Stay Lifted, Novell Vs. SCO Can Go Forward

A number of readers suggest we check out Groklaw, where PJ is reporting that a bankruptcy judge has granted Novell's request to lift the stay so that its trial against SCO can proceed in Utah. The judge concluded that Judge Kimball is the best one to decide how much SCO owes Novell, and that SCO cannot make any "reorganization" plans — including any "fire sale" of assets — until it knows this figure.

Exactly!

[Anonymous Coward]

I remember a quote where one of SCO's own lawyers said they were under a "death sentence" in Utah, so that's very appropriate. In fact, I was about to submit this exact story under the title "SCO's Stay of Execution Lifted" but I was obviously too late.

Now it will get REALLY interesting when we see how Darl's comments about the Utah judge come back to haunt him when they all have to go back there...

SCO has been a dead man walking for a long time now. It's just that we're finally about to watch their cremation. Anyone remember to bring marshmallows?

What type of champagne?

[Anonymous Coward]

What type of champagne would you like? PJ should start taking orders now. I think a nice, private labeled bottle of Dom would be in order. Of course, when they do die, it will not be "news" and will be swept under the rug.

Of course, M$ could get a lot of milage out of this ifwhen SCO dies by "showing" that open source is poison and kills companies....

Re:Well good.

[MightyMartian]

And that's exactly where I think this has indeed been a fiasco. SCO never, not for one moment, in court or out of it, actually justified its claims. There's something desparately wrong with a legal system that takes four years to work its way through absolutely nothing at all. It's repugnant that discovery can take this long. The minimum threshhold for any litigation ought to be showing some evidence for your claims immediately after filing, not using discovery and countless motions and countermotions to keep it going for years and years.

People call all of this a victory. It's not, it's a goddamned shame that crooks like McBride can use the court system like this. I'm not saying you should have all the evidence for your claims, but SCO did claim to have all these lines of code, which they never actually produced, and so far as I'm concerned day one before the judge should have gone something like this:

SCO Lawyers: We have all these lines of code demonstrating that our intellectual property was stolen.

Judge: Please provide the code.

SCO Lawyers: Well, we don't actually have it, so to speak. You know, it's code, and it's a lot of pages, and we want IBM to release their code so we can compare it to our code to show what we claim.

IBM Lawyers: Your honor, here's the complete Linux source code, as well as a complete revision history. We downloaded it off the Net just like SCO can.

Judge: So, provide the infringing code.

SCO Lawyers: Well, we can't at this moment...

Judge: Case dismissed.

Re:So...

[palegray.net]

About the huge amounts of money part... I honestly wonder what the *real* economic impact of SCO's saga of scare tactics has been to the open source community at large, specifically employees and customers of leading Linux vendors. How many purchases of Linux-based products were shelved or cancelled based on SCO's claims of infringement?

How many businesses were on the verge of trying out a Linux distro at their office, but became became convinced that open source software was some kind of "poison?" How many might still think that way due to a lack of education or a residual feeling of unease? On the plus side, the old saying is "there's no such thing as bad advertising", right? :(

Microsoft will buy SCO

[davejenkins]

I've said it for months now, and I'll wildly guess again:
1. SCO will owe Novell a bunch of money (money that it doesn't have)
2. Microsoft will purchase the remaining 'assets' from SCO. It doesn't really matter if they pay $1 or $1Million
3. Microsoft will do so to get closer to the following goals:
3a. MS now has a hand in the Linux game (possible bump in their stock)
3b. MS can now renegotiate/strengthen their position with Novell
3c. MS can now possibly resurrect the lawsuit or dredge up other scary FUD-alicious items out of what they get (remember it's the appearance of a problem, not an actual problem that makes corporate lawyers CIOs think twice about going open source)
3d. MS pisses off some open source zealots that already hated them (meh)
4. ???
5. Profit!

Re:Microsoft will buy SCO

[iggymanz]

but certain Unix rights revert back to Novell since SCO broke contract. it'll continue to be a grand mess, that's for sure

Re:So...

[bstone]

On the plus side, the old saying is "there's no such thing as bad advertising", right?

In this case, the connections to Redmond are there for anyone to see. The advertising comes from the desperation efforts of MS continuing from all angles, regardless of how it reflects on them. We have the SCO funding, the "Get the FUD" campaign, the efforts to subvert the standards organizations, the patent suits from Acacia, licensing "deals" with Linux vendors, and now the patent suit in Nigeria against OLPC [marketwire.com].

Those are the things that scream loudly that MS believes in FOSS enough that everybody ought to take a look at it.

Re:So...

[_Hellfire_]

To the best of my knowledge, Telstra (the enormous half govt telco here in Australia) were about to start the process of choosing between Linux and Windows for umpteen-thousand desktops right when the SCO saga hit.

Needless to say, Telstra are still predominantly Windows based, and many Telstra employees blame the SCO scaremongering.

Re:So...

[bennomatic]

My reaction to the whole thing was similar to my reaction to our fair president's Iraq/WMD claims. I couldn't believe, right from the start, that anyone would take them seriously.

SCO's attempts to claim ownership of so much Linux IP seemed like the sleaziest of technicality-mongering I've ever seen. To use another governmental parallel, it wasn't much better when Cheney tried to claim that, since he's the VP, he is a member of congress when people say he's beholden to executive branch rules, and he's an exec when people try to hold him to congressional rules. You may be able to twist and turn the text of a law to fit your needs when talking to some people, but there are a lot of good judges out there, and they'll hold your feet to the fire. IANAL, but my wife is, and she's told me some stories about judges that make me want to sit up straight and say, "Yes, your honor" right here in my office.

I'm sort of glad that this took so long, although the cost to innocent parties has been higher than it should have. But the good news is that these folks tried just about everything to wrest Linux from the hands of the people who created it; someone will have to have a pretty good case to make a serious challenge in the future (I hope).

And the good news is that some pretty big guns got on the OSS wagon just in time. Without dual threat of IBM, RedHat and Novell--and all the money that they were willing to throw at it--plus a lot of smaller players, a lot more people might have rolled over, and without a good legal team, it would have been hard to protect the Linux chicken coop from the SCO weasels.

It is a shame that nobody is going to jail. I haven't personally looked behind the corporate veil, but I can't help but think that Darl and his buddies would better serve the world making license plates in the state pen than they would in a board room anywhere. If they caused as much trouble driving their cars as they did at SCO, they'd have their licenses taken away; it'd be nice to see them at least being prohibited from working for any organization other than a sole proprietorship.

Last, but not least, I know it's been said before, but we've got to tip our (red) hats to PJ over at Groklaw. Her tireless analysis and commentary kept a nice, geek-friendly spotlight on this issue for the duration; the world's a better place for people like her.

Ain't gonna happen.

[Jaywalk]

Microsoft wouldn't touch SCO with a pole, regardless of length. First of all, it's SCO's creditor committee -- soon to be headed by Novell -- which gets to determine what happens with SCO's assets. Secondly, SCO doesn't have any assets worth buying. Kimball's decision made it perfectly clear that SCO's rights could not be used the way SCO was attempting to use them. Finally, Microsoft tries to leave the impression that any FUD is not coming from them, preferring to fund a cat's paw like SCO to do their dirty work. It would be far more likely for Microsoft to fund a patent troll to attempt to pull off an "emergency" purchase of assets from the bankruptcy.

Oh, wait . . .

Employment at SCO

[mu51c10rd]

Oddly enough, they are looking for .NET programmers here [sco.com]. Also note that their development is in New Delhi. Perhaps the Indians don't realize the type of company they are working for?

Re:Microsoft will buy SCO

[HexaByte]

No one will buy SCO, because there will be nothing left to buy. SCO will end up owing Novell more than they are worth, and since it's Novells money that was supposed to be a pass-thru, i.e., never SCO's to begin with, they cannot bring it into the bankruptcy to pay other creditors.

Novell will end up taking the remains of SCO in payment, including getting Unix back (the rights to sell it, since they already own the IP). They may even end up open-sourcing Unix just to forever lay such claims to rest. After all, Unix now has no real value, as recent (lack of) sales indicate.

Since this is in Bankruptcy Court, the Bankruptcy Judge will determine if SCO has enough cause to justify spending someone else's (Novell's) money (which, when put in a Trust pending appeals, would kill SCO by itself) to spend on lawyers for an appeal. Since by this time SCO will have no operating capital, and no future, the Judge will say no, hand the remaining assets to Novell and tell everyone else, "Sorry, there's nothing left for you!"

Re:Here's a link

[mabhatter654]

First level judges get over turned a lot, because there are many, many recourses available after the first set of trials... EXCEPT.. in this case SCO has used up every single discovery and process exception... the appeals court has kicked them BACK to this judge over and over, so when he rules, there won't be much of an appeal left to make to anybody. And the Marshals will seize their assets more or less immediately, so there will be no more appeals!

Patience, Mr. Plugwash

[HiggsBison]

... but afaict the bosses and the lawyers (who IIRC have family connections to darl) have done pretty well out of this whole fiasco.

The matter of disbarment and other "lying through your teeth when there was no evidence at all" sort of lawsuits is yet to come.

Then again, many may play the Ken Lay Gambit, and simple die out from under the charges.

Re:The system is b0rked!

[brass1]

justice delayed is justice denied - and it was obvious a LONG time ago that this was a frivolous case

It stopped being about SCO's case a long time ago. The Judge Kimball ruled on almost the entirety of SCO's case in August. Read Judge Gross's (part of) order:

... allow Novell to proceed with the Lawsuit at the convenience of the District Court [...] on the following issues: (1) the amount of the royalties to which Novell is entitled from certain SCOSource licenses that the District Court determined to be SVRX Licenses and any additional licenses that are determined to be SVRX Licenses; and (2) whether SCO had the authority to enter into licensing agreements with Microsoft Corporation and Sun Microsystems.

The judge ruled that this can go to trial so the court can figure out how much money SCO stole from Novell. I'm not saying the system is working here, but it's important to remember that Novell's goal is to strangle SCO to death. It's working.

Re:Judge Judy... Re:SCO's next step????

[AKAImBatman]

if "Judge Judy" who is as much a Judge as Judge Reinhold, were to act that way in a court room she would be rightly disbarred (i.e. Benched).

WTF are you talking about? "Judge Judy" was very much a "real" judge up until her retirement in 1996, albeit a small claims judge. She got her television show thanks to a large amount of press about her outspoken nature in real courtrooms. While the "court" in her show is merely an agreed-upon arbitration session, she is demonstrating much of the same behavior that she became famous for when in public service.

More to the point, Judith is not the only judge known for rather outlandish behavior. Judge Samuel B. Kent [wikipedia.org] is also well-known in the legal community for his humorous and razor-sharp wit, especially in his written orders. One of his more famous incidents was when he dismissed a case for being "asinine tripe".

Last but not least, you do not "disbar" a judge to remove him/her from office. Judges are either elected or appointed officials. Disbarring means they can't practice as a lawyer anymore. (Annoying, but not a huge problem for someone not appointed by the Bar.) Judges must be impeached or dismissed from office like most other government officials. Disbarment usually follows impeachment or dismissal to prevent the Judge from continuing to practicing law after being dismissed.

Re:Constructive trust? though

[HexaByte]

No, the reason for the Constructive Trust is so that SCO won't "convert", or use for their own purposes, the money owed to Novell. Although the Bankruptcy Judge doesn't allow Kimball to impose one, and reserves that right to himself, the law requires that money NOT belonging to the bankrupt company be separated and given to whom it belongs BEFORE the rest of the funds are divided up. Since there won't be any other funds left by that time, there will be no bankruptcy. Or rather, no division or remaining assets, it SCO is being truthful about liabilities vs assets.

In other words, if I have 50K (cash) of the 100K I stole from you, and declare bankruptcy with 75K of total assets and 200K of debts, You get your money first, and my creditors get nothing. Anything else and YOU end up paying for my bankruptcy, not fair at all.

Re:So...

[Anonymous Coward]

That may be unfair. I'd blame Telstra for being a huge, slow, dumb, Dilbert-esque dinosaur. SCO scaremongering may have made it easier to camouflage the lack of a decision to choose something outside the status quo, but few large conservative anti-competitive monopolies really want to bother with something different -- and why should they? It's easier not to. No cushy middle-management jobs will be lost for not doing things differently.

And remember, we're talking about the same lumbering flat-footed behemoth that still clings to the metered Internet service model, in spite of pretty much the rest of the world having abandoned that approach back in the early 1990s when everyone stopped using Prodigy and Compuserve. Really, nimble and forward thinking Telstra is not.

To put Telstra in perspective, people in the US who complain that it's hard to imagine how high speed Internet service in a developed country could possibly be much worse, need only cast their eyes toward Australia.