Novell Files for Summary Judgment Against SCO 112
rm69990 writes "Novell filed a motion with Judge Dale Kimball asking him to grant summary judgment or a preliminary injunction on Novell's claims that SCO wrongfully retained the money it received from Microsoft and Sun for their SVRX licensing and sublicensing agreements. Novell indicated over a year ago, when they initially filed their counterclaims against SCO, that they were planning on asking Judge Kimball to force SCO to turn over these monies. However, Novell only recently received the actual licensing agreements between SCO, Sun and Microsoft through discovery, despite demanding copies of them as early as 2003, and thus was unable to determine that SCO had breached the APA until now, which is why this motion is being filed so late in the case. This motion will likely bankrupt SCO if granted."
Re:Its about time (Score:3, Insightful)
Are they screwed? That is not a good question because they were screwed when the first filed suit.
Seriously, even if SCO wins, a verdict to that effect will not come around for perhaps 5-10 years. SCO thinks that they will then rake in a ton of money on their licensing. Like anyone would even use their Unix code by the time this is all said and done. I'm sorry but they killed their own company when the started all the lawsuits. They were so scared of Linux that they thought they needed to fight and figured that the US is so sue happy that they would win easily. They could have sucked years more out of their code because the large companies that use it are to scared to change anything until there is no other choice. SCO = stupid
Does anyone remember when SCO was actually a large company worth a few billion dollars? Now their stock is worthless and either Novell or IBM will kill them. Personally, if the Novell evidence is as open and shut as it seems, SCO will have to pay up and they will die. IBM will probably laugh and go out for beers with Novell. Perhaps we'll even see a Novell and IBM merger down the roads, that would be pretty cool.
Business implications? (Score:2, Insightful)
Re:Business implications? (Score:2, Insightful)
Initially, there is no impact. (Score:5, Insightful)
Their systems will be running the same software on Judgement +1 as they were on Judgement -1. So their immediate situation shouldn't be any different.
Also, if their management has any clue what-so-ever, they've already explored the costs/options involved in migrating.
The best case scenario for them would be for IBM to win EVERYTHING including sufficient cash awards that SCO would be unable to pay them (this is looking very possible if Novell gets their judgement). Then IBM could take the SCO business as partial payment (under the same terms with Novell as SCO had) and I'm sure that IBM would offer very inexpensive migration services to get everyone to Linux or AIX or something else.
This would be great PR for IBM's Linux drive. SCO attacked IBM/Linux and SCO was completely destroyed as a company and then IBM still took care of SCO's old customers (far better than SCO did with their lawsuits).
You cannot buy PR like that.
Don't be sorry. (Score:3, Insightful)
Don't be sorry. This was never about SCO's business interests.
This was an attempt to spread fear about Linux
Darl and friends all got what they wanted. Their business associates got a little more tarnish on their reputations. But Darl and friends walk away with $millions$.
Re:Too Bad It Won't Go (Score:4, Insightful)
Well, the motion isn't for the entire case, just one small specific sub-part of it - that SCO owes Novell those royalties. It seems to me (and I'm clueless about law except for following these things on Groklaw) that that point may be uncontroversial enough to grant the point.
Of course, SCO will get to file a defence first, but it seems it's pretty hard to give arguments at all - they did receive the royalties, the contract does say that a large part of those go to Novell, and they haven't paid yet. Those are facts. Perhaps they'll be able to make the issue seem slightly controversial, but that won't be easy.
Re:Don't be sorry. (Score:5, Insightful)
No. If you look at the timeline, it began as an attempt to extort money from IBM. Caldera was dead (apparently they never figured out that nobody would buy a Linux distro that used per-seat licensing) so they hired Darl McBride to sue IBM for "something", in an attempt to get a buyout.
When IBM called their bluff, Caldera (now SCOX) began their media slams against them. This was when the stock pumping began (presumably, the stock pumping was done in an effort to encourage IBM to buy them sooner, rather than later.) At this time, they were publically stating that Linux was "clean", and it was just IBM who was at fault.
Around April 2003, MS threw $60M at them (this is the money that they owe Novell) for "licenses" that MS already had, and wasn't even using. It was at this point that SCOX changed their tune and started the whole "millions of lines of code was dumped into Linux", their threats to sue Linux end-users, and their $699 "license". (The inference is that MS saw an opportunity to spread FUD, and that's what the money was for. The timing is just too good
Re:SCO is between a rock and a hard place (Score:3, Insightful)
Completely wrong. This has nothing to do whether the APA is valid or not. It *is* valid. Novell isn't contesting that at all. If both parties to a contract say that the contract is valid, then it's valid, end of story.
Re:SCO is between a rock and a hard place (Score:4, Insightful)
Indeed, it is SCO that wants to pick and choose which terms to accept. If the Judge does rule that they have to pay then it is game over for SCO.
Re:This could be it. (Score:1, Insightful)
time, to build their case, and/or waiting to see what the outcome of the civil processes are.
IANAL, and I specifically don't know if there are any statutes-of-limitation that would affect
the SEC, but it wouldn't surprise me if the SEC did indeed step in suddenly with some major
complaints that the USDOJ would then have to prosecute. I certainly hope that they do nail
McBride and the others, and nail them hard.
Re:Don't be sorry. (Score:3, Insightful)
Not merely "a large part"... ALL of the royalties (Score:2, Insightful)
Nonparty to Contract Challenging Validity (Score:3, Insightful)
That isn't always true. A third-party beneficiary (or someone else with a special relationship, like an assignee) can challenge the validity of a contract on grounds of, e.g., illusion, illegality, or impossibility, even though the contractors assert its validity.
Example:
Quality Vendor sells products to Happy Customer.
EVIL VENDOR: (holding a gun to Quality Vendor's head) Agree to sell me the Happy Customer business for one cent, or I'll kill you!
QUALITY VENDOR: Okay! Don't kill me! I agree!
HAPPY CUSTOMER: Hey! That's ridiculous! There's no way that the new contract between Evil Vendor and Quality Vendor is valid! It's obviously made under duress.
EVIL VENDOR: Oh, yes, it is. Right, QV? (cocks back hammer)
QUALITY VENDOR: Er, sure, yes, I agree that it is a valid contract.
If you want a slightly more realistic scenario, envision Evil Vendor Corp. buying a controlling interest in Quality Vendor Corp. before "negotiating" the new contract.
Disclaimer: IAAL, but I am not your lawyer, and this is not legal advice. The above reflects the common law of most states in the United States. Other lawyers: Yes, it's greatly simplified.