SCO Amends Novell Complaint

rm69990 writes "According to Groklaw, SCO now seeks to amend their complaint against Novell. SCO says it 'seeks leave to file a Second Amended Complaint in significant part in consideration of the counterclaims that Novell asserted in its Answer and Counterclaims.' SCO now accuses Novell of infringing SCO's copyrights by distributing SUSE Linux, of breaching a non-compete clause between the two companies, and SCO is also asking for specific performance forcing Novell to turn over the Unix copyrights to SCO. So SCO is essentially admitting that Novell owns the copyrights at this point, but is saying that Novell breached the contract (that specifically excluded copyrights) by failing to transfer them to Santa Cruz."

Comments

Wha?!?

[TheRealMindChild]

The... both... sell... and... support... operating... systems. How can they NOT compete?

Re:Wha?!?

[Too many errors, bai]

A non-competition contract is a trust with a different name.

Re:Wha?!?

[C0vardeAn0nim0]

"shall not compete in UNIX bussiness"

Linux IS NOT Unix, so it doesn't compete.

Re:Wha?!?

[SquadBoy]

In what why is this disingenuous?

Legally Linux is *not* Unix. This is a fact.

It's also, and this gets into opnion here, not really competing with Unix. Most of the growth in Linux is against Windows and other OSes. Most Unix installs are, and of course there are exceptions here, running on platforms and/or running apps that are closely tied to the Unix that they are running on and are, by and large, being sold to folks who would never *dream* of replacing those things with Linux. Think in terms of transaction processing for banks and such.

So really it's nothing more or less than the truth. No matter how much some folks want to tell themselves that Linux competes with Unix, at this point, it simply doesn't. This is not to say that it couldn't. But it just ain't there on many fronts. Many if not most of them not techinical really. Although, and this is the snarky bit, as a BSD guy I kind of laugh at Linux anyway. But that's neither here nor there.

Ready... Set...

[Volatile_Memory]

...YAWN.

v.m

Bah

[lunenburg]

The fact that this hasn't been laughed out of court yet makes me sad.

Re:From The Article

[killjoe]

You know what amazes me? What amazes me is that the Judge in this case has never even once asked "can you show me any evidence that you actually own any of this intellectual property". You would think that would be the first thing to get settled no?

The American legal system is a joke.

Re:How can they keep doing this?

[OwlWhacker]

It is amazing to me that SCO can continue this long without totally running out of lawyer money.

It's amazing that SCO would even consider throwing away money on such a lost cause in the first place.

How are they making a profit today?

I'm sure everybody knows that they're not making a profit; their goal is to own Linux and Unix, take over the world, and make mountains of cash. Of course, it seems that they're the only ones who believe that this is likely... oh, and Rob Enderle.

Gotta love that circular reasoning.

[Jaywalk]

The amendment is hysterically funny if you keep in mind that the original charge was for Slander of Title. In other words, SCO sued Novell because Novell claimed title to copyrights owned by SCO. Now we have SCO asking the court for this:

(a) requiring Novell to assign to SCO any and all copyrights Novell improperly registerd in UNIX and UnixWare following the Asset Purchase Agreement: (b) preventing Novell from representing in any forum that it has any ownership interest whatsoever in those copyrights; and (c) requiring Novell to retract or withdraw all representations it has made regarding its purported ownership of the copyrights;

So, having sued Novell because Novell said it owned the copyright, SCO asks the court to transfer those same copyrights from Novell to SCO and -- having transferred those rights -- to admit that Novell no longer has them.

Does SCO even know what they're suing for?

Re:Luser Pays. Support your original claim. Re:Wha

[SatanicPuppy]

The problem arises when Joe Shmo tries to sue Microsoft for stealing his idea and driving his company out of business and gets buried under a 100,000 dollar a day legal team, which he then has to pay for.

I think we definitely should have more protections in place against frivolous and groundless lawsuits, but I don't think that dumping all the legal costs on the loser is the way to go about it.

Re:Didn't SCO have a ceiling agreement

[Jaywalk]

Sorta. According to this article, their legal fees were capped, but it does not include "expert, consulting and other expenses". I just wonder how motivated their lawyers are going to be now that they know they're not going to make any more money from the case.

Re:From The Article

[hey!]

Well, that's pretty much what the whole proceeding is about isn't it?

It'd be one thing if Novell stole SCO's bicycle. But we're not talking about property and stealing, we're talking about property rights and agreements made about future behavior with respect to the use and non-use of those rights. Since what we're talking about is abstract, it's not as simple as looking in SCO's garage and seeing the bicycle is gone, then going to Novell's and seeing it is there.

What SCO is arguing now is more like this: "Novell sold me the exclusive rights on the use its bicycle to court Mary. Then he rode over on his bike to Mary's house."

Then Novell says, "True, I sold you exclusive rights to use that bicycle to court Mary, but I bought a different bicycle and used it."

Then SCO says, "Well, you gave me exclusive rights to the design of the bike in courting Mary. Look see, the derailleur on the bike you rode works just like the one you gave me exclusive rights to."

Then Novell says, "No, I sold you exclusive courting rights to use the components specific to the bike in question. The derailleur design is not specific to that bike."

And so on. It's all about promises not to engage in broadly defined classes of activities centering around vaguely defined abstract entities. It's always going to be possible argue that an activity does or doesn't fall into the relevant class, or that the entity in question is or is not identical to the one covered in the agreement. On top of this, the judge is supposed to render if possible an airtight and irreproachable decision, otherwise he risks being overturned and losing judge-karma.

Re:IBM or Novell will *NOT* just buy SCO out

[LWATCDR]

Not only that IBM didn't want every IP crooked company on the planet trying to sue it just so IBM would buy them out. One of the stranger twists of fate is that IBM really does own patents on just about everything having to do with computers. One of that patents it is claiming SCO infringed on is for a menu structure! There is an old story that Microsoft found out that IBM was infringing on like ten of it's patents. When they meet IBM brought in a list of 5,000 patents that Microsoft was infringing on. True or not the moral is you don't start an IP fight with IBM. IBM wants to make sure EVERYONE know that so they are going to slap SCO as hard as they can. Novell wants Unix back. Why? So it can make Linux an official Unix and gain mind-share in the Linux world.

Re:"who else is going to pay?"

[SatanicPuppy]

This guy's kinda crazy, but he's right. The only one's who get rich off this system are the lawyers. They've set it up for their benefit, and they're reaping the rewards, like an arms dealer supplying both sides in a conflict.

Your history's wrong

[rkhalloran]

Caldera was started by Ray Noorda after he left Novell, to flog Linux-for-business (he's long since disconnected from it). They acquired the UNIX business of Santa Cruz (mainly for the reseller channel?), and renamed themselves SCO Group. What was left of Santa Cruz became Tarantella, and has been bought up by Sun.

SCOG's run their business into the ground (their clients are fleeing in droves), and decided to misread the AT&T -> Novell -> Santa Cruz agreements to believe they own UNIX in toto, and that any code that touched the SysV codebase (as in IBM's RCU, NUMA, etc.) is theirs, despite lawyers from the preceding firms telling them they're full of it. They went after IBM, apparently expecting a quiet payoff/buyout, and got a countersuit instead. Now that they're facing the unblinking horde that is IBM's legal department, and the techies deconstructing their PR within minutes, their strategy seems to be reduced to delaying the inevitable.

Novell, meanwhile, decided that Linux was a Good Thing, also, and bought another Linux vendor, and seem to be making a reasonably successful go of it.

Okay, so just to be sure

[mcc]

What I'm hearing here is that SCO's complaint says:

1. Linux is a violation of SCO's noncompete because it is not UNIX.
   
2. Linux is a violation of SCO's copyright because it is UNIX.

Wow.

Re:Okay, so just to be sure

[MightyMartian]

What I'm hearing is "Wow, our case is absolutely irrelevant and not even Microsoft gives a shit any more. But we're getting all these great legal fees, so let's just keep up the fiction that we have anything at all for as long as possible."

Not exactly, contract is confusing.

[Jaywalk]

SCO is suing about the copyrights, which they admit are owned by Novell, and weren't even part of the deal?

It gets kind of complicated in here. The original Asset Purchase Agreement explicitly excludes copyrights, but Amendment 2 says that copyrights are excluded, "except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies."

SCO is hoping to use this vague wording to override the clear wording of the original contract. They're claiming that the conditional clause has been met and that all the copyrights should be transferred. Novell is going to argue that SCO doesn't need the copyright to exercise their rights "with respect to the acquisition of UNIX and UnixWare technologies". No doubt they're going to ask what technologies SCO is seeking to acquire and why they'd need the copyrights to do so. It's going to be up to the courts to decide this one.

I don't see how this can be read the way SCO wants to read it. SCO doesn't want the copyrights to acquire UNIX technology (which they did a decade ago); they want the copyrights to sue Linux users. This clause was put in so SCO could co-develop Monterey with IBM, so the historical context doesn't help SCO out either.

Re:SCO still exists?

[mormop]

"Isn't this over by now? The last time I saw a SCO article here, it seemed that even the judge was sick of their nonsense. Is there anyone still taken in by this charade?"

Yep, you recall correctly but the last time a judge showed any honest sign of being sick of nonsensical and irritating behaviour in court Microsoft got let off by the "tainted" judge's replacement.

Hopefully the judge in this case is only putting up with this bullshit in order to avoid accusations of failing to hear SCO's side of the story fairly.