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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."
Read Rob Enderle's SCO Keynote.
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?
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.
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.
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?
But if you're sure of winning, and have a point to prove, then buying them is
a) a waste of money
b) likely to be seen by some at least as implicit admission that they had a case
It's official. Most of you are morons.
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!!!
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.
...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.
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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.
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?
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.
[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.
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.
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.
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.
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. =====
IBM has a policy that says "no" to frivolous lawsuits. Generally speaking, just having the policy discourages most people.
Others, who are not quite as quick on the uptake, must be fought simply to prove that the policy is valid.
SCO just happens to be one of the latter group.
The only acceptable punishment for these people is the complete destruction of their lives and their families lives.
This kind of assumes I can kill my relatives if I think they are about to do anything I will be destroyed for. Hopefully you don't have a gun-carrying uncle with an unusual fondness for DMCA.
I don't know if jail is the right answer either. I would be scared to stay in a "country club" where Darl might try to fsck my unauthorized backdoors.
The thing is, all SCO/Darl did is hand in some papers to court. The judge could have consulted slashdot, Grocklaw or just his/her own common sense and told Darl to use the papers to clean his own backdoor. That's also what would happen in most countries, or in US 10-20 years ago. Except for slashdot, Grocklaw or female judges that is.
The real solution is to clean up the legal system so that you need a darn good evidence to start a lawsuit, you need to convince a skeptical judge before you even contact another party with an C&D letter and you have to pay the costs government wasted on your case if you fail.
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.
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.
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)
No, in the memorandum, Novell clearly states that the copyrights ownership is a separate matter for US Copyright Office or another case to decide. In this case, the judge only needs to determine if Novell has a valid case that they own the Unix copyrights. The judge already determined that the transfer of ownership document (Amendment 2) is ambiguous at best and he is leaning that in favor of Novell that they never transferred such copyrights. The judge does not have to decide who owns them but that Novell can demonstrate that they have legal grounds to claim that they own Unix copyrights for the case to be dismissed because "knowingly false" requirement.
Well, there's spam egg sausage and spam, that's not got much spam in it.
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.
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.
Dans ce pay-ci, il est bon de tuer de temps en temps un amiral pour encourager les autres.--Voltaire
"In this country, it is a good idea to kill an admiral from time to time, so as to encourage the others."
In 1756, Admiral Byng was ordered to prevent the French from taking Minorca. He was supplied with a fleet of thirteen ships that were both ill equipped and undermanned. To make room for the soldiers he was to receive from the Gibraltar garrison, his marines were reassigned to other squadrons.
In Gibraltar, when he requested the reinforcements, Byng was rebuffed, as the local governor feared a French attack on his city.
The admiral sailed on to Minorca-- but his initial engagement with the French fleet proved disastrous. The relative positions of the French and British fleets made the standard "Fighting Instructions" ineffective-- the leading ships of Byng's line engaged the French fleet unsupported, and as a result, were quickly dispatched. Byng refused to break up his line, and shortly thereafter. was forced to withdraw, as his remaining forces could not possibly relieve the siege, even in the absence of a French fleet. He sailed for Gibraltar, and Minorca was taken. Byng was arrested, court martialed, and shot, as he had failed to do his duty.
"Pour encourager les autres" is a rationale for exceptionally harsh punishment. If IBM were to sue SCO for patent infringement, receive the remainder of SCOs assets in a settlement, and then symbolically burn SCO to the ground, such actions could be construed as "Pour encourager les autres,"