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Novell Pulls Out Their Ace Against SCO
mattOzan writes "Groklaw is reporting that Novell has just filed a reply with an exhibit in support of their motion to dismiss SCO's complaint. The exhibit consists of "1995 minutes from the corporate kit of a meeting of the Board of Directors, which clearly and unequivocably say that Novell was to retain the UNIX copyrights in the sale to Santa Cruz that year."
Please, show me a large company who isn't in it for the money. They all are, and we're all fooling ourselves into thinking that they are doing it for some ideologic reason rather than cash. Hell, I do work for a non-profit Catholic hospital, and all the execs and managers are in it for the money. So excuse me if I don't hold it against Novell that they are trying to make a living.
But for the rest of us a link to the actual groklaw story and it's analysis is more helpful. Legalease is too much for me.
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Groklaw coverage here
a world in progress...
No, the only point that Novell has to illustrate is that they acted without malice and did not willfully engage in deceit. Remember, this lawsuit isn't about whether Novell actuall owns the copyrights, but whether Novell intentionally lied about their rights to ownership to directly harm SCO. So if Novell can convince the judge that they had a good basis to believe they still own UNIX copyrights, the games over.
Novell is the defendant in this case. SCO has brought allegations against Novell in another attempt to steal money (basically). SCO has accused Novell of releasing statements to discredit SCO. Early on in the SCO drama Novell announced that it actually owned the rights to Unix. When Novell realized that it may not actually own those rights, SCO sued Novell for publishing those statements with malicious intent. (Whatever the hell that means). Anyway, these records could show that Novell had reason to believe that it still owned the copyrights to Unix. If they can still show they had reason to believe they owned Unix, the case might get thrown out because it will be really hard for SCO to then prove that Novell issued these claims with the intent to discredit SCO.
Be Safe! Sleep with a Marine. Semper Fi!
This filing seems to be a little over-hyped here on Slashdot. It most clearly says what Novell's board of directors thought they were agreeing to... but is that what they actually got themselves into?
Aaa.. You see this is exactly the point!
SCO didn't file suit against Novell for breach of contract with respect to the alleged copyright transfer.
What SCO sued for was Slander of Title for saying nasty harmful things about SCO, namely that they owned the Unix copyrights.
The problem here is that.. it's not slander if you actually believe what you're saying. And Novell has proved that they have had every reason to believe that they owned the copyrights.
(The Judge himself has indicated that it does not at all appear clear who does own the copyrights. But the copyrights aren't what's in dispute here, even if SCO says otherwise)
There are four links listed in that post and none of them are to the actual story at Groklaw. Can you knock off the linking of every term in a post that has a website or at least make sure to give us the one link that's most relevant to a post? Please?
It doesnt matter.. SCO was charging that Novell was claiming it owned the Unix copyright when it knew for a fact that it didnt - this shows that that is absolutely NOT the case, that Novell full beleived that it did in fact retain that ownership.
That actually matters less than you realize. SCO's suit is for "Slander of Title", which means that SCO is claiming that Novell maliciously made false statements that caused SCO harm by calling their ownership of System V into question. SCO must prove every part of that claim: that Novell made false statements, that the statements were made maliciously, and that the statements did SCO damage. Novell doesn't have to prove that they actually do own the copyrights (i.e. prove that their claims were true), though this is certainly good evidence of that point. Novell only has to show that their claims were not made maliciously, and an honest, well-founded belief that they still owned the copyrights is sufficient to do so.
There's no point in questioning authority if you aren't going to listen to the answers.
Aside from the earlier statement about finding older documents, another thing to remember is that SCO filed a "Slander of Title" lawsuit. Novell has only had to do enough work to demonstrate a lack of malice in their public claims. The letters from SCO asking for copyright transfer should have been enough to show that the ownership was in question and Novell was not acting with malice in stating they still retained copyright.
SCO was also looking for a way to remove the Novell issue from the IBM lawsuit without introducing their weak interpretation of the contracts involved.
I AM, therefore I THINK!
SCO is suing Novell for slander of title. This means they have to prove malice which means they have to prove that 1) Novell knew they didn't own the copyrights and 2) They said they owned the copyrights.
These minutes indicate that novell believed that they owned the copyrights. As long as they believed that then there can be no slander of title.
evil is as evil does
For those slashotters unclear on "minutes", which it appears many of you are, based on the comments I'm reading: "minutes: An official record of the proceedings of a meeting."
As always there is a good read about this over at LamLaw
Help fight continental drift.
Not everyone speak English natively on slashdot, so those that don't know exactly what that means: minutes means a referendum of a meeting - So we're talking about a referendum of a 1995 meeting between the board of directors :)
Any technology distinguishable from magic, is insufficiently advanced.
It didn't come up because it was too early in the process. The current goings-on are strictly a dismissal motion, and so they would have been required to stick strictly to the issues in SCO's complaint... except that SCO went and brought up outside evidence first, making it fair game for Novell to act in kind.
They didn't "pull out an Ace". They filed the Ace in good order some time ago and in the latest filing they kind of pointed it out more significantly.
The short-version is that the board of directors meeting the day before the critical Asset Purchase Agreement stuf makes spesific mention of Novell *retaining* all the copyrights, and they have (previously) filed those minutes with the court, so they get to sit their as sort of the last word on the motion to dismiss.
So much so that the court may, in light of SCO's foolish attempt to "add evidence" (in the form of a declaration) during the motion to dismiss, convert the motion to dismiss into a summary judgment.
Whoops. 8-)
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
According to Novell's argument, the introduction of outside evidence also raised the stakes - Novell says that now they're playing for the whole ball of wax: a summary judgment in the case rather than merely a dismissal of the complaint.
Just a little fact, Linus actually was going to release Linux as Freax (he originally referred to it as Linux before, so the guy who first hosted it for him on his FTP convinced him to release it as Linux)
No, they make $$ from Suse and have pledged to use their patents only to protect linux from BS lawsuits such as SCO: http://www.novell.com/linux/truth/better_choice.ht ml
CLAIM: Customers who deploy Linux are at risk for patent violation and copyright issues.
FACTS:
Novell has no intention of asserting its patent portfolio against the Linux kernel or other open source programs included in Novell offerings.
Novell will use its patent portfolio to protect open source products against potential third-party patent challenges, meaning that Novell is prepared to asserts its patents against such third parties. Novell is continuing to actively grow its patent portfolio, which currently corresponds to Novell's pioneering products in areas such as networking, directories, resource management, and identity management.
For more information on Novell and patents, see http://www.novell.com/company/policies/patent/.
Novell believes that customers and the marketplace are best served when technology investment decisions are driven by vendor innovation and competition. As with all purchasing considerations, customers should keep software patents in perspective. In reality, open source software poses no greater risk of patent infringement than does closed source software. And, while some software vendors may attempt to counter the competitive threat to Linux by making arguments about patent risks, they would assert patents against customers at their own peril. They would also do so against competitors (such as Novell) at the certainty of provoking a response. We urge customers to remind vendors that all are best served by using innovation and competition to drive purchasing decisions.
Intellectual property rights systems vary throughout the world, and where patent protection is available for software, Novell has and will continue to use patents as a legitimate means of protecting software offerings. We believe that the current system in the European Union has served the industry, the individual member states and Novell well, and that it generally promotes innovation and competition in the industry. Accordingly, Novell does not see the need for the proposed changes to the current system.
In the event the European Union were to allow broader patentability of software, Novell would nonetheless be able to freely market its software offerings, whether closed or open source, in Europe and other jurisdictions that presently favor software patents.
To highlight how difficult patent protection can be, the United States Patent and Trademark Office recently rejected all of the claims of Microsoft's patent on the FAT file system, which Microsoft describes as "the ubiquitous format used for interchange of media between computers, and, since the advent of inexpensive, removable flash memory, also between digital devices."
Novell has previously offered customers protection against similar threats to open source software by using its unique contractual and intellectual property rights from its position in the historical ownership chain of UNIX and UnixWare.
Novell offers an indemnification program for copyright infringement claims made by third parties against registered Novell customers who obtain SUSE LINUX Enterprise Server 8 (or later) and who after January 12, 2004, obtain upgrade protection and a qualifying technical support contract from Novell or a participating Novell or SUSE LINUX channel partner.
Novell holds unique contractual and intellectual property rights because of its position in the historical ownership chain of UNIX and UnixWare. These rights include:
The rights to license UNIX technology pursuant to a Technology License Agreement between SCO and Novell, including the right to authorize Novell customers to use that UNIX technology in their internal business operations
The rights to take action on behalf of SCO under legacy UNIX SVRX licenses pursuant to the Asset Purchase Agreement between SCO and Novell
As Novell previously confirmed, copyright registrations on UNIX SVRX releases, consistent with its position that it retained ownership of these copyrights.
Since I know no one here RTFA, it might be nice if they'd given any indication of why this is some kind of trump card.
:] Of course, that's just good lawyering, and they do have good lawyers.
Frankly, the corporate kit isn't much of anything new (see Groklaw if you want to know what the hell the kit is--PJ explains it well). Novell already lined up pretty damn near everyone who had anything to do with that agreement to testify that SCO is full of it. SCO found *ONE* person who was part of the early part of the deal, who LEFT during it, and wasn't really able to contradict any of what Novell's witnesses said anyhow. Yeah, I know, it really does go to show you that Novell's stance on what they own isn't new, but they've already established this to my satisfaction six ways from Sunday...
Now then, let's go on to the actual trump card. Novell found SCO including information outside of its original complaint. So what, you're probably thinking, but this is important. Due to some legal stuff (rules on parole evidence or something), Novell found a case that calls doing what SCO did a poor tactical maneuver. Basically, because of the crazy court rules for these things, the Court can convert Novell's motion for dismissal to one for summary judgement.
If they dismiss it (as they would now), SCO could refile with new, weird allegations they pull out of a hat (unless the judge dismisses it with prejudice, but then they have to show that *no* set of claims SCO could make could prevail... hard to do without ruling on the facts of the case, not just the law, as the jury has dominion over the facts).
If they go the summary judgement route, as Novell is urging, the Court gets to rule on the case here & now. Forget further wrangling, with that, the Court could rule on the case directly and SCO would have to appeal if the ruling went against it.
Now then, I don't claim to be a lawyer (I just read Groklaw, which is about as close as Slashdot often gets to having one), so I have no idea whether or not the Court will buy this. All I know is that it's an opportunity for the Court to get rid of SCO; something I'd do in a heartbeat, personally.
> Not everyone speak English natively on slashdot, so those that don't know
> exactly what that means: minutes means a referendum of a meeting
Isn't it ironic that a post about the English language is moderated "informative" by
people who do not know the difference between a referendum and a memorandum?
If you don't already have strong feelings one way or the other, you're probably pretty new to the Linux game, so I'd suggest SuSE out of the two choices.
I'm typing this on my Gentoo laptop, which is awesome, but a bit unwieldy for newcomers. My top choices would be Fedora or Mandrake, but it's been a long time since I've used SuSE.
Given a choice between free speech and free beer, most people will take the beer.
SCO is trying to claim that Novell was malicious in knowingly publishing a false claim (that Novell owns Unix copyrights). Novell says that it had every right to publish its claim and it has reason to believe that the claim is true.
The particular memo doesn't prove anything about ownership but is one more (small) piece of evidence that Novell sincerely believes its claim (of ownership of copyrights), and so are in no way guilty of knowingly publishing a falsehood.
Novell's case is overwhelming, but this particular document is part of a filing in response to a filing by SCO alledeging that Novell knew it didn't own the copyrights.
I could be entirely misunderstanding things. There will certainly be a compentent analysis on groklaw soon enough.
Prime numbers are exactly what Alan Greenspan says they are -S. Minsky
Why not? http://sshwindows.sourceforge.net/ Just because 99.99% of ssh servers out there aren't windows doesn't mean it's not possible.
"God is dead." - Frederik Nietzsche
Go back and read that again... it specifically states that Novell will retain all copyrights and trademarks (except for the TRADEMARKS to Unix and UnixWare)... so SCO gets to own the names Unix and UnixWare, but not the copyrights...
At least as of the 1995 documents...
"Our funds have never taken part in toxic or death spiral convertible financings of any sort" -BayStar's managing partne
There is absolutely nothing inexplicit about that language.
"Novell will retain all of its patents, copyrights and trademarks (except for the trademarks UNIX and UnixWare)..."
This is black and white language. Novell will retain all of its patents, copyrights, and trademarks, except for two specific trademarked names "UNIX" and "UnixWare." Trademarks have nothing to do with the underlying IP. Trademarks are just NAMES that a company uses to refer to its products.
The code itself is not transferred by transferring th NAME "UNIX"
I'm no fan of SCO, but what exactly did SCO buy? And who owns the rights to any additions that SCO made?
SCO bought a business of selling and maintaining the licenses. Novell gets 95 % of all of the royalty payments on these licenses. (Does that sound like SCO owns unix when SCO only keeps 5 % of royalty payments?)
But SCO paid all that money!
Look how much money Novell paid for Unix. Nearly a Beeelion US dollars. Now how much did SCO pay for the right to sell and maintain the licenses -- a whole lot less. Judge Kimball already said in (8) of the order that the APA clearly did not transfer copyrights.
Ammendment 2 by itself is not a copyright transfer instrument. That ammendment was to ensure that SCO had something saying that they had the copyrights necessary to exercise their rights in the unix licensing business. That way, by making copies of unix, SCO is not infringing on a copyright that they do not own.
SCO also bought rights to make derrivative works, which they would own.
IBM bought their unix from AT&T in 1985, long before the Novell-oldSantaCruseOp deal. So any additions that SCO made are not in IBM's code.
Those who would give up liberty in exchange for security and DRM should switch to Microsoft Palladium!