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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.
Good luck. I'm connected with IPX.
OTOH it proves the credibility of SCO and how one should trade with them (both eyes open and a taperecorder running)...
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.
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.
I'd venture they wanted to give SCO "enough rope" first. This is a good thing; SCO are haemoraging cash in fashion that would put the most ridiculous dot.coms to shame. They've alienated virtually everyone - customers and partners, rid themselves of staff and are now largely owned a law firm. A year ago they might have backed out of this hole, but now the reverse gear has gone - they can only move forward and deeper into the mess.
Novell has decided to start shoveling the dirt in on top of them...
Code, Hardware, stuff like that.
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...
...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!
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.
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.
If they had coughed it up earlier, then SCO might have still had a chance. But since SCO spent all the earlier time jerking around, they just waited for the right moment. You know, when hunters spot a deer, they don't go blasting away -- the hunter will wait until the right moment. The hunter may know that he can hit the deer through the brush, but waiting until he can get a clear shot in the meadow is better. Novell warned them, and then waited for the moment. I see nothing wrong with it. Now Novell has taken aim, fired and is waiting for the finality of the bullet. My hat goes off to Novell -- not all Utah software companies are idiots.
The views expressed are mine own and do not express the views of my employer.
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?
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.
Have you ever worked for a large bureaucracy? The company rarely has everything in the same system for anything - source control, document management, personnel databases, whatever you can imagine, they aren't doing it consistently. Legacy systems, competing systems in different departments, etc. can all cause things to be not where you expect them to be.
They brought this out now for a very good reason (see the "'nough rope" cousin post).
I don't buy that argument. If Novell could have killed this thing long ago, they would have. It's not in their interest to have the trial drag out any longer than it has to. They have legal bills to pay, too.
More than that, you have to first REMEMBER the minutes from 10 years ago contained this awesome point, and then track it down. More likely, they've had some poor 1st year lawyer or paralegal searching through EVERYTHING in the hopes of finding something, and this just turned up.
Dude, I think I can see my house from here.
You are correct, sir. Novell has brought out these minutes from a meeting of the board in answer to SCO's attempting to use Chatham's declaration as proof of malice.
The minutes do NOT conclusively prove that Novell owns Unix, only that they believed they did, and were acting WITHOUT malice, but in good faith.
Novell does not need to prove that they own Unix at this point. The burden is upon SCO, and so far, SCO is failing miserably.
It's not offtopic, dumbass. It's orthogonal.
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
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.
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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