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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."
Because that is exactly what they want. They want to walk out of this with golden parachutes, completely in the right. Darl: "Look, Novell bought us because it knew that our IP claims were legitimate!". No, I don't think that Novell either should or will buy out SCO.
I think they'll crush them into the ground. Then spit on them.
Ads? What ads?
Why can't IBM ... just buy these clowns?
"Pour encourager les autres". It would send a clear message to every Self-serving Cynical Organisation that playing fast-and-loose with the law against legitimate businesses is an acceptable and profitable activity.
Best result here is for SCO to die horribly - and publically[1].
([1] OK, my best result is Darl et al serving time, but I'll settle for Joe Q WallStreet knowing that SCO's business model was suicide)
This is where the serious fun begins.
Because buying them validates the barratry business model. If you want all current and potential litigious bastards to go away forever, you do not pump money into their friends' bank accounts because it makes them more likely to take up the cause if there's a greater possibility of a big paycheck at the end of it.
Instead, you want to make sure that IBM and others continue to use their formidable might to squash these bugs into oblivion.
Rule #1 -- Politics always trumps technology.
Mods, do not be mislead by the title (lifted wholesale from the original Enderle Troll article at www.sco.com) - this is an informative post, that links to Rob Enderle's now (in)famous speech at SCO Forum last Tuesday. I've been looking for this transcript for a few days now - kudos to Bad Move for posting this.
This is where the serious fun begins.
If you dig into the copious records, you will find that being bought by IBM is one of the things SCO set out to achieve. The idea was that various people would walk off with a large pile of cash from IBM just to get rid of them. They have now discovered that it is not that easy to squeeze cash out of IBM by being irritating.
The principle is much like that of not paying a blackmailer or extortionist. If you pay one, they will queue up for their handout. If you grind the first one into the dust, others are not so likey to try it on.
That's because the risks most definitely do not outweigh the rewards. For example, the Ken Lay's, Bernie Ebbers', John Rigas', and Darl McBride's of this world aren't going to go broke anytime soon, even if they destroy the bank accounts and viability of all the employees of the companies they mis-managed. Instead, they might have to spend some minimal amount of time at a country club prison, followed by having to spend the rest of their lives in comfortable luxury, while the employees whose careers and retirement accounts they've destroyed will struggle to make ends meet for the rest of their lives.
The only acceptable punishment for these people is the complete destruction of their lives and their families lives. It's no less damaging than what they did to their employees. Pure Hammurabi code here.
Rule #1 -- Politics always trumps technology.
And for the record, Enderle is a prize asshat.
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.
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)
I just read that for the first time today. He does a great job in making himself seem 100% objective and a great person, and making the other side seem hateful and blind. Then he goes on to talk about things completly unrelated (like shareware software and how small companys are much nicer to work at then big companys) and his personal beefs with people. He then attempts to turn baystar into a villian for trying to steal away SCO. Then he gets to his point.
This is a classic troll. If you can't win with facts, change the subject. Also appear like you dont care either way, but you want your opinion out there. Durring my years working at some comapny, my boss was shot in the face, this is why sco has a good solid case.
All I got from the sections that applied to the subject was that he has a very clear misunderstanding of how open source works. He attempts to get the reader to belive that if you write software for linux, you must make it open source (kinda like saying if you write software for MS windows, it must be closed source, and MS owns the software).
The only truth I read was when he pointed out that companys only give things away for free when they know they will make money on it. WELL DUH! Why does IBM want to sell linux? Hardware and support contacts. But that is not proof positive that linux costs money. It does not cost money. Linux is not hardware, it is not training, it is not support. Those are things you may need to run linux, but you will need all those thngs to run any other OS out there. And I would be happy to burn you off a CD of any linux distro you like, FREE of charge.
Oh well, its all crashing down around them anyways. I'll just sit back and drink my coffee.
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.