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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."
. . . I owe Novell $699?!
Party's over, let's go home, if there's no SCO to bash there's just no joy in living.
12:50 - press return.
Why didn't Novell bring this up a long time ago? Could have saved everybody a lot of time and money, as well as spared bad PR for Linux.
--------
Bleah! Heh heh heh... BLEAH BLEAH!!! Ha ha ha ha...
and we'll be suing /. to get your IP, you realize?
SCO's own McBride then retires to the Bahamas where he enjoys a life of luxury until the next major hurricane, which demolishes his house and sends him to the great beyond, not before being tormented by a certain red-colored pitchfork-toting mascot (Oh and being rejected by the Great Penguin in the Sky).
p.s. vi kicks emacs' ass
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? Seeing that statement in a contract signed by both sides would hold a whole lot more value if that can be found.
Now actually why do we care so much about Novell ? Have they done anything spectacular to us that deserves so much hype around them ? Sure they might kick SCO into the butt and might have done the one or other thing that would chill people but thats all.
What I want to say is we should not see Novell as our friends, our buddies or whatsoever these are clear minded people who run all for the big cash. Cash is what matters and not the entire open source movement or whatsoever.
I know a few people from Novell who work for them and they told me that Novell doesn't really give a damn slight fuck for open source, the community or the entire movement. What matters for them is cash and outsourcing. As long as it gets them money in their pockets they do everything it's simply a new marketing segment they invest in.
So before overhyping Novell we should calm down and reconsider again. What ough to be our friend today can be our worst nightmare tomorrow.
I played a lot of Warcraft II back in the mid to late nineties. The mental image of a bunch of Troll Axethrowers surrounding an enemy's farm, the farm in flames, with a continuous stream of axes flying into it just sticks so well in this case...
Do not look into laser with remaining eye.
From the Groklaw discussion, the real importance of this document is not necessarily that it proves that Novell has the copyrights (that's actually more difficult to prove), but that it does prove that Novell firmly believed that it has them. This is a direct defense against the specific slander charge against them.
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.
WikiAfterDark.com It's a sex wiki, go now!
Shortly after disclosure, Novell reps were seen flexing thier arms, feigning a body punch toward SCO reps, and scratching their chins. Something like 'you my itch now' was muttered by a few from Novell. The SCO representives skulked away without comment.
A firewall can not protect you from yourself. Turn off what you do not need. Do not use the firewall to do your work.
I bet that SCO will pull another "Joker" from their arsenal and will raise the bet. (there are plenty of them working for SCO).
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.
...to fix their copy machine until yesterday when Microsoft settled with them for $0.5BN?
"Sometimes, I think Trent just needs a cup of hot chocolate and a blankie." -Tori Amos on Nine Inch Nails
I'm sorry ... insightful?
SCO's case is for slander of title. There is some chance that the judge might decide that SCO does not own the SysV copyrights, but this filing won't be the document that pursuades him so to do.
This document clearly spells out a lack of malice, since it shows that Novell's execs had a reason to believe that Novell still owns the SysV copyrights.
Furthermore, lack of SysV copyrights won't actually unravel SCO's mostly contract case, but it will advance IBM's counter claims.
The real "Libtards" are the Libertarians!
INAL, but these are just the minutes to a meeting. They are just evidence to help interpret the real contract, but it is not in itself a legally binding document.
Qxe4
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)
It is fairly simple for Novell to beat the slander of title charge. All they have to prove is lack of malace. In other words, as long as they thought they were still the copyright owners, they had a right to assert that claim. That was a slam dunk anyway even without this evidence.
Winning this one won't help the linux community that much though. What we really need is a judgement that linux contravenes no copyrights. That is IBM's counterclaim 10. When that one goes down, then I start cheering.
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?
Actually, intent is very important in this case, since SCO is alleging that Novell acted with malice in claiming it still owned the copyrights. If Novell's board of directors understood the agreement as leaving the copyrights with Novell, it is much more difficult for SCO to claim malice.
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."
* They've made decent-quality products in the past
* They currently own SUSE, which is a very nice Linux distribution, and they've been doing interesting things with it since taking over. Meanwhile they've actively been doing good things for the open source community. So whoever's side they were on before, they're certainly on our side now.
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
I find all I am required to understand at SCOinfomercial.con.
All important court documents are available. If they are not there, we simply do not need to know about them.
And there is the pure unadulterated truth to the lawsuits. SCO would not have brought these lawsuits unless they were right, so we should believe everything they say.
I implore you all to stop this blasphemy of the gospel of Darl.
Is it possible that once this slander of title suit is tossed, Novell could actually take steps toward trying to have themselves declared owners of UNIX?
And whether they do that or not, will they at least have the right to say to the public/media, once the slander of title suit is tossed, "we believe we own UNIX"? Since it appears the copyright is, at the least, in dispute?
Is there any way to potentially later challenge the side letter with a "valid Novell signature", the one SCO has a copy of, by which SCO claims ownership of UNIX? Is there any way in corporate contract law to claim something like this side letter was accidental, or unauthorized, in a case such as this when apparently nobody at Novell was aware that someone had signed away the UNIX copyright? Does the fact Novell has not yet done so mean that they don't have a way of doing so, or does it mean they're waiting until an appropriate moment (say, when it comes up in someone's court case)?
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
As always there is a good read about this over at LamLaw
Help fight continental drift.
Is that people can have a variety of motivations and still contribute positively on something common.
Novell, IBM et al are part of the community. Like all communities the aims and motivations of individual members do not line up 100%. We should celebrate, support and encourage our commonality, not make a big deal out of or fear our potential differences.
Boffoonery - downloadable Comedy Benefit for Bletchley Park
1995 minutes from the corporate kit of a meeting of the Board of Directors
But what they meant was:
Minutes from the corporate kit of a 1995 meeting of the Board of Directors
Or even:
Minutes from the corporate kit of a meeting of the Board of Directors held in 1995
There's no reason for the editors to leave such ambiguity in the summary when they could easily have avoided it. I've spoken English as my primarily language my whole life and seeing it as 1,995 minutes opposed to minutes from a meeting in 1995 was how I parsed it first as well. Also reference all the jokes high up in the list about a 33 hour meeting.
If not now, when?
You are aware that SCO is suing Novell and it's different than the SCO vs. IBM deal, YES?
Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity.
you have to be crazy...linux has now made it to the cover of almost every business and managerial magazine out there. There's no such things as bad pr. Now novell kills the case...front cover again...linux gets massive mainstream cred.
SCO's charges against Novell aren't breach-of-contract or infringement, it's "slander of title". IA so NAL, but it boils down to (a) you're falsely claiming ownership of something and (b) you're spreading deliberate falsehood that the other party that REALLY owns it doesn't.
Well the judge has said ON THE RECORD that the purchase agreement between Novell and Santa Cruz Operation (which Caldera bought then renamed themselves The SCO Group) doesn't appear to be a valid transfer of copyright, so that shoots down the first part, because the copyright ownership is now questionable.
Now these minutes show that Novell believes they would be retaining the copyrights after the deal. If you think you still own the copyrights, claiming so can't be malicious, so there goes the other argument.
Case closed.
The side-effect is that it throws SCO's claims to the copyrights into limbo, which should give the other folks they've dragged into court ammunition to claim SCO doesn't have the right to sue them.
And SCO starting a new suit vs. Novell to force the transfer at this point would just confirm that and scuttle the rest of their cases.
Exactly that statement is in fact in the contract signed by both sides. The contract explicitly excludes 'all copyrights'.
SCO, bizarrely, is trying to dismiss this crystal-clear statement as some sort of 'scrivener's error', and has offered the statment of a former Novell employee (who wasn't even there when the contract was signed) to the effect that, no matter what the contract says, Novell really meant to transfer all the copyrights. The Novell Board document kills this (already absurdly weak) theory.
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
I prefer the "u" in honour as it seems to be missing these days.
According to CBS, the Novell meeting minutes are genuine and are actually from the year 1995 despite the fact that they contain modern Agfa and Bitstream fonts.
sorry, couldn't resist
Something is being "over-hyped" on Slashdot? Never.
Well.. maybe. Or Maybe not. But Definitely not sort of.
NOVELL: They finally did it. They killed my fucking car.
DARL: Vee vant zat money, Lebowski.
SCOLAWYER1: Ja, uzzervize vee kill ze girl.
SCOLAWYER2: Ja, it seems you forgot our little deal, Lebowski.
NOVELL: You don't have the fucking girl, dipshits. We know you never did. So you've got nothin' on my Johnson.
LINUXUSERS: Are these the Nazis, Walter?
IBM: They're nihilists, Donny, nothing to be afraid of.
DARL: Vee don't care. Vee still vant zat money or vee fuck you up.
SCOLAWYER1: Ja, vee still vant ze money. Vee sreaten you.
IBM: Fuck you. Fuck the three of you.
NOVELL: Hey, cool it IBM.
IBM: There's no ransom if you don't have a fucking hostage. That's what ransom is. Those are the fucking rules.
DARL: Zere ARE no ROOLZ!
IBM: NO RULES! YOU CABBAGE-EATING SONS- OF- BITCHES--
SCOLAWYER1: His girlfriend gafe up her toe! She sought we'd be getting million dollars! Iss not fair!
IBM: Fair! WHO'S THE FUCKING NIHILIST HERE! WHAT ARE YOU, A BUNCH OF FUCKING CRYBABIES?!
NOVELL: Hey, cool it IBM. Listen, pal, there never was any money. The big SCObowski gave me an empty briefcase, man, so take it up with him.
IBM: AND I'D LIKE MY UNDIES BACK!
We apologise for the fault in this post. Those responsible have been sacked. -- Signed RICHARD M. NIXON
SCOwned!!!
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.
I think you may be mixing up your lawsuits. IBM has been parading witness after witness (in depositions) while SCO has only found one or two that kind of buy their story. This article is about the Novell case.
The Novell case (Slander of Title) hasn't seen too much movement in the last while, so this is an important step. Especially since the outcome of this case can have a huge domino effect on the rest of the cases. ie if Novell can get a judgement that SCO doesn't own the copyrights, then the IBM lawsuit will most likely just go away...
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
Haha - you make funny - but here on
Don't believe me? I'm not saying that SCO isn't slimey evil, just that it sounds like your smoking the good stuff.
"Nokia is not a country, it's the capital of Finland!" -Moderated "Informative". Yeesh.
IBM has answered SCO's complaint and lodged several counterclaims against SCO. So, even if *all* SCO's claims against IBM are disposed of before any trial, the lawsuit won't end there. IBM will be entitled to have its counterclaims against SCO adjudicated. And before IBM is done, SCO will be in receivership and quite possibly some people will be facing jail.
Of course, that's just good lawyering, and they do have good lawyers.
Score: -1, Oxymoron
Ah, arrogance and stupidity, all in the same package. How efficient of you. -- Londo Mollari
Except that transfer of copyrights has to follow certain rules and that the Judge has already ruled that the current contracts do not qualify as such a transfer.
So SCO still has to prove how they acquired these Copyrights. These minutes prove that at the time of sale to oldSCO now Tarantella the sale of copyrights was not in order. So newSCO, which got the business from SCO-Tarantella, has to prove these did transfer anyway, to oldSCO-Tarantella and then to them. So far they have done a poor job in the way of any evidence.
More info on Groklaw.
Hans
In 1996 they clearly and unequivocably transferred the copyrights to SCO in that Ammendmant to the sale.
Nothing new,
Novell producing documents from 1995 completely ignoring the fact that Amendmant X which is not disputed by Novell that they gave up their copyright hold on UNIX.
(IANAL - I just read groklaw)
---
We spoke for about a half an hour. I don't recall a thing we said. - Colorblind James Experience
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!
I've sat in on some long meetings, but this one takes the cake!
Who cares what the Board Meeting minutes say.... It is what is in the contract that matters... If the Novell executives and business development team were not smart enough to put it in the contract, it doesn't matter what their intent was. Novell did retain rights to the Unix patent library, but may not have properly covered their bases with respect to the copyrights to the source code.
Daryl McBride and company may not be on your Christmas Card list, but they have shown that the Open Source movement doesn't have very strong legs to stand on when it comes to proof that donated source code does not contain tainted IP. This is true whether or not it is ultimately shown that the linux kernel contains elements of the Unix source code.
As I don my asbestos suit in saying this, please note that I have contributed thousands of hours to open source development for the Macintosh, AIX, HP, and Sun platforms, but I have been careful to make sure that the code I contribute is done without violating agreements with my employers, and that I have not developed source code in areas which contain IP where it could be construed that I was relying upon trade secrets learned in the course of my employment.
However, there is no formal documentation mechanism in place for most Open Source projects (including mine) which creates a paper trail where contributors warrant that the IP is theirs to contribute (and is thus unencumbered). Besides which, for the assertion to have any legs to stand on, each developer contributing to the project would have to indemnify users (and subsequent developers) so that those using or expanding the source code would be protected against lawsuits from people like SCO, who are attempting to prove a claim of IP theft. (This fails because most of us don't have enough personal wealth to make any sort of meaningful warranty of indemnification.)
Unless the laws are changed, SCO or some future claimant will forever doom Open Source to the legal quagmire of lawsuits against individual developers, and thus force people out of the open source world.
Thoughts?