as the victim.
Too weird.
from this sentence:
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.
And no, I'm not a grammar nazi... just a pretender.
1f u c4n r34d th1s u r34lly n33d t0 g37 l41d Capitalization really works: i helped my uncle jack off a horse
I've got a really good conspiracy theory.
Lets take it as given that the entire purpose of the SCO lawsuits is to discredit Linux/Free Software and spread FUD, bankrolled by ...erm... someone.
Enderle has constantly harped on about "these zealots", "death threats", "die for what you believe in" etc, etc.
Enderle is setting himself up to either:
He'll be found in a Reno hotel room with the full text of the GPL version 2 (or later at your discretion) inscribed on his chest using a slide rule. A single penguin feather will be protruding from between his mutilated butt cheeks, and the smell of herring will linger.
Who would use software that causes people to kill in such a biblical fashion? Thats how it is going to play - Just wait until the mainstream media condenses down John Katz' old columbine mooning into a blanket condemnation of all geekhood.
I think it could happen just when ... someone feels that they are getting almost no return from the SCO lawsuit in terms of FUD, and they need a real boost. Its desparate, but the potential pay off is huge - better than patents!
Do I really beleive this? No. But its worth putting it out there, just so if it did happen we can all pat each other on the back in Gitmo, and say "Knew it was coming! Why didn't we listen?
You are right--he is a troll, effectively. You see, for a long time he's worked to be someone the media quotes (they still do, all too much, even though he doesn't know what the hell he's talking about half the time--he even mentions some of the trouble he got in in that speech).
In fact, his Enderle Group sells his quotability as a service--pay us, and we'll tell the press good things about you. That, plus as he admitted in his speech, he supports Microsoft for unrelated personal reasons.
Now then, people have started attacking his credibility en mass due to the SCO debacle. Some have even (gasp!) insulted him online. He hates this, because the more reasoned of us (e.g. me) are working to make it known that we believe that he is as paid shill and does not know whereof he speaks. Obviously, this message is getting out.
Thus, he works to portray all those who attack him as unintelligent, angry zealots. You said it well when you said he had a "very clear misunderstanding" of how this all works and what we mean by free. But that's not quite all: he knows what we mean and is deliberately twisting the facts to act as a troll.
Elsewhere, he's gone with a "BSD is better" line. The point of this is that he's trying to stir up or exacerbate whatever divisions exist among us--e.g. to sow strife and dischord. So far, I don't get the sense that he's doing it very well, but he's conciously trying to start flame wars.
Why? The controversy suits him--if he can get people mad enough, he can discredit them with their own angry rants (and there's always someone to supply these even if the rest of us hold our tongues). Moreover, he can use the controversy to put himself in the spotlight (get quoted even more in the media, etc.).
Thus, the best counter-strategy for us is to supply as many calm, rational and even-toned responses to his nonsense as is possible, and to simply ignore the flamebait portions of his talks.
The more reasonable people we can get who present sensible, articulated responses to his utter nonsense, the more we can discredit him in spite of the supply of angry hatemail he has to wave around.
I'm not some angry nitwit who is going around threatening anyone, and I refuse to have him defame us all by painting with one broad stroke.
To that end, I'm open for suggestions on how to help the media get a clue that he's not a credible source, and should not be trusted or used for quick & easy quotes.
Since Novell bought Suse last year, defending Novell 'is' defending Linux.
Professional Politicians are not the solution, they ARE the problem.
I think SCOG chose the slander of title lawsuit to have two shots at this. If the courts ruled that there was no slander, SCOG would sue Novell to have the copyrights transferred as part of the contract.
The only problem with this, that I see, is that by having the slander of title case dismissed, SCOG's already tenuous credibility is crushed.
lithium
Don't do it, folks -- Enderle selects the angriest and least coherent of these comments and uses them to defame us all.
He may have invited such comments by his flamebait, but that's all the more reason we should NOT take the bait.
Work to discredit him by writing those journalists who have quoted him. Point out the interesting service he sells--positive spin in the media for money--and ask how that squares with ethical journalism. Right now, he's quoted all too often--please stick to exposing his cluelessness to the media and discrediting him for spouting nonsense. DO NOT flame him, he merely uses that against ALL his critics, including those of us who are reasonable and oppose him based on logic and common sense, rather than some personal ill-will or malice.
He's TRYING to start flame wars here; don't let him and don't help him. Discredit him. It's what he seems to fear most.
you have confused two items: federal and state lawsuits vis-a-vis criminal and civil lawsuits.
hate to correct you old bean, but if i remember correctly from reading a book called "Rebel Code" (i forget the author and publisher and don't have the book to hand), Linus was inspired to write Linux after getting frustrated in the length of time alotted to student's to access the unix system at the university he attended.
He ended up writing a multi-user POSIX compliant (well, that's what he's aiming for, i believe) os as he was exploring the capabilities of the x86 architecture in assembly language..
please correct me if you know me to be wrong
Not a psych student, but I'd agree with your assessment. His ad hominem attacks, aimless meandering, and self-contradictions discredit his message...though it is an innane and poorly thought out message.
One thing though...Paint Linux advocates as the bully and SCO as the victim? Personally, I more than just "got the feeling" that he was doing that, I read it in his own words. To quote:
"the little guy on the block, who just wants his lunch money back from a bunch of line backers"
He's calling linux advocates a bunch of linebackers who rob poor little SCO of his weekly lunch money! And he accuses US of name-calling and religious zealotry!
I'll take you to the ball, Barbara Manitee!!!
There's more. If this actually makes it to trial, SCO will have to prove that they actually do own the copyrights. You can't successfully sue someone for slander of title to something that you yourself don't own ("I hate the way you people are always slagging IE; I'm taking you all to court!").
licet differant, aequabitur
Ken! Ken Brown! How nice to see you on Slashdot!
licet differant, aequabitur
I didn't see my buddies die face down in the mud to watch a bunch of Linux Zealots going after poor little SCO.
Darryl McBride is ugly. Is this slander? ;-)
how can this be redundant being the first post?
This seems to be the central argument of the piece (or at least the one that IMHO is least obviously wrong), but it seems to me to be flawed. Let's examine this through a hardware analogy.
Say that Ford Motor Company decided to give away tires that fit any car, at no cost, to anybody who asked for them. This would enable Ford to sell more cars, possibly allowing them to make more profit. Does that mean that the tires I get from Ford and put on my Saturn are not free? Mr Enderle seems to be arguing that I would be paying something for them, but I can't figure out what.