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Novell Asks Court to Separate SCOsource Money
clusterix writes "Groklaw has posted Novell's answer to SCO's slander of title complaint. In it, Novell produces many counter claims. The most eye-catching is the claim for the revenue from the SCOsource licenses bought by Microsoft and Sun and others. Novell states that they must be SVRX licenses which entitles them to 95% of revenue in royalties. They further request a trust to be constructed to hold the revenue until the case is decided. It is hard to see how the judge could deny such a request to protect the money which will likely bankrupt SCO."
The UNIX trademark is owned by the Open Group, not SCO.
http://www.unix.org/trademark.html
rage, rage against the dying of the light
more likely he would require a "reserve against" account, which is a paper transaction, rather than a cash account.
Only The Open Group can decide the trademark. Wikipedia has the info on this crazy, screwed up situation:
http://en.wikipedia.org/wiki/UNIX#Branding
Just in case you're wondering, The Open Group has the power to happily brand MS Windows as UNIX(TM) without it actually being UNIX.
Javascript + Nintendo DSi = DSiCade
In the absence of a fiduciary duty or fraud, it would be extraordinary for a court to award money in the absence of entering judgment. This is particularly so if it would cripple the grantor to the constructive trust.
Consider the fairness to previously existing creditors, including secured creditors, who believe they might have priority as to these assets, particularly if there is a risk of bankruptcy.
The response is simple. If you want to secure your assets in any credit scenario, negotiate advances or a security interest, and then seek such relief you may want in bankruptcy.
I would be very surprised to see the Judge do anything, regardless of his sympathies on the merits.
Originally, SCO claimed to own copyrights to SVR4, and sued IBM for infringing their copyrights. Novell them claimed that they are the ones who own the copyright, and waived, on SCO's behalf, any claim of infringement. The current litigation (SCO v. Novell) is exactly about who owns these copyrights. It depends on the interpretation of a contract between AT&T (which owned Unix at the time) and the Santa Cruz Operation (a.k.a. "old SCO"). Later, AT&T transferred all rights to Novell, and old SCO sold its unix business (as well as the name "SCO" to the Canopy group.
Since then, SCO has changed their tune. They have amended the complaint and are now suing IBM for breach of contract instead, related to "project Monterey", a joint venture of SCO and IBM to develop an Intel-based unix port.
It's incredibly pedantic I know, but my understanding is they're entitled to 100% of the royalties ...
It's just that they then give 5% back to SCO to handle administration.
Novell does not, and did not ever claim to be entitled to only 95% of revenue on royalties.
Novell is entitled to 100% of royalties and remits 5% back to SCO as an admistrative fee.
See page 13 of Novell's answer and counterclaim.
http://www.groklaw.net/pdf/Novell-78.pdf
Novell Goes for SCO's Throat
As others have already mentioned, one of the many interesting things that came out in this filing was that SCO asked Novell to go in on the scam. Novell called it "scheme". Novell declined and SCO marched on.
It will be interesting to see how SCO management avoids jail time.
For falsely claiming SUN and MS revenus among other things Darl and gang face prison terms in addition to fines.
From Groklaw:
CEOs and CFOs of listed companies (like SCOX) face ten years in jail and $1m fines for a mistake in their reporting. Twenty years and $5m if it's a "willful" mistake.
See sections 302 and 906 of the Sarbanes-Oxley Act: here's the relevant bit of s.906:
(c) CRIMINAL PENALTIES.--Whoever--
(1) certifies any statement as set forth in subsections (a) and (b) of this section knowing that the periodic report accompanying the statement does not comport with all the requirements set forth in this section shall be fined not more than $1,000,000 or imprisoned not more than 10 years, or both; or
(2) willfully certifies any statement as set forth in subsections (a) and (b) of this section knowing that the periodic report accompanying the statement does not comport with all the requirements set forth in this section shall be fined not more than $5,000,000, or imprisoned not more than 20 years, or both.
I'd also like to point out that the first suicide was apparently commited in front of the man's wife. Can we resist accusing Darl McBride of murder, until there's at least a shred of evidence to support it?
Quick update: Big news. Novell has answered SCO's complaint and has filed some impressive counterclaims. Read the pdf here . Among other things, Novell alleges that SCO had repeatedly asked for Novell to transfer UNIX copyrights, and at the early stages, actually asked Novell to go in with SCO on the SCOSource program. In Novell's counterclaims, they specifically allege:
Some of what Novell is seeking seems to hit right to the heart of SCO's cash resources. The best example of such a tactic is a request by Novell to require SCO to put the money it received from Microsoft, Sun, and others (through SCO's "Intellectual Property Licenses with Linux end users and UNIX vendors") in a "constructive trust" until Novell's contract claims are decided. Unless they move to extend their time, SCO should respond to Novell's counterclaims by 22 Aug 2005.
Current events:
SCOvIBM: In the wake of the recent opinion issued by Judge Kimball, fact discovery will continue until 27 Jan 2006, and the parties must disclose with specificity all "allegedly infringing materials" by 22 Dec 2005. Redacted and unsealed motions are being rapidly released, with SCO finally joining in. The parties seem to be still consulting with each other on the privilege log issue. Finally, a fully briefed, completely sealed discovery motion awaits a ruling, though no hearing date is yet set.
SCOvNovell: Judge Kimball has denied Novell's motion to dismiss, and now Novell has answered SCO's complaint. On top of that, Novell has filed an impressive array of counterclaims . Alleging that SCO "asked Novell to assist SCO in a Linux licensing program, under which SCO contemplated extracting a license fee from Linux end users to use the UNIX intellectual property purportedly contained in Linux," Novell not only says that they refused, but indicate that these conversations demonstrate the SCO launched their storied lawsuits with knowledge that their ownership position in the UNIX System V copyrights was uncertain. Perhaps the most compelling request that Novell is presenting to the court is a request that income SCO received from Microsoft, Sun, and the "Intellectual Property Licenses with Linux end users and UNIX vendors" be put out of SCO's reach into a "constructive trust" until Novell's contract claims are decided. Other counterclaims call for relief relating to SCO's alleged slander of Novell's title to UNIX System V copyrights and declarative, injunctive, and monetary relief relating to SCO's alleged breaches of the contracts relating to the sale of Novell's UNIX business to Santa Cruz. Unless SCO is granted an extension of time, it should reply to these counterclaims by 22 Aug 2005.
RedHatvSCO: This case remains stayed. However, Judge Robinson indicated that if "it woul
Could well destroy the value of the brand, though...
Secondly, if you had bothered to look up the statistics, you'd see that Utah's suicide rate is, in fact, above the national average and has been at least since the early 90's. Too much trouble? Take a look at this. Or how about this?
Windows NT with Interix, a replacement plug-in POSIX subsystem that talks directly to the NT Kernel, paralleling the Win32 Layer (and the OS/2 1.0 layer) was a branded UNIX. Microsoft bought Softway Systems, the developers of Interix, and have crippled Interix and released it as Services for Unix. There was a point in time when they sold Microsoft Interix, which included in the on-CD bundle, the GNU Toolchain, and the GNU C Compiler. There was a popup message during the install that informed you of it's GNU-ness.
Those were all 'middle period' moves by Sun in support of Linux. Back in the day they refused to release an official JVM or JDK for Linux. They've not had a consistent position on Linux and in fact were rather negative toward it for years.
Not quite accurate.
The audit was done, but SCO refused to provide information on some of the items in the audit, namely the licenses to MS and Sun. Over the next 2 years SCO has refused to provide those licenses, and thus failed their duties under the contract.
-- Another senseless waste of fine bytes.
No, you are wrong. SCO sued IBM originally in their first complaint for breach of contract and trade secret theft. The matter was only between IBM and SCO though, and SCO needed cash, so they started announcing that the Linux kernel infringed their copyrights. Novell stepped in at this point and demanded to see the infringing code, and told the world that Novell owned the copyrights, and not SCO.
SCO then began licensing Linux and if I am not mistaken, ammended their complaint against IBM to include copyright infringement. Novell continued saying they owned the copyrights, and SCO filed suit against Novell.
The contract was NOT between AT&T and Santa Cruz. AT&T spun off Unix Systems Laboratories as a subsidiary. USL then was aquired by Novell. 2 years later (1995) Novell assigned the Open Group the Unix trademark, and sold its Unixware business to Santa Cruz. The deal also allowed Santa Cruz to license SVR4 on Novell's behalf, for a 5% administration fee. This is what confuses people. Santa Cruz did NOT get ripped off. If Santa Cruz licensed your business Unixware, Santa Cruz got 100% of the licensing fee. If Santa Cruz licensed IBM SVR4, Novell would get 95% of the deal. Unixware != Unix SVR4. Novell still holds the Unix copyrights.
So AT&T sold Unix to Novell, and then Novell sold certain Unix assets to Santa Cruz, not AT&T to Santa Cruz and Novell at the same time. Then Santa Cruz sold Caldera their server division, which included these assets received from Novell.
Also, Project Monterey was not a port of Unix to Intel a.k.a. x86. It was a port of AIX combined with Unixware to the Itanium. When Linux gained so many enterprise features between 2.2 and 2.4, and Itanium kept getting delayed, IBM dropped Monterey and proceeded with Linux on Power and x86/x86_64. (I believe they also support Itanium with Linux too...I know HP does)
You are missing the point. What he is saying is that SCO does NOT have the right to alter existing Unix SVR4 licenses without Novell's consent. SCO amended Sun's license, amended Microsoft's license, terminated Sequent's license and terminated IBM's license without permission from Novell. This is not allowed by the APA between Novell and Santa Cruz (later sold to Caldera a.k.a. the SCO Group). Novell did step in and waived SCO's termination of IBM's license. SCO proceeded on anyways and sued IBM over copyright infringement for continuing to distribute AIX without a license. Part of Novell's countersuit is that SCO breached their contract with Novell by doing this.