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Appeals Court Overturns 2007 Unix Copyright Decision 330

snydeq writes "A federal appeals court has overturned a 2007 decision that Novell owns the Unix code, clearing the way for SCO to pursue a $1 billion copyright infringement case against IBM. In a 54-page decision (PDF), the 10th Circuit Court of Appeals said it was reversing the 2007 summary judgment decision by Judge Dale Kimball of the US District Court for the District of Utah, which found that Novell was the owner of Unix and UnixWare copyrights. SCO CEO Darl McBride called the decision a 'huge validation for SCO.'" The case over who owns Unix will now go to trial in Utah.
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Appeals Court Overturns 2007 Unix Copyright Decision

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  • by assemblerex ( 1275164 ) on Tuesday August 25, 2009 @08:10AM (#29184655)
    We'll be using quantum computers before the appeals run out.
    • by Thanshin ( 1188877 ) on Tuesday August 25, 2009 @08:28AM (#29184865)

      We'll be using quantum computers before the appeals run out.

      Actually, quantum computers will be using us.

      Which brings curious questions about the future and soviet russia.

    • Re: (Score:3, Insightful)

      Why won't you DIE?!?!
  • wtf (Score:2, Insightful)

    by Anonymous Coward

    Did it become april fools day when I wasn't watching?

  • by mcvos ( 645701 ) on Tuesday August 25, 2009 @08:18AM (#29184727)

    It's like a zombie infestation. Didn't scientific research recently prove that violence was the only solution to that?

    • Re: (Score:3, Interesting)

      by mcgrew ( 92797 ) *

      Didn't scientific research recently prove that violence was the only solution to that?

      "Violence is the last refuge of the incompetent" -- Salvor Hardin, Foundation (Isaac Asimov)

      • by Anonymous Coward

        And yes, they did do a but of modelling on the slow zombie infestation and you HAD to act hard and quick or else the zombies would win.

        The BBC had something on it recently on their website.

      • by Rogerborg ( 306625 ) on Tuesday August 25, 2009 @09:04AM (#29185313) Homepage

        Didn't scientific research recently prove that violence was the only solution to that?

        "Violence is the last refuge of the incompetent" -- Salvor Hardin, Foundation (Isaac Asimov)

        Yes, I'm sure that fictional quote will be a great comfort to you during the coming zombie apocalypse. You hippies need to live in the real world occasionally.

      • by Anonymous Coward on Tuesday August 25, 2009 @09:18AM (#29185477)

        "If violence isn't your last resort, then you didn't use enough violence." -- The Seven Habits of Highly Effective Pirates [schlockmercenary.com]

      • by Anonymous Coward on Tuesday August 25, 2009 @09:19AM (#29185491)

        "Violence is the last refuge of the incompetent" -- Salvor Hardin, Foundation (Isaac Asimov)

        "The competent would have long since resorted to it."

      • by EvilNTUser ( 573674 ) on Tuesday August 25, 2009 @09:26AM (#29185563)

        Violence is the last refuge against the incompetent.

      • Re: (Score:2, Redundant)

        by jimicus ( 737525 )

        "Violence is the last refuge of the incompetent" -- Salvor Hardin, Foundation (Isaac Asimov)

        "The competent make it their first refuge." -- jimicus, Slashdot

      • by aepervius ( 535155 )
        It is quite clear that all along in history, violence solved a lot of problem. Solved them very definitively. It might have created other, or ultimately led to the end of the offender, but the original problem was mostly solved, even if it involved putting to the sword the whole populace, including children, and then salting their fields.
        • by mcgrew ( 92797 ) *

          The point wasn't that violence is ineffective, the point was that there are always better ways of accomplishing goals than use of violence, and if you can't think of them, you're (in Terry Pratchett's words) "not only not the sharpest knife in the cutelry drawer, you might not aven be a spoon".

          • by jedidiah ( 1196 )

            That's fine in the cushy world that Terry lives in.

            Quite a lot of people (most infact) don't have that luxury.

        • Re: (Score:3, Informative)

          by Tweenk ( 1274968 )

          It is quite clear that all along in history, violence solved a lot of problem.

          It did, but it was never the most expedient way to solve the problem, because it resulted in the destruction of people and property. Asimov's maxim is not about pacifism; it is about using more effective tools of war (like espionage, political influence, psychological manipulation, propaganda or even assassination) that do not destroy valuable resources.

      • by Anonymous Coward on Tuesday August 25, 2009 @09:41AM (#29185739)

        "Violence is the last refuge of the incompetent"

        Of course violence is the last refuge of the incompetent. For the rest of us, it's waaaay before last. It's like third.

      • Re: (Score:3, Funny)

        by thisissilly ( 676875 )
        Violence is the last refuge of the incompetent

        Competent people turn to violence much sooner.

      • by Verdatum ( 1257828 ) on Tuesday August 25, 2009 @10:43AM (#29186623)
        "HOLY SHIT, A ZOMBIE!! KILL IT, KILL IT!!!" -- Salvor Hardin, Foundation (Isaac Asimov) (Upon encountering a zombie)
      • by Tweenk ( 1274968 ) on Tuesday August 25, 2009 @12:15PM (#29188067)

        I don't know if it's the mostly American readership (a nation known for preferring violence over sex), but almost nobody here seems to understand that quote. It doesn't mean "only the incompetent use violence as the last resort", or "wars are wrong and everybody should love each other". It is not a pacifist maxim; It's more a reflection on the means of conflict. It means "if you use violence, it will be the last thing you do, and will prove your incompetence to handle the situation". The Foundation books made it clear that Asimov's definition of violence did not include things like armed deterrence, espionage, psychological manipulation, or even assassination if it meant avoiding a large scale conflict. It meant direct physical violence that results in death of people or destruction of property. In that light, violence is a proof of incompetence, because a competent leader would be able to take over the people and property to use them to his own ends, rather than destroying them.

      • by shutdown -p now ( 807394 ) on Tuesday August 25, 2009 @01:57PM (#29189715) Journal

        One girl told him bluntly: "My mother says violence never solves anything."

        "So?" Mr. Dubois looked at her bleakly. "I'm sure the city fathers of Carthage would be glad to know that. Why doesn't your mother tell them so? Or why don't you?"

        They had tangled before - since you couldn't flunk the course, it wasn't necessary to keep Mr. Dubois buttered up. She said shrilly, "You're making fun of me! Everybody knows that Carthage was destroyed!"

        "You seem to be unaware of it," he said grimly. "Since you do know it, wouldn't you say that violence had settled their destinies rather thoroughly? However, I was not making fun of you personally; I was heaping scorn on an inexcusably silly idea - a practice I shall always follow. Anybody who clings to the historically untrue - and thoroughly immoral - doctrine that 'violence never solves anything' I would advise to conjure up the ghosts of Napoleon Bonaparte and the Duke of Wellington and let them debate it. The ghost of Hitler could referee, and the jury might well be the Dodo, the Great Auk, and the Passenger Pigeon. Violence, naked force, has settled more issues in history than has any other factor, and the contrary opinion is wishful thinking at its worst. Breeds that forget this basic truth have always paid for it with their lives and their freedom."

        - Robert A. Heinlein, "Starship Troopers"

  • Groklaw coverage (Score:5, Insightful)

    by RedK ( 112790 ) on Tuesday August 25, 2009 @08:20AM (#29184743)

    http://www.groklaw.net/article.php?story=20090824142203182 [groklaw.net]

    It's important to note that the Appeals court hasn't said that the copyrights do belong to SCO. They've only found that a decision regarding copyright ownership based on the APA wasn't something that should have been decided in a summary judgment and that the decision should've been made during the jury trial.

    • Re: (Score:2, Informative)

      by db32 ( 862117 )
      In the meantime everyone who uses or sells Linux stuff that isn't a giant like Novell is stuck in the crosshairs. The damage has been done already...the one thing that served to mitigate continued damage has been removed. Terribly damned convenient timing to have Linux called into question right before Windows 7 is coming to try and save MS from their Vista failures... My organization has been discussing the potential of a Linux desktop shift because of the draconian licensing involved with Vista/Win7...
      • Re:Groklaw coverage (Score:5, Interesting)

        by san ( 6716 ) < > on Tuesday August 25, 2009 @08:36AM (#29184939)

        Hardly. Considering SCO still owes Novell, and that this ruling only overturns a summary judgement, doesn't make Novell's copyright claim much weaker.

        This case is not about end-users, but about whether SCO even has standing to begin to sue Linux end-users. Which it doesn't (the nature of their copyright deal with Novell was pretty clear, but apparently not enough for a summary judgement).

        In the very unlikely event that SCO wins this case, big end-users like IBM may again have to begin to worry about defending against SCO's bizarre claims.

        Until then, this case has about as much impact on Linux users as one of the many claims against Apple, Microsoft or Sun have on their respective products' end users.

        • Re:Groklaw coverage (Score:5, Interesting)

          by Jason Levine ( 196982 ) on Tuesday August 25, 2009 @08:47AM (#29185075) Homepage

          Not to mention the fact that SCO might not survive long enough to persue the case against Novell. They're in Chapter 11 already and McBride & co have been kicked out in favor of a bankruptcy trustee who is likely to move SCO into Chapter 7. There it will be taken apart and the pieces sold off. Even if SCO avoided Chapter 7, the $3 million SCO payment to Novell was upheld. So SCO would have huge debts to pay off while fighting a legal battle against Novell. Even if they somehow survived that, IBM's Nazgul... I mean lawyers are waiting on the other side. The average Linux shop won't have anything to worry about from SCO for *years* even under SCO's best case scenario.

        • by db32 ( 862117 )
          By all means, explain this to all the PHBs and investors that drove up SCO stock prices through the roof when this crap kicked off. It doesn't matter that they don't have a snowballs chance in hell (according to logic). They DO have a snowballs chance in hell when you factor in payoffs, politics, and other such nonsense. MS pumped them full of money to keep these idiotic proceedings going for that very reason. All it matters is that it looks like there is a chance. I honestly don't really expect them t
          • Judge Kimball is gone too, a new guy is hearing this mess.

            Sweet Zombie Jesus, you're right. Just when Kimball had finally figured it out, SCO get gifted a blank slate to write their ills on anew. Cue a Mystery Investor in 3... 2... 1...

      • So go ahead and switch to Linux desktops ... if SCO somehow sticks their nose in your business they can be dealt with in three words or less: "go fuck yourself."
      • Re:Groklaw coverage (Score:4, Informative)

        by gtall ( 79522 ) on Tuesday August 25, 2009 @09:23AM (#29185541)

        This has nothing to do with Linux, it is merely an argument over Unix copyrights. SCO has never been able to show any Unix code in Linux. Their beef with Novell centered on the Unix copyrights.Their beef with IBM wandered around witlessly for awhile and finally centered on Unix in AIX or contract disputes involving the Monterrey project. SCO hasn't been making noises about Linux for awhile...for good reason, other then putting Linux on their own servers for download, they have nothing to do with it.

      • Re:Groklaw coverage (Score:4, Informative)

        by CrimsonAvenger ( 580665 ) on Tuesday August 25, 2009 @09:58AM (#29185977)

        In the meantime everyone who uses or sells Linux stuff that isn't a giant like Novell is stuck in the crosshairs.

        Not hardly. SCO hasn't proved it owns the Copyright.

        It also has failed to prove that ANY Unix code is in Linux - remember, discovery is over in SCO vs IBM, where they alleged that very thing. And they didn't manage to come up with any infringing code.

        • Re: (Score:3, Informative)

          by sabt-pestnu ( 967671 )

          And given that
          * SCOG is currently in chapter 11 bankruptcy
          * ... WITH a trustee managing it (not the board)
          * AND has to pay $3m - that it doesn't have - affirmed from the original summary judgment order
          it is unlikely they will initiate any NEW lawsuits in the near future.

    • Re:Groklaw coverage (Score:5, Informative)

      by growse ( 928427 ) on Tuesday August 25, 2009 @08:27AM (#29184843) Homepage
      Novell Response [novell.com]
      Novell points out that the Judge affirmed the payment ($3million) SCO was ordered to make to Novell, so there's hope yet.
      • Re:Groklaw coverage (Score:5, Interesting)

        by Nursie ( 632944 ) on Tuesday August 25, 2009 @08:43AM (#29185023)

        Regardless of where this one goes, I'm not sure that opening up the path to renewed litigation against IBM could ever be seen as a good thing.

        They'll be ripped to pieces the moment that starts. They're called the Nazgul for a reason.

        • by Anonymous Coward on Tuesday August 25, 2009 @09:08AM (#29185339)

          Wasn't there some line about SCO having entered an ass kicking contest against a monster with eight legs and no ass (IBM) ?

          • Re: (Score:3, Insightful)

            Some of us still ascribe to the theory that SCO was hoping to either be paid off or outright bought out by IBM. Their market share was crashing and the Caldera distro was going nowhere. IBM, who has substantial amounts of money and resources invested in Linux, wasn't about to tacitly admit, even to make the SCO problem go away, that it had breached any licensing agreements, and called the bluff.

            But there are all sorts of shady aspects, like Microsoft's clever tricks at getting money into SCO's hands and a

        • by TaoPhoenix ( 980487 ) <TaoPhoenix@yahoo.com> on Tuesday August 25, 2009 @09:39AM (#29185719) Journal

          Nah, even the ordinary Naz aren't enough here. Companies as big as IBM always have a scary "Iridium Team" or such. You know, one guy is 6'11" with the eidetic memory who serves as the walking caselaw and the bombshell woman with the 228 IQ to run the speeches. They only serve one case per year and charge $666 per hour, but they end the nonsense.

          • Re: (Score:3, Interesting)

            by The Breeze ( 140484 )

            There's a story in a book - I think it's called "The Million Dollar Lawyers" - about a company that was fighting IBM in court. One lawyer looked out the window and saw a huge funeral procession - lots of limos, a continuous parade of black limousines - going down the street, and remarked to his fellow lawyer, "Wow, that's some funeral, I wonder who it was."

            The other lawyer just snorted and said, "Funeral, hell, that's just the IBM legal department returning from lunch."

      • Re: (Score:3, Informative)

        by Rogerborg ( 306625 )

        Oh, please, now that they've been tossed another lifeline, Uncle Fester Investments [theregister.co.uk] will drop $3 million pocket change on them to keep this rattling on.

    • They've only found that a decision regarding copyright ownership based on the APA wasn't something that should have been decided in a summary judgment and that the decision should've been made during the jury trial.

      That sounds about right. Who better to decide a complicated copyright case than a bunch of people who can't think of a way out of jury duty?

    • by Anonymous Coward on Tuesday August 25, 2009 @08:42AM (#29185017)

      Note that:

      1- Novell board voted not to approve sale of any UNIX copyrights before this APA deal ever was signed.

      2 - Santa Cruz Operation (original SCO) never took Novell to court at all (maybe they knew that the APA and Amendment were both clear to them and that they didn't get copyrights)?

      3- The original SCO (Santa Cruz Operations) never did not do a final transfer of copyright paper work from NOVELL. That paperwork never happened, and Santa Cruz Operations never changed the UNIX code to show they had registration rights to the code). So they KNEW something.

      4- Santa Cruz Operations SEC filings never said they owned UNIX ever. DARL when Caldera/newSCO/The SCO group did say this in their SEC filings (why the change of tune, when the one who did the deal never declared this in SEC filings at all)?

      5- DARL and newSCO (TheSCO Group who became TheSCO Group by changing their name from Caldera), asked Novell for the copyrights BEFORE trying to sue LINUX users and IBM, etc.

      6 - Santa Cruz Operations after the deal only collected 5% income from sales so why did they need the deal when Santa Cruz Operations already had RIGHTS to develop a "branch of Unix", why pay more money to do the same thing? Hmm, maybe to use the LIST of licensees that they go to market something else to the list (like Tarantella)?

      7 - So ask yourself why the US court system has to go thru an expensive trial on this at all?

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      In complex matters like this a jury trial is a meaningless formality and everyone knows it. Despite countless mind numbing hours of explanations to the jury about the intricacies of copyright law, the jurors won't have a clue on what the case is really about. So the real decisions will be made at the appellate level and perhaps even by the Supreme court.

    • Also regarding IBM, all this decision means is that the case with IBM is no longer decided automatically by the summary judgment. It does not mean that SCO's chances have improved in winning the IBM case. When we last heard, both the magistrate judge and judge Kimball made key rulings that severely weakened SCO's case like throwing most of the claims for lack of specifity. However, if Judge Kimball decides at trial that Novell owns the copyrights, then the IBM case is decided again.
  • by Anonymous Coward on Tuesday August 25, 2009 @08:24AM (#29184805)

    SCO released a Linux distro, thereby waving any rights to pursue Linux vendors for copyright violations [at the time]. If people inserted UNIX code *after* SCO was involved then maybe there is a case...

    But you can't try and release a distro, profit from it, then sue later saying the distro which you licensed under GPL included your copyrighted [non-gpl] code...

    • DING DING DING DING!!! We have a winner! Tell them what they have won Bob.

      Seriously, the only things that SCO has shown is in linux that was infringing to begin with was also part of their own linux distribution, and thus, as long as it is properly referenced as GPL'ed code, can be used in other GPL'ed code projects including other linux distributions.
  • by idiotnot ( 302133 ) <sean@757.org> on Tuesday August 25, 2009 @08:28AM (#29184857) Homepage Journal

    ....all this means is it'll have to go back to trial to decide the issues. I kind of figured this would happen; Kimball's summary judgment was premature.

    (yes, I skimmed through the long-ass PDF)

    The same verdict as Kimball granted could potentially be reached again, this time with a full court proceeding. What it does do is delay the other cases even longer, as the Novell case decision is really required before any of them can proceed.

    See you in 2012.

  • I would like to see the guarantees SCO's lawyers have for getting paid!
    • Re: (Score:3, Interesting)

      SCO (somehow) had the foresight to negociate a fixed price deal with BSF.
      Besides with the Court Appointed Trustee running the business, they could very well pull the plug on the whole thing IF they felt that the millstone of these proceedings could jeopardise their 'escape' from Chapter 7.

      I just wish they would roll over & die but I would expect Darl and his cronies to try to keep this going for as long as possible. (Sigh)

  • NOT ! (Score:5, Informative)

    by frith01 ( 1118539 ) on Tuesday August 25, 2009 @08:33AM (#29184909)

    Appeals court only determined that the contract is a mess, and cannot be interpreted on its own. The court agreed that SCO owes Novell a large portion of the
    money it received from SUN , and that a full trial is required to figure out the rest. Again this is just more delay for SCO, but SCO will soon be in Trustee-ship under chapter 11 bankruptcy, which means that it is HIGHLY likely that these cases will be closed by SCO itself, and settled in favorable terms to Novell & IBM.

    Darl will not be in control of SCO once the trustee is assigned, and then we'll really get to find out who's been behind this mess.

    • Indeed. Smart Judge---he just provided for continued employment of many lawyers for a few more years. Self feeding system :-)

  • Code ownership... (Score:3, Insightful)

    by Targon ( 17348 ) on Tuesday August 25, 2009 @08:37AM (#29184947)

    One thing that needs to be kept in mind is that there is the ownership of some code, but how much code can really be said to belong to one entity. BSD was spawned from the idea of creating a UNIX-like operating system, but was not using code from UNIX. So, when you say "UNIX", it is important to look at the code base and where each piece came from. All things considered, there are standard methods of doing things that are taught in school that may have originated from the old UNIX code, but are now considered a standard way of doing things. Can you say that everyone who uses code they have learned in school now runs the risk of copyright violation because the code may look identical to pieces of the "copyrighted" UNIX code?

    This is where a lot of the problems will come from in these lawsuits from SCO. Also, if AT&T put a lot of code out into the public domain back when they owned System V, then it can't be taken back at this point. Does anyone know how much of the so-called UNIX code is actually held under the copyright at this point?

    • by Holi ( 250190 )

      No BSD is UNIX, or at least a flavor, and the BSD's can really be considered direct descendants of the original UNIX developed at BellLabs. I believe you are speaking of Linux which is a UNIX like OS but is not derivative of the original UNIX.

  • The good news is that this doesn't mean that SCO owns UNIX. It just means that the appeals court thought that SCO deserved a jury trial. SCO would need to present their evidence to a jury and convince them that SCO purchased the copyrights. Meanwhile, Novell would be shooting down SCO's arguments and presenting their own evidence. If the previous trial is any indication, SCO will stumble and delay it's way through always acting as though Novell was holding back on giving them that crucial piece of evide

  • Oh gawd, no. Please. No. Make it stop. No, really. Make this damn circus stop. How have they manage to continue this charade for this long and why are people enabling them to continue? Gawd almighty, make it stop. Please. I beg of you...
    • How have they manage to continue this charade for this long and why are people enabling them to continue?

      Welcome to the "justice" system, where it's Pay to Play all day, every day. This is a consequence of electing legislators who are predominantly lawyers; if you can't make a living from arguing the law, you can always get a job making up new ones.

  • I, for one, can't wait to have a fantastic 'SCO IS DEAD' party when Darl's zoo finally gets thrown by the bankruptcy trustees onto history's trash dump where it, IMHO, belongs!

  • by Mjlner ( 609829 ) on Tuesday August 25, 2009 @08:45AM (#29185053) Journal
    Prince SCO: "Oh, I feel much better!"
    King Novell: "Your case was butchered in the courts, you creep!"
    Prince SCO: "I was saved at the last minute."
    King Novell: "How?"
    Prince SCO: "Well, I'll tell you."
    [music begins playing, the townspeople begin dancing and singing, "He's going to tell, he's going to tell!"]
  • by edgarmoon ( 785523 ) on Tuesday August 25, 2009 @08:47AM (#29185079)
    So SCO is fully liable for payment to Novell, meaning they cannot get out of bankrupcy that easily. Ownership has not been reversed, SCO still does not own anything, that has to go to court and in the meantime SCO has to pay more money out. The question is will they continue to get investors to fund this campaign? Even if by some miracle SCO was to get the copyrights to unix, there is little if any chance they can succeed in proving any code was misappropriated by IBM. Basically all this proves is that our court system does everything in its power to make sure lawyers get all the money.
  • ignorance (Score:2, Informative)

    by Anonymous Coward

    Did the moron who wrote this bunch of lies actually bother reading what happened?

    Even though SCO lie in just about every press release for years why do people spout the lies they tell :(

  • My god, won't this thing ever end?

    How can this thing keep coming back?

    I am so sick of hearing about it.
  • by jburroug ( 45317 ) <slashdotNO@SPAMacerbic.org> on Tuesday August 25, 2009 @09:33AM (#29185643) Homepage Journal

    I wonder if this SCO business will resolve itself before Duke Nukem Forever is released...


    No, this cannot be!

    Now we're at the mercy of a twelve-pack of idiots who hold linux's future in their palms?

    I would rather trust engineers with my life, and that's saying something.

    • by wizkid ( 13692 )

      Well, at least this statement is more accurate then the crap the press is spewing. The press is saying SCO won on appeal. There did these guys go to school. They didn't win, they're just getting a new trial because Kimball didn't bring in a jury.

      In the next trial, sco, if they still exist after bankruptcy will get creamed again.

  • by RomulusNR ( 29439 ) on Tuesday August 25, 2009 @11:09AM (#29187003) Homepage

    where the hell SCO is getting the money from to pay for a decade of litigation. How has SCO managed to survive two recessions and continue to base a business model solely around endless litigation? Dear SCO: I have a great idea for a futile court case, who is your angel investor? PS: Your money would have been better spent hiring engineers and developing new products.

I am more bored than you could ever possibly be. Go back to work.