Novell Bombards SCO with Summary Judgment Motions

rm69990 writes "Novell has filed 4 motions for Summary Judgment against SCO, which essentially ask the court to toss the remainder of SCO's case that isn't already being arbitrated between SUSE and SCO. One seeks a ruling from the court that Novell transfered none of the copyrights in Unix to SCO, which is backed up by many exhibits and declarations from people who negotiated the deal. Another, along the same lines, asks the court to toss the portions of SCO's Unfair Competition and Breach of Contract claims pertaining to the Unix copyrights. The third asks the court to rule that Novell did not violate the Technology License Agreement between SCO and Novell, and last and also least, the fourth seeks to toss the Slander of Title for the additional reason that SCO has failed to prove any special damages. These motions follow 2 motions for summary judgment filed by Novell late last year on 2 of their counterclaims."

I remember

I remember the time when software was just software and no politics...

Re:I remember

Is the first post automatically scored -1 now or something? This is on topic and I'm sure a TON of us feel the same way. I am extremely sick of all the BS lawsuits, patents, and all the other non-programming crap.

I used to -hate- the GPL. Now, I like the LGPL and I'm starting to think the GPL is the right way to go after all. Could RMS actually be a visionary and not just a zealot? It's already undeniable that he's done the entire software industry a world of good by sticking to his beliefs.

And all because the world of corporate greed has managed to get a toe-hold on the world of programming.

I personally think they should make patents only good for 5 years, give everyone that currently has a patent 5 years remaining, and be done. In 5 years time, we'd see such a monumental growth in the software industry that it will be amazing. The simple stuff that was costing tons of money would come out as open source projects, and commercial products would in turn work on stuff that's truly innovative.

Re:I remember

> I used to -hate- the GPL. Now, I like the LGPL and I'm starting to think the GPL is the right way to go after all.

I think that for libraries and other software that can be used in various different applications, "public domain" is the way to go. Just like SQLite has done. Even it can be used in closed source, it still helps the human kind in general, because the less is needed to invent the wheel again. Of course there are other licenses which are equally good for this purpose.

For games and applications which codebase can't be used much for anything else except for forks of the application itself. GPL sounds like a good way to go.

Re:I remember

"
I think that for libraries and other software that can be used in various different applications, "public domain" is the way to go."

Why?

What's wrong with the GPL?

Consider; we're talking about a legal case in which one company, whose primary business is GPL software (Linux) is being sued, and countersuing, another company who raised a fortune on GPL software (Caldera), and then bought a dying closed source business.

Now, I'm not saying all software should be mandated GPL. However, for libraries and software used in various different applications, I definitely think that the LGPL is the way to go. This helps maintain compatability, and what we need, as a economic society, is for software to become less proprietary and more commodity. Like every other aspect of modern industry, software should adhere to standards, and packages with similar functionality should be compatible with each other. LGPL libraries for the majority of software functions will get us there.

Re:I remember

I think that for libraries and other software that can be used in various different applications, "public domain" is the way to go. Just like SQLite has done.

The downside to putting your software in the public domain is that it gives you no way to disclaim liability for any damages that your software might inadvertently cause. If you want to give your software away without any strings at all, it's still better to retain copyright and distribute it under a permissive license like X11 or BSD that gives you the opportunity to attach a liability disclaimer.

For games and applications which codebase can't be used much for anything else except for forks of the application itself. GPL sounds like a good way to go.

I don't think the deciding factor is as much the purpose of the code as it is the goal of the author. If your goal is just to give a one-time gift to all of humanity, then X11 or BSD is a good choice. If you'd like to structure your gift to encourage others to give, then LGPL or even GPL are appropriate.

It's like the difference between giving cash to everyone who wants some, homeless and corporate CEO alike, or setting up a trust to give your money away in a controlled fashion. Both are good things, it's just a question of what your goals are. The analogy is imperfect, of course, because however wealthy you are your money is finite, so each dollar you give to a CEO is a dollar you can't give to a homeless guy, a constraint that doesn't apply to software, but you get the idea. Maybe a better analogy is giving all of your money to the homeless now, or setting up a trust that invests your money and uses the return to feed the homeless forever.

Re:I remember

Where did you get the idea that you cannot disclaim liability from public domain software? That seems to go entirely against the idea of public domain. If public domain software causes problems, who do you sue when nobody owns it? Please do answer this. I have downloaded several pieces of public domain software with disclaimers of liability attached. I'm sure the authors would like to know if those disclaimers are illegal.

Re:I remember

Where did you get the idea that you cannot disclaim liability from public domain software?

From a lawyer. As a friendly recommendation, mind you, not legal advice. Still, I take what he says seriously.

If public domain software causes problems, who do you sue when nobody owns it?

If a piece of software causes harm, it's certainly not beyond imagination in our litigious society that the author may be sued, even if he has disavowed copyright on it.

I have downloaded several pieces of public domain software with disclaimers of liability attached. I'm sure the authors would like to know if those disclaimers are illegal.

I don't think the disclaimers are illegal, it's just that users of public domain software have no mechanism to try to require users/distributors of the software to honor, or even read, the disclaimer. With copyrighted software it's reasonable to expect that people who are relying on your license to have read the license in question, which includes the disclaimer. That may still not provide any protection against pure users who don't need to rely on the license (because they're not doing anything which copyright would otherwise prohibit), and all disclaimers are subject to the limitations of relevant law, but the idea is to get as much protection as you can.

The other point here is that while the advantage to retaining copyright and using a permissive license may be small as compared to releasing the software into the public domain, there is *no* disadvantage, either to the author or to anyone else.

Re:I remember

"- invite the greedy industry to suck it up, add a few intelligent lines, and make it proprietary."

"public domain" did not create this problem.
The 100 year copyright created this problem (software is obsolete in how many years ?)
The 1980(?) ruling that allowed binary software to be copyrighted created this problem.

Imagine if copyright for software is 15-20 years, and to copyright binaries that do not come with source, the source must be placed in a government approved repository (which releases software when the copyright expires, or before with company approval or company end).

As for being sued, a simple disclaimer works.

Re:I remember

All that aside, isn't this a copyright case, though? SCO is claiming code was lifted straight off.

SCO claims different things depending on which day of the week it is. Sometimes they claim direct copying, sometimes they claim that IBM wasn't allowed to put their own code in Linux. Sometimes they claim "methods and concepts" means that everything that looks like Unix is theirs. Sometimes they claim up is down, and black is white.

Re:I remember

quick someone take them to a zebra crossing!

Re:I remember

While I do not believe in moderating comments down simply because they are inane, this comment was probably moded down because it is not true. The lack of truth is proven by your statement
I used to -hate- the GPL.

The fact that someone has such strong feelings about a voluntary document is what makes politics. Politics often happens when one not only believe that it is a bad choice for oneself, but a bad choice for everyone. We then engage in a process to insure that no one has the choice. That is certainly one side of politics.

Technology, like most things, exists inside a political framework. By implying that this is a new development, one is also implying that it might once again be independent. This is a dangerous and naive inference. Political and market forces have brought us the technology we have today. To keep what we have, we must be part of those political forces.

It is like sex and marriage, and the presumption that the political process should stay out of it, and that such invasions are recent. The truth is that sex and marriage form the basis of civilization, and the control of it forms that basis of the stability of a predominant regime. Just look at how many ancient cultures from of marrying outside the clan.

Re:I remember

>> [...] I personally think they should make patents only good for 5 years, give everyone that currently has a patent 5 years remaining, and be done. [...]

I think you are right. Patents were originally put in place to protect the little guy, but now they are used exclusively to keep the "littler" guy out.

Things move so fast today, patents cannot logically hold for so long, they must lapse and benefit the people. Anything else is surely a way for monopolies to be kept alive.

No such thing

There is no such thing as corporate greed. There is greed. Humans have greed corporations do not. One of the worst episodes in the history of the US was when the US Supreme Court decided corporations, a fiction created by government, were tantamount to people. And continuing to anthropomorphize them only perpetuates the real problem. Corporations don't have soul, emotions, etc.. People do.

So why do socialists and "anti-capitalists" and so on continue to refer to them as if they were human? Because it belies the problem to socialism. The actions taken are done by humans. Humans can be greedy. Sometimes greed can be good, often it is bad. Pretending that corporations have greed, feelings, emotions, desires, etc. lets people feel good about humans while feeling bad about corporations.

The problem with governments and corporations are the same, and for the same reason. The more humanity is separated from itself via fictions such as corporations and government, the more they people can justify things they would not do themselves in a more personal situation.

So whine all you want, but put the blame squarely where it belongs - on the people, not the fictions called corporations.

This particular problem is exacerbated by the fiction of "intellectual property". Here we have two fictions being combined to control others. For all the frailties of humans, it gets worse when we exclude humans. At least humans have qualities that limit or hinder the damage of our frailties when we are involved

well, normally i'd be happy

normally this news would make me happy, but since novel is in bed with other big corporates i'm not so pleased.

Re:well, normally i'd be happy

Thats because they didn't goto bed with them willingly. Novel was raped in essence.

Novel only made the deal with microsoft to make developing stuff that can interact easier. If balmer hadn't started this proof of IP violations thing, No one would have thought different. Mozilla is in bed with MS, they ever jointly agree the browser wars are over and that they need to focus on security more then anything else. Yet no one complains and I think it is because there hasn't been any accusations of IP problems yet.

The thing with novel is how microsoft reacted with it. Not how novel went into business deals or anything. I'm a little surprised the novel is still willing to help the free software community out after all this. And there had been quite a bit of FUD being passed by the free software community concerning stuff in the GPL that didn't exist and mudding Novel's name and intentions and such. This must be a fondness of IBM more then OpenSource or anything. But I'm not sure.

Variations on a theme - Novell and EV1

The Microsoft + Novell deal is just SCO + EV1 servers all over again. The schemers are running out of creativity. Both deals are more smoke than fire. Neither is meaningful because their secret nature precludes people from making rational decisions about them. How do you put a value on the products of either SCO or Novell, when they've entered agreements that prohibit them from disclosing who owns what? Is the point of this to allow both of them to sell you the same thing, twice? When your marketing approach is "Sign this contract or we'll sue you out of business whether our claims have merit or not," people have to start wondering what makes you morally superior to a mugger and whether being in an enduring relationship with you is preferable to going directly to court or cheaper than settling you with a different kind of "contract.". Eventually these people are going to try this with the entirely wrong victim and it won't take the courts to sort the matter out.

The declaration of Novell's outside attorney that did the deal, Tor Braham [groklaw.net] reads like death to SCO's claims. Basically he was there, wrote the draft that got signed. He signed it himself. He kept drafts of what the Old SCO asked for and the edits where they were struck, and explains why very clearly: SCO just didn't have the cash, Novell wasn't interested in selling the Unix copyrights, Novell needed to protect its interests in case of an OldSCO bankruptcy.

It's interesting that just 1/2 hr before the close of market two days ago somebody unloaded 466,000 shares of SCOX, just over 2% of the company. As of December 31, 2006 yahoo lists only seven companies and two insiders [yahoo.com] with that much of a stake. I wonder who....

IANAL but I don't think this means much

IIRC, every single litigant involved in cases with SCO has filed motions for summary judgement.

I think they're filing them more in hope than in expectation - in the hope that it will close the case fast and minimise legal fees. Novell, IBM et al are a lot of things, but I can't imagine they want to hand over any more money than they have to to their lawyers.

You're right: for the wrong reason

The declarations that Novell just filed would gut SCO's case all by themselves. SCO's case is so feeble that there are many things that would independently destroy it. All SCO has to do is lose on any of about ten different things and they lose the whole shooting match.

Consider the declarations of Braham and Amandia. These are both people who were directly responsible for negotiating and writing the contracts with Santa Cruz. They clearly remember the events that took place and have original documents to back them up. They say there was no intent by Novell to transfer the copyrights and they made darn sure the contract and the ammendment did not transfer the copyrights. Santa Cruz asked that the copyrights be transferred and Novell agreed only that Santa Cruz could use the copyrights to develop and sell the product they were developing.

These declarations directly contradict SCO's theories and the half remembered garbage of their witnesses who weren't actually involved in writing the contracts.

So, Novell could very well get their PSJ. In fact, Novell could get the psj even without these declarations because the wording of the contract and ammendment is clear and there is no written conveyance of the copyrights. The latter is required by law and the judge can decide the case as a matter of law (which is necessary for a psj). So you could be right. The new filings might not be necessary to decide the case.

Obligatory Groklaw Links

• Novell Files 4 Summary Judgment Motions [groklaw.net]
• Declaration of Allison Amadia as text - Amendment 2 Didn't Transfer Copyrights [groklaw.net]
• Declaration of Tor Braham - the lawyer for Novell who drafted the APA [groklaw.net]

ALL RIGHT...THIS IS GETTIN' GOOOOOODDDD!!!!!!

I've been waiting a long time to see who makes the first move!!! Man, I hope someone makes a movie out of this, or a book...maybe Groklaw or something, eh?

This is fantastic entertainment!!!!:-)))))

Didn't they get the memo from MSFT not to do this?

There's a clause in their agreement with Redmond to support the party line on this, isn't there? :-)

SCO 2.0?

Assuming Novell wins the majority of judgments, I wonder what would happen if Novell some day decides that Linux is no longer viable as SCO did...

This may be the beginning of the end for SCO

This seems to be going on forever, but it's not. The end is in sight. SCO can stall, but the process does move onward. Discovery is over; everything significant that's going to come out has come out. Now we're in the stage where bogus claims get thrown out via summary judgment motions. That phase is well along; summary judgment motions have been made and briefed in both the Novell and IBM cases. Soon the judge will decide them.

The Novell-SCO contract says that Novell retains "all copyrights". If the judge rules that the contract means what it says, that ends the copyright issue.

Then, based on that, the summary judgment motions by IBM against SCO mostly get decided in favor of IBM.

Remember, for IBM, this is no longer a problem. Is it hurting Linux server sales? No. Are customers bothered by it? No. Can IBM afford the legal costs? IBM revenue was $91,000,000,000 in 2006. I doubt this issue gets much management attention in Armonk any more.

We sell worthless stuff

Novell to court: We sold a "bill of goods" to SCO and we can prove it!

I am certain SCO knew they never had a case ...

but some of their higher-ups made some good bucks selling the inflated stocks at the right time. that was the main reason SCO went ahead suing Novell, IBM and whatever. But the whole thing is just smoke and mirrors. So - when SCO looses the battle, don't rejoice.

Sad , Sad joke

I have been reading this farce for years now and I am taken a back by the idea that you can litigate an issue for so long and waste so many resources with no real evidence. If this whole doesn't show the need for real copyright and patent law changes then nothing does. Our legal system is a joke! A seriously bad joke!

Left hand sock puppet....

.... let me introduce you to the Right Hand Sock Puppet.

I'll play know patent wars! What can we destroy? What about that cuddly stuffed penguin?