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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
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.
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.
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.
Those who believe the Internet is private,
find their privates are on the Internet.
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.
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?
who do you beat it?
:P
I am not understand you're question!
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".
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.
There are a few things that you are missing:
1. Yes, Novell always wanted to sell the whole business including copyrights. Unfortunately, SCO's predecessor didn't have the money to afford paying for the copyrights, so the copyrights were excluded. So the question that the CEO was asked isn't the one that counts: He was asked "what was your intention to sell". He was not asked "and what _did_ you actually sell". 2. Novell and SCO signed a contract. And that contract is absolutely one hundred percent clear: Copyrights were not included. That's what the words of the contract say. Now the wording of the contract is undisputed. SCO can argue as much as they want what the contract _means_, but there is no disagreement about the text. As the text of the contract is undisputed, the judge can and must decide what the contract means as a matter of law. No jury required, no jury actually allowed because there are no disputed facts. With the written contract available, there is no need for any witnesses. Actually, the judge is required by law to _ignore_ all witnesses that contradict the clear text of the contract. TFA claims that "nobody remembers anymore what the contract means". That is nonsense. The text of the contract is available, so you just give it to the judge to read and the judge will tell exactly what it means. That's why you write down contracts, so that you don't rely on people's memories.
3. Even if a contract claims to sell the copyrights, copyrights need to be transferred by a separate transfer document. That is a legal requirement. As SCO cannot show such a transfer document, Novell still holds the copyrights. Now SCO could have tried to sue Novell to have the copyrights transferred, but they haven't. The copyrights are Novell's until Novell signs a transfer document, no matter what the contract says.
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. =====
and we knew who we weeeeere then,
trolls were trolls, and girls were men,
you know we could use a man like CleverNickName again
Everyone would moderate,
then take a break to masturbate
Gee, our old Slashcode ran great
THOSE...WERE...THE...DAAAAAAAAAAAYYYYSSS
Just then the floating disembodied head of Colonel Sanders started yelling Everything You Know Is Wrong!-Weird Al
There is an absolutely, one hundred percent clear contract between Novell and SCO: The contract says "Novell sells the business to SCO, excluding any copyrights". That's what the contract says. Sure, Novell _intended_ to sell the copyrights as well, but SCO didn't have the money for that. SCO's witnesses were excluded for a very good reason: The contract is absolutely clear. It means what it says. Any witness that says otherwise can and must be ignored. That's what the law actually says: Any witness contradicting the meaning of a written contract must be ignored.
SCO was never "told and led to believe they had ownership of Unix rights". They tried to buy these rights. Novell wanted to sell them. SCO didn't have the money.
Just yesterday I went to a shop selling 50 inch LCD TVs. I wanted to buy one. I said "would you sell that TV to me"? They said "Of course, absolutely yes". I said "How much is it?" They said "$3,000". I said "Umph. I've only got $200". I left the shop with a tiny 15" TV. But I have a dozen witnesses that I wanted to buy the 50" one, and they can all confirm that the shop wanted to sell me one. Even the shop assistant and his manager witnessed under oath that they wanted to sell me a 50" TV. So surely I have the right to get that TV for my $200?
Justice will be served when the bankruptcy is complete
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.
There is no justice for the rich in the USSA. A rich, powerful man only goes to prison if a richer, more powerful man wants him there.
House arrest: In the USSA, prison goes to YOU!
-mcgrew
mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
(I am not a lawyer)
Of course the case isn't about what was intended, it was about what had actually taken place.
Did the CEOs intend to transfer the copyright? Sure.
Did they actually perform the transfer with a specific written document? Evidently not.
The Novel CEO could have intended to sell the copyright, but SCO couldn't cough up the cash.
The Novel CEO could have intended to sell the copyright, but the employees closer to the negotiation decided against it.
Who knows why the terms changed?
Evidently what is known is that SCO couldn't provide written proof of the copyright transfer.
These comments are my own and do not necessarily reflect the views or opinions of my employer or colleagues...
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.
it's the BSD guys who have the pitchforks
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.
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.
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
I think if we ever come up with Star Trek matter replicators, the "IP" crowd wil somehow make them illegal.
mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
You seem to imply that would be a bad thing.
For security, the MD5 hash of this message and sig is 09f911029d74e35bd84156c5635688c0.
Caldera later bought the Unix business line (still sans copyrights) from Santa Cruz, and renamed itself SCO.