SCO Asks Judge To Give Them the Unix Copyright

Raul654 writes "In March, the jury in the Novell/SCO case found that Novell owns the copyright to Unix. Now, SCO's lawyers have asked judge Ted Stewart to order Novell to turn over the Unix copyright to them. 'SCO contends the jury did not answer the specific issue before Stewart that involves a legal principle called "specific performance," under which a party can ask a court to order another party to fulfill an aspect of an agreement.'" Over at Groklaw, PJ is deep into a community project to annotate SCO's filing. It's for the benefit of future historians, but it makes amusing reading now.

Comments

sco still alive?

[nonewmsgs]

isn't sco dead yet?

Re:sco still alive?

[zero.kalvin]

I think this is the second coming of SCO.

Re:sco still alive?

[Joce640k]

Ummm ... don't forget who's funding them.

Re:sco still alive?

[Captain Splendid]

They're just resting.

Re:sco still alive?

[Mindcontrolled]

That is not dead which can eternal lie.
And with strange aeons even death may die.

Just more evidence that SCO is an unholy abomination, an eldritch spawn from the depths, dreaming yet always on the verge of descending upon the Earth in a storm of chaos, madness and despair. Note the double meaning of "lie" in above excerpt from the necronomicon. Note also, that they used to be called Caldera - making their connection to sinister chthonic powers a wee bit too obvious for my taste...

IA! IA! SCO FHTAGN! CALDERA FHTAGN!

Re:sco still alive?

[Richard_at_work]

I love how that Wikipedia article doesn't even mention the money Sun paid SCO...

Re:sco still alive?

[gstoddart]

I think this is the second coming of SCO.

Actually, I think this is at least number 3.

Number two was the previous litigious incarnation, and number one was the original Santa Cruz Organization who actually made software.

This thing just won't die.

Cheers

Re:sco still alive?

[pushf popf]

The original SCO is now Tarantella, who is now owned by Oracle.
This current litigious incarnation is what is left of Caldera.

It's actually really funny they chose that name, since a Caldera is actually the remains of a formerly-functional volcano. They occasionally emit smoke, but that's about it.

Re:sco still alive?

[gstoddart]

"This thing just won't die."

How can you kill that which has no life?

I'm sure Novell is wondering the same fscking thing. :-P

Re:sco still alive?

[NeutronCowboy]

This thing just won't die.

To some extent, it's impressive. McBride has figured out that as a CEO, he doesn't need a product, and he doesn't even need a legal theory to stay employed. All he needs is to stay in court for as long as possible, and he has access to whatever money is in SCO's name. If Thompson is any indication it'll be about 5-6 years before he even the most insulting filings won't give him a judge's ear anymore. It's really quite impressive, and a nice gig if you have the stomach for it. I'm pretty sure his days consist of telling his lawyers "I don't care how stupid it is, file another complaint, objection or legal brief." and going golfing.

Re:sco still alive?

[Richard_at_work]

The fact that MS was found guilty under anti-trust law has nothing to do with this - there is no such thing as a 'convicted monopolist' as the lawsuit was a civil one, not a criminal one - the term is a marketing one created by the anti-MS crowd, nothing more.

Your post is a perfect example of this FUD, as it doesn't address the fact that the article completely fails to mention that Sun was involved as well.

Re:sco still alive?

[Joce640k]

I'm saying that $106 million could fund a bunch of lawyers for several years.

Do you know the details of the contract? It might have said "in return for 10 years of litigation we agree to pay $106 million"

Re:sco still alive?

[StuartHankins]

I suggest further reading, for example http://en.wikipedia.org/wiki/United_States_v._Microsoft . Sun's payments are irrelevant.

If you truly don't understand the issues with a convicted monopolist (such as Microsoft) paying a 3rd party to attack their competition, then no amount of rational discourse will help you understand why that's wrong.

Re:sco still alive?

[krelian]

It might have said "in return for 10 years of litigation we agree to pay $106 million

Like I said: I just want an honest presentation of the facts.

Re:sco still alive?

[grep_rocks]

This is standard operating procedure in corporate america - set up a proxy or shell corporation to cause confusion in the marketplace, and bankrupt your competetors through fivolous law suits or IP issues - esp. if you can't buy them out. What is suprising is that anyone thinks microsoft's behavior is unusual or over the top... every big company does this crap - its the american way.

Re:sco still alive?

[u38cg]

McBride was sacked in October last year.

Re:sco still alive?

[CarpetShark]

Yes. Little did the public know that the earlier SCO was forked just before the court cases. When SCO died, SCO@r23 simple took its place. SCO@r23 was in fact identical to SCO though, and few** were any the wiser, since SCO's development had stalled at the age of 4.

** I had to sleep with Darl's wife to get this information. I am not proud of it. Also, note that his wife was NOT currently, and in fact had never been forked. At least, not until I slept with her. I don't know why I'm telling you all this. I'm sure it'll come out in future SCO divorce ligitation anyway.

Re:sco still alive?

[CarpetShark]

McBride was sacked in October last year.

Besides the kick in the nuts, he was also fired.

Re:sco still alive?

[Richard_at_work]

Why is further reading needed? Nothing in your article changes the fact that it was a civil action, there was no 'conviction' as it was not a criminal suit and the 'convicted monopolist' term remains a marketing one pushed by people like yourself.

Also the fact that Microsoft had any involvement in the SCO case is completely beside the point, as my original point was that Suns payment to SCO, and thus willing involvement, has been totally swept under the carpet.

You can repeat the 'Microsoft, Microsoft, Microsoft' mantra all you want, you are dancing around the original point without addressing it at all, and while you do it you make my point for me - Suns history in the case has been scrubbed clean, and the truth has been hidden because people like yourself have an agenda to push.

PJ, here is my annotation for the whole filing.

[Dystopian Rebel]

"Mommy! Make Timmy give me the toy!"

Re:PJ, here is my annotation for the whole filing.

[Qzukk]

It's pretty much "Mommy! Make Timmy give me the toy, so I can hit Susie with it!"

nah, SCO is dead..

[miataninja]

but the lawyers are still alive (and feeding on the corpse)

Damn!

[Third Position]

I beginning to think SCO is trying for the Guinness Book of World Records under "Worlds Longest Running Soap Opera". How much longer do they have to go to get the title?

hmm

[nomadic]

It's for the benefit of future historians

Good grief, let's not overstate the importance of this case.

CLANG!

[zepo1a]

[clang]
CORPSE COLLECTOR: Bring out your dead!
NOVELL: Here's one.
CORPSE COLLECTOR: Nine pence.
SCO: I'm not dead!
CORPSE COLLECTOR: What?
NOVELL: Nothing. Here's your nine pence.
SCO: I'm not dead!

Wikipedia to the rescue

[dingen]

The longest running soap opera is The Guiding Light, which started in 1937 on the radio and moved to television (while keeping the same cast and storyline) in 1952. The show was cancelled in 2009 due to low ratings, which makes the total running time about 72 years.

The SCO lawsuits against Linux and other Unices started in 2002 when Darl McBride become CEO of the company. If they can keep it up for another 65 years, they can claim the title of longest running soap opera rightfully theirs.

Re:Wikipedia to the rescue

[inamorty]

Does that mean that 2075 will be the year of the Linux Desktop?

Re:Wikipedia to the rescue

[machine321]

Isn't CBS a cable network?

No. CBS is a television network. Ethernet, Arcnet, Token Ring and Localtalk are cable networks.

Shades of Charlie Brown

[jimicus]

Don't know if anyone else remembers "It's Flashbeagle, Charlie Brown"....

Judge: What are you doing, SCO?
SCO: I'm waiting for my sweet baboo.^W^W^W^W^W suing Novell because they assigned us the copyright to Unix.
Novell: We did not assign you the copyrights!
SCO: Novell sold us the copyright in 1995.
Novell: WE DID NOT!
SCO: Well, you should have!
Judge: Oh, brother.

Hey Judge, while you're listening

[Hognoxious]

Hey your Judgeousness, while you're listening, I'd like a pony.

Make. It. Stop.

[whisper_jeff]

Seriously, at what point does the legal system decide it's fed up with their bullshit and put a stop to it. Everyone deserves their day in court but I think SCO has gotten more than their due...

Re:Make. It. Stop.

[RichMan]

When SCO decides to stop spending money on lawyers. The problem is SCO managed to sucker the lawyers in at the beginning into an up front fee and the lawyers are committed to see it through "all appeals". So while SCO is now bankrupt and running on a loan in bankruptcy over its non-existant IP the lawyers are still "happily paid" and running this thing.

So the lawyers are committed. I sort of hope this is the lawyers doing an exit strategy of over committing on a stupid claim that will get denied so they can then make a short appeal which will also get denied then exit. Then they can point at this filing and say "see we did our best".

Re:Make. It. Stop.

[wandazulu]

It's even better for the lawyers: They can point to this case for any prospective clients and show how totally committed they are to any case they take on.

Re:Make. It. Stop.

[hrieke]

But... They wouldn't have done their best.
You'd never want your lawyer to short your appeals- that would be grounds for another appeal (they didn't do everything possible) and be a career suicide for your lawyer (who'd want to hire someone who didn't do everything possible for you; bar sanctions; plus a law suite when you sue for failing to do everything possible all come to my mind).

You want this case battle tested to the very, very, very bitter end. Each of these scars give armor and defense to Linux and GNU.
Anything less would not do.

Re:Make. It. Stop.

[jimicus]

I wonder how many large companies are still buying into that FUD.

Re:Make. It. Stop.

[ari_j]

Ineffective assistance of counsel is basically never grounds for an appeal in a civil case, as this is. That one is pretty much reserved for criminal convictions, and even then if you choose your own lawyer it's a tough thing to get a court to agree with. But you would definitely have grounds for a legal malpractice claim if a lawyer intentionally lost your case.

Turning to the case actually going on here, what SCO filed is a proposed Findings of Fact and Conclusions of Law. This is a document familiar to any civil litigator, as it's what you want the judge to sign off on either after a bench trial or after a jury returns its verdict in a complicated matter such as this one. It's not more litigation or anything, it's just SCO's post-verdict filing for the court to either approve or modify. Granted, their arguments in it may border on frivolous (I haven't read it other than the table of contents, but it looks mostly legit from that), but their lawyers are ethically required to make the best arguments they can for their client and that's what they're doing.

What it sounds like is going on here is that the jury concluded that Novell owns the Unix copyright, so the lawyers looked for a reason why SCO should get it and came up with only one answer: That Novell had contracted to give the copyright to SCO and the Unix copyright is a unique thing that justifies specific performance (normally reserved for things like real estate sales and other unique things where just paying the value of the item won't allow you to go out and buy it for yourself, which is a more standard contract remedy). This is perfectly reasonable and a lawyer who doesn't at least try it is not a lawyer you'd want to hire.

Re:Make. It. Stop.

[Locke2005]

Just one problem with the upfront fee agreement: all the really competent lawyers at the firm long ago distanced themselves from this cluster-fuck and passed the responsibility for the case onto the most junior lawyers. So yes, SCO is still getting representation, but it is inexperienced, fresh-out-of-law-school representation... which explains a lot of what you see in their filings.

Re:Make. It. Stop.

[ari_j]

No sane lawyer would take the SCO case on a contingency fee (where the lawyer takes a portion of any future recovery in the case and gets paid nothing for his time if he loses it), but that doesn't rule out the possibility here. I'd say, though, that there is less than a 0.1% chance that this is being handled on a contingency.

Most of what's going on here is just part of the same lawsuit that we've heard about for years. News snippets tend to portray legal cases as if they are handled as on TV shows, where the client walks in the door with a problem on Monday and closing arguments at the trial are Thursday, with a big check to cover the verdict being spent on scotch and cigars by noon on Friday. For instance, the McDonald's coffee case was in the news just to report the jury verdict. The appeals, settlement, and years of prelude were not given nearly the same coverage.

In this case, we get snippets of things that people submit and the editors see fit to post on the Slashdot front page. But it's all part of a process. You see the same thing with space shuttle missions. They report blast-off, a major Hubble repair, and landing. But during all of that time, there are a million switches to flip and buttons to push. The astronauts don't just sit there for two weeks twiddling their thumbs. It's the same way in a lawsuit of any complexity, but especially something this big.

What this article is about is SCO's proposed Findings of Fact and Conclusions of Law. This is filed late in the litigation process, generally after trial, and in the space shuttle analogy is the request for landing clearance. Novell files one, too, and then the judge decides which facts and legal conclusions are warranted on the jury verdict (which is decisive as to factual issues unless there is basically no evidence at all to support it) and the governing law (statutes, case precedents, etc.) Even if the shuttle mission were completely pointless, once you blast off you have to see it through to the end. Any argument that a lawyer makes with a straight face in this post-verdict filing is entitled to be reviewed by the judge and ruled on.

Re:Make. It. Stop.

[Anonymous Coward]

Well yes, except there are a few more details.

1) a judge already ruled as a finding of fact that SCO never did own the copyrights, but it was overturned on appeal and sent to a jury.
2) the original claim was for slander of title, i.e. that Novell was falsely claiming to own SCOs property and harmed SCO.
3) The jury determined that Novell did in fact own the copyrights, so there was no slander involved, only truth.
4) SCO claimed that they just wanted their day in court, except now that they've got it, they've filed a new motion to overrule the jury decision or give them a new trial because "The jury simply got it wrong" (First paragraph of the motion).

So now SCO wants to go back and say that even though a judge felt that as a matter of law they didn't own the copyrights, and the jury confirmed that on appeal, they want a different judge to say 'Oh, they were just dumbasses. The copyrights should have been yours. And that means Novell did maliciously slander you after all, even though there was enough doubt that a judge & jury both agreed they owned the copyrights."

So, um, not to say that it's not good lawyering but that sounds frivolous as hell, especially when they're in bankruptcy and the lawyers keep getting paid.

Re:And if SCO _did_ get it... what?

[JiffyPop]

There has been no examples exposed by SCO or anyone else that would indicated that Linux has anything to fear from the holder of UNIX copyrights, whoever that may be. If there were any code that infringes on a copyright then that functionality can be re-coded from the specifications, eliminating any infringement.

Re:what's worse

[VGPowerlord]

That this SCO is doing this or that there is a legal avenue for them to do it?

Note: This response is going to ignore that both a federal judge and, after an appeal sent it back to the courts, a federal jury found that Novell kept control of the UNIX copyrights, since in theory SCO could appeal the second decision.

What, you didn't think there would be laws to force a company to abide by a contract they agreed to?

Having said that, as I recall said contract's second amendment* said something about selling the copyrights to SCO if they could show a reason that they would need them during the course of administering the UNIX license program. Which SCO never did.

Heck SCO, if you can't even adhere to the terms of your possibly fraudulent contract amendment, how can you possibly expect to win this?

* a potentially fraudulent document which SCO "found in a drawer" and Novell strangely didn't have a copy of, presumably signed by Ray Noorda, CEO of Novell when said contract was executed in the 90s and owner of The SCO Group at the time this lawsuit started...

They're the Black Knight of the Holy Grail

[sizzzzlerz]

All their legs and arms have been chopped off and they're still taunting the legal system.

Running away, eh? Come back here and take what's coming to you! I'll bite your legs off!

Define "No"

[PineHall]

From the Article:

The jury was asked, "Did the amended Asset Purchase Agreement transfer the Unix and UnixWare copyrights from Novell to SCO?" It answered, "No," ... SCO contends the jury could have meant various things by its verdict that do not preclude Stewart from ordering the transfer.

What part of "No" do you not understand?

Re:Define "No"

[Just Some Guy]

The jury was asked, "Did the amended Asset Purchase Agreement transfer the Unix and UnixWare copyrights from Novell to SCO?" It answered, "No,"

Well, clearly they mean that a different APA (to be revealed at a later date, pending further funding from Microsoft) will prove their ownership. The first APA - the one we actually know about - doesn't, but SCO feels that the jury was dumb to find that way without consulting a magic 8 ball first.

Re:Define "No"

[UnknowingFool]

What SCO's legal argument now is quibbling over details. SCO says the jury ruled that they did not receive the copyrights in the APA in the past. The APA in the most favorable view to SCO is that the APA was a promise to transfer the copyrights at some indeterminate future date. IANAL, but for this future transfer to occur, a contract must be signed and money must be paid. A promise to pay is contingent on the details. These are details that neither Novell nor SCO worked out in the past. This the problem for SCO since Novell can now simply say: "We'll transfer the copyrights if you pay us $300 trillion dollars."

Re:And if SCO _did_ get it... what?

[Xtifr]

it'd mean that SCO's case against IBM would have _some_ (and i say _some_) merit.

Getting the copyrights now shouldn't help them. All the code in Linux has been already distributed by the current Unix copyright holders under the terms of the GPL. Even if SCO gets the copyrights, they can't revoke the perfectly valid license that has already been granted to any Unix code that might happen to be in Linux.

Oh, and it was SCO (Caldera) that put Ancient Unix in the public domain. Ironically, they probably did so illegally, since Novell owned the copyrights, not that Novell is likely to complain at this late date.

Worse than a rebel without a cause

[Errol backfiring]

... is an IP troll without IP.

Pathetic.

Best part: Copyrights and Copywrongs citation

[ari_j]

I don't have time to read the whole thing that SCO filed at the moment, and likely won't, but a quick scan of the table of authorities shows that SCO cited an article entitled Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, 3 J. High Tech. L. 1 (2003) to support their campaign to threaten one of the greatest creative accomplishments in computer technology (an entirely free, open-source operating system available to all and competitive with thousand-dollar alternatives). Who wants to call Alanis this time?

Re:And if SCO _did_ get it... what?

[burnin1965]

SCO's case against IBM would have _some_ (and i say _some_) merit.

Actually, no, the Caldera / The SCO Group lawsuit never had any merit and it was learned through discovery that it was known by all the Caldera / The SCO Group insiders that there was absolutely no merit to their case from the onset.

After intensive and expensive internal attempts to find something that could be used to sue linux user's for a SCO Tax the Caldera / The SCO Group investigation found absolutely *nothing*. ie no evidence of any copyright infringement whatsoever.

Before this entire fiasco started it was known all the way to the top of their organization that there was no basis for their plans, yet they went forward with the scam anyway. Many people have lost their jobs, some have lost money and a few have actually lost their lives from this scam. If there were any justice this single fact uncovered in discovery would have resulted in fraud charges against the perpetrators of this scam long ago.

Re:And if SCO _did_ get it... what?

[SharpFang]

SCO: Linux violates our copyrights on UNIX!
IBM: No, it does not. Not a single line infringes on UNIX
Novell: Wait, what? We own copyright on UNIX.
SCO: Your honor, we are unable to pursue the lawsuit against Linux infringing upon our rights to UNIX because we don't have them, Novell does. Could you force them to hand these rights over to us so that we could continue suing Linux?

Can I get my Unix license back?

[MobyDisk]

So, does that mean that everyone who paid for a Unix license from SCO can sue SCO to get a refund? Or are those people too embarrassed to admit what they have done?

Re:slasher movie

[WillDraven]

The judge busts in the door just in time to deliver a definitive shotgun blast to the face?

One can hope.

Re:I'm sorry but...

[gtall]

Not quite as pathetic as the current judge, however. Given the lengths he went to in order to help SCO along during the trial, it is not beyond reason for SCO to hope that the judge simply hands them the copyrights. And it isn't beyond plausibility the current judge is enough of an idiot to actually hand them over. He's been in SCOs corner since day one, good thing the jury wasn't.

Not so amusing for the US Legal System, IMO.

[Richard Steiner]

The case has shown how someone with money can play the US court system ... on several levels ... for multiple years with effectively NO case, draining the funds from corporations and taking up the time of large numbers of lawyers the entire time.

If the defendants go out of business or die of old age before due process is complete, is justice really served?

Bleeding the husk dry...

[pyrr]

I know there's a process that has to be followed, but it's obvious at this point, that the SCO lawyers are just trying to appropriate what money they can before it comes time for Novell to collect the judgement against SCO that they are owed under the license agreement. The more of the company's money that they squander on themselves, the less creditors will be able to collect after the liquidation.

I wonder why the trustee is allowing this. It doesn't seem like this situation is much unlike a private citizen, being aware of an imminent, pending judgement against him (which will result in the loss of all his assets), wrecking the house that will be foreclosed upon, and going on a spending spree to empty his bank account, so the creditors are left with rather little.

There should be consequences for this sort of behavior, even if it's a corporation. Sure, the lawyers will argue that they have to keep trying, even if it's a foolish longshot. I'd maintain that they should face having the courts recover any of SCO's money they have collected in compensation for chasing their longshots, and they should also be held *personally* fiscally responsible for the repayment of the other parties' legal fees if they fail to prevail. They're wasting everyone's time, money, and resources, yet risk nothing in pursuit of their frivolous longshot. But the way things are, nobody will be on the hook over this bad behavior. Novell will just come out a loser even though they've prevailed. The only winners will be the lawyers.

Re:And if SCO _did_ get it... what?

[burnin1965]

http://www.digitaliq.com/parser.php?nav=article&article_id=431

The Noordas, along with their daughter, Val Kreidel, and James Stewart, another attorney from Ballard Spahr, were at a different location.

Via speakerphone, apparently reading from a script, Mrs. Noorda terminated President/CEO Yarro, CFO Darcy Mott and legal counsel Brent Christensen as officers of Canopy...

The Yarro et al lawsuit painted a picture of Val Kreidel, the daughter of Ray and Tye, as one of the driving forces behind the ousting of the executives...

Under the agreement, Yarro, Mott and Christensen received undisclosed sums, and Yarro was given all of Canopy's shares -- nearly five-and-a-half million -- of SCO stock, making him that company's largest shareholder....

Less than a week after attorneys formally announced a settlement, Val Kreidel, the Noorda's only daughter and a mother of four, died of a self-inflicted gunshot wound at her home in Huntington Beach, Calif....

In affidavits, employees stated that they attended a December 22 meeting in which they were "bullied" into signing a backdated document in the presence of attorneys. A day later, IT director Rob Penrose died of a self-inflicted gunshot wound in his home, and soon thereafter five of Canopy's original employees voluntarily resigned.

Re:what's worse

[srleffler]

Amendment 2 is legit. Novell did eventually find a signed copy in their own files.

Re:And if SCO _did_ get it... what?

[schon]

No, actually read:

SCO: Linux violates our copyrights on UNIX!
IBM: No, it does not. Not a single line infringes on UNIX
Novell: Wait, what? We own copyright on UNIX.

SCO: Your honor, Novell is *LYING*, which is causing people to not believe that we own the copyright - make them stop lying.
Judge: Show me a document that says you own the copyrights.
SCO: Umm, we can't.
Judge: Why do you think you own the copyrights?
SCO: Well, Darl's best friend's brother's second-cousin heard that we own them!
Judge: Not good enough. You don't own them.
SCO: Well, we *should* own them - make them give them to us!

Not only...

[jd]

...is it a formerly-functional volcano, it is usually one that has collapsed due to crumbling infrastructure.

Re:And if SCO _did_ get it... what?

[Xtifr]

Purely devil's advocate: if the copyrights rightfully belong to SCO

But they don't. SCO is asking for them to be turned over now, but they still rightfully belong to Novell at the moment. QED.

Your analogy fails because you don't currently own the copyrights to that hypothetical MS code. If it was your code--your copyright--and you had some agreement to turn it over to MS if they needed it, but in the meantime, you had GPL'd it, that would be a better analogy, and I don't see any reason why MS could argue that you shouldn't have GPL'd it while it was still yours. They can still use it, and if they get the copyrights, they won't need to comply with the GPL themselves, although everyone else still can. It's a win-win in any sane scenario (which of course, excludes any scenarios that SCO is involved with).

What SCO really wants to do (force people to distribute "their" code, and pay for the privilege, whether they want to or not) is simply not supported by current copyright laws. But that's another matter. Google for "duty to mitigate" if you're not clear on the concept. You can't try to make the damage worse in order to try to collect more money, which is exactly what SCO has been trying to do.

Also, the real kicker is that SCO themselves continued to distribute Linux long after they made public claims that it was infringing on Unix code (Novell's code), which means that even if they got the copyrights retroactively, it would still be GPL'd. By SCO.