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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?"
Since when is 2-month-old news that we already read about (cf: "widespread rejoicing") news?
Kevin Smith on Prince
Link to said ruling
Those who believe the Internet is private,
find their privates are on the Internet.
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.
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?
To be fair, he was criticizing an apparent failure to follow proper legal process in ruling against a trial jury for SCO, he never claimed they were or weren't guilty, just that from the evidence it probably should have gone to trial.
Of course as far as I'm concerned, we should just go find a nice tree and a bit of rope. I'd classify SCO as either terminally stupid, or patent/copyright trolls, either way we're better off without them.
Curiosity was framed, Ignorance killed the cat.
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/
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.
The right to a jury trial is not universal. A jury is only needed if there are questions of fact to be decided - juries decide facts, judges decide the application of laws.
In this case, the law was quite clear - without a written transfer of copyright, there were no facts in question for a jury to decide, just the application of the law, which is for a judge.
SCO's theory of an "implied transfer of copyright", without citing a single legal statute, or a judgement or precedent that was not later reversed on appeal, left no legal basis for a jury trial.
Kevin Smith on Prince
The fact that it is an integrated agreement does not mean that extrinsic evidence cannot be used to interpret the language anyway. The purpose of completely integrated agreements is to keep parties from arguing later on that the contract included additional terms that were not included in the writing. For example, if the agreement is completely integrated SCO cannot argue "Well, Novell agreed to pay our rent for the next decade even though the written document doesn't say that." If the terms of an agreement are ambiguous, then extrinsic evidence is still permissible in interpreting the meaning of those ambiguous clauses. Don't believe me? Look at Restatement (Second) of Contracts 212: Interpretation of Integrated Agreement:Thus if the language is ambiguous and depends on the credibility of extrinsic evidence (As TFA argues), it is a question for a trier of fact whether the agreement is integrated or not. His problem with the ruling is that he believes the judge relied on the credibility of various extrinsic evidence to interpret the agreement, but then treated his interpretation as a matter of law not of fact.
Americans don't have the explicit right to a jury of their peers, merely to a jury. The "jury of your peers" language is from the Magna Carta, so it is in a way implied by common law tradition, but that phrase doesn't appear in the American constitution.
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.
The law is clear-cut. Juries are only there to determine the facts of a case. If there are no facts in dispute, there is no option for a jury trial.
In this case, SCO could not show a dispute around the facts. It could not show that there was a law or statute, or even a precedent, that allowed for "implied" transfers of copyright, which would have then led to the "question of fact to be decided by the jury" of whether, in fact, there had been an implied transfer of copyright.
Juries don't decide on points of law. Just the facts of a case. (and yes, I've served on a jury).
Kevin Smith on Prince
I posted this on another sub-thread, but I'll repeat myself here.
The judge gets to rule on what is admissable evidence. In fact, he has to, because part of the definition of "admissible evidence" is "evidence that the jury is allowed to see". So the jury can't be the one to determine what is admissible - they'd have to see the evidence to determine that. So it has to be the judge, nobody else can do it.
In the SCO case, the judge threw out a bunch of SCO's BS precisely because it was BS. Second-hand information, for instance, is hearsay, not admissible evidence. Kimball, rightly, threw out the stuff that wasn't actual evidence. Then he ruled against SCO, assuming the most positive (for SCO) interpretation of the admissible evidence.
Three points:
- Copyright law REQUIRES that all transfers be in writing. The parties can't agree to do a work-around.
- The APA specifically excluded copyrights, since Santa Cruz didn't have enough $$$ to buy everything.
- SCO obviously didn't believe that the copyrights had transferred, because before they filed their suit against IBM, they repeatedly asked Novell to transfer them.
The whole thing was a stock scam.Kevin Smith on Prince
The article conveniently ignored all the legal BS Boies-Schiller put the court and litigants through. The length of the case was merely driven by legal niceties the courts provide to make everything as fair as is reasonable. BS simply used this feature to string the case out in the vain hope IBM would simply pay them to go away. IBM thought differently.
A nice choice quote by the judge from early in the proceedings when SCOX put their evidence of IBM wrongdoing (actually, SCOX's dick) on the table: Is that all you have?
Gerry
I have only looked at the excerpts of the contract included in TFA, but I don't see where people are getting the obvious conclusion that the copyright was not transferred in writing.
And that's the problem. The article utterly mischaracterizes the language in the APA.
If you interpret the language from the contract that says Novell is transferring "all rights and ownership of UNIX ... including source code . . ., such assets to include without limitation" as including the copyright...
But you can't interpret the language that way because that very sentence is followed by...
Notwithstanding the foregoing, the Assets to be so purchased shall not include those assets (the "Excluded Assets") set forth on Schedule 1.1 (b).And Schedule 1.1 (b) specifically lists the following...
V. Intellectual Property:A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.
B. All Patents
There's no ambiguity. The contract basically says, "I give you everything in set A, excluding those things that are in set B." You're arguing that set A is really big, but that doesn't matter at all. The thing that they want is specifically enumerated in set B, so it's excluded.
Then there's some frantic spinning to try to suggest that because pretty much everything in items I through IV of the Excluded Assets specifically refers to NetWare, obviously "All copyrights" must mean only NetWare copyrights, too. Of course, that's nonsense: the fact that "NetWare" is repeated in every item that refers specifically to NetWare suggests that this item most certainly does not refer to NetWare. Moreover, "the trademarks UNIX and UnixWare" clearly do not refer to NetWare, so why would "All copyrights"? And a final kicker, SCO does not claim (and has never claimed) to have received any patents from the APA, while patents are excluded in precisely the same manner as copyrights.
The arguments presented in the article are bogus: they were already offered to the court, and were resoundingly rejected.
The process of discovery is about identifying evidence relevant to a case. A jury is required when there is conflicting evidence or testimony is in dispute to determine appropriate weight to the relevant testimony. Remember all those court-room TV cases where the defending or prosecuting attorney says "Objection your honor! Irrelevant!" when his opponent tries to introduce a line of questioning or evidence? Remember how the judge says either "overruled" or "sustained"? That's part of the judge's job and it happens during a trial but also during discovery. However instead of needing to do in an ongoing basis (to prevent the jury from being contaminated by invalid evidence), the judge just deals with it all at once at the end of discovery.
In Novell vs. SCO, there were few or no arguments over whether documents were valid or not (i.e. disagreements over whether documents had been forged or conflicting observations of events from witnesses) that would have required determination by a jury. What was in dispute was whether the documents could have the legal interpretation that SCO ascribed to them. That is a matter of legal interpretation, and within the judge's purview. He decided that the documents presented by SCO did not have the legal interpretation that SCO ascribed to them, and that they were not relevant to SCO's allegations (or even countered them). No evidence supporting SCO's case, no need for a trial.
If SCO doesn't have enough money to get the time to appeal, it's their own fault for drawing out the clock (which they did because they had no case).
A group that made baseless accusations got their comeuppance. Oh, boo hoo hoo!
Laissez lire, et laissez danser; ces deux amusements ne feront jamais de mal au monde. - Voltaire
Unfortunately, the author of TFA is a known SCOtroll, like the mogtroll, lyin' lyons, and pretenderle, and chose not to include in his citation the list of rights specificially excluded; that list excludes the copyright transfers.
Originally, Santa Cruz (not Caldera (later to change their name to SCO), who only bought a part of Santa Cruz - the rest became Tarantella) was supposed to buy everything, but they didn't have the money. So, they paid a lesser amount to became Novell's agent in the handling of the Unix licenses, passing on 100% of the revenue, and Novell then remitting them a 5% fee.
This is why Ransom Love (head of Caldera, before the name change) stated that Caldera couldn't open source Unix - others held the copyrights.
SCO, as supposedly Caldera's "successor in interest", (but not Santa Cruz's successor in interest, as they did NOT buy out all of Santa Cruz, contrary to the FUD they have been spreading - just some of the assets) should have known this; the lawsuits were predictably as DOA as the rebadged Maxtor drives from the China factory currently being sold by Seagate.
Kevin Smith on Prince
Judge Kimball says on page 52 of the ruling that all the witness testimony is irrelevant because the wording of the contract is clear and unambiguous. So even if he had an opinion on the credibility of the witnesses, he doesn't need to consider their credibility at all.
And a judge is allowed to rule on the evidence (matters of fact) in summary judgement. He's simply limited in how he can do so. A jury can weight the evidence and decide which is more credible. A judge can only rule if he can find that the evidence is so lop-sided that no reasonable jury could come to any other conclusion. But if he can find that, he's allowed to rule even though normally it'd be a matter for a jury.
Caldera later bought the Unix business line (still sans copyrights) from Santa Cruz, and renamed itself SCO.
He actually did include that exception in TFA:
On the other hand, Novell rightly points to another page of the contact, which lists five categories of assets that are to be "excluded" from the deal. Three of the first four categories concern NetWare products -- a software business that Novell was unquestionably retaining control of -- while the fifth says "all copyrights and trademarks, except for the trademarks UNIX and UnixWare."
Of course, how he goes on to claim that there is any ambiguity in the contract is a mystery to me.
Be Excellent To Each Other