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SCO Slammed in Slander of Title Suit
Posted by
michael
on Fri Jun 11, 2004 02:35 PM
from the sweet-creamy-justice dept.
from the sweet-creamy-justice dept.
SillySlashdotName writes "Judge Kimball has stated that The SCO Group has failed to meet the requirements of the law in its complaint against Novell and has dismissed the case but gives TSG 30 days to try to meet the legal requirements. More info on groklaw." EWeek also has a story.
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Slap! (Score:4, Funny)
There is some light at the end of the tunnel (Score:5, Funny)
Finally some sense out of our judicial system. Who would believe that...
Re:There is some light at the end of the tunnel (Score:5, Funny)
There is some light at the end of the tunnel
When you in a long narrow tunnel and you start to see light at the end of it, It's usually of the approaching train.
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Re:There is some light at the end of the tunnel (Score:5, Funny)
When you in a long narrow tunnel and you start to see light at the end of it, It's usually of the approaching train.
Or you're having a near-death experience.
What's the difference?
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The Beggining of The End for SCO (Score:5, Insightful)
Re:The Beggining of The End for SCO (Score:5, Informative)
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Re:The Beggining of The End for SCO (Score:5, Interesting)
Why? Because there's a hell of a lot of leeway to amend-- all the pleading is is a basic outline of what the lawsuit is about. You can't make stuff up-- Rule 11 of the FRCP can bite you hard if you do (and I fully expect SCO to get hit by Rule 11 sanctions before the end of the case if their case is as weak as it appears)-- but a bright law student could come up with special damages in an amended complaint. It was just sloppiness or vagueness on the drafting lawyer's part-- special damages could relate to SCO's stock value, to the value of its UNIX assets, or to money lost in licensing fees. Get an accountant to estimate some numbers based on sales and licensing figures, sign an affidavit that they're good, and attach them to the complaint. All they have to do is say what they think they lost-- they'll still have to prove it later, which is the tricky part, but at this stage of the case, they just have to allege their damages with some particularity.
(I'm halfway convinced that the reason Novell wants this case in Federal court is Rule 11 of the FRCP. I don't know Utah law, but I highly doubt it's as harsh as the Feds are if you're caught making up evidence or telling lies to the court.)
(IAAL)
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Re:The Beggining of The End for SCO (Score:5, Interesting)
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Re:The Beggining of The End for SCO (Score:5, Informative)
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Puff, puff, pass... (Score:5, Interesting)
Re:Puff, puff, pass... (Score:5, Funny)
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Re:Puff, puff, pass... (Score:5, Informative)
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Re:Puff, puff, pass... (Score:5, Insightful)
Oh come on, surely you know The Rules. Rule #1 is, in its totality, "Never Admit Anything. Anything."
This is exactly the sort of thing that caused the creation of the Cluetrain Manifesto [cluetrain.com]; it's not a perfect document but there's a lot of truth in it, like #14: You know they lost. I know they lost. They know they lost. But The Rules say they must not admit it, not even a little.
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Re:Puff, puff, pass... (Score:5, Interesting)
Naturally, in a war-game there's a winner and a loser, but we never, ever printed that the unit we were covering lost. They either "completely dominated", or they "learned a great deal from the exercise." I felt like I was at the Special Olympics handing out gold medals to everyone.
Here, SCO, you get a gold medal today too.
TW
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Re:Puff, puff, pass... (Score:5, Funny)
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Re:Puff, puff, pass... (Score:5, Funny)
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Re:Puff, puff, pass... (Score:5, Insightful)
Which may be what he's thinking, but it's not actually practical to say it in public...
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Re:Puff, puff, pass... (Score:5, Informative)
I know it's unpopular to say anything good about TSG, and I hate TSG as much as the next slashdotter. More, probably. But to me, this opinion does look positive for TSG.
The court denied Novell's motion to dismiss the case, and then granted TSG leave to re-file their case with specific information on special damages.
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Re:Puff, puff, pass... (Score:5, Informative)
"The APA Amendment No. 2 excludes from transfer "[a]ll copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the [APA] required for [SCO's predecessor] to exercise its rights with respect to the acquisition of UNIX and Unixware technologies." The Amendment does not identify which copyrights are required for SCO to exercise its rights with respect to the acquisition of UNIX and Unixware and provides no date for the transfer.
While the court seems to lean towards Novell on this overall point, I would honestly be inclined to think that the copyrights to Unix code would come along with such a transfer, although I would hope that I'd be a bit more intelligent and actually spell it out. The big question, of course, is: Did this document actually convey a transfer of copyright, even without a clear declaration to it (remember that it is an amendment to a contract of sale)? It doesn't seem to me that SCO has a lot of room here, but it might just be able to wiggle out.
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Re:Puff, puff, pass... (Score:5, Informative)
Further, SCOs motion to remand to state court was their argument that this is a contract, not a copyright case. The judge disagreed - it is about copyright, specifically your point about whether the ammended APA constitutes a transfer or not. So it stays in federal court where Novell can argue that it doesn't.
The judge scattered throughout the decision that it doesn't look like the ammended APA is a proper transfer to him, but he denied the claim on falsity because he felt that it was premature and the parties should have their arguments heard in court. The message to SCO was pretty clear: "When this get's to court, your ducks better be forming a better line than they are right now."
IANALBIAAGLR
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Summary of further posts: (Score:5, Funny)
"What? They've not been laughed away totally yet?"
"Why did they get off so easy for that much FUD"
Summary of news story: "Judge isn't buying it, put up, or shut up."
one down... (Score:5, Funny)
It wasn't dismissed (Score:4, Informative)
It will be fun to hear the special damages they will come up with. If Novell had not created a "cloud of ownership", they could have what, doubled their SCOsource revenue from $11,000 to $22,000?!?
Re:It wasn't dismissed (Score:5, Informative)
Well, technically it IS dismissed, but on the basis of 'failure to plead special damages' and not on the basis of 'falsity'.
However, Novell's motion to dismiss as grated WITHOUT PREJUDICE, meaning that SCO can amend the complaint later, and the judge has explicitly given them 30 days to do so.
So... RTFA right back atcha!
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Please don't let it get dismissed... (Score:5, Insightful)
Re:Please don't let it get dismissed... (Score:5, Informative)
That is true only if it is dismissed WITHOUT PREJUDICE. Which in this case it is.
However, if the judge then says DISMISSED WITH PREJUDICE, then that's it... the plaintiff cannot refile.
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Re:Please don't let it get dismissed... (Score:5, Informative)
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Yet another deadline (Score:5, Insightful)
Call me when the case is dismissed, and the dismissal is upheld on appeal. Guess we'll be waiting for a long time.
Matter of fact, don't call me until SCO goes through Chapter 7 bankruptcy and ceases operations, cause it's only then that this monster will be dead and buried.
Re:Yet another deadline (Score:5, Interesting)
SCO vs. IBM is just an attempt to re-try USL vs. Berkely. If SCO goes under before being hammered flat in the court system it'll be Wayland/Yutani vs. the Linux Developers Guild in 2013.
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SCO is the suxx0rz (Score:5, Interesting)
Yes!!! Yes!!! SCO is going DOWN baby!!!
but gives TSG 30 days to try to meet the legal requirements.
Noooooooo!!!!!!! Arrrrgggghhhhhhhhh!!!! Don't give 'em any more time--they're going to use it to stretch this bullshit even longer!!!!
***
Ok, seriously now, I think that each of SCO's cases is going to get thrown out one-by-one, and when SCO has to start paying others' legal fees (I can't wait until they have to pay IBM's), they are going to disappear, without accomplishing what Microsoft wants them to accomplish, which is to screw the Linux community over. I think they will accomplish the exact opposite, which is giving lots and lots and lots of free advertising worldwide to Linux, and then when SCO loses all these cases, it will prove to the world that Linux is legitimate, and Microsoft will have screwed themselves over. Nanny nanny boo boo!!!
Re:SCO is the suxx0rz (Score:5, Insightful)
is good publicity. Fact is, until this whole thing
it looked like Linux was a plaything not matched
against REAL Unices. Then those morons come out and
claim that Linux is industrial strength and how can
that have happened so fast. Then all these big corps
start throwing major money at Linux defense with
HP going so far as to indemnify customers. Now the
perception is that Linux is indeed big and capable
and has major commercial backing. If nothing else
this has forced many players in the field to
declare their stand.
This has also led to a reexamination of code submission
procedures. Now rogue code will be harder to slip
into Linux (at least kernel).
So if the intention was to damage Linux then this
has done the exact opposite methinks. The one thing
that remains to be seen is whether IBM is willing
to use its patent portfolio to pressure Microsoft
not to suffocate F/OSS with its patents. If this
is the case then full-blown OS competition may be
right around the corner.
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You know... (Score:5, Insightful)
More information on the SCO website (Score:5, Interesting)
SCO in the NEWS
Recent SCO Headlines
News About The SCO Group
As far as SCO is concerned, only FUD like:
SCO beefs up user identity management, vnunet.com
Green Hills Sparks Embedded Linux Security Row, Computer Business Review Online
MoD opts for SCO identity system, vnunet.com
SCO Could Win: Week Two, eWeek.com
Red Hat's case against SCO put on hold, cnet news
IBM ordered to provide SCO with code, documents, ComputerWorld
SCO Should Win, eWeek.com
SCO wins Linux License payments, BBC News
SCO suits target two big Linux users, cnet news
Judge accepts expanded lawsuit, MSNBC
qualifies for their "News" page.
Know what I learned? (Score:5, Insightful)
Even if it is the entree to a lucrative career selling Linux insurance to the paranoid and lazy.
Wheels (Score:5, Interesting)
Worse then sausage. (Score:5, Interesting)
What a shameful display of the american legal system when after a year and half all the court can say is "I'll grant you another extension and the trial won't be till september of 2005".
A five year old would have settled this a year ago.
Here's to hoping they get drawn and quartered (Score:5, Insightful)
About the only people that will make money in the short term are a select few corporate types and lawyers.
"SCO left out in the cold by IT industry" (Score:5, Interesting)
Hilarious [techworld.com].
[...]
Just go there and read it. I think the press is going to gang up on SCO and really kick them. What goes up, must come down.
Spin-meisters (Score:5, Funny)
Oh, they're real little spin-meisters. Check this one out [yahoo.com]:
You couldn't make shit like this up!
"Oh, we're sooo happy with the ruling. This is great for us. We really wanted to get our claims dismissed. Yes sir. That was the plan all al.. LOOK A WOOKIE!!!!"
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Time Taken (Score:5, Interesting)
Just remember that it's easier for a person to prove they own something than prove that someone else doesn't own it. If SCO had a legal document showing clear ownership they could have had this wrapped up much faster. On the other hand, Novel is saying "We have these documents that do NOT show SCO ownership." which doesn't prove your side; it only disproves the other.
SCO might always find a previously unknown document showing clear copyright conveyance.
Re:Time Taken (Score:5, Interesting)
And OJ might track down Nicole's real killer.
I would think that before I filed the first brief in a 2 billions dollar lawsuit I would have said paperwork copied a few hundred times, and plate the originals in platnum-iridium.
If there is no paperwork, it didn't happen. If there was paperwork in this case, it should have been the first thing on the evidence table.
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Novell (Score:5, Insightful)
In some ways I find it bothersome that these cases are being fought along lines other than "Can someone who's worked on or licensed Unix ever legally contribute to Open Source".
Yes, I realize that it's an insane from the perspective of a computer scholar, but that doesn't mean that court rulings could change the legal reality.
It's great that SCO is being euthanized from these legal proceedings, but recall that it wasn't too long ago that SCO was an big open source ally and proponent. Will Novel be next to fall to bad management, investment pandering, and absurd legal advice?
Darl McBride on the BBC (Score:5, Funny)
Case dismissed ; Sco gets 30 day leave (Score:5, Insightful)
But, also grants "SCO thirty days leave to amend its Complaint to plead special damages specifically in accord with Rule 9(g) of the Federal Rules of Civil Procedure".
Because, if it dismissed without prejudice, SCO will probably just change it's pleadings and file another lawsuit. But, if they can't change their pleadings in accordance with Rule 9(g), then they could be dismissed with prejuduice.
INL I ROBOT
Wall Street Closed (Score:5, Insightful)
Before the bottom falls out Monday, of course. Thursday's 10% slide will probably look rosy compared to what is about to hit them.
My analysis (Score:5, Informative)
First, Novell sold a lot of Unix(tm) intellectual property rights to TSG. Novell and TSG signed a contract for this, the Asset Purchase Agreement (APA). Later on, Novell and TSG signed an amedement, APA Amendment 2 (APA-2). Dunno whatever happened to APA Amendment 1.
The original APA says that no copyrights are transferred as part of the sale. APA-2 says that the sale does include some copyrights -- whatever copyrights that TSG needs to enforce its other rights for the property that they paid good money for.
Fast-forward to 2003. TSG starts its campaign: "we own the Unix copyrights. Pay us $$$$$$$$$." Novell puts out its own press releases: "actually, we (Novell) still own the actual copyrights. You don't have to listen to TSG".
TSG gets pissed off about this, says that Novell is lying about TSG's Unix copyrights and that Novell is fucking with TSG's business of selling licenses to those copyrights. TSG sues Novell about this.
TSG: "We paid for those copyrights, see APA-2"
Novell: "No, actually, APA-2 says that we promise to give you whatever copyrights you need later, APA-2 doesn't actually transfer specific copyrights."
The case ends up in Federal court, Judge Kimball. TSG wants the case to be in State court. Novell wants the case to stay in Federal court.
Kimball says: "this case is about whether APA-2 actually transferred the copyrights or not. That's a federal issue. So it stays here in federal court."
Next, Novell says: "it's so CLEARLY OBVIOUS that APA-2 does not transfer copyrights that it's okay for us to state publicly that TSG doesn't own the copyrights. Please tell TSG to stuff their lawsuit and go screw."
Kimball says: "not so fast, Novell. It's not OBVIOUS at all. Maybe APA-2 actually transferred the copyrights but MAYBE NOT. We're going to need a trial to figure that out. Since we're going to need a trial, I'm not going to dismiss the lawsuit on those grounds at this stage."
Next, Novell says: "and oh yeah, TSG's lawsuit is deficient because they weren't specific about how they were damaged -- just because they are trying to license this Unix(tm) property, and we issue press releases pissing all over the idea that Unix(tm) is THEIR property after they paid $100 million for it, that's not enough. See FRCP mumble."
Judge Kimball says: "Novell's got a point. SCO, your legalese has syntax errors and fails to validate. I'm not saying your content is bogus, I'm saying your syntax is wrong. You have 30 days to re-format your lawsuit so that it's valid FRCP".
So, the deal is:
TSG can continue to sue Novell for dumping on TSG's claims that TSG owns the Unix copyrights. TSG must pursue this lawsuit in federal court, because it's a federal issue whether those copyrights actually transferred or not.
Novell's claim that "Novell still owns the copyrights" might be legally potent or it might not. It will take a trial to determine this. But Novell can't make TSG's lawsuit go away at this stage just by claiming this. It might be true, but it's not OBVIOUS that it's true.
TSG has the right to sue Novell for slandering TSG's title to Unix(tm). But their current complaint is defective. They have 30 days for their lawyers to submit a new, more specific complaint. Then the case will proceed, in federal court, and the court can actually do some more work on the question of whether APA-2 transferred the copyrights or not.
Re:Well... (Score:5, Funny)
Firmly on the definsive. Is that what you call showing up with a knife to a gunfight these days?
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Re:PDF (Score:5, Insightful)
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Read again. (Score:5, Informative)
"Accordingly, Novell's motion to dismiss SCO's slander of title claim for failure to specifically plead special damages is granted without prejudice."
And the Conclusion:
For the reasons stated above, Plaintiff's Motion to Remand is DENIED, and Defendant's Motion to Dismiss is DENIED as to Plaintiff's pleading of falsity and GRANTED as to Plaintiff's pleading of special damages. Plaintiff is granted 30 days from the date of this Order to amend its Complaint to more specifically plead special damages.
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Re:One down (Score:5, Informative)
SCO vs AutoZone
SCO vs IBM
RedHat vs SCO
SCO vs Novell isn't over yet since SCO can resurrect it by properly pleading
its case, but even a well plead case looks like it would lose. Just my
uneducated take on things legal.
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