Judge Kimball Strikes SCO's Jury Trial Demand 149
watchingeyes writes "In a ruling on various pre-trial motions in limine and other, similar motions in the SCO vs Novell case, Judge Kimball today issued a ruling striking SCO's demand for a jury trial, ruling that Novell's claims seek equitable, and not legal relief. In addition, he denied SCO's request for entry of judgment that would allow them to appeal his ruling on the UNIX copyrights and Novell's waiver rights, ruling that if SCO wants to appeal any of his rulings, it can do them all at once after trial. He also granted Novell's request to voluntarily dismiss its own breach of contract claim, denied SCO's motion to exclude press coverage and evidence from the IBM case, granted Novell's motion in limine preventing SCO from contesting his summary judgment ruling at trial, granted Novell's second motion in limine preventing SCO from arguing that SCOsource licenses that license SVRx only incidentally aren't SVRx licenses, denied another SCO motion in limine which improperly asked the Judge to issue rulings on contractual issues and denied Novell's final motion in limine which sought to prevent SCO from contesting Novell's apportionment of royalties analysis. Looks like SCO will be facing a trial in-front of a judge which has already ruled against them numerous times."
Interpretation (Score:3, Insightful)
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Why'd you make me think of HK-47? (Score:2)
Fact: The meatbags deserve it.
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It was DIFFERENT SCO.
It was a company from Santa Cruz, California called "The Santa Cruz Operation". When their Unix business started to go downhill they sold it to Caldera - a company from Utah. The same Caldera that purchased DR-DOS and won Millions in a lawsuit from Microsoft.
After selling Unix business to Caldera The Santa Cruz Operation renamed itself to Tarantella and later on Caldera renamed itself to The SCO Group, Inc. and st
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Just to elaborate on the parent, the ORIGINAL SCO was called the Santa Cruz Operation. I will call this company SCO, and the "new" ex caldera company TSG (for The Sco Group).
SCO was formed in 1978, and in 1983 acquired the rights to Ship Microsoft Xenix (Microsoft's own version of Unix for the x86 processor). SCO ported Xenix to the 386 processor, and eventually Microsoft
Re:Interpretation (Score:5, Informative)
You're probably thinking of the Santa Cruz Operation, not these bozos at Caldera doing business as The SCO Group, after they bought Santa Cruz's Unix business and Santa Cruz changed its name to Tarantella.
SCOG (The SCO Group aka Caldera) has deliberately blurred this distinction all along.
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I remember further back than that
They dropped off a unit for us to play with at Olivetti--an XT. After waiting for minutes at the login, we all wandered off . . .
hawk
Poor, Poor SCO (Score:5, Funny)
Damnit, I can never get through that sentence without laughing.
Hang em out to dry, Your Honor.
- Scott
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No! (Score:4, Funny)
Isn't there some EPA regulation against this?
Re:Poor, Poor SCO (Score:4, Insightful)
Sure they do. They just need a case first.
Re:Poor, Poor SCO (Score:5, Informative)
So I do think SCO are treated fairly here.
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In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
I am also aware that corporations are treated much like persons, and the amount in question certainly comes to more than $20, so why are they not guaranteed the right to trial by jury if they request it?
The answers I got when I asked about this last time (it was about people) was that someone could request a jury trial for civil matters, but they would have to pay huge court expenses. One argu
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They are.
Or is it a technical definition of the words common law that I am missing?
That's the problem. There were basically two systems of jurisprudence in the English/American common-law system, law and equity. They used to be two parallel systems, with their own tribunals ("judges" handled cases at law,
"Law" and "Equity" aren't the same. (Score:2)
Contracts are not "suits at common law." Breach of contracts usually falls under "equity," rather than "law." That might seem like a pedantic distinction, but at the time the Constitution was written, IIRC they were handled by two sepa
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Because they're insecure, and have to put on superior nasty attitudes to feel good about themselves. They don't deserve your attention, and they're not worth stressing out over.
Anyway, the disconnect with the seventh amendment is that it only applies to matters of equity in federal courts. This, as most civil suits are, is a state case, and few states have the same guarantees of civil
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Why, did they murder someone?
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Yea, themselves.
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Closer to assisted suicide than murder.
Re:Poor, Poor SCO (Score:4, Informative)
From what I can work out, they only need a jury to decide if there is a dispute about the "facts" or if Novell were asking for punative damages. It seems that for the claims made, no facts are disputed, and Novell dropped their claim for special damages. All that left are decisions about the Law, and Judge Kimball gets to do that without a jury.
The facts of the case are the contracts etc. Both sides agree on the text of those, but the interpretation is a legal one and thats down to JK.
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Rowling?
SCO Wizard School: Ok children, watch closely as I wave my magic wand and *poof* watch all of that free cash roll in!
Oops.Misfire...
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Re:Poor, Poor SCO (Score:4, Informative)
Almost,
They could insist on a jury if it were a matter of law, like punitive damages, but it is only matter of equity, that is, make me whole by payin what you owe. Novell dropped the punitive damages so they could avoid a jury. There still is a matter of fact in dispute, that is, how much of the Sun and MS licenses were SysV, for which SCOX must remit to Novell in full in return for a 5% fee, and how much were for other things, for which SCOX should not owe anything to Novell.
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Amendment 7 to the US constitution (the first 10 Amendments are known as "The Bill of Rights") provides:
"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,
The key words in this clause are "Suits at common law". This refers to those civil legal matters that could be heard in the courts of the United States at the time of the adoption of the Amendment in 1791 under t
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Constitution of the United States of America -- Article. III. Section. 2. * * *
The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury;
SCO - the Monty Python Black Knight (Score:4, Funny)
"Aye, you chopped my legal legs off! No big deal! I can still hop! Have at you!"
english not good enough (Score:3, Insightful)
is this another nail on SCO's coffin, or several of them at the same time ?
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Heh. I don't think that even most people whose primary language is English could understand that. Especially since most legalese is Latin.
I believe this is several nails, however.
Re:english not good enough (Score:5, Informative)
For those not understanding what's going on: Kimball ruled that the copyrights on UNIX System V don't belong to SCO, they belong to Novell, because the Asset Purchase Agreement, signed between Novell and Santa Cruz never transferred the copyrights, just the business. Santa Cruz was to collect UNIX royalties for SVR5 for Novell and keep a portion for themselves in exchange. The SCO Group stopped paying Novell for UNIX sometime ago, and Novell wants its money.
Now if SCO doesn't own the UNIX copyrights, then how can they sue IBM? The answer is, they can't, especially since Novell told them they can't. Now SCO wants to appeal this decision before the Novell trial is over so they can still sue IBM. And they want any evidence from the IBM trial to not be used in the Novell trial (they filed a similar motion in the IBM trial). And Kimball said "No, and no."
In short: SCO is screwed. After Novell is through with them, if anything is left, IBM will launch its Lanham Act claims against SCO and there will be a smokin' hole in Linden, Utah, where SCO HQ used to be.
Re:english not good enough (Score:5, Insightful)
I want to see them go and pierce the "corporate veil" and go after the source of the money SCO used to bankroll the lawsui^H^H^H^H^H^Hscam... I want to know who the real "PIPE Fairy" is... we all suspect Microsoft, but I want to see hard evidence that can be used against Microsoft.
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My understanding as that they were to collect UNIX royalties for Novell and hand them all to Novell *then* Novell would pay them their cut. (Which of course they never did, so Novell is demanding *all* royalties ever collected by SCO.)
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Actually they can, and might, still sue IBM over breach of contract. They have waffled back and forth in the IBM case over whether they were suing about copyright or contract issues. Lately they've been saying that the IBM suit is about contracts. Unfortunately most of the breach of contract they're alleging have to do with copyrights and trade secrets, which will be much harder to sue over if Novell owns the copyrights.
Don't be supr
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http://www.novell.com/licensing/indemnity/pdf/10_1 0_03_n-sco_ibm.pdf [novell.com]
Judge Kimball has ruled these waivers were valid. In-fact, SCO's contract claims were hurt MORE by the ruling than the copyright ones, cause SCO can still claim infringement over code they own (although they haven't presented any).
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Well, it probably doesn't matter, anyway, since SCOX may soon be bamkrupt, and in bankrupcy, SCOX will probably be quickly forced to settle.
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Why Novell didn't transfer the copyrights (Score:2)
For those not understanding what's going on: Kimball ruled that the copyrights on UNIX System V don't belong to SCO, they belong to Novell, because the Asset Purchase Agreement, signed between Novell and Santa Cruz never transferred the copyrights, just the business.
Right. That issue was examined during discovery. SCO wanted the copyrights transferred when they bought the UNIX business, but Novell insisted on full payment before transferring the copyrights. SCO couldn't come up with the up-front cash,
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Talk about pwned.
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Re:english not good enough (Score:5, Insightful)
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SCO has been allowed to cause uncountable damage to Linux and an equivalent benefit to Microsoft for the past three years.
That's thirty billion dollars of income for Microsoft, protected from competition in part by FUD generated by SCO. They have NEVER had a credible case, but they have been allowed to slander the closest competition Microsoft has for three years. Only now does it look like they'll be forced to stop the slander.
And their punishment? We don't know yet, but it looks
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Re:english not good enough (Score:5, Informative)
"equitable relief" == court-ordered restitution of property, as opposed to fines and punishments. Suing someone to enforce a contract they signed or pay back money they owe you is equitable relief, as opposed to suing them for punitive damages, which is a legal matter. The relevancy here is that equitable matters don't warrant a jury trial, whereas legal ones do.
"waiver" == A formal way of stating that you, or someone acting on your behalf, will not enforce one of your (or their) rights. In this case, Novell issued a waiver on behalf of SCO over whatever it was that SCO was suing IBM over (Normally you can't waive someone else's rights like this, but SCO signed a contract that allowed Novell to do just that)
"dismiss" == to throw a court claim out and not hear it.
"summary judgment" == A judgement on a claim instead of an actual trial, because there was no disputed evidence to hear, so the Judge could rule on it immediately.
It's bad for SCO, this ruling; it doesn't get to bamboozle a fresh naïve jury but instead gets one of the two judges they've been irritating for the past 4 years, so that's it's next-to-last hope for a favourable ruling out the window. The only ray of hope is that it might be able to use some new evidence out to show that whatever Microsoft and Sun paid for wasn't the stuff that Novell was recently ruled to have owned. But it'll be fighting against it's own public statements and anything it's said in other courtrooms, so it's chances are slimmer than slim...
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Worse than that; remember that Judge Kimball is presiding over both the SCO/Novell and SCO/IBM cases. So SCO can't even try to pull a, "This is what the Novell judge really meant," bamboozle on the IBM judge, as they've tried to do with the Autozone and Red Hat cases i
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IBM is still pushing Kimball for rulings on their summary judgment motions. I expect those before the start of trial, so that IBM can be vindicated and Novell can finish SCO of
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Waste, nothing but waste (Score:2)
"Drag lawyers?" (Score:2)
Well ... your alternative is ? (Score:2, Interesting)
(a) the constitution (just think of the PATRIOT act and other legal shenennigans by the current administration)
(b) individual freedom (versus the government)
(c) individual rights (versus the government and any other body that wields large amounts of power such as large corporations).
And yes, a large amount of time, care, money and attention is needed to adjudicate the conflicting claims and counterclaims. However I personally believe th
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So if you found yourself in court, you'd probably want to find someone who had experience with this kind of thing to advise you. Sooner or later a group of these people would get together, maybe form a professional body and set up exams necessary to become a member - and you'd be back where you are today.
One-armed man (Score:5, Funny)
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Maybe the most important remaining issue (Score:5, Insightful)
SCO's problem is that they basically told the SEC that all the money belongs to Novell. SCO tried to have that evidence excluded but failed.
It is likely that Novell will get more than 50% of the money. The judge will grant a constructive trust. SCO will be immediately bankrupt. The trustee will march in and kick the current SCO management out. The trustee will agree to anything the creditors (IBM, Novell mainly) tell him. The cases will end immediately.
AllParadox, a retired lawyer who has been following the case closely, predicts that Judge K. will issue an order sanctioning SCO's lawyers. Some of them could end up being disbarred. It will serve them right. This case has been an incredible misuse of the courts.
Re:Maybe the most important remaining issue (Score:5, Insightful)
One can only hope, but this is very unlikely. The legal system is loathe to expel their own - when judge Susan Chrzanowski was caught having an affair with a defense attorney who was a) pleading cases before her b) given a virtual monopoly on court-appointed indigent cases, c) murdered his wife the day after having yet another sexual rendezvous with the judge and the judge was caught in several lies regarding her involvement her only punishment was 17 months paid "vacation" (they called it a suspension, but she collected around $200,000 and full benefits), six months unpaid leave, and instead of being disbarred was allowed to return to the bench. Retired state justice Charles Levin who oversaw Susan's review originally ruled that she had done nothing whatsoever that merited punishment.
If cases like this don't merit any punishment from the ranks of the legal system, why would a couple of lawyers playing hardball in a case that most americans don't understand or care about be prohibited from paying more dues to the various lawyer associations?
Re:Here's an example (Score:4, Insightful)
I have my own personal feelings here - not only should the lawyers be kicked out but their masters should be personally punished. If your dog bites somebody on your command then you'd better believe that you'll face the music. If you are a corporate exec who issues the sic 'em command to your lawyer then you had better be ready to face the music. Personally.
But my personal thoughts are irrelevant, and these lawyers are likely to get nothing more than a slap on the wrist. In fact, in Michigan (and probably many other states) a lawyer is held responsible if he doesn't pursue a case to the utmost, and bringing about frivolous charges are just part of the game. How many cases are filed alleging racial discrimination where there is clearly zero evidence, let alone plausibility that it ever happened? Those lawyers are never punished for making false allegations, if the charges don't stick then all of the lawyers and judges say "oh well, no harm in trying".
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True, but the actual winner is Microsoft. They ought to be punished. They brought home tens of billions of business through the uncertainties surrounding the case. And I am positive they knew it. And I bet they encouraged it on purpose, on this purpose.
Of course, McBride must have his gooleys cut off,
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Is the number allowed to be some percentage? I thought that SCO had claimed it was "100% theirs or nothing", hence Novell being rather happy they could prove it wasn't 100% (and asking for "no new theories of apportionment to be conjured-up at the last minute, please")
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Just a slow reader -- finally got to that part of the court's PDF.
justice (Score:4, Funny)
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LamLaw Quote (Score:2)
The Darl McBride response (Score:3, Insightful)
We absolutely and fundamentally believe we are right in this case, and we believe in the justice system. But we also know that things don't always happen the way they're supposed to, and we're realistic about that point.
And this gem is fascinating as well:
Let's call a spade a spade: We just took a literal pounding. We got knocked down -- there is no doubt about it. This is not a good ruling for us. But it's not the end of the line of the legal battle. In fact, there's some very encouraging things that came out of even this ruling. And we will continue to fight on those fronts.
Original article here [computerworld.com]
I can only guess that the "encouraging thing" he is speaking about has to be that Kimball ruled that they own their own derivitive works of UnixWare. However these are facts were never in question. At this point we can expect SCO to argue that the M$ and Sun licenses were SCOsource licenses and not SVR4 UNIX. Good luck with that since I believe they have made conflicting public statements about that in the past as well.
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We absolutely and fundamentally believe we are right in this case, and we believe in the justice system. But we also know that things don't always happen the way they're supposed to, and we're realistic about that point.
What he really meant:
We absolutely and fundamentally believe we could get them to sellt, and we believe in the justice system because we know that things don't always happen the way they're supposed to, and we're realistic about that point.
How many nails in the coffin does this make now? (Score:2)
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coffin in grave (Sep 7) check
cement truck starts pouring (due Sept 17)
Nazgul pee on grave (time to be decided)
I think we are pretty much done.
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You mean an Altair? Oh hell yes I'd like one. I tried to buy one back in the day, but couldn't get enough cash together.
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I wanted the heathkit with the 4004.
Instead, ended up years a few later with some CoCos.
I still have mine (Score:2)
hawkk
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I thought I had my original Sinclair zx spectrum up in the loft, but it turned out that a 'friend' had swapped it for his damaged/oft repaired one without me knowing many years ago. I got it out last year, expecting to find my well cared for spectrum, and found a ratty scratched piece of crap
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Actually, if you go to j
Also . . . (Score:2)
And if you do find an 1802, grab an 1861, the crude video chip, to go with it!
hawk
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I saw some kits there last year, and some boards and componants, but didn't think to get any at the time, it could be fun.
Programming of something small would be fun. I spend most of my time coding for research, always using clusters, and its always really complex code. It would be nice to just code for a simple system again.
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For buying electronic components in the UK rapid ( http://www.rapidonline.com/ [rapidonline.com] ) farnell ( http://uk.farnell.com/ [farnell.com] ) and cpc ( http://cpc.farnell.com/ [farnell.com] ) are your best bets. Rapid also have some kits availible mainly from velleman. (OT: they are also a good place to buy lego mindstorms stuff).
If you are go
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I don't think that digikey comes anywhere close to the range of older parts that Jameco has.
hawk
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Mine was noticeably different, though also derived from the articles. I did make sure to have things on the same ports, though.
Netronics (?) also made a Elf II or some such that also had a small onboard monitor.
hawk
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AFAIK, McDonald's POS system (ie, the cash registers) doesn't use SCO Unix, never has, never will.
Their back office system has used SCO (originally Xenix, currently OpenServer) since some time in the mid 1980's. This is the system the stores use for cash management, personnel, inventory and sales tracking, reporting and analysis.
I know some folks who work in McD IS and they're highly concerned about SCO, want to get off of SCO, and joke that after the lawsuit McD should just buy SCOX, but it's a major ta
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I started boycotting McDonalds the day they came out with McDonalds Pizza. I never tried one, because I felt it was unfair competition (and also because I think their advertising was and is directed improperly at little kids).
Hope that's a "right enough" reason for you :-)
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I wouldn't know if they still do anywhere, but when I make a decision to boycott something, I stick with it. I don't think I'm missing out on anything (except maybe a heart attack) by boycotting McDonalds.
Re:Looks like SCO will be facing a trial in-front. (Score:2)
why was this modded down? (Score:2)
Face reality folks: scox was not hurt - justice was not served.
Look at the facts: scox was never profitable, scox had very little money left, and scox was gushing red ink. Scox really was as good as dead before the scam. The scam did not hurt scox. Sorry but it's true. The execs and lawyers made a ton of loot. These are all easily verifiable facts.
The scam is 4.5 years old, and it's far from over.
Why do you think that msft arranged financing? Fo
(OT) Re:why was this modded down? (Score:2)
I think somebody must have been upset that you called them "Hillbillies".
Utah is The West. Out here, we have Rednecks, not Hillbillies.
If you have trouble remembering the difference, just remember Hillbillies|Moonshine=Rednecks|Meth.