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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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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.
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?
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If I remember rightly, SCO has to trasfer 100% and then Novell hands back 5% as a fee.
My little Linux and tech blog
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.
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.
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.