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SCO Slammed in Slander of Title Suit 336

Posted by michael
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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SCO Slammed in Slander of Title Suit

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  • Slap! (Score:4, Funny)

    by ajlitt (19055) on Friday June 11, 2004 @03:36PM (#9401268)
    I'm Novell, bitch!
  • by CodeMaster (28069) on Friday June 11, 2004 @03:37PM (#9401276)
    We just need to make sure that SCO will keep going the other way ;-)

    Finally some sense out of our judicial system. Who would believe that...

  • by Pavan_Gupta (624567) <`pg8p' `at' `virginia.edu'> on Friday June 11, 2004 @03:37PM (#9401280)
    And so now, it becomes clear that SCO may never provide the required evidence to prove that they are indeed correct. I believe that this is a clear signal that the SCO case is seeing the end of it's days. Everyone, rejoice! Together now!
    • But I thought... (Score:3, Interesting)

      by Atario (673917)
      The Smoking Gun has 30 days to come up with something...and they always deliver.

      Oh. Oh oh oh. The Sco Group...never mind!
    • by Anonymous Coward on Friday June 11, 2004 @04:15PM (#9401665)
      The rats are fleeing the sinking ship -> http://finance.yahoo.com/q/bc?s=SCOX&t=6m&l=off&z= l&q=l&c= [yahoo.com]
    • by rlgoer (784913) on Friday June 11, 2004 @06:23PM (#9402842) Homepage
      All the dismissal says is that SCO didn't provide an indication of 'special' damages incurred as a result of Novell's actions. They provided only an indication of 'general' damages. They have 30 days to remedy this omission. If SCO lawyers are worth their salt they'll be able to produce some evidence of special damages, and even if those don't hold up during a trial, the evidence will allow them to win this preliminary battle and move on. Note that Judge Kimball spent a lot of time, though, talking about whether Novell did in fact transfer copyright. The language used in the original SCO/Novell contract is uncomfortably vague, and it's not clear exactly what was transferred and what wasn't (SCO was apparently supposed to specify by a certain date what copyrights it was assuming ownership of). Although SCO entered press releases into evidence that are supposed to tell us what everyone was thinking at the time, it's not clear from the language of the contract really what was transferred and what was intended to be transferred. I'd hate to bet the farm on this if I were SCO. It seems pretty tenuous.
      • by Anonymous Coward
        Note that Judge Kimball spent a lot of time, though, talking about whether Novell did in fact transfer copyright. The language used in the original SCO/Novell contract is uncomfortably vague, and it's not clear exactly what was transferred and what wasn't

        In which case, they're dead. US Code Title 17, Section 204 is quite clear in that the transfer of copyright must be clear. Judge Kimball hinted strongly that the Novell-OldSCO APA and Amendment 2 are not adequately clear.

      • by apc (193970) on Friday June 11, 2004 @11:51PM (#9404725)
        I think that this memorandum opinion is almost wholly procedural, and barely newsworthy. This was a motion to dismiss under rule 12, rather than a rule 56 summary judgment motion-- which would be a conclusion, as a matter of law, that there was no case. Rule 12 basically means that they didn't plead it right-- and the Federal Rules of Civil Procedure are exceedingly liberal when it comes to amended complaints. Novell almost certainly filed the Rule 12 motion because they didn't want to have to defend against a complaint as vague as SCO's. Unless SCO annoys the judge by not even making an attempt to plead special damages in the amended complaint, I suspect this case will last until summary judgment, which, knowing Federal scheduling, could be six months to a year away.

        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)

  • One down (Score:3, Insightful)

    by dustmote (572761) <fleck55&hotmail,com> on Friday June 11, 2004 @03:37PM (#9401286) Homepage Journal
    How many more cases to go?
    • Re:One down (Score:5, Informative)

      by Dan Ost (415913) on Friday June 11, 2004 @04:32PM (#9401823)
      SCO vs Daimler Chrysler
      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.
  • Puff, puff, pass... (Score:5, Interesting)

    by BrynM (217883) * on Friday June 11, 2004 @03:38PM (#9401291) Homepage Journal
    From the article:
    Marc Modersitzki, SCO's public relations manager, said, "We're pleased with the ruling. We look forward to responding to the court's special damages request." This request gives SCO the chance to amend its complaint against Novell.
    So they're pleased they get a chance to clarify their complaint, but the idea of being pleased about the ruling itself makes me think that Darl has been passing the crack pipe around the office. I personally don't think they are going to make the 30 day deadline for filing the special damages request. SCO has been acting like a student that professes to be smart, but never does a bit of their assignments.
    • by FerretFrottage (714136) on Friday June 11, 2004 @03:41PM (#9401329)
      No kidding...last time SCO needed to produce a bunch of evidence, they failed ot do so or were late because they were on Christmas vacation. Now with summer and all, I suspect they'll claim that the weather is just too nice to deal with the judge's demands.
    • by khym (117618) * <matt @ n i ghtrealms.com> on Friday June 11, 2004 @03:52PM (#9401446)
      Well, you see, according to SCO, they really, really wanted to have the issue tried in fedetral court before Judge Kimball, but gosh darn it, the rules require them to ask for it to be remanded to the state court. So they're glad they lost the remand.
    • by Jerf (17166) on Friday June 11, 2004 @03:54PM (#9401460) Journal
      but the idea of being pleased about the ruling itself makes me think that Darl has been passing the crack pipe around the office

      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:
      14. Corporations do not speak in the same voice as these new networked conversations. To their intended online audiences, companies sound hollow, flat, literally inhuman.
      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.
      • I thought the rules were:
        #1 You don't talk about the lawsuit
        and
        #2 You don't talk about the lawsuit
      • by Total_Wimp (564548) on Friday June 11, 2004 @05:44PM (#9402529)
        When I was a military journalist we used to cover war games for the post newspaper. Usually we'd cover the war games from the perspective of a particular unit.

        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
    • by Anonymous Coward on Friday June 11, 2004 @03:58PM (#9401513)
      I'm a crackhead and don't like being associated with Darl you insensitive clod!
    • by RancidBeef (412397) on Friday June 11, 2004 @04:52PM (#9402014) Homepage

      From some article in the (not so) distant future:

      Marc Modersitzki, former public relations manager of the IBM subsidiary formerly known as SCO, said, "We're all pleased with the outcome of the case." Mr. Modersitzki is now assistant vice president of the janitorial service, toilet scrubbing division, in the IBM headquarters building. Darl McBride, former CEO of SCO, could not be reached for comment as it's not currently visiting day at the prison where he now resides as a result of of the charges filed on behalf of former SCO stockholders who seem not to be as pleased.
    • by CrimsonAvenger (580665) on Friday June 11, 2004 @04:55PM (#9402043)
      Come now! He pretty much has to say he's pleased by the ruling. The other alternative is to say something to the effect of "Oh, crap! We're screwed now...guess it's time to start polishing my resume."

      Which may be what he's thinking, but it's not actually practical to say it in public...

    • by mec (14700) <mec@shout.net> on Friday June 11, 2004 @05:09PM (#9402175) Journal
      I can't get to the e-week article but I have read the 29 pages of the judge's order.

      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.

      • by psaltes (9811)
        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.

        Actually, Novell filed two motions to dismiss, and the court denied one and granted without prejudice the other. The granted motion was about special damages, which SCO apparently failed to prove. I don't know whether the extra thirty days are required by the law or not, but there may be a reason why they didn't do file this information in the first place (i
        • by mec (14700) <mec@shout.net> on Saturday June 12, 2004 @01:15AM (#9405028) Journal
          That's mostly similar to my view, but there's a subtle and important difference.

          It's not that SCO "failed to prove" special damages. That has the connotation that SCO came to court and presented its evidence and the court didn't believe their side. Instead, the situation is: SCO didn't explicitly list the special damages, so the judge told them they had to file a new complaint with an explicit list of special damages. When the court gets the new filing, THEN it will proceed to hear motions and evidence about SCO's special damages.

          SCO just has to come back with a new filing where they claim exactly how they were damaged, and the suit proceeds from there.

          To draw an analogy ... say my car gets wrecked and I file a claim on my insurance company. The insurance company comes back and says "you need to attach a police report and some photographs before we decide whether to pay your claim". That's different from "we don't believe your car suffered any damage, go pound sand".
    • by Martin Blank (154261) on Friday June 11, 2004 @05:32PM (#9402427) Journal
      What they're pleased about is the court's refusal to dismiss the part of the case revolving around the copyright ownership because of ambiguities in the language of APA Amendment 2. Novell had wanted the copyrights ruled to be under the ownership of Novell, which would have caused the whole SCO case against IBM to collapse. The court did say in the decision that the amendment seems to be a promise to transfer the copyrights rather than an actual transfer, but that an ambiguity of wording requires further review:

      "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.
      • by mwa (26272) on Friday June 11, 2004 @06:56PM (#9403082)
        Not exactly. Novell moved to dismiss based on falsity (DENIED) and on pleading of special damages (GRANTED without prejudice), not on the merits (although I'm sure that will come later). In law math a dismissal GRANTED + a dismissal DENIED == a dismissal GRANTED. SCO has 30 days to define with an acceptable specification of "special damages" or the case is done.

        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

  • by Jonsey (593310) on Friday June 11, 2004 @03:38PM (#9401296) Journal
    "They got what they deserved"

    "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)

    by rokka (631038) on Friday June 11, 2004 @03:38PM (#9401304)
    One suit down, 100000000000000000000000000 to go.
  • It wasn't dismissed (Score:4, Informative)

    by TrailerTrash (91309) * on Friday June 11, 2004 @03:39PM (#9401311)
    RTFA - the request to remand to state court was denied. Novell's motion to dismiss was also denied.

    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?!?
    • by Chmarr (18662) on Friday June 11, 2004 @03:43PM (#9401356)
      RTFA - the request to remand to state court was denied. Novell's motion to dismiss was also denied.

      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!
    • by Xanthian (714965) on Friday June 11, 2004 @03:43PM (#9401366)
      Re-RTFA. The motion to dismiss was denied as to the pleading of falsity, but GRANTED as to the pleading of special damages. SCO has 30 days to come up with some new rantings and ravings as to special damages, or the case IS dismissed.
    • From Judge: "Accordingly, Novell's motion to dismiss SCO's slander of title claim for failure to specifically plead special damages is granted without prejudice." Also: 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 da
    • by k12linux (627320)
      Apparently, however, they won't be able to use lost SCOsource licensing as special damages. That loss of income would not be ireversible since the licenses could always be purchased later.

      Besides, the fact that the judge felt there was uncertainty of copyright transfer means that Novell couldn't have acted with malice. If Novell actually belived it had ownership then there is no slander of title.

  • by Supp0rtLinux (594509) <Supp0rtLinux@yahoo.com> on Friday June 11, 2004 @03:41PM (#9401332)
    Personally I'd rather not see any of the cases (SCO vs. IBM... SCO vs. Novell... SCO vs. RedHat) dismissed. After all, a dismissed case can always be redone later. Personally, I'd rather see the cases and trials move on and see the truth told and *hopefully* IBM and Novell win. At least then we don't have a *what if* hanging over our heads.
  • by blockhouse (42351) on Friday June 11, 2004 @03:41PM (#9401334)
    Yet another deadline? We've seen this kind of thing before. Let's not get our panties in a bunch just yet, this is not over yet. Not by a long shot.

    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.
  • SCO is the suxx0rz (Score:5, Interesting)

    by rice_burners_suck (243660) on Friday June 11, 2004 @03:41PM (#9401337)
    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

    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!!!

    • by 3n1gm4 (689083)
      I think they are accomplishing exactly what Microsoft wants, they are making companies hesitate in going to a broad Linux platform change while they wotk on their new licensing and integration plans. Microsoft is very vulnerable in that they haven't been able to answer the security issues as well as finishing their next platform. Even a months delay is worth a lot to Microsoft.
    • by Compuser (14899) on Friday June 11, 2004 @04:11PM (#9401623)
      You may be right. There is a rule that any publicity
      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.
      • 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.

        One can never be sure with corporations, but it sure LOOKS like IBM, as a part of their business plan, wants F/OSS to succeed, and plans to ride that wave. (Farsighted of them if they do, 'cause F/OSS is already a major player in software, and it ain't going away.) It's ce
      • by lspd (566786)
        This has also led to a reexamination of code submission procedures. Now rogue code will be harder to slip into Linux (at least kernel).

        At the very least it's provided a counterpoint to the "nobody is complaining" excuse for licensing laxness. Someone, somewhere, someday is bound to try and make a buck off complaining. Of course, code is easy to track in comparison to video/audio/graphics/etc. There are many instances where free software developers have grabbed images or graphics off the net and incorp
  • You know... (Score:5, Insightful)

    by xenostar (746407) on Friday June 11, 2004 @03:43PM (#9401361)
    ..if you're gonna base all your corporate strategy on lawsuits, you better get your sh*t together and at least make the court deadlines on time.
    • Re:You know... (Score:3, Insightful)

      by gl4ss (559668)
      the corporate strategy is built around APPEARING as if one has lawsuits that could bring in money.. not actually having them.

      -(don't ask me how that's supposed to make 'em money)
  • by GillBates0 (664202) on Friday June 11, 2004 @03:43PM (#9401364) Homepage Journal
    Naah, I don't think this news item qualifies for the SCO News Page [sco.com] which is supposed to contain:

    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.

  • by Otter (3800) on Friday June 11, 2004 @03:45PM (#9401389) Journal
    I am so glad IANAL. Can you imagine reading that stuff all day? I started nodding off around the Bear Creek Drainage precedent, and was hitting PageDn pretty quickly even before that.

    Even if it is the entree to a lucrative career selling Linux insurance to the paranoid and lazy.

  • Wheels (Score:5, Interesting)

    by alficles (781213) on Friday June 11, 2004 @03:47PM (#9401410)
    The Wheels of Justice do grind slowly, but they are grinding in the right direction. IBM, Novell, and all the Good Guys(tm) will eventually win. And then the countersuits will destroy SCO. Hopefully, the countersuits will destroy Darl. Also, we don't want the judge to make a mistake here. If he had thrown the case out, SCO would appeal it back in and things would take even longer. We want IBM/Novell/Good Guys(tm) to win fair and square. It is a clear cut case, they just need to make sure SCO can't claim they were beaten unfairly... because they will anyway. :)
  • Worse then sausage. (Score:5, Interesting)

    by killjoe (766577) on Friday June 11, 2004 @03:47PM (#9401411)
    They say you should never observe how sausage or laws are made. I wish to amend that to say you should never observe how laws are litigated.

    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.
  • by div_2n (525075) on Friday June 11, 2004 @03:51PM (#9401437)
    Cross your fingers whether you are pro-Linux or pro-Microsoft that SCO gets hammered. Because if they win, you can bet the IT industry in the United States (and potentially other countries) is going to suck royally and innovation will take a huge setback.

    About the only people that will make money in the short term are a select few corporate types and lawyers.
  • Thanx (Score:3, Funny)

    by rootnl (644552) on Friday June 11, 2004 @03:57PM (#9401502)
    I and my fellow friends would like thank SCO for the effort they have made to place Linux in the news papers. For them we can only be gratefull. Long live SC.. oh wait, Linux.
  • Well... (Score:3, Interesting)

    by zeruch (547271) <zeruch@deviantar t . com> on Friday June 11, 2004 @03:58PM (#9401509) Homepage
    ...this is certainly a positive development. If we are lucky, this will be an indicator of things to come, as maybe this will snowball into an avalanche of failure for $Stupid_Cretinous_Organization.

    The best aspect of this that I can gather is that is puts SCO firmly on the defensive.
  • by eddy (18759) on Friday June 11, 2004 @03:59PM (#9401523) Homepage Journal

    Hilarious [techworld.com].

    "That however is where Young and SCO's head Darl McBride leave reality alone and continue with their evangelistic pronouncements which are what have put the company in its sticky situation in the first place."

    [...]

    But still the company can't stop itself from issuing threats. "If they're willfully not buying licences, the price will be a horrific price," said Young. Why? Because of all the penalties that SCO will add when it has won all its lawsuits. "They run a huge risk. What they're looking at right now is a bet and that bet is going to get more expensive." But every week, the horse is looking more of an outsider.

    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.

  • Time Taken (Score:5, Interesting)

    by buckhead_buddy (186384) on Friday June 11, 2004 @04:02PM (#9401551)
    People have commented here that they can't understand why it's taken so long to come to this ruling with the facts so clear cut.

    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)

      by EvilTwinSkippy (112490) <.yoda. .at. .etoyoc.com.> on Friday June 11, 2004 @04:11PM (#9401628) Homepage Journal
      SCO might always find a previously unknown document showing clear copyright conveyance.

      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.

  • by optimus2861 (760680) on Friday June 11, 2004 @04:02PM (#9401556)
    The case was not dismissed. SCO's motion to remand to state court was dismissed, meaning the court stays in federal court. Novell's motion to dismiss the case was partly denied; what got dismissed was SCO's pleading of "special damages", though the judge did give them 30 days to attempt to restate that claim. What it boils down to is that SCO has to prove in federal court that the UNIX copyrights it purports to own were in fact transferred, since copyright is a federal issue, not a state issue. SCO wanted the case heard strictly as a contract case in state court and did not want to have to prove it owned the copyrights.

    There's a link to groklaw right in the article, for pete's sake. A cursory visit to the website would reveal the writeup is grossly misleading.

    • Read again. (Score:5, Informative)

      by djtrainwreck (266541) on Friday June 11, 2004 @04:11PM (#9401630)
      Judge Kimball:

      "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.
  • Quick ... (Score:3, Interesting)

    by vlad_petric (94134) on Friday June 11, 2004 @04:11PM (#9401633) Homepage
    Borrow SCO shares. Borrowing shares is the way of making money when you predict the stock price will go down. You basically get shares, dump them, and after a pre-established period, re-purchase them and give them back to the original owner. If the stock goes down, you make money. If it went up, you'd lose.

    From a moral perspective, by borrowing shares now you'd be making money of the people who bet against Linux.

    • Re:Quick ... (Score:4, Informative)

      by red floyd (220712) on Friday June 11, 2004 @04:28PM (#9401787)
      It's called "Shorting". And ISTR that NASDAQ rules prevent shorting a stock when it's below 5.

      Plus, there are no shortable shares available.
    • Re:Quick ... (Score:3, Interesting)

      by grammar nazi (197303)
      There is no moral perspective to shorting shares (unless you are acting on material insider information and your local regulating authority [SEC?] won't allow you to act on that particular information). When you buy shares, you are speculating that the stock has a good value. When you sell shares, you are speculating that the stock is not as good a value. Whether or not you own the shares before you sell (selling shares you already own versus shorting shares you don't own) makes no difference.

      You won't be m

  • Novell (Score:5, Insightful)

    by buckhead_buddy (186384) on Friday June 11, 2004 @04:12PM (#9401650)
    What happens if there's a management turnover at Novel and the new guys in charge decide to take up the SCO litigation business model only with the added benefit that these decisions show they own the copyrights?

    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?
    • Re:Novell (Score:3, Informative)

      by Ender Ryan (79406)
      Novell executives have stated that they own the copyrights, and they belive that Linux does not in any way infringe upon them. Novell would be even less capable of saying, "But we didn't know!"

    • Re:Novell (Score:3, Informative)

      by pjrc (134994)
      What happens if there's a management turnover at Novel and the new guys in charge decide to take up the SCO litigation business model only with the added benefit that these decisions show they own the copyrights?

      To prevail in a copyright infringement suit, you need to prove two things:

      1. You own the copyright
      2. The copyrighted material was copied or distributed by the defendant

      SCO's having trouble on both. Fail either one and they lose.

      Proving #2 is going to be nearly impossible for anyone in the future

  • by ctid (449118) on Friday June 11, 2004 @04:14PM (#9401664) Homepage
    I just caught the end of a Darl McBride interview on the BBC. Unfortunately reception was a bit poor, but what I think he said was,
    "And I for one welcome our new Novell overlords. I'd like to remind them that as a trusted CEO, I can be helpful in rounding up others to toil in their underground SUSE caves."
  • by timothy (36799) on Friday June 11, 2004 @04:17PM (#9401685) Homepage Journal
    Right now, the top 5 headlines listed are:

    STREET WISE: Little Cheer for SCO Shareholders

    SCO Group Posts Loss

    SCO posts loss vs profit; revenue down 52 pct

    SCO Group Stumbles on Revenue Drop

    SCO Keeps Sinking

    Now, a) companies have come back from way below where SCO is now b) crazy legal judgements may declare D. McBride Emperor of the U.S. without significantly decreasing the sanity level of the whole system c) it's not nice to be vindictive.

    However, one of my favorite slogans is "Humble to the humble, unyielding to the arrogant." Darl falls into the second category to me, since he would like, on what seem to be wildly spurious suppositions and with dirty tactics worthy of Ayn Rand's slimiest villains, to take away the Free software I use every day.

    timothy

  • by djtrainwreck (266541) on Friday June 11, 2004 @04:19PM (#9401702)
    Judge grants "Novells motion to dismiss SCO's slander of title claim for failure to specifically plead special damages is granted without prejudice".

    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
    • If you read the commentary buried somewhere deep on Groklaw and learn enough legalese to read between the lines, the judge hinted to Novell that a future motion for summary judgment might be in their best interests, indeed, he made it sound like a major summary judgment ruling would be forthcoming - if Novell requests it. And THAT could be the end of it.
  • We all know (Score:3, Funny)

    by BCW2 (168187) on Friday June 11, 2004 @04:29PM (#9401789) Journal
    What Darl is swimming in, and the cesspool just gets deeper and deeper. When he goes under for the third time, someone please throw him an anvil.
  • Judges' profile (Score:3, Informative)

    by Anonymous Coward on Friday June 11, 2004 @04:31PM (#9401810)
    Judge Dale A. Kimball grew up on a dairy farm in Draper, Utah. Those early mornings milking cows taught him the importance of responsibility. He quickly learned that if he didn't do his job, there would be a barn full of unhappy cows and a house full of unhappy parents. In addition to his barnyard responsibilities, Judge Kimball also worked in the fields, where the family raised alfalfa, sugar beets, and grain. He faithfully worked on the family farm throughout his schooling, including law school. These experiences also taught Judge Kimball the importance of working hard, working smart, and finishing tasks on time.

    See here [utahbar.org]

  • Wall Street Closed (Score:5, Insightful)

    by kitzilla (266382) <paperfrog@NOSPAM.gmail.com> on Friday June 11, 2004 @04:35PM (#9401851) Homepage Journal
    SCO best be pleased the markets are closed today. That gives them a 48-hour window to crank up the disinformation.

    Before the bottom falls out Monday, of course. Thursday's 10% slide will probably look rosy compared to what is about to hit them.

  • by silicon not in the v (669585) on Friday June 11, 2004 @04:38PM (#9401877) Journal
    You apparently have to be in McBride's mind to see it though. Here is a quote from their press release:

    "McBride said SCO has been diligent in providing the courts with samples of the code it believes IBM has contributed to Linux. He said IBM has not been as forthcoming."

    Oh, man! I wore my nice shoes today, and I didn't appreciate stepping in all this horses*** Darl is throwing around.
  • by ArcticCelt (660351) on Friday June 11, 2004 @04:45PM (#9401940)
    Who's operating system is this?

    It's a UNIX baby.

    Who's UNIX is this?

    SCO!

    Who's SCO?

    SCO is dead baby, SCO is dead...
  • My analysis (Score:5, Informative)

    by mec (14700) <mec@shout.net> on Friday June 11, 2004 @05:02PM (#9402100) Journal
    Damn, this was some heavy reading! Here's my armchair legal analysis.

    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:My analysis (Score:4, Interesting)

      by Anonymous Coward on Friday June 11, 2004 @06:45PM (#9402997)
      There's a key step missing. The original agreement was between Novell and OldSCO, now known as Tarantella. The properties transfered in the amended APA were later transferred to Caldera, now TSG, but they claim to have lost the contract executing that transfer.

      So really, there are a few interesting angles here. Novell is claiming (persuasively, in my lay opinion) that the amended APA does not qualify as a transfer of copyright under federal rules, so TSG cannot own the copyright. But there's also the unsettled question of which copyrights Novell owned at the time the amendment was executed (I don't know whether Novell wants to go there), a question raised by the AT&T vs BSD action, as well as the question of a transfer executed from OldSCO to Caldera.

      Also:
      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."

      Kimball seems to hint fairly broadly that he agrees with Novell's interpretation that the amended APA is not an instrument of transfer. However, since this was a motion for dismissal, he has to look on everything favorably to SCO. It's entirely possible that a motion for summary judgement would go the other way.

      In fact, I don't think it would be a huge shock if TSG took the hint and didn't refile. As it is, for all of Kimball's hints, he didn't rule on whether Novell or TSG holds the copyrights. If that ruling would go against TSG, it would sink their other litigation, so they might very well prefer to get out of this without getting their heads handed to them.

      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".

      The problem is that TSG had to identify certain ways that Novell had hurt them and they failed to do so. It's a little more serious than simply bad syntax.

  • by Qbertino (265505) on Friday June 11, 2004 @06:34PM (#9402925)
    'E's not pinin'! 'E's passed on! This SCO is no more! He has ceased to be! 'E's expired and gone to meet 'is maker! 'E's a stiff! Bereft of life, 'e rests in peace! If 'e hadn't nailed 'tis Linux suit to the perch 'e'd be pushing up the daisies! 'Is metabolic processes are now 'istory! 'E's off the twig! 'E's kicked the bucket, 'e's shuffled off 'is mortal coil, run down the curtain and joined the bleedin' choir invisibile!! THIS IS AN EX-COMPANY!!
  • by Animats (122034) on Friday June 11, 2004 @08:47PM (#9403820) Homepage
    This isn't that big a deal. The "slander of title" claim wasn't going anywhere. SCO still has a contract dispute with Novell pending, The odds of SCO winning that case just dropped, but SCO's claims there are not totally bogus. It's a tough contract case. Clearly SCO bought some rights from Novell, but the language of exactly who owns what is ambiguous.

    More significantly, SCO did get an extension in the IBM case. Trial has been pushed back to November 2005, and discovery has been extended. So we have another year and a half of FUD ahead.

    There's still Red Hat vs. SCO, SCO vs. AutoZone, and SCO vs. Damlier-Chrysler. By now, corporate Linux users have figured out that there's no reason to pay SCO money until SCO wins all of these cases. Hence the $11,000 total revenue from SCOsource.

  • by Eric Damron (553630) on Friday June 11, 2004 @09:28PM (#9404017)
    "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."

    This is total crap. That's not what happened at all!

    Go to groklaw to get the real poop.

    1. SCO lost its fight to get the case sent back to state court.
    2. Judge Kimball says he can't grant Novell's motion to dismiss at this stage.
    3. Judge Kimball says that SCO didn't plead the damages part adequately and he gives them 30 days to try, try again.

    From reading the title one would think that SCO lost it's case and the whole thing was over.

    Pretty cheezy if you ask me!

    Let's all wait until SCO really loses (which I'm pretty sure they will.) before we start slapping each other on our backs.
  • by Nice2Cats (557310) on Friday June 11, 2004 @10:43PM (#9404399)
    One side effect of the SCO case and Groklaw's laser focus on the facts is that the tech press is being exposed in the most brutal way as the bunch of clueless idiots they are. PJ rants a bit about this [groklaw.net] in her current post. Reading her site and then watching the facts unfold just as she predicted makes you wonder why we even bother with the mainstream press.

    Of course, after watching just about every U.S. paper and news channel turn into a miniature propaganda ministery during the Iraq War, only to crawl back tearfully when things start hitting the fan, the question is why anyone still bothers.

    Thank God for PJ.

  • by walterbyrd (182728) on Friday June 11, 2004 @10:49PM (#9404431)
    Haven't you been reading the pop-media-tech-news? This is 100% positive for scox, and bad for FOSS. And there are no tanks in Baghdad! Here's a sample:

    "There's going to be weeping and gnashing of teeth today among the open source set when they hear that a Utah federal court has decided that SCO's suit against Novell - the one Novell wanted thrown out on its ear - is worth hearing after all."

    http://www.linuxworld.com/story/45223.htm

    Funny, I didn't know that's what "dismisial" meant. In fact, I thought it meant the opposite. Guess I'm not smart enough to write for the
    tech-pop-media.

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