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Did SCO Get Linux-mob Justice?
An anonymous reader writes "According to Fortune's legal blogger Roger Parloff, "once in awhile a judicial ruling comes down that's so wrong at such a basic level that you're just left scratching your head". He claims that Judge Kimball's "102-page ruling (about SCO) was greeted with widespread rejoicing and I-told-you-so's", but "the problem is not that Judge Kimball's view of the facts is wrong". Was the ruling unfair?"
...to pay your $699 licensing fee you cock-smoking teabaggers.
Since when is 2-month-old news that we already read about (cf: "widespread rejoicing") news?
Kevin Smith on Prince
Was the ruling unfair?
Hmmm, I can't think of a more appropriate place to ask that question...
This guy's the limit!
SCO (and Darl in particular) didn't get enough mob justice. I'm thinking keelhauling is about right.
No folly is more costly than the folly of intolerant idealism. - Winston Churchill
Link to said ruling
Those who believe the Internet is private,
find their privates are on the Internet.
How can it be unfair when THEY were the ones at fault? When THEY were the ones lying and making false claims? Whatever they get now is perfectly fair game.
I say we kick the horse till its guts get sprayed all over SCO's main building.
Sure, you got it. Good job.
.there is enough of everything for everyone.
His hyperventilation amounts to ignoring SCO's inflated claims of ownership to everything, failure to prove they owned what they claimed -- which, by the way, they were never able to show in court what it was that they claimed they owned! This is legal wankery at its lowest, folks. Nothing to see here. Move on.
Dog is my co-pilot.
That's my understanding of the article. It has more to say to law students than FOSS advocates. The title, however, is inflammatory, probably just to make us read it.
Justice will be served when the bankruptcy is complete. If SCO would have bothered to have evidence of the copying, they had a case. They never showed any evidence, just said they had it. They deserve everything they get.
If you know it is a dead horse, who do you beat it?
Patents Drive Free Software as Hurricanes Drive Construction Industry
Anyone ever hear of the book "No Asshole Rule"? It applies to hiring and firing staff (and if you're a manager you should probably browse through it.) On a real gut level I think corporations should abide by the ideas in that book. If you can't play nice in the playground with the other kids, you deserve to get your face punched in. Similarly, if you build your business on open source software, you play nice by going to the software developers and saying, "We think you're infringing this IP.. can you work with us to fix that?" If you wanna be the asshole that goes around suing everyone, blatantly lying to the press, and tell Wall Street another set of lies then you deserve to file bankruptcy.
----- obSig
It looks as if this guy believes the judge plainly shouldn't have ruled on the issues he did. I think he should put his money where his mouth is and, pro-bono, file an appeal on SCO's behalf reverting Kimball's decision and repeating the entire 5-year process. My guess is he won't; a good way to generate buzz about your writings is to be on the opposing side of a losing argument, and doing your best to confound things and give reasonings as to why everybody else (against SCO) is wrong. I believe this behavior is known in certain circles as "trolling". That, folks, is why everybody hates lawyers; they just complicate things and can make a problem many times worse, all while taking 5 years to do it.
As I understand it copyrights can only be transferred by contract where there is explicit language transferring the copyright. Sco was arguing for an "implied" transfer which as far as I know isn't allowed in copyright law. Therefore everybody's testimony is irrelevant absent an agreement which explicitly transfered the copyrights to Sco.
Caldera knew this when they bought the unix business from the Santa Cruz Operation - They were asked if they planned to opensource unix at the conference call and said they'd like to but didn't have the necessary copyrights to do so.
That blog article is just old FUD.
I fully agree with this statement!
:-)
Well said!
Thoughts?
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
"all copyrights" clearly means all copyrights, especially so in light of the specific transfer of the trademarks.
I just see a pro corporate lawyer who read the ruling looking for weak, but irrelevant things to attack, then a flamebait title is added to the top which isn't supported anywhere in the article. Lame. I guess it will get Fortune a few extra hits, but this isn't honest journalism.
Hey anonymous reader, why don't you write down allllll your thoughts on this matter and mail them to five years ago when I might have cared.
- First they ignore you, then they laugh at you, then ???, then profit.
He actually makes a good point. From a legal standpoint, the judge (most likely) should not have granted Novell's motion for a summary judgment. The judge (probably) should have let the matter go to trial. From a "rules of the bench/bar" standpoint, the author is probably correct.
Heck, he even allows that the RESULT of the ruling is most likely correct, but the act of the ruling itself is the issue.
Karma: Non-existant. Due mostly to the fact that you smell funny and nobody likes you.
SCO has had several years in court and nothing that they have come up with in terms of a legal theory to support their position has had any lift to it. This is hardly "mob justice". If anything, there should be complaints that Judge K give them too much slack.
It is about time that the slow turning wheels of justice move to end the long suffering of IBM, Novell, the linux community, and open source in general.
Pretty telling, actually.
The then-CEOs of both Santa Cruz and Novell (yes, of Novell too) each supported SCO's position in their testimony -- i.e., the position Judge Kimball rejected without even letting a jury hear it. Each former CEO said that it was his understanding that Novell had sold Santa Cruz the entire UNIX operating system business, including copyrights. Here's how Novell's then CEO Robert Frankenberg testified:
Q. Was your initial intent in the transaction that Novell would transfer copyrights to UNIX and UnixWare technology to Santa Cruz?
A. Yes.
Q. Was that your intent at the time when the APA was signed?
A. Yes.
Q. Was it your intent when that transaction closed?
A. Yes.
Q. And did that remain your intent, as you view it, at all relevant times?
A. Yes.
Q. That never changed?
A. No.
Interested in open source engine management for your Subaru?
How is that "accused's right to a jury of their peers" supposed to work when a corporation like SCO is accused? Is it supposed to be composed of CEOs, or board members, or representatives of other corporations whose execs and directors vote on the testimony?
That one flaw shows what a farce it is to treat corporations as "persons" with the same rights as humans. As if there were any shortage of reasons. Like this corporate flackery from _Fortune_'s Parloff, which is whining that a judge didn't waste even more years, time of people in juries and elsewhere in the legal system already overworked subsidizing corporate warfare like SCO's desperate, doomed extortion of IBM.
--
make install -not war
Since Darl figured out how to create a slashdot account.
"National Security is the chief cause of national insecurity." - Celine's First Law
This is the same Fobres that employs Daniel Lyons who has repeatedly attacked Groklaw since the case started and defended Maureen O'Gara's stalking of Pamela Jones.
CDE open sourced! https://sourceforge.net/projects/cdesktopenv/
Judge Kimball is a "Linux-mob?"
What if I do the same thing, and I do get different results?
Er, idiot, Redhat sued SCO, not visa-versa.
If he can't understand the difference between plaintiff and defendant, why should I consider any of his other opinions?
GMail recently announced a Vulnerability [Slashdot]
Dude, you missed the tag.
Neither "Linux" not "mob" is mentioned anywhere in the article, except for the headline.
The article is about the Novell vs SCO case, it advocate well that the issue of ownership is UNIX(TM) is far from clear cut, and leaps to the conclusion that it should have been decided by a jury rather than by a judge.
A jury is *closer* to to "mob-justice" than a judge, and Linux is rather irrelevant to the question of ownership of UNIX(TM), the headline makes no sense.
Was the headline selected by someone else than the author? Does Fortune get significant money from click hits? If so, maybe an editor chosed the headline to infuriate the Linux "mob".
I suspect very few of the "call the Waaaambulance" type people here have actually read the article. There's actually quite compelling evidence of shady or unfair goings on in that trial. Completely striking the testimony of one of the main negotiators because of a family member with vested interests (having a wife work at one company is worse than you working for another company?) does seem extremely odd. It's not even slight testimony, it essentially was confirmation that SCO were told and led to believe they had ownership of Unix rights. Although this testimony could've had holes picked in, to completely discount something so incredibly important to the case is odd.
According to Fortune's legal blogger Roger Parloff
Who would be in a better position to determine the definition of "fair" as it applies to SCO? A seasoned federal judge who spent years listening to SCO's side of the case? Or paid blogger who pulls his legal opinions out of his wazzu?
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
... SCO had to pay 95% of the money from Unix sales to Novel if they owned it all?
This is old. It's from September.
What actually came out about the asset purchase agreement was straightforward. The written agreement says Novell didn't transfer the UNIX copyright to SCO. Earlier discussions between Novell and SCO had discussed transferring the copyright, and SCO wanted to do that. But Novell wanted all the money up front before irrevocably transferring the copyright. (In case SCO went bankrupt or didn't pay, of course.) SCO didn't have enough cash to pay in full. So the actual agreement as signed called for payments to be made over time, and no copyright transfer, just a license. Some people on both sides thought the copyright had been transferred, because that's what had been discussed in early meetings, but that's not what was actually in the signed documents.
Once all this came out in court, the Judge ruled for Novell.
I'm posting this anonymously since I work in the legal field.
The article is right. This wasn't a trial. It was a motion for summary judgment, which has a very strict standard. In order to get to summary judgment, the side trying to get the case thrown out has to say that even if everything the other side alleges is true, they don't meet the elements of their claim. The language is that there is no "general issue of material fact" in their case. (It's Rule 56(c) of the Federal Rules of Civil Procedure for those of you playing at home.) Basically, there has to be absolutely no chance that a reasonable jury could ever apply the law correctly and still find for the other side. (That's Anderson v. Liberty Lobby, 477 U.S. 242 (1986), a case which is cited in damn near every summary judgment brief I've ever seen.)
The problem is that the judge can't say "I think that this witness isn't credible" in order to find for summary judgment -- that's a function of the jury which is the factfinder. All a judge can do on summary judgement is say that the case law doesn't give the other side a claim even if everything they say is true.
The SCO decision has a lot of parts of it where Judge Kimball makes credibility judgments. That's not his place at that phase in the case, and he shouldn't be deciding those issues -- the jury should. That's the problem.
Ultimately, it doesn't matter. SCO was wrong on the law anyway, and even if those goes up for appeal, it's probably not going to get overturned. (Even though an appellate court has to review summary judgment orders de novo -- they don't need to defer to the decision of the trial court.) As a matter of law, SCO doesn't have a case.
That still doesn't mean that Judge Kimball should have been inquiring into the credibility of witnesses. It may not matter in this case, but it's bad procedure, and in another case it could easily have been grounds for reversal on appeal.
And who was the leader of this bloodthirsty mob of zealots who don't know anything about the law? That's right, it was Groklaw's arch-censor PJ.
By stamping out all contrary opinion on her supposedly "open" site Groklaw, PJ (and to a lesser extent, MathFox) managed to generate hate, FUD, and viciousness against SCO on a never before seen scale.
The result? A complete miscarriage of justice, not to mention putting many hard-working SCO employees (many of whom had families and mortgages) out of work. Will PJ be using any of her Groklaw fortune to help out these families?
Frankenberg also approved a Novell board minutes, immediately after the sale, saying that Novell retained the copyrights.
So maybe he __originally__ intended to transfer the copyright, and maybe years later he only remembers that part, but both the APA and the board minutes say the copyrights were not transfered.
In any case, Frankenberg's testimony is not admissable to contradict the APA. If a contract says something is and something isn't, parole evidence is only admissible to explain ambiguities, not to contradict it. In this case the APA says the copyrights don't transfer, so Frankenberg's testimony that he wanted to transfer them at some point isn't admissible to interpret the APA.
Quatermass
IANAL IMHO etc.
I am not a lawyer... thankfully.
There are lots of idiot analysts and journalists out there.
This post had kerosene poured on it.
It makes you wish for less people running around with lit matches.
---- Teach Peace. It's Cheaper Than War.
Fairness is generally adjusted by the number of items you are willing to consider.
Sevens amendment only gives you absolute jury trial rights in criminal cases, where you are involuntarily dragged to court by the government and have your life or freedom at stake. On the other hand, in civil cases the rights of both parties are to be considered equally. A citizen or company has a right to be free of arbitrary, repeated harassment by the party that was shown to have abused the court system over and over again. SCO has certainly shown to be a corporate crackpot by repeatedly changing claims, extorting money from numerous businesses for software they did not own and ultimately failing to prove anything in a very lengthy and expensive case against IBM. Certainly we can not fault the judge for being more skeptical about their new allegations than he would about a company without a history of court abuse? If it looked like more of the same old crap, certainly it's not prudent to waste time and money of numerous Novell employees as well as involuntarily detained jurors on yet another crackpot case?
"There's actually quite compelling evidence of shady or unfair goings on in that trial."
I think you are correct, however I seem to recall that SGOG was involved in all of them.
My faith is expressed through Nihilism. Do you understand?
In particular, he was praised by Judge Gross, the Delaware judge handing the SCOX BK case.
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
The human mind is a funny thing ... letters on paper are a little more trustworthy.
... when English language and logic speak plainly to the meaning of text a legal dictionary can not overrule that).
The contract while perhaps somewhat strange is not ambigious. Including a superset and subsequently excluding a subset does not a contradiction make (the "without limitation" part is extrapolation from a legal dictionary, which is not law
But the key issue is that none of that matters. The contract has specific language, called an "integration clause" saying that only what's in the contract matters. Anything outside the contract, like who remembers what, is irrelevant. The contract cannot possibly be read to say that SCO owns the copyrights because the contract explicitly says that copyrights are not to be transferred. Parloff actually touches on this near the bottom of his article, but then dismisses it based on SCO's argument that -- elsewhere in the contract -- it says "all rights and ownership". Now he's just being coy because the actual wording is something more like "all rights and ownership, except those included in section X". And copyright law is very explicit about the kind of language you have to use to transfer copyrights.
It's not always possible to tell a shill from an honest journalist, but SCO and their obvious shills (like Maureen O'Gara) started making claims that Kimball was legally incompetent and often overturned on appeal (not true) at about the same time Parloff came up with this bit of legal opinion. None of the regular press came to the same conclusion. Since he's playing the same riff, I'm guessing he's with the band.
===== Murphy's Law is recursive. =====
The laws aren't there to protect the people or entities that never piss off the masses.
It is the dissenting point of views, the unpopular ones... those are the ones that need legal protections, and why ths US isn't a democracy.
My opinions are my own, and do not necessarily represent those of my employer.
The comments on the other hand are quite intense and full of REAL facts to back them up. The meat of the case can be gleaned in just a short perusal of the responses.
I actually RTFA - or started to. Five wordy paragraphs later, without one shred of information beyond what was in the slashdot summary, I decided to stop wasting my time. I can hear Roger Parloff when he returned from the vacation he mentions in the piece: "OMFG My SCO stock has tanked! And I thought that with all that revenue from selling Linux licenses I'd get a dividend!"
-mcgrew
mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
Note to Darl. Next time remember to bring your evidence with you are next in court.
A contract is binding. If the contract is sufficiently clear, it isn't necessary to hear any witnesses testify about the intent of the contract. SCO's attempt to drag in testimony was an attempt to show that the contract was either ambiguous or didn't reflect the intent of the drafters of the contract.
The author says the contract is ambiguous. Judge K. begs to differ.
Even if we examine the intent of various company executives, there is one major problem for SCO. The reason that the whole business unit was not sold to Santa Cruz was that they couldn't afford it. If they had been able to buy the whole business unit, then they would have received the copyrights and we would be having a different discussion.
Novell was worried about Santa Cruz's ability to stay in business. The result was that the contract was written in such a way that Novell would be protected if Santa Cruz went bankrupt. That's why Novell kept the copyrights.
As a matter of law, (which is something Judge K. can rule on without a jury) an explicit conveyance is required to transfer ownership of a copyright. SCO could present no such document. The best they could do was present a half-baked theory and a bunch of irrelevant testimony. And yes, Judge K. can rule that testimony is not relevant even if there is a jury present. (As an example, most people are familiar with the concept that hearsay evidence isn't admissible.)
The author snatches a bunch of stuff out of context and then concludes that Judge K. made mistakes that any first year law student would avoid. With all due respect, the author has clearly never been a first year law student.
Please allow me to introduce myself
Im a man of wealth and taste
Ive been around for a long, long year
Stole many a mans soul and faith
And I was round when jesus christ
Had his moment of doubt and pain
Oooooooh, my bad, I thought someone just wanted the lyrics. Sorry about that. Carry on.
Slashdot, where armchair scientists get shouted down and armchair theologians get modded up.
Yeah, and I "intend" to be a gazillionaire tomorrow. That don't make it so ...
This is a classic social engineering technique. You're being led to a conclusion. There's strong insinuation that the deal was "transfer of copyrights." As another poster noted, SCO's predecessor couldn't afford to buy the copyrights, so they were excluded. So the clarifying question (that notably wasn't asked above) is:
Q: Did Santa Cruz actually purchase the copyrights?
A: No, they couldn't afford them.
That last question substantially alters your interpretation of the situation, yes?
There are no laws involved in civil lawsuits, so you don't have the same legal protection. A judge can dismiss your lawsuits if he/she is convinced that you are not credible and are a repeated abuser of the court system. You can even end up in jail for the later part, so SCO execs should count their blessings.
Why exactly does anyone care about this former Linux company that decided to buy a UNIX company in an attempt to extort all Linux users?
Mob Justice would have ended with a few smoldering corpses with pitchforks in them.
Linux Mob Justice is basically the same, only using GPL'd Pitchfork 0.91 and Match v3.4.112.
OSGGFG - Open Source Gamers Guide to Free Games
When you look at it, SCOX brought a lawsuit based upon suppositions, assumptions, and a profound lack of substantive evidence of any sort to support their claims. They didn't even make clear what the lawsuit was about. Initially IBM was accused of transferring proprietary material to the linux code base. THAT evaporated when a few thousand coders analyzed the code and demonstrated unequivocally that there was NO unix in linux. The whole copyright imbroglio is similar. Copyright requires a signed transfer under law. SCOX knew they didn't have one and regardless of what the CEO's might assume, the lawyers who negotiated the deal, excluded the copyrights for very good reasons. Thanks to the Berkeley-ATT lawsuit and its outcome - whatever that really might have been - it wasn't clear that anyone had copyrights to a large part of unix. Better not to create adverse conditions by selling what might not be saleable. Then of course there is the delaying, there lying, the apparent deliberate "misunderstanding" of court orders. SO, on the face of it, Judge Kimball failed to toss the lawyers and executives of SCOX in the can for contempt, bring an unfounded suit, and general mopert and dopery. Yeah, it was unfair, wasn't it?
------ The only greater hazard to your liberty than n politicians is n+1 politicians.
Unless you can show judge Kimball was intimidated by the number of people on Slashdot who hate SCO, it's irrelevant that they do. It's a free country and you can hate anybody you want.
TFA does raise a rather more interesting point: did the judge have legal authority to dismiss the case as he did in the ruling.
Novell asked Kimball to grant a summary judgment. A summary judgment is a ruling by the judge on the elements of the case where there is no legally relevant factual dispute. If I sue you for promising to fly me to the moon for $100, and you admit that you did, there is no factual dispute, only a legal one of whether such a promise is binding. However, if you deny making that promise, we have two different versions of the facts. The judge can't grant me victory because he finds you less credible than me; unless we both agree to let him do that, it's up to a jury. On the other hand, if there was something about the promise that made it non-binding in that (e.g., it was "opposite day") the judge could summarily rule for you, because none of the facts in dispute are relevant.
So the question is whether the judge simply ruled the factual disputes were not relevant to the claims, or whether he improperly took the role of jury and decided to favor one set of evidence as more credible than another. Or maybe he did a little of both, which would be par for this case.
Ultimately, SCO is going to lose because it won't have the money to appeal this decision. If the decision was a proper one that's all to the good. If it were an improper one, then that is a situation any of us might find ourselves in some day, fighting a richer opponent and at the mercy of a judge that favors that opponent.
It's good news when the bad guys get defeated fair and square. It's not entirely good news if they are defeated by biases in a system we depend upon to be fair.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Which is why they have contracts. This kind of stuff needs to be written down if anybody is going to remember the details all these years later.
===== Murphy's Law is recursive. =====
Don't thank God, thank a doctor!
the British Navy
Royal Navy, Royal! Good God Almighty!
Infuriate left and right
it's the BSD guys who have the pitchforks
The sky is green. The grass is blue.
What? No it isn't.
We say it is and we want a jury to decide.
No.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
PJ has made it abundantly clear that what the judge threw out was not claims, but evidence. Too bad for SCO that the only evidence for most of their claims was invalid. PJ also made that really clear, that the evidence was thrown out because it came from people who were not qualified, by the legal rules of evidence, to make those claims, or it was beyond deadlines, or any number of reasons.
Once that evidence was thrown out, there were no longer any material facts to be in dispute, thus his summary judgment to throw out the claims themselves.
This guy needs to seriously pay attention to the experts. His own preconceived IANAL opinions count for shit.
It looks like SCO and Microsoft, their previous shills having reached their limit on licking their masters' vomit, have found a new shill.
Infuriate left and right
I know this is a contract dispute with Novell, but just how did SCO use this to attack Linux?
Didn't Linus Torvalds build Linux from scratch, based upon Minix? Didn't he specifically avoid using Bell System code, just so he wouldn't have to deal with this kind of chinachery?
Honestly, I don't know why companies like SCO bother, sometimes. They should just take whatever money they had at the peak of their stock valuations, and run off to Switzerland. Better that, then sink it into a 5 year legal battle which gets you nothing but bankruptcy.
Oh well, I guess the RIAA/MPAA are next on the block. Someone ought to tell these folks that the train has left the station, and it's no use standing around foaming. Either get with the times or get out of the game. I notice wax-cylinder sales have been pretty flat, this year.
If all businesses followed the "No Asshole Rule" there would be nobody left to run Comcast, AT&T, Vivendi, News Corporation, Universal, BMG, Time-Warner, ExxonMobil, Halliburton, Microsoft, Paramount, Exelon... I could go on but I'm sure you get the idea.
You are excerpting the excerpts. The details of the transfer of assets were in an attachment to the APA. Copyrights in general were specifically excluded from the sale. Caldera/tSCOg requested the transfer of the copyrights in 2003. Therefore by their own actions Caldera/tSCOg admitted that they did not have the copyrights.
In contract law, there is a principle called the "Parol Evidence Rule". Basically, if the clear written language of a contract contradicts oral discussions, or "intent", the written contract wins. Especially in situations involving intense two-way bargaining between the parties. (i.e. If a grocery store made you sign away the deed to your house in a 15-page 4-point-type contract when you bought a pack of gum, the judge would have some leeway. That is not the case here.)
In this case, both parties were represented by counsel and there were extensive discussions between the negotiating parties.
The CEO at the time, who was not directly involved in the contract negotiations, did testify he had a different opinion about what he thought his company was selling than what the negotiators testified. However, since the written contract is clear, there is no need for a jury to evaluate the credibility of the different witnesses, as the contract itself overrides any testimony a witness could give. If this were not the case, written contracts would be worthless.
The parol evidence rule is a matter of law, as are the consequences of the contract language. If the contract was vague, THEN we could have a jury listen to testimony from the parties, but the contract language was clear: the copyrights were not transferred.
Judges decide law, Juries decide fact. Deciding if legal language is vague or clear, and if it is clear, interpreting it, is a matter of law.
The thing I can't figure out is why this "legal blogger" didn't know this. They go over this stuff in Intro to Law that us poor, dumb, engineers take as a schedule-filling elective...
SirWired
The author apparently doesn't understand contract law. If the writing in the contract is unambiguous, then parole evidence (witness testimony) can not be taken into account. Even if everyone on both sides agrees that they meant something else, that is too bad because the contract is unambiguous. That is the case here. The assets transferred have their own schedule and specifically exclude anything in another schedule of excluded assets. Under "Intellecutal Property", only these assets are included:
Under "Excluded Assets" we have the following:
So the only "IP" included are certain trademarks. Copyrights, patents, and all trademarks except "UNIX" and "UnixWare" are specifically excluded. There is no way to read the contract that would transfer copyrights. It doesn't matter what anyone thought they were doing, they should have read the contract (let that be a lesson to you). However, the person that wrote the contract remembers exactly why they didn't transfer the copyrights and why they weren't needed to conduct the business. He discussed it with the board of directors (they run the company, not the CEO) and together decided that copyrights wouldn't transfer because they were worried about Santa Cruz's solvency. Even SCO admits it doesn't have the patents, but that never affected UnixWare licensing. Their own statements (that they bought "all" of UNIX) would logically mean they must own the patents too, but they don't even claim that.
The contract was amended later so that schedule 1.1(b) V. now says:
This was done after the sale, and copyright law doesn't allow copyrights to be transferred in this way. STILL no where in "included assets" even under "intellectual property" are copyrights included in the transfer, therefore they are excluded by default. This only modifies the exclusion so there is no way to read it that would legally transfer copyrights. The copyrights to transfer are not included, and are not "required for SCO to exercise its rights". Telling is the fact that Santa Cruz wanted much stronger wording and to have the copyrights transferred, but Novell only agreed to this wording for the amendment. Telling also is the fact that SCO wrote Novell multiple times in 2002 and 2003 to attempt to get them to actually transfer the copyrights and Novell declined.
I have not followed this case closely enough to argue its merits, but your post doesn't undercut my point. SCO didn't lose because of the doctrine that copyrights must be transferred in writing nor is it obvious as a matter of law that they should lose on that ground. If other evidence flat-out proved they did not have any claim to the copyright and that language should not be read as granting them a copyright then they lose for that reason. That doesn't mean that the written requirement requires SCO to lose.
In short, I was just trying to make a technical point about the written transfer requirement.
Yes, it was Linux mob justice.
Let it be a lesson to corporations everywhere: You fuck with us, you go down HARD.
Now you gotta ask yourself, "Do you feel lucky?"
Well, do ya, punk?
Where does SCO take the money from to pay that Fortune guy...?
Law applies in civil lawsuits. I have been on civil law juries and know. The level of proof is lesser and the punishments do not include jail time.
A judge will dismiss a lawsuit if there is no applicable law broken. For those that abuse the legal system by repeatedly filing such lawsuits, judges can make a finding against them (i.e. a legal ruling) that will stop their abuse of the system.
Just about anyone that has got things done has been, at some level, an asshole. Politicians, military generals and even geeks.
The trick to being a successful asshole is to be in control and use that as a tool. Darl just had no control.
Engineering is the art of compromise.
Several declarations say this same thing. "I understood that the copyrights would be transferred. I don't remember anyone saying they wouldn't be transferred." The problem is though that no one remembers anyone ever saying that they would be transferred. It seems to have been an unspoken understanding that doesn't carry any weight in a courtroom. It seems that SCO cannot find a single person that remembers hearing or saying that copyrights would be transferred. That's pretty damning when the contract specifically excludes them and the only people that remember having any discussions on copyrights remember the reasons that they were NOT being transferred.
So it's like me
His hyperventilation amounts to ignoring SCO's inflated claims of ownership to everything, failure to prove they owned what they claimed
Have to agree with you there. And I would add that he starts off the article by attempting to tie it all in to linux, then he does the bait and switch and talks about Unix trademarks and never again mentions linux in his article.
ok, so let's assume that SCO purchased and now owns everything unix. What does that have to do with linux? linux is not unix. Even if SCO owned unix, they *still* don't have the right to collect royalties on linux. This article makes the unix-to-linux switch in the first paragraph and never looks back.
For God's sake zones, regions, time shifting, place shifting. Just let us know if you want to take our money from us without the risk of sending us all to jail, thanks. Otherwise just fuck off.
me too!!!
You seem to imply that would be a bad thing.
For security, the MD5 hash of this message and sig is 09f911029d74e35bd84156c5635688c0.
Am I the only one who looked at this and didn't think of the mob, but The Mob? I was hoping for machine guns.
The wording of the 5th category is "all copyrights and trademarks, except for the trademarks UNIX and UnixWare".
If the exclusion was referring ONLY to the Netware IP in the previous categories, then why the hell would it mention "UNIX" here?
There's no reason I can see to assume the 5th category is a modifier for the other categories, rather than a separate category of its own.
Wish that could be a requirement for the government as well.
But yeah, I know, that would require voting out damn near everyone...
What the
They got what they deserved for a meritless lawsuit.
Nothing to see here.
If you go to the judge for 5 years with lots of posturing, and mostly legal crapola, it's human nature not to take you seriously after the 30th time of sending crap.
And the simple truth is that unless Copyright is explicitly transferred it is not transferred. It's a quirk of copyrights. Now... perhaps the lawyers for SCO screwed up, but probably not. If they did, SCO should seek to have them sanctioned. But clearly, the copyright was no transferred. You don't need a jury to decide that. That's a point of law, not something you ask a jury.
IT would be fair if Darl and Co were in Jail for the next 20 years for extortion and fraud related crimes
because you're talking bollocks.
Why else would "working in a legal field" be an issue? Plenty of lawyers say "IAAL", or "I am studying law".
There's no need to take into account a winess if the witness IS NOT A PARTY to the signing of the contract. None of the SCO proponents were. They were legal BEFORE the contract, AFTER the contract or managers who didn't turn up to the contract. They were not the ones SIGNING the contract.
All the ones signing the contract said SCO were full of it.
The contract in black and white said something contrary to SCO's position and in favour of Novell's.
The contract even says that anything NOT in the contract is irrelevant. So even "recollections" would be specifically by the contract signed by those people (hence agreed to by them) to be excluded.
So no need to assess the validity of the witnesses:
a) weren't witness to the act
b) even if they were, they'd agreed that their statement outside the contract was not valid
No.
Need.
Now if only we could see why you got modded up (real reason for your AC posting, so you can mod yourself up?)
Caldera later bought the Unix business line (still sans copyrights) from Santa Cruz, and renamed itself SCO.
The article requires that we chuck the whole idea of "rule of law" and replace it with "rule of lawYER" instead. In other words, let's just ignore the parts of copyright law that are inconvenient, along with the relevant sections of the actual contract, and pay attention to bogus spin and so-called "novel theories" instead.
The whole Novell case should have taken less than a week if it hadn't been for SCO trying to spin the truth, hide the agreements, dispute everything, re-dispute everything, and generally try to obfuscate their way through the whole affair.
Frankly I would think that a lawyer would know more about the finer points of law than the one who wrote the article. Either he hasn't read any of the documents in the case or he's only reading the ones that support SCO.
Here was the jist of the issue. SCO is accusing Novell of title of slander and harming their business when Novell claims it owns Unix copyrights. Novell in defense states that they own the copyrights and ask for a declaration to that. Kimball ruled that Novell does own the copyrights. Even if he did not, SCO should not get a trial because (as Kimball clearly stated) Novell reasonably believed that it did own the rights. To win slander of title one party must prove that the other party knew that they did not own the property. In this case, the ownership may have been in dispute but both parties have legal standing to contest. Thus there is nothing for a jury to decide on the merits of SCO's claim.
First of all both CEOs can agree to anything including swapping wives and plundering villages; however, they were not involved in the details of the agreement. And neither can testify to the legal aspects of the agreement as neither are lawyers. That was what the job of the lawyers to iron out the details in writing. It is apparent from Novell's substantial evidence that originally Santa Cruz (not SCO as SCO did not exist yet) was to get everything. During negotiations, it become apparent that Santa Cruz did not have the money, and Novell was concerned about the viability of Santa Cruz's business. So the agreement was changed when the details were hammered out.
Second, both CEOs and boards signed off on the APA. If the agreement was not what they thought it had been, they should have objected or changed the agreement again. Neither happened.
Although Ed Chatlos was chief Novell negotiator, he is not a lawyer. It was his belief that they did transfer; however, it was clearly spelled out in the APA that no Unix copyrights were to be conveyed to Santa Cruz. IBM correctly argued that testimony in opposition to unambiguous documentation is not to be considered. I can swear all day and night that I believed the car dealership would give me a pony if I bought a car. Even the salesperson who helped me can testify that he believed I was to get a pony; however, if my signed sales agreement clearly says no ponies, I will get no pony. A negotiation never trumps a signed unambiguous contract.
It was my recollection that the opposite was true. Most of the negotiators believed Novell would retain the rights. Even if they believed Novell would not, Novell actually produced documented evidence in the form of draft agreements, meeting notes, corrections, etc that prove their case. Remember this happened over 10 years ago. People may not remember things clearly.
Mr. Levin
Well, there's spam egg sausage and spam, that's not got much spam in it.
If the Judge ruled on the facts and you admit they are correct and yet you still don't like it, go suk a dik!
rgds
Gee, maybe this applies to staff, but I think executives got where they are mostly by being (or becoming) A$$holes.
the evidence, viewed in the light most favorable to the party opposing the motion [i.e., SCO, in this situation], shows there are no genuine issues of material fact.
Yes, and the fact is that SCO couldn't produce a single shred of evidence that their copyright had been infringed. That's the part that matters, and it makes the question of who held the copyright immaterial.
Begone, vulgar one
Oh no we aren't! We're dicks! We're reckless, arrogant, stupid dicks! And the Film Actors' Guild!.. are pussies. And Darl McBride.. is an asshole. Pussies don't like dicks!.. because puusies get fucked by dicks.
But dicks also fuck assholes. Assholes who just want to shit on everything. Pussies may think they can deal with assholes their way, but the only thing that can fuck an asshole... is a dick... with some balls. The problem with dicks is that sometimes they fuck too much, or fuck when it isn't apporoporate, and it takes a pussy to show 'em that. But sometimes pussies get so full of shit that they become assholes themselves. Because pussies are only an inch and a half away from assholes.
I don't know much in this... crazy, crazy world, but I do know that if you don't let us fuck this asshole, we are gonna have our dicks and our pussies!... all covered in shit.
Do we care what style of justice they got, so long as justice was served...? Where's the justice is taking credit for the work of a group of volunteers, and then shaking everybody down for protection money? Not to mention how much time and money was wasted on their failed business model. And we can of course overlook my own personal conspiracy theory that they may just be a kamikaze business ran by a suicidal CEO hellbent on destroying their enemy and funded by something actually much larger and more sophisticated than just a simple patent troll company. Actually I was disappointed that there wouldn't be any use of a public gallows in the ruling.
------- "I must create my own system, Or be enslaved by another man's" -William Blake
If anything isn't fair then it's the fact that a corp could get away with badmouthing another for years and years, on and on, with their chairmen foaming at the mouth, quite obviously willingly simply to be as destructive as ever possible towards other companies selling product $Linux, without risking jail time at all.
People like Darl McBride deserve a little personal punishment. And they're simply hopping onto a new boat instead of sinking.
Leopard cub
<>
... uh ... two of the witnesses relied on by SCO to support their position
That is all fine and well, but
are Bob Frankenberg and Alok Mohan, BOTH OF WHOM SIGNED THE CONTRACT!!!
Those two signed the APA (IIRC) not the contract.
And as I said, (b) still comes into effect: they agreed to a contract containing a clause that denies anything not written down in the contract.
Now I am not going to shed too many tears of this in the particular case, but it is troubling in a broader sense that a company is going to go bankrupt because its survival was based on licensing valuable property and a judge seriously botched summary judgment.
The problem I have with this whole case, which can cause serious trouble for SMBs (Small to Medium Businesses), is that an entity like SCO can come along and a drag a lawsuit through the courts costing the defendants millions of dollars. Such a lawsuit could cause a company smaller than IBM to go out of business. SCO never showed any sort of evidence even though they had years in which to find any. What's even more troubling is that a company like MS can pay someone to drag such a lawsuit through the courts damaging the competition.
FalconShould there be a Law?
No, justice will NOT be served at all. McBride and his lawyers and the board of SCO will still be stinking filthy rich, and worse, richer than when this debacle started. Were justice to be served, Darl et al would have to spend time in prison.
It would be justice if McBride et alia were put on a chain gang breaking large rocks into small ones with their money going to pay those who lost money, including all the money in Cayman Islands banks.
Falcon
Oh Boy, I'd love to be in the Caymans scuba diving!Should there be a Law?
All right. What is the downside?
This is two thirds correct. Juries also have the responsibility to decide laws, it's called Jury Nullification. Ultimately it's the jury that has the ultimate power. If a juror believes a law is bad or wrong it's the juror's duty to nullify the law.
Actually if you get called for jury duty but you don't want to be picked to serve on a jury then during questioning all you have to say is you believe in jury nullification. That' basically an automatic disqualification. Though it's part of the founding of the USA most judges and prosecutors try to avoid those who know about it, because it reduces their power. John Jay, the first Chief Justice of the United States Supreme Court, said "The Jury has the right to judge both the law and the fact in controversy."
FalconShould there be a Law?
This case reminds me of Dracula, no matter how many stakes you drive through the heart of SCO, it keeps comming back to life.
"a judicial ruling comes down that's so wrong at such a basic level that you're just left scratching your head"
The ruling can't be wrong, that's why it's called a ruling. Parloffs' entire evidence consists of reinterpreting and sugesting that Judge Kimball made an error in law. Something that if true would render the ruling open to appeal. Something the SCO lawyers would have spotted, don't you think.
Regardless of Judge Kimballs ruling, SCO haven't produced a single shread of evidence that Linux violates their Intelluctual property. Where are the thousands of lines of code, where are the stolen derivative properties and methods.
davecb5620@gmail.com
"TFA does raise a rather more interesting point: did the judge have legal authority to dismiss the case as he did in the ruling"
Why no ask the SCO lawyers, do you seriously think they wouldn't be aware of this.
Re:Well "mob justice" is rhetorically over the top
davecb5620@gmail.com
You're obviously taking the piss, aren't you .. :)
Re:PJ - mob leader
davecb5620@gmail.com
Everyone gets that, it's just that your point is wrong.
In order to have copyright on something that you did not author you must have a transfer in writing filed with the copyright office. Without this document you cannot sue anyone for copyright infringement on copyrights that you do not own.
The document in question said that Novell would transfer any copyrights that they needed to do so in order for SCO to manage Novell's UNIX business. But that was what Novell considered that they needed, not what SCO thought they needed. Novell didn't transfer any copyrights, becuase they didn't need any to manage the UNIX business for Novell.
The fact that Novell gets paid 100% of all Unix revenue is fairly compelling evidence that they retained ownership. They then pay 5% back to SCO for them managing Novells UNIX business for them.
Certainly, nothing can actually stop jury nullification. Deliberations are secret, so unless some of the jurors speak out after the fact, nobody will ever know why a jury decided to rule the way it did.
That said, jury nullification should only apply where the law itself is illegal (which means unconstitutional, in the case of the U.S.). If juries were simply to ignore any law or refuse to render any verdict they felt "wrong", then that leaves us with no law at all. Law does not exist simply as "suggestions" to juries.
Where do we draw the line between the rule of law, and the right of the jury to disregard it? In the case of criminal trials, we should certainly lean towards giving Juries leeway in deciding a law unjust, but what about civil trials? Don't I have a right as a plaintiff to expect the jury to judge my case based on the law, especially if I entered in an agreement with the understanding (by both parties) that the law would be followed?
The concept of widespread Jury Nullification assumes that the Jurors are well informed, rational, and resistant to ruling based on emotion, as opposed to law and fact. In the real, world, things get to be far more complex.
SirWired
what about civil trials? Don't I have a right as a plaintiff to expect the jury to judge my case based on the law
Civil law cases have lower standards than criminal cases. Whereas a criminal case requires belief in guilt beyond a reasonable doubt, civil cases only require a preponderance of evidence of guilt. That's how OJ Simpson was able to get an innocent verdict in his criminal case but lost in the civil case. That makes sense, in a criminal case a person can end up being locked away however is a civil case all the person may loose is money or property. As a plaintiff that helps you.
So as for basing civil cases on law I think it's actually easier for a plaintiff to win. I was personally involved in a civil case. Years ago while I was a student in college a moving van, from Apartment Movers, hit me while I was riding my bike after my classes. Because the accident was clearly caused by the driver his employer and their insurance decided to settle before it went to court. Not that it helps me, because what was important to me I lost I wish I had died.
FalconShould there be a Law?
Why did we get this Sept 17 article posted on /. on Dec. 7?