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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
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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.
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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.
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As always there is a good read about this over at LamLaw
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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)
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?
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.
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