SCO Slammed in Slander of Title Suit 336
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.
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?!?
PDF (Score:1, Informative)
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!
Re:It wasn't dismissed (Score:4, Informative)
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.
Re:Puff, puff, pass... (Score:5, Informative)
Re:Please don't let it get dismissed... (Score:5, Informative)
How did this get past the editors? (Score:3, Informative)
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.
Re:It wasn't dismissed (YES IT WAS) (Score:3, Informative)
Re:Please don't let it get dismissed... (Score:2, Informative)
Actually, not all dismissed cases can be refiled. If it is dismissed without prejudice, as this one was, they can refile the suit, and in fact the judge went so far as to say they have 30 days to do so. If he had dismissed it with prejudice, the case would be completely thrown out and could not be refiled.
There is also another opportunity which the judge hinted at in his order and which PJ at Groklaw [groklaw.net] pointed out. He said that he cannot completely throw the case out at the dismissal stage, but that Novell had made some persuasive arguments. The hint is that once SCO amends its complaint, Novell should file for a summary judgement. That will produce a ruling on the case's merits (or lack thereof).
You're right, we don't really want a dismissal. We really want a judgement, and I would expect Novell will ask for exactly that in the very near future.
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.
Re:The Beggining of The End for SCO (Score:4, Informative)
Re:How did this get past the editors? (Score:2, Informative)
Their request for the case to be dismissed on reasons of falsity was denied, their request to have it dismissed as inadequately pled was GRANTED. The conclusion section also reads that way. They didn't have to win both of them, just one in order for the case to be dismissed.
tech support (Score:0, Informative)
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Re:Quick ... (Score:4, Informative)
Plus, there are no shortable shares available.
Re:SCO is the suxx0rz (Score:4, Informative)
Like McDonalds. 30000 fast food shops. Just decided to go Linux.
(Though i can't imagine why they didn't choose a BSD, which is far more mature, robust, and secure.)
Judges' profile (Score:3, Informative)
See here [utahbar.org]
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.
SCO showed the code??? (Score:3, Informative)
"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.
Re:Novell (Score:3, Informative)
Re:Novell (Score:3, Informative)
To prevail in a copyright infringement suit, you need to prove two things:
- You own the copyright
- 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 if IBM wins summary judgement or judgement at trial on their 10th counterclaim. Likewise, if Redhat wins.
Attempting to sue before these are decided may allow scumbags to spread a lot of hype, but any such case would probably be stayed until the IBM and Redhat cases are settled.
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:Please don't let it get dismissed... (Score:3, Informative)
--AC
Re:Please don't let it get dismissed... (Score:4, Informative)
Well, spending $4,000,000 to make $11,000 (as the groklaw article reports) is not a substainable business model. They're spending 36,000% of their income on lawsuits.
Wow... say it with me... thrity-six-thousand-percent.
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.
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.
Re:It wasn't dismissed (Score:3, Informative)
Remember that the same judge is also hearing SCO vs IBM.
Re:How did this get past the editors? (Score:2, Informative)
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.
IANAL, but from what I can tell, it looks like:
a) SCO was made a motion to remand (move) the case to state court. That was DENIED. Did they have to make this motion because of rules?
b) Novell made a motion to dismiss SCO's claim of "special damages." This was UPHELD, but SCO was given 30 days to "try again."
c) Novell made a motion to dismiss SCO's claim of falsity and it was DENIED.
According to the Groklaw link, it also says:
Judge Kimball says he can't grant Novell's motion to dismiss at this stage, but he clearly has a leaning, and it isn't in SCO's direction. It's just that on a motion to dismiss, the judge is required to construe all facts in the light most favorable to the party whose case might be dismissed, the non-moving party, and on the Motion to Dismiss, that would be SCO, and as a matter of law, he can't grant the motion to dismiss in totality, because while "Novell has raised persuasive arguments as to whether a sufficient writing exists" without more evidence, he can't rule on the sufficiency of the agreement yet.
So, it's not dismissed in whole from what I can tell. In other words, it's not over yet.
Only certain motions were dismissed...
It helps if you think of motions as mini suits or rounds in a boxing match.
SCO 1 and Novell 1 on Novell's motions of dismissal (falcity and 'special damages').
I've heard arguments on the motion to remand.
One being that SCO wants a federal venue, so it's a victory?
Haven't seen anyone present a case as to why they wanted to remand the case to a state court.
Am I reading this right?
Re:The Beggining of The End for SCO (Score:5, Informative)
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
Re:It wasn't dismissed (Score:2, Informative)
That is not correct. Lost SCOsource licensing would be special damages. However, the law says that there must be _specific_ damage. Like finding a (potential) customer who tells the court that they definitely would have paid if Novell had not claimed that SCO has no copyright.
Same with the cost of lawyers which SCO claimed as special damages. These idiots just forgot to tell the court _specifically_ what damages there were. They could have just said "We were forced to pay $10000 to our lawyer to take on this case because of Novells action". Of course this would be laughed out of court during the case, but it would have been enough to have the case not dismissed. Remember, when the judge decides whether to dismiss or not, he has to assume that everything SCO says is true. But no, SCO's claim did not contain any _specific_ claims for damages, only general vague descriptions of damages. That's why Novell got their dismissal.
But in the second part you are absolutely right. There is uncertainty about the copyright transfer (in my opinion not enough to give SCO a chance in hell to get the copyrights, but just enough to get the case not dismissed), so Novell could have reasonably believed that they have the copyright. Even if they were wrong and SCO does indeed own the copyrights, there would be no slander.
Re:Puff, puff, pass... (Score:3, Informative)
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.e. there were no special damages). It looks like if SCO doesn't file this in thirty days, the dismissal holds.
This is a minor event (Score:3, Informative)
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.
Re:The Beggining of The End for SCO (Score:3, Informative)
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.
What a misleading title... (Score:3, Informative)
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.
Re:The Beggining of The End for SCO (Score:5, Informative)