Topic: SCOG vs Novell - Round 3

[Nemesis]

Brief synopsis of what has gone before:

1/ The SCO Group began a campaign to be paid by Linux users for alleged Unix code in Linux but never provides public evidence.

2/ The SCO Group began lawsuits against various companies notably IBM and Daimler Chrysler.

3/ Novell publicly states the IT owns the Unix source code not The SCO Group.

4/ SCOG sues Novell.

5/ Novell wins many pretrial motions and on the last working day before the actual trial begins SCOG enters Chapter 11 bankruptcy protection automatically staying all court cases.

6/ SCOG vs Novell eventually goes to trial and Novell not only is confirmed to own the Unix source code but SCOG is ruled to owe them millions.

7/ SCOG appeals.  The appeals court rules that some of the summary judgments (including source code ownership) should have been before a jury not ruled on by the judge.  Orders new trial on those issues.  SCOG confirmed to owe Novell the money ruled on earlier.

Current Day::

The new trial began last Monday and is supposed to last 3 weeks. 

Highlights: 

Former CEO of Novel testifies that the relevant copyrights DID transfer to Santa Cruz (and then to SCOG).  He can't explain however why the APA (asset purchase agreement) specified otherwise or why the minutes of the board meeting that voted to confirm the APA clearly stated otherwise as well though he confirms both of them are accurate.  He also can't remember the names of the board members while claiming to remember about the copyrights transferring.  Finally he admits that he didn't actually READ the APA at the time.

A jury member is revealed to POSSIBLY be related to a SCOG executive.  Not confirmed at this point.

From a deposition by Maureen O'Gara, journalist it comes out that a SCOG executive asked her to write a "jab" at Pamela Jones author of the Groklaw blog that is critical of the SCOG lawsuits.  The article appears a couple of weeks later but O'Gara claims it isn't because of the request by the SCOG executive.  She also claims that "PJ" is biased but sees no bias from herself as a SCOG creditor (they owe her money for unrevealed reasons) writing articles "requested" by a SCOG executive

Testimony from certain former Novell employees (currently SCOG) confirms that they believe the copyrights transferred.  It is also revealed that they are stock holders in SCOG and will make substantial amounts of money if the stock revives. 

From the testimony one of them slips up and admits to knowing about the testimony earlier of another SCOG executive.  Normally witnesses are not supposed to have information like that until AFTER their testimony is over to avoid being influenced.

Another revealed that 6 months ago he found relevant paperwork in his garage and turned it over to SCOG.  SCOG finally revealled it to Novell the day he testified.  Very much against the rules to conceal evidence like that.  The paperwork was an early draft of the APA.

From outside the trial:

During the bankruptcy SCOG had several "vapourware" financing offers.  One of them on the very day that the bankruptcy judge was supposed to hear testimony on liquidating the company (3 such motions simultaneously). 

A Trustee was established just before the appeals court ruling.  He fires the CEO and others.  Required financial documents are delayed under the trustee then delayed further after he promises to deliver them.  On the eve of the trial he gets an "emergency" approval of a very questionable loan from one of the corporate insiders (Ralph Yarro).  He also wants to sell for $35,000 a part of the business to the CEO he fired, a part previously claimed to the bankruptcy court to be worth $5,000,000, no explanation of the hefty discount.

SCOG backers are on many disscussion forums constantly attacking any information/opinion presented that doesn't back SCOG and getting accounts and messages deleted.  Most notably on the Yahoo! financial forums. 

Constant claims of bias from the earlier judges and "PJ" of Groklaw abound.   Among the "proofs" are claims that Judge Kimball had election donations from Novell to get his current judgeship.  Kimball is an APPOINTED Federal judge not elected but that didn't stop the claims of his being biased that way.  They also claim he is biased because his old law firm did work for Novell in the 90s but they ignore that the same firm did work for SCOG in the same time frame.

Status of other SCOG legal cases:

SCOG vs Daimler Chrysler - dismissed everything except whether DC responded promptly enough to an audit demand.  The audit went way beyond what the contract allowed and DC not allowing it was the primary thrust of the suit.  The case was then dropped by mutual consent.

SCO vs Autozone - negotiated settlement.  Implied cash payment but no payment showed up on financial reports and has not affected the rapid decay of SCOGs finances.  Some SCOG software apparently was on the Autozone Linux servers but it was not in use and Autozone claimed it was covered in any case by the earlier contract - not ruled upon.

SCOG vs IBM - stayed pending SCOG vs Novell.  At this stage only IBM counterclaims seem to be in play.  This might change is SCOG wins SOMETHING vs Novell.

Redhat vs SCOG - stayed pending SCOG vs Novell

SuSE vs SCOG arbitration in Switzerland  - stayed at least until after the current trial.  Arbitration related to the current trial and should have happened first.

SCOG Germany told twice (and fined once) by German courts to stop with the public anti Linux claims unless they have evidence to present to the court - no evidence presented. 

Novel has an appeal of the appeals court ruling before the Supreme Court but it won't be decided till April if they will hear the case.

[Nemesis]

The case is now waiting for a jury decision (deliberations halted Friday and restart Tuesday).

The Novell lawyers in final summing up seems to have made a point of each individual Novell witness NOT having a financial link to the outcome of the trial.  The SCOG lawyer couldn't say the same for most of their witnesses.  Among the witnesses not called by SCOG were the lawyers who actually DRAFTED the Asset Purchase Agreement and amendments for their side, very strange.  The only called people who were not involved to give their "impression" that copyrights were intended to transfer regardless of the actual terms of the contract and amendments. 

Among the questionable things that happened was SCOG getting permission to add a witness during the last week of the trial (during Novells scheduled time in fact).  After the deposition was taken they dropped him, very strange as no reason was given that I have heard of. 

[Nemesis]

Late yesterday afternoon the jury returned their verdict - Novell owns the copyrights. 

I had forgotten that this trial was divided into two parts, the jury trial and then a bench trial where the judge determines more based on the jury results.  SCO is now determined that though the purchase agreement did not include the copyrights that they can persuade the judge to give them the copyrights anyhow.  Their logic (if any) so far eludes me. 

[Nemesis]

One of the most ardent of SCOGs backers in the Yahoo! discussion forums has now revealed why they lost.  Their law firm fought for gay marriage so "How can you expect for a guy like that and his firm to receive help from the higher power?".  He apparently felt SCOG would win due to Divine Intervention. 

[Bonk]

To be honest, I find Novell users and evangelists much like Mac users and evangelists. Annoyingly unjustifiably smug.

I thought the Linux Kernel was Open Source and written mostly by Mr Torvalds. And the GNU Toolset? Stallman et. al. (?) Neither of the main components of Linux belong to either SCO or Novell... just a bunch of immoral buggers chasing after money to be made on the brilliance of others. I view enterprises like Novell and Redhat as parasites. Redhat annoys the f*ck out of me because the product just sucks so bad and Novell because the users and salesmen are such assholes.

I have about as much fondness for Novell as I do for Symantec. (Ever install a Novell product on a windows box? Don't - just reformat now and save yourself the time.)

I hope SGO screws Novell over. The unrightfully smug bastards deserve it.

edit: apologies for the language, but I feel rather strongly on the issue and felt the expletives necessary.

Slackware, I respect. Neither Redhat or Novell come anywhere close... meanwhile, the real Linux community rolls on.

[Nemesis]

The only Novell software I ever used was WordPerfect Office (at work) so I can't comment on that.

I don't agree with Novells "end run" around the GPL in regards to the deal with Microsoft.  I also think they are strategically wrong with Mono and Moonlight.

In this case however Novell are the "Good Guys".  SCOG wants all (business) Linux users to pay them $1399 per cpu without SCOG ever showing evidence of copyright infringement.  I'm sure they would go after home users eventually.  Novell owning the copyrights stops that cold. 

SCOG is also suing IBM claiming IBMs help to Linux violate their license to produce AIX (an irrevocable license that SCOG claims to have revoked).  Novell has used their retained rights in regards to that license to tell SCOG to drop the suit (the Judge still needs to rule on whether they have that right).  Again SCOG wants that money per CPU for the use of IBMs contributions to Linux.  Again Novell are on the side of "The Good Guys". 

Unlike SCOG Novell is making no claims to own Linux. 

[Bonk]

No, no.. that's Corel. They tried to sell Linux once too. Just before they went extinct. Both were big in Ottawa - Corel and Novell - and Adobe and Nortel and JDS Uniphase - back in the 90s.

Again. To be honest, I've always felt that SGO kind of did have a legitimate claim. UNIX was theirs. The whole ATT evolution of it... then in 92 along came Torvalds kernel clone and Stallman's tools. Outright clones. No denying it. Maybe all original code but in design and spec they are the same. (or they were in 92-95)

There are plenty other UNIX clones out there too though. Question is have they paid their licensing? (e.g. HP-UX, QNX...) I suspect they have.

I've always felt that SGO is owed something. I'm cool with GPL UNIX clones as long as the projects are not-for-profit. Because I feel that the future of science is partially dependent on open source software. (heavily dependent really) That is important.

I sympathise with SGOs position however when it comes to dips like Novell and Redhat making a profit on it. (and butchering the product in the process, really - where HP and QNX have built real improvements)

But one can also argue that the VAX/VMS and other multi-user operating systems of the late eighties and early nineties were all of the same spec and design roughly.

[Nemesis]

No, no.. that's Corel. They tried to sell Linux once too. Just before they went extinct. Both were big in Ottawa - Corel and Novell - and Adobe and Nortel and JDS Uniphase - back in the 90s.

Your timing is wrong.  Novell sold Perfect Office to Corel.  When I used it at work it was still Novell.  Later I used the Corel version at home for some years.  I even experimented with Corel Linux for a while. 

Xandros Linux is the evolved version of Corel Linux.  Corel got out of Linux immediately after a big payoff investment by Microsoft.  Then they plunged towards extinction.

Again. To be honest, I've always felt that SGO kind of did have a legitimate claim. UNIX was theirs. The whole ATT evolution of it... then in 92 along came Torvalds kernel clone and Stallman's tools. Outright clones. No denying it. Maybe all original code but in design and spec they are the same. (or they were in 92-95)

There are plenty other UNIX clones out there too though. Question is have they paid their licensing? (e.g. HP-UX, QNX...) I suspect they have.

I've always felt that SGO is owed something. I'm cool with GPL UNIX clones as long as the projects are not-for-profit. Because I feel that the future of science is partially dependent on open source software. (heavily dependent really) That is important.

I sympathise with SGOs position however when it comes to dips like Novell and Redhat making a profit on it. (and butchering the product in the process, really - where HP and QNX have built real improvements)

But one can also argue that the VAX/VMS and other multi-user operating systems of the late eighties and early nineties were all of the same spec and design roughly.

The problem with that is that unlike AIX for example Linux did not have any Unix source code it was all original code.  The compatibility came from implementing the POSIX specification which did not require a royalty.   Since software patents didn't exist back then nothing in the Unix of the time was patented (only a few countries have software patents now, the U.S. yes Canada and the EU no for example).

Since there were no patents and no Unix source code was used why should they owe the Unix copyright holders anything?

As an example of everything in Unix NOT being SCOs the old contracts (HP-UX) for example that paid on going royalties were collected by SCO then 100% given to Novell as they were Novells royalties not SCO (SCO was just their collection agent) then Novell would pay them a 5% fee for their acting as agent.  SCO owes ~$2.5 million to Novell for not turning over those fees in regard to a license to Sun Microsystems to put Solaris under the GPL 3.  If SCO owned Unix outright then why did Novell get those royalties?

[Bonk]

Because Novell is pure evil. Don't touch it!  (roll time bandits...)

Think of it this way: all those years you looked at ethernet cards with "runs with netware!" stickers on the chips, not once did I ever see an ethernet card with a sticker on it that said "Runs with (Free)BSD!" Yet they all worked on FreeBSD just fine.

Do those windows stickers on PCs ring any bells for you? We're talking about exactly the same kind of people here.

Fine then It is AT&Ts. They all copied them.

Let me see, if I developed an operating system that set the stage for science and communications for the next century and then a bunch of copycats want to make money on my brilliance I'm probably not going to be very happy about it. Personally I'd be fine if they all copied it and gave it away.. share the love. But taking someone else's ideas pretty much exactly and then selling them is not going to make you any friends.

Whether the code is original or not is irrelevant in my mind. An old friend of mine used to call his programming staff typists. See?

Novell deserves nothing. They owe AT&T everything. (via raping the open source community). Seriosuly, they need to go down for something. Even if it is trumped up.

Over and above that, they need to be punished for the quality of their product. They give Linux a bad name. Much like Symantec gives Windows a bad name.

Code wants to be free. Code needs to be free.

[Nemesis]

Think of it this way: all those years you looked at ethernet cards with "runs with netware!" stickers on the chips, not once did I ever see an ethernet card with a sticker on it that said "Runs with (Free)BSD!" Yet they all worked on FreeBSD just fine.

Do those windows stickers on PCs ring any bells for you? We're talking about exactly the same kind of people here.

Actually those stickers don't bother me assuming 2 things:

1/ They are accurate
2/ Nothing is done to prevent competitors from working with the equipment

Fine then It is AT&Ts. They all copied them.

Let me see, if I developed an operating system that set the stage for science and communications for the next century and then a bunch of copycats want to make money on my brilliance I'm probably not going to be very happy about it. Personally I'd be fine if they all copied it and gave it away.. share the love. But taking someone else's ideas pretty much exactly and then selling them is not going to make you any friends.

You may not be happy about it but so long as they don't break the law you can't do anything about it.  AT&T tried vs BSD and lost.  Worse the judge found that AT&T had included BSD code in Unix and they had to keep the BSD copyright marks on those files.

Whether the code is original or not is irrelevant in my mind. An old friend of mine used to call his programming staff typists. See?

I bet his programming staff neither respected him nor worked well for him.

If the code is original what would be the legal basis for SCO to make any claims towards it?

Novell deserves nothing. They owe AT&T everything. (via raping the open source community). Seriosuly, they need to go down for something. Even if it is trumped up.

Novell bought Unix lock stock and barrel from AT&T when they bought the USL subsidiary from them.

My sense of justice doesn't allow me to want anyone to go down under trumped up charges.  Especially not when the beneficiary is worse than they are.

Over and above that, they need to be punished for the quality of their product. They give Linux a bad name. Much like Symantec gives Windows a bad name.

I did use OpenSuse for a while and it worked well (admittedly Novell hadn't had it for long at that time). 

As bad as you think Novell is SCO is worse.  SCO sent 1500 letters demanding payment for Linux infringement to top companies.  Some of those companies told SCO "Stuff it we don't use Linux" (which shows the accuracy of SCO claims) others (including HP and Google) said "Show us evidence" but didn't get any.  Yet somehow according to SCO those "lost profits" are Novells fault for truthfully claiming to own the copyrights.

If you authored a program and I claimed you had violated my copyrights how would you react when you knew you were innocent (and then it turned out I didn't even own those copyrights I'd claimed you were violating)?  How would you react when I refused (even in court) to show evidence and continued slandering you?  How about when I ran a media campaign continuing to tell about your "violations"?  How about when the legal costs hit the $10s of Millions and you were not guilty?  That is what SCOG has been doing to the Linux community for 7 years now.  Articles have called them the most hate tech company in the world and rightly so.  Compared to SCOG the Linux community loves Microsoft and you know they don't like Microsoft.

Among the SCOG nonsense is the claim to "own control" of the IBM journalling file system that they ported to Linux from OS/2.  The reason being that an earlier port had been to AIX and since a version of the code once touched a version of Unix SCOG now controlled it.  This in spite of statements from AT&T when they owned Unix (and had written the contract with IBM) that such "contamination" did not occur, your code is yours and they don't control it so long as it does not include any of theirs.

Among the SCOG gaffes in SCOG vs IBM was to demand copies of the Linux 2.7 kernel.  There is not and has not ever been a 2.7 kernel.  Which shows the quality of their legal research. 

[Nemesis]

The Trustee (Judge Cahn) in charge of The SCO Group is using some court "rules" in an attempt to over turn the jury results and has vowed to carry on with the IBM Lawsuit. 

The Yahoo SCO Group stock forum troll brigade is frothing at the mouth over Groklaw.  It seems that the Library of Congress has decided that Groklaw is an important historical resource and wants permission to archive it.  The Trolls are livid at the idea of Groklaw THE AntiSCOG site being viewed that way. 

[Nemesis]

The Judge has made his rulings:  Short form SCOG lost across the board.

Longer form:

This matter came before the Court for trial on March 8, 2010, through March 26, 2010. Based on the Jury Verdict and the Court’s Findings of Fact and Conclusions of Law, Final Judgment is entered as follows:

1. Judgment is entered in favor of Novell and against SCO on SCO’s claim for slander of title pursuant to the Jury Verdict.

2. Judgment is entered in favor of Novell and against SCO on SCO’s claim for specific performance pursuant to the Court’s Findings of Fact and Conclusions of Law.

3. Judgment is entered in favor of Novell and against SCO on Novell’s claim for declaratory relief pursuant to the Court’s Findings of Fact and Conclusions of Law. Specifically, the Court declares:

    a. Under § 4.16(b) of the APA, Novell is entitled, at its sole discretion, to direct SCO to waive its purported claims against IBM, Sequent and other SVRX licensees;

    b. Under § 4.16(b) of the APA, Novell is entitled to waive on SCO’s behalf SCO’s purported claims against IBM, Sequent and other SVRX licensees, when SCO refuses to act as directed by Novell; and

    c. SCO is obligated to recognize Novell’s waiver of SCO’s purported claims against IBM and Sequent.

4. Judgment is entered in favor of Novell and against SCO on SCO’s claim for breach of the implied covenant of good faith and fair dealing pursuant to the Court’s Findings of Fact and Conclusions of Law. The Clerk of the Court is directed to close this case forthwith.

SO ORDERED.

DATED June 10, 2010.

BY THE COURT:

______[signature]__________________
TED STEWART
United States District Judge

See Groklaw for more details including the full text of the ruling.

It is barely possible for SCOG to seek to appeal but I don't think they can afford it.  They are already on the brink of Chapter 7 Bankruptcy liquidation. 

[Nemesis]

In case anyone is interested at all.  SCOG is still waiting for the results of their appeal of losing the jury trial. 

They sold most of their business to a new company called UnXiS.  Very strange as they claimed it was impossible to buy the business without the copyrights which they don't claim to have sold (the jury trial ruled Novell owns them remember) so how could they have sold the business?  Or was that "impossible" claim in court perjury?

They changed their name again to TSG. 

The SEC just announced that The SCO Group has been delisted.  If I understand that right this means the stock holders have lost everything.  (If anyone knows better please explain)

[Nemesis]

In case anyone is interested at all.  SCOG is still waiting for the results of their appeal of losing the jury trial. 

They just lost the appeal.  They abandoned the Unix license revenue collecting business (reverts to Novell I assume).  They have no employees (just a trustee) no products and no income.  Just a shell with lawsuits still pending (but gutted by this loss as they depended on Unix copyright ownership).

The only question now is does the Trustee take this to the Supreme Court or does he shut down the shell of SCO?

[Nemesis]

The only question now is does the Trustee take this to the Supreme Court or does he shut down the shell of SCO?

Neither. The Trustee is trying to get the SCO vs IBM case opened.  He has accepted the negative ruling by Judge Stewart and the jury.

The problems in doing so are gettng the judge to only open those aspects were SCO hopes to be paid off and not opening the IBM side of the case.  The judge of the time wouldn't allow this, it is all or nothing andSCO chose the all.

Additionally they have the problem of Judges recusing themselves from the case.

Judge Dale Kimball recused, assigned to Judge Tena Campbell.
Judge Tena Campbell recused, assigned to Judge Clark Waddoups.
Judge Clark Waddoups recused, assigned to Judge David Sam.
Judge David Sam recused, assigned to Judge Dee Benson.
Judge Dee Benson recused, assigned to Judge David Nuffer.

They are on the sixth judge for various reasons.

[Nemesis]

The Trustee in Bankruptcy (Chapter 11 Bankruptcy Protection)  is now asking for something special.  He wants to take the company in to Chapter 7 Liquidation - but not Liquidate (immediately).  Basically he seems to want to stop paying bills but continue on with the SCOG vs IBM lawsuit (of which very little is left after SCOG v Novell was lost by SCOG).  All this in the insane hope that somehow they will win money from IBM.