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Novell Files for Summary Judgment Against SCO
rm69990 writes "Novell filed a motion with Judge Dale Kimball asking him to grant summary judgment or a preliminary injunction on Novell's claims that SCO wrongfully retained the money it received from Microsoft and Sun for their SVRX licensing and sublicensing agreements. Novell indicated over a year ago, when they initially filed their counterclaims against SCO, that they were planning on asking Judge Kimball to force SCO to turn over these monies. However, Novell only recently received the actual licensing agreements between SCO, Sun and Microsoft through discovery, despite demanding copies of them as early as 2003, and thus was unable to determine that SCO had breached the APA until now, which is why this motion is being filed so late in the case. This motion will likely bankrupt SCO if granted."
Didn't IBM also file for summary judgement against SCO like, just a few days ago?
Why do I get that funny feeling that SCO is screwed?
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Daryl can get the board jobs at the ski resorts.
I think option 4, the senior execs attempted to defraud stockholders in a pump and dump, fraudulently attempted to obtain money from autozone and dailmer and launched into damaging media tirades that were damaging to linux. Does anyone see this differently?
Judge K. can decide on the issue of whether SCO has kept Novell's money. It is just a matter of law and there is no realistic dispute over the facts. (If there was a real dispute over facts then it would have to go to a jury.) It's just a matter of reading the contract.
So, Judge K. issues a summary judgement saying that SCO has to give Novell 25 million dollars right now. That bankrupts SCO. That doesn't stop the court cases though. The bankruptcy trustee appointed by the court replaces SCO's management. The bankruptcy trustee then negotiates with the creditors (mostly Novell and IBM). All the cases are settled out of court. My WAG is that the out of court agreements include SCO (as directed by the trustee) admitting that they are wrong about all the cases and all the counterclaims.
The counterclaim we all care about the most is IBM's counterclaim number 10. That's the one that says that there is no copyrighted Unix code in Linux. That will be the end of that particular piece of FUD.
My fondest wish is that Darl goes to jail for Lanham act violations or for something the SEC charges him with.
Does anybody know what happens with the SCO vs IBM case, if this motion is granted and SCO is bankrupted before the IBM case goes to trial?
I'd love to see a big SCO-shaped crater, but we've been following that case for so long, I want to see how it ends.
I believe posters are recognized by their sig. So I made one.
Unfortunately, this has absolutely no chance of success. Motions for Summary Judgment are generally denied unless the other side's argument is so flimsy that there is no shot at it succeeding at trial, and is wasting the court's time. However, since a judge can't just dismiss a civil action for being st00pid, s/he generally first tries to get the parties to settle, and then tries to encourage the plaintiff (or defendant) to punt, to save them the embarrassment of granting a MSJ. If they refuse, then this might succeed.
In a case like this, though, where the facts and evidence are sure to be the crux of matters, there is no way the judge will grant it, which is unfortunate.
Friends help you move. Real friends help you move bodies.
Never forget: 2 + 2 = 5 for extremely large values of 2.
So if (when) SCO goes bankrupt, what are the implications for those companies that use their OS?
Please, we've seen and heard so much crap from those farking SCO motherfarkers. Bankrupt them and screw them, I'll buy Suse out of gratitude.
"Mr. Emerson [Microsoft's senior vice president of corporate development and strategy] and I discussed a variety of investment structures wherein Microsoft would `backstop,' or guarantee in some way, BayStar's investment....Microsoft assured me that it would in some way guarantee BayStar's investement in SCO."
2 12013816
"Microsoft stopped returning my phone calls and emails, and to the best of my knowledge, Mr. Emerson was fired from Microsoft"
http://www.groklaw.net/article.php?story=20060929
davecb5620@gmail.com
Their systems will be running the same software on Judgement +1 as they were on Judgement -1. So their immediate situation shouldn't be any different.
Also, if their management has any clue what-so-ever, they've already explored the costs/options involved in migrating.
The best case scenario for them would be for IBM to win EVERYTHING including sufficient cash awards that SCO would be unable to pay them (this is looking very possible if Novell gets their judgement). Then IBM could take the SCO business as partial payment (under the same terms with Novell as SCO had) and I'm sure that IBM would offer very inexpensive migration services to get everyone to Linux or AIX or something else.
This would be great PR for IBM's Linux drive. SCO attacked IBM/Linux and SCO was completely destroyed as a company and then IBM still took care of SCO's old customers (far better than SCO did with their lawsuits).
You cannot buy PR like that.
Don't be sorry. This was never about SCO's business interests.
This was an attempt to spread fear about Linux
Darl and friends all got what they wanted. Their business associates got a little more tarnish on their reputations. But Darl and friends walk away with $millions$.
SCO argues that the Asset Purchase Agreement gave SCO the rights to Unix, and thus the rights to hold IBM for account for its 'allegedly' putting Unix source code into Linux (most of the so-called 'evidence' for this was thrown out by the court because of the lack of line and file information). So if the Asset Purchase Agreement is held by the court to be valid then SCO owes Novell tens of millions. If the court says that the Asset Purchase Agreement is invalid then SCO does not have any property over the Unix code and Novell owns it all, Novell sacks SCO as their franchisee, and SCO do not have a business model or revenue income. Either way, I cannot see a future business model for SCO, their licence revenue is drying up year-on-year as people port their apps to Linux or Solaris; and all the people that can make money from Unix (as opposed to SCO who just lose it), that is Sun, IBM and HP, do not need SCO at all. Sun's Solaris is based on BSD and they have already bought a get out of jail free card for any Unix V pollution, and IBM had a licence from AT&T for AIX and want to move to Linux anyway, as with HP. Everyone else just uses Linux. If there is a market left for SCO, please tell me what it is?
My little Linux and tech blog
C'mon, this has been dragging on for so long that it's gotten ridiculous (even more so than the first time I heard about it). It's just a nonstop round and round pissing match between SCO and any company that looked like it had deep pockets to take from. I seriously hope that this move nails their coffin shut and closes their doors forever. I think I will file a motion to have Darl McBride declared an economic terrorist and taken away to Gitmo!
Careful, he's waiting for you. ;)
First of all, I personally know off-hand of five or six firms and small businesses who are still using UnixWare or OpenServer for their everyday operations. The stupidest thing for them to do would be to move away from these OSes. Why is that? Because their systems are working just fine. Their staff are trained to use the systems, and the systems themselves are stable and perform the functions that they should.
Switching to even a free system like Linux or FreeBSD may be out of the question. Even if software like Linux or FreeBSD is used, the cost of transitioning the system and retraining the staff can often be prohibitive.
Second of all, porting the software that runs on OpenServer or UnixWare to Linux or BSD may not be an option. And yes, I know of FreeBSD's support for running System V binaries, and it more often than not doesn't work. When it does work, often only with statically linked binaries, it's not always very stable.
You can label businesses still using UnixWare or OpenServer as "stupid" all you want. We professionals who understand the very good reasons they have for remaining with such working systems will just laugh at you and your short-sightedness. Only a moron would advocate throwing away perfectly good infrastructure in this case, especially when most of these firms depend on local consultants, rather than SCO, for support and maintenance.
That's the one that says that there is no copyrighted Unix code in Linux.
In the 2.0.36 kernel tree there is a file in the net section where the ppl admit they took it from FreeBSD and then removed the BSD copyright.
And the ATA code came from BSD/no it did flap a few years ago.
So not everyone's hands are clean in the Linux kernel in the past.
There is a likelyhood of shared code, but is 3 lines 'infringement'? 1 line? 30? 3000? 300,000?
It would be best that there is no code. But being able to be shown what code may have questionable parentage and fix that would also be acceptable.
"Mission Accomplished! Er, no we don't have any evidence yet. Only an enemy would ask for evidence!"
Rich And Stupid is not so bad as Working For Rich And Stupid.
FINISH HIM!
;)
Oh, sorry, wrong thread.
Hang on a sec... maybe not.
Looks like Novell and IBM are going for the finishing blow. And if IBM are true to form, this will be very, very slow and very, very public.
My regret is that the scum who participated in this little pump-and-dump will get to hang on to the money they made.
means "Asset Purchase Agreement" here.
The top Google results for "define:APA" are
American Psychological Association
Association of Police Authorities
A professional trade association comprised of both publicly and privately employed planners.
or jala - water [from Ayurvedic medicine)
Auxiliary Personnel Attack
the Engineered Wood Association, formally[sic] known as the American Plywood Association
Army pre-positioned afloat
The asset purchase agreement says that SCO is basically acting as an agent for Novell. They collect the money for the licenses, pass it on to Novell, and Novell gives them 5%. The important distinction to make here is that the money is owned by Novell; in other words, SCO has no claim to the money at all. That makes it different than saying that SCO owes money to Novell. It means that when SCO goes bankrupt, all the money goes to Novell; they don't have to share it with the other creditors.
Anyway, the two requests are: 1 - A summary judgement. That is a final verdict. The judge tells SCO to give Novell Novell's money. In that case it doesn't matter what happens to SCO. If they go bankrupt it doesn't matter. The money belongs to Novell and Novell gets it, period. The judge can do this as long as there is no real dispute about facts. If he finds the wording in the various contracts to be sufficiently clear, he will issue the summary judgement as a matter of law. 2 - If the judge doesn't issue a summary judgement, Novell is requesting that the money be frozen to keep SCO from frittering it away. That's the case where the judge has to consider what harm may come to SCO. Even so, PJ over at Groklaw doesn't think that rule will protect SCO. Judge K. has been ultra conservative in his rulings, which is why this case has stunk up his court for so long, so I wouldn't be surprised if he applies the greater harm rule.
At this point it is entirely possible that Judge K. will issue a summary judgement. SCO will be bankrupt and all the cases will be quickly resolved by the bankruptcy trustee.
Part of the APA says that SCO has to actively market Unix system V software. If IBM wins and assumes the responsibilities of the contract, then they would also have to actively market it. There is a clause that says Novell will take back its rights if the product isn't actively marketed.
"This motion will likely bankrupt SCO if granted."
Seeing SCOX(E) bankrupt after claiming I owe them thousands of dollars for running Linux-based OS's on a couple machines will be satisfying. But I wonder if it has a little tinge of missing the point, like convicting a murderous gangster for tax evasion? Are there any legal declarations we'd still like to see come out of these procedings, that might be short-circuited by pre-trial SCOX(E) death? Any of their claims that not surviving to the end of the leagal battle would prevent us from getting clear decisions from the court on? Like their attempt to use "Methods and Concepts" in strange places, and to go directly to extortion of end-users over unproven allegations of improper distribution, etc.
Any technology distinguishable from magic is insufficiently advanced. - Geek's corollary to Clarke's law
If you were interested in my initial question anyway of course :) But a very clear answer, I had expected something like that on groklaw, but there was no description at all, a shame for those who don't follow it every day. I guess SCO actually did something unlawful by not giving the money that belongs to Novell, and I wonder how completely stupid you can be to do something like that. If you start a huge process to get your "lawful" rights for chunks of code to you, why make blunders like that? Probably the answer is just that all the people with any smarts already left SCO long ago.
molmod.com - computing tips from a molecular modeling
Here's the SCO vs IBM case schedule. Note how many key steps are now complete and in the past. Discovery is over. Expert reports are over. The final deadline for expert discovery passed last week. No more surprises. No more "secret evidence". No more stalling. We're past that. All the evidence is on the table now. The process grinds slowly, but it does grind.
Now the process speeds up. There's a significant deadline every few weeks now. Right now, summary judgement motions are being briefed and decided. That may end the case in favor of IBM, and it will almost certainly narrow it, as SCO's unsupported claims are knocked down. Those will be decided by the end of the year.
In January, the pace speeds up even more. As trial approaches, there are judge-set deadlines every few days.
If there's anything left to try, trial starts February 26, 2007. Not that far away.
Solaris 2.x, that is SunOS 5.x, is not based on SunOS 4.x. The SunOS 4 series was based on BSD, but Solaris was a full fledged Unix SVr4 implementation. As far as I am aware they recieved a License for the System V source to do their own implementation on Sparc.
The current versions of Solaris have nothing to do with BSD; that was SunOS 4.
Since there's a real possibility that IBM or Novell might end up owning SCO, I wonder what the chance is that Sys-V could eventually become open-source?
That would be a really funny (and ironic) outcome to this whole lawsuit thing...
The Solaris 1 name wasn't just a marketing exercise. It was an intermediate version with both SVR4 and BSD pieces so that SunOS users could get used to the fact that Sun was moving over to SVR4 before the full-fledged flip-over. That way, people wouldn't be caught completely flat-footed by the final change-over.
Sometimes boldness is in fashion. Sometimes only the brave will be bold.
No, and I didn't mean to imply I got or was asked for anything personally.
:-)
I'm refering of course to the attempt to convince everyone to pay them $699 per workstation (costing me $2100 for a laptop and two workstations if I was silly enough to pay it), and I believe it was like $1299 or so per server, for using almost any version of Linux. They also attempt to claim that software "Methods and Concepts" somehow NOT embodied in code are yet still breaches of protectable IP they can sue over. They also claim Linux would not have become an enterprise-grade platform without stealing their IP to do it. They very publicly claimed to already have direct evidence, which they trumpeted for over a 2000% gain in their stock price, then went shy and retiring when asked to show that evidence in court. But I did not mean to list the sins of SCOX(E).
Back to my original point. Many of SCOX(E)'s claims have been ridiculed and called into question. Remember "astonishing lack of evidence" from Judge Kimball. But that's not the same, or as usefull for citing as precedence in the future, as the court flatly declaring those claims wrong. I was just musing that it might be a shame for the whole thing fall into the pit of bankruptcy court before the summary judgements and decisions from the bench give us some armor against SCOX(E)-II hoping to score big off other people's work.
If there are no useful decisions left to make that would be precluded by the collapse of SCOX(E), then, by all means, I look forward to pointing at the shuttered office building wrapped in crime scene tape in Lindon, Utah where SCO used to scheme, and laughing looong and hard! For extra gut-busting mirth, it would be cool to see Darl and Co. coming out of said building with a FED on each arm and their jacket hiding the cuffs.
Think Boise will represent them pro bono at the criminal procedings?
Any technology distinguishable from magic is insufficiently advanced. - Geek's corollary to Clarke's law
Effectively Novell's position is that SCO doesn't have the rights to Unix it thinks it has, because Novell acted in bad faith and accepted money for something they really didn't sell.
This summary judgement will go nowhere.
Read SCO's filings with the SEC.
In those they claim the licenses they sold to MS and Sun are Unix licenses.
I'd love to see a big SCO-shaped crater, but we've been following that case for so long, I want to see how it ends.
How about seeing a caldera? Here's Rabaul Caldera, Papua New Guinea.
FalconShould there be a Law?
The assets of the bankrupt company belong to the creditors - that would in the majority be IBM so, in effect IBM would be able to use these assets to realise any monies owed.
The major creditor would actually be Novell because the license revenues SCO didn't pay to Novell.
FalconShould there be a Law?
I feel bad for the honest engineers who work there, but I hope that Groklaw. etc. keep covering the story as indictments against Darl and his cronies are filed. This will be most amusimg to watch. Especially since very soon he will not be able to afford his personal bodyguards since I'm convinced that both Novell and IBM will be able to pierce the corporate veil by proving willful negligence and intent to deceive.
Caldera (the new SCO, what we now know as SCO) was once a great company (opened up DR Dos, offered Caldera Linux, an excellent distribution of the time, etc.) who claimed that OSes should be opened up for the purpose of interoperability and fair competition, but look at what has happened ever since Darl got involved.
Pop some popcorn folks, this is going to be fun to watch.
The Christian Right is Neither (Christian nor right). See: Matthew 23, Matthew 25, Ezekiel 16:48-50
I think I will file a motion to have Darl McBride declared an economic terrorist and taken away to Gitmo!
I'll second that motion.
FalconShould there be a Law?
The contract doesn't merely say that "a large part" of the royalties go to Novell (95%)... it says that SCO must deliver ONE HUNDRED PERCENT of Royalties to Novell, and then Novell gives 5% commission BACK.
That isn't always true. A third-party beneficiary (or someone else with a special relationship, like an assignee) can challenge the validity of a contract on grounds of, e.g., illusion, illegality, or impossibility, even though the contractors assert its validity.
Example:
Quality Vendor sells products to Happy Customer.
EVIL VENDOR: (holding a gun to Quality Vendor's head) Agree to sell me the Happy Customer business for one cent, or I'll kill you!
QUALITY VENDOR: Okay! Don't kill me! I agree!
HAPPY CUSTOMER: Hey! That's ridiculous! There's no way that the new contract between Evil Vendor and Quality Vendor is valid! It's obviously made under duress.
EVIL VENDOR: Oh, yes, it is. Right, QV? (cocks back hammer)
QUALITY VENDOR: Er, sure, yes, I agree that it is a valid contract.
If you want a slightly more realistic scenario, envision Evil Vendor Corp. buying a controlling interest in Quality Vendor Corp. before "negotiating" the new contract.
Disclaimer: IAAL, but I am not your lawyer, and this is not legal advice. The above reflects the common law of most states in the United States. Other lawyers: Yes, it's greatly simplified.
All employees must wash hands before seeking equitable relief.
Unfortunately, this has absolutely no chance of success. Motions for Summary Judgment are generally denied unless the other side's argument is so flimsy that there is no shot at it succeeding at trial, and is wasting the court's time. However, since a judge can't just dismiss a civil action for being st00pid, s/he generally first tries to get the parties to settle, and then tries to encourage the plaintiff (or defendant) to punt, to save them the embarrassment of granting a MSJ. If they refuse, then this might succeed.
If you are a lawyer: WTF? In what jurisdiction do judges only grant Rule 56 motions in cases where the claims are frivolous?
If you are not a lawyer: You're wrong. Summary judgment is basically a replacement for a trial, if the facts aren't in dispute. Motions for summary judgment say "there is no dispute as to the facts, so there is no need for a trial, because putting on witnesses, etc. is pointless where nobody disagrees about what the facts were. Consequently, the judge can go ahead and rule as to who wins under the law, and we should win because of X, Y, Z." The other side says either "there are still disputed facts, so there needs to be a trial" or "that's all true, but we win under the law because of A, B, C." Motions for summary judgment are granted all the time - just because there's no factual disputes left doesn't mean that one side now has a "flimsy argument". Both sides might have really good arguments, or the law might be so vague that it's not clear who wins, and so now it's up to the judge to figure out what the law is.
Oh, and a judge can dismiss an action sua sponte (on his own initiative) for being st00pid - it just doesn't happen often enough.
All employees must wash hands before seeking equitable relief.
... could be witnessing the company's shenanigans and still be considered honest.
IANAL but write like a drunk one.
Does anyone else see SCO in the same light as those cheesey ending of thrillers where the baddie is dead and everything is lovely.. then the baddie isn't dead, after all. So they kill him again... etc etc. (repeat until required cheese level is achieved).