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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."
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.
Yeah, they did.
Are they screwed? That is not a good question because they were screwed when the first filed suit.
Seriously, even if SCO wins, a verdict to that effect will not come around for perhaps 5-10 years. SCO thinks that they will then rake in a ton of money on their licensing. Like anyone would even use their Unix code by the time this is all said and done. I'm sorry but they killed their own company when the started all the lawsuits. They were so scared of Linux that they thought they needed to fight and figured that the US is so sue happy that they would win easily. They could have sucked years more out of their code because the large companies that use it are to scared to change anything until there is no other choice. SCO = stupid
Does anyone remember when SCO was actually a large company worth a few billion dollars? Now their stock is worthless and either Novell or IBM will kill them. Personally, if the Novell evidence is as open and shut as it seems, SCO will have to pay up and they will die. IBM will probably laugh and go out for beers with Novell. Perhaps we'll even see a Novell and IBM merger down the roads, that would be pretty cool.
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?
"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!
>The question should be, why have they lasted so long?
;)
Because Windows Vista was not ready yet
My little Linux and tech blog
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.
A summary judgement means that the judge rules without a trial. No waiting 5-10 years for the legal system to churn.
Of course, asking for one and getting it are two entirely different beasts.
Bill Shaw
Dedicated to Alternate Reality Gaming
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.
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.