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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's exactly what SCO wants them to do, and IBM wants to show everyone not to mess with the Big Blue.
Buying out SCO was speculated early on but it never happened as it would have likely shown that the Linux supporters believed that there were enough violations to need to do that.
SCO likely wanted to be bought out so that they could bail from their rapidly sinking ship.
What the hell for ? Soon the markets would be full of litigating would-be "companies" like SCO.
while the first won't work, the second promises a lot of dough to SCO's lawyers. Remember, they will get 20%?
look at it the other way: would you rather IBM donate 65mil to EFF or to this scum?
[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.
As others have replied, IBM (and others) will not save SCO from themselves. To send a message.
I applaud their efforts.
Now, if SCO would have played nice at the beginning they WOULD be absorbed by now (maybe even IBM).
What everyone is waiting for now is the Ch11/13 of SCO so they can tear it into pieces and buy the parts they want.
So, if Novell didn't sell SCO the copywrights, exactly what did Novell sell them? If SCO thought they were buying the copywrights and Novell says they didn't, but some sort of transaction did indeed take place, what did SCO end up with?
The Unix business. Selling Unix licenses and providing support for existing licensees.
Novell doesn't feel they need the Unix copyrights to be able to do that. SCO thinks otherwise.
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.
Why would IBM or Novell want to fritter away 65 million for obsolete technology? Because that's pretty much all SCOG has. If you look at their recent updates to Unixware, if were not for all the GPL applications and code they included with the OS, it would be pretty useless. And as you may or may not know, all that GPL code SCOG included can be had for free.
My karma is not a Chameleon.
I'd vote to support this.
If a case is dismissed with prejudice, I would be all for the looser paying the winner's legal fees. Plus wages of those on the winning side who were working on the case.
Seems fair to me, and it would cut down on this absolute bullshit we have to deal with right now.
Mod me down with all of your hatred and your journey towards the dark side will be complete!
The theory behind the US system is that it allows the individual with limited means to sue (hopefully rightly) a much superior (financially) opponent without fear of retribution. If the British system were to be imposed it would have a chilling effect on these types of cases such as malpractice, employee being illegally fired, and class action such as health damage due to materials, such as the asbetos or silicon implants,etc.
However like anything else, it is subject to abuse.
--laz
"Just remember, it takes a village idiot." -- The Motley Fool.
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.
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.
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. =====
What everyone is waiting for now is the Ch11/13 of SCO so they can tear it into pieces and buy the parts they want.
Actually, what I'm waiting for is for IBM to "pierce the corporate veil" and go after Canopy's assets. (Google the phrase or seach for it on Groklaw for detailed discussions.) Under normal circumstances an incorporated entity shields the assets and freedom of the entities that created the corporation from legal attack. That is why you may see corporations paying out millions when they lose a big lawsuit, but you don't see the officers of that corporation personally liable, except perhaps in extreme circumstances like Enron.
Canopy (The private parent group that owns SCO) has already made out well. SCO could go belly up today and Canopy and Ralph Yarro who runs it would be ahead of the game. However, there are a number of things which make it appear that Yarro and Canopy may have helped to direct the SCO attacks--including the early involvement of the Canopy legal counsel, the Vultus acquisition, and a number of others.
I think the odds are against IBM being able to pierce that corporate veil and go after Canopy. However, if it can, it will really send a message to those that might consider another scam like this. The message would be that you could lose your personal fortunes. Even an unsuccessful attempt to pierce the veil would have a welcome chilling effect on similar future actions.
Now, as to the fire sale when SCO enters bankrupcy, my hope is that it will happen after SCO loses some court cases that make it clear eithre that it doesn't even own the IP (and the Novell dismissal with prejudice judgement would not do that) and/or that there is no Unix IP in Linux. Because if that isn't settled, all someone has to do is pick up that IP at the firesale and start all over.
IAMAL:
No case, civil or criminal in our system goes to jury without a judge approving it first. A judge must first approve 100% of all cases. That's why you'll see references to the judge throwing out the case. In essence, the case has no merit and the plaintiff cannot sue or an accused cannot be tried.
It's a several step process and the one SCO and IBM are in is discovery. This is where a judge (discovers) and decides if there's enough evidence to send a case to trial.
Has IBM been sued? Well, yes and kind of no. A judge still hasn't decided if it will go to trial. Novell is right now asking the judge to not approve the case and to throw it out with prejudice.
Normally a judge will just rule the case has no merit. A ruling with prejudice means not only has it no merit, you knew it didn't and there will be penalties for brining the suit. A ruling with extreme prejudice is even worse than that. My impression is that lawyers can loose licenses and people can go to jail in extreme prejudice rulings.
Beyond that, access to the legal system is a constitutional protected thing and cannot be denied to anyone.