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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
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
I'd like to volunteer for the trust position if no-one else will
'For we walk by faith, not by sight.' II Corinthians 5:7
Completely disagree. If SCO is bankrupt without the funds in question, and those funds do belong to Novell, then Novell stands to lose considerably if/when SCO goes bankrupt anyway.
Given that situation, it's not at all unreasonable for at least SOME of that money to be physically sequestered.
If you're not living on the edge, you're just taking up space!
smallest leg to stand on with these allegations SCO is toast. If the court freezes SCO's assets, up to at least 95% of the contracts with WS and Sun, there will be no money left to pay SCO's lawyers. BTW from another article, NOvell my have the right to dismiss SCO's suits agaist IBM and others, since they actually own the rights to the System V code.
No one here gets out alive
back when this whole thing started, sun was pretty anti-linux, and we all know microsoft loves linux. i think this was a grand conspiracy conducted jointly by microsoft and sun, and the method of payoff to sco was the licensing purchases that they made.
SCO doesn't own the the Unix Trademark. That's owned by The Open Group... if they did, and became bankrupt, the trademark wouldn't just disolve. It would become part of the property divied up and/or sold to pay off debtors.
As far as can be told, Novell owns the copyrights on SYSV, and licensed SCO to develop new versions, and administer the licenses. This is why they're claiming that SCO owes them 95% of the money that they got from SUN and M$. This also why they say they have the right to tell SCO to lay off of IBM (it's in the contract).
Saying that Linux is a form of Unix is like saying that the tap water in my glass is a form of Evian (or Perrier). The two may be chemically identical, but you're actually dealing with a Trademark issue, not physical reality. It would be more (legally -- but IANAL) appropriate to say that Linuxx is essentially the same as, equivalent to, or even like, but my guess is that saying that it's a form of is getting close enough to an equality statement to get an IP lawyer's pen finger itchy.
Most places I look say that it's a Uniz-like, or even a Uniz-family operating system. Note that all of the acceptable statements are similies and comparatives, not equality class statements.
Sometimes boldness is in fashion. Sometimes only the brave will be bold.
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.
The real question on this story will be how much and when was information known. Did SCO fraud MS/Sun or where they partners in all this. If so, then they may end up be held liable by IBM/SEC.
In addition, with the fraudulent paper, it shows that SCO is willing to go to extraordinary lengths. I wonder if perhaps the 2 suicides should be investigated further? Mormons do not commit suicides and both were practicing.
I prefer the "u" in honour as it seems to be missing these days.
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.
This has the potential of finishing off SCO for good. The way things have been going with this case, I don't have so much hope that will be the end, but if it could be, what a grand finale that would be! Not only will we have the satisfaction to see the litigious bastards go down, but more importantly, beautiful irony, the money Microsoft and Sun had invested in hurting Linux will end up in the pockets of a Linux champion! Talk about karma...
I code, therefore I am.
"And now we know Novell is a hero in this saga, and I am going out to buy the latest SUSE Linux this exact minute, even though I already have it. I hope you do too, even if you don't need it."
While I have my own other favorite distro, I think her example is a good one; and I for one intend on purchasing a copy as well.
The best way to predict the future is to create it. - Peter Drucker.
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.
This is truly the meat in the Novell case. They must know that NewSCO itself is small potatoes. Novell also mentions they rejected NewSCO's invitation to join in the SCOSource initiative because it sounded like a scheme.
I think Novell is now hoping discovery will reveal evidence that NewSCO approached Sun and MS with the same scheme offer prior to launching their war against Linux.
If Novell can show Sun or MS acting with some fraudulent intent (shakedown, FUD to keep Linux down, etc.) then just imagine how big the pot of gold at the end of that litigation rainbow would be.
In the end Novell may be the one laughing all the way to the bank as a result of the NewSCO fiasco.
They're done, done, done, stick a fork in 'em, they're DONE! (sfx: gavel BANG!)
It would be so cool if the final moments of the Smoking Crack Organization could happen on The People's Court. So we could actually hear Darl McBribe whimper and see him pee himself. In public. On camera.
Gotcha, you litigious bastard!
Knowledge is power. Knowledge shared is power multiplied.
Novell asked for an Audit of SCO's SVRX licences in July 2003.
After asking for an initial 3-weeks delay, SCO still hasn't answered.
This is the very same SCO that was badgering Daimler-Chrysler for taking 30 days to answer an Audit they had not even received ???
Un-effing-believable!
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
Word of advice regarding groklaw: RTFA *and* the comments. The stuff is not as simple as it looks. It's a lot like debugging somebody else's code. Then come back when there is a new article, lather, rinse, repeat. I say this because there's a metric assload of wrong ideas and misinformation floating around about how this stuff works.
C|N>K
Could well destroy the value of the brand, though...
On the flip-side, SCO would make a great target for the Justice Department - too puny and insignificant to have any real impact on business, too flat-broke on their existing lawsuits to mount much of a defence, good publicity for their anti-corruption efforts (!) for every executive they convict and good for some of the big-name US companies being hastled by SCO.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)