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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."
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.
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.
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.
Novell had the copyrights all along, yet SCO
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.
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.