Novell Files for Summary Judgment Against SCO

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."

Jailtime for Darl

[Anonymous Coward]

He obviously knew that the lawsuits were frivilous, so he was clearly acting outside his role as company officer. Who can go for him personally?

1. Shareholders
   
2. The SEC
   
3. IBM, Redhat, Novell, Autozone and daimler
   
4. All of the above
   

I think option 4, the senior execs attempted to defraud stockholders in a pump and dump, fraudulently attempted to obtain money from autozone and dailmer and launched into damaging media tirades that were damaging to linux. Does anyone see this differently?

Too Bad It Won't Go

[MikeyTheK]

Unfortunately, this has absolutely no chance of success. Motions for Summary Judgment are generally denied unless the other side's argument is so flimsy that there is no shot at it succeeding at trial, and is wasting the court's time. However, since a judge can't just dismiss a civil action for being st00pid, s/he generally first tries to get the parties to settle, and then tries to encourage the plaintiff (or defendant) to punt, to save them the embarrassment of granting a MSJ. If they refuse, then this might succeed.

In a case like this, though, where the facts and evidence are sure to be the crux of matters, there is no way the judge will grant it, which is unfortunate.

the Baystar connection ..

[rs232]

"Mr. Emerson [Microsoft's senior vice president of corporate development and strategy] and I discussed a variety of investment structures wherein Microsoft would `backstop,' or guarantee in some way, BayStar's investment....Microsoft assured me that it would in some way guarantee BayStar's investement in SCO."

"Microsoft stopped returning my phone calls and emails, and to the best of my knowledge, Mr. Emerson was fired from Microsoft"

http://www.groklaw.net/article.php?story=200609292 12013816 [groklaw.net]

Re:If it's granted, what happens to the IBM case?

[KokorHekkus]

I read in the comments of the page that such a motion is only granted if it is shown that it will not make SCO bankrupt. I'm not a lawyer, and I don't understand why these motions exist then? Why would Novell get money from SCO in the first place? What has the deal with microsoft and sun to do with novell?

When SCO/Caldera bought some rights to Unix System V from Novell they couldn't/wouldn't pay enough money up front. So they agreed that of all future license there would be a 95/5 split between Novell and SCO/Calders (yes, 95% to Novell).

Re:Business implications?

[Pharmboy]

I think McDonalds uses SCO Unix on their registers in all their shops. You know, the ones where the kids have to just push the symbol that looks like a Big Mac® because they can't be trusted to enter the right prices. At least they used to. Lots of systems still use unix like that, where it all ties to a central system.

'Bout Damn Time

[vaderhelmet]

C'mon, this has been dragging on for so long that it's gotten ridiculous (even more so than the first time I heard about it). It's just a nonstop round and round pissing match between SCO and any company that looked like it had deep pockets to take from. I seriously hope that this move nails their coffin shut and closes their doors forever. I think I will file a motion to have Darl McBride declared an economic terrorist and taken away to Gitmo!

Re:Business implications?

[KokorHekkus]

...but I have heard they would have a tough time even if they wanted to open source *nix because all the different copyright holders to individual pieces would have to agree. I don't think open sourcing *nix would be that beneficial anyway....

And then there's the very interesting question wether SCO/Caldera had the underlying copyrights to begin with (they clearly own their own code of course).

From the Novell-SCO Asset Purchase Agreement:

1.1 Purchase of Assets (a) ends with: "Notwithstanding the foregoing, the Assets to be so purchased shall not include those assets (the "Excluded Assets") set forth on Schedule 1.1 (b)".

And further down Schedule 1.1 (b) Excluded Assets (Page 2 of 2) contains the following:

V. Intellectual Property:

A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.

B. All Patents.

(Source: http://www.groklaw.net/article.php?story=200311102 3050367 [groklaw.net])

Well, not quite

[Anonymous Coward]

That's the one that says that there is no copyrighted Unix code in Linux.

In the 2.0.36 kernel tree there is a file in the net section where the ppl admit they took it from FreeBSD and then removed the BSD copyright.

And the ATA code came from BSD/no it did flap a few years ago.

So not everyone's hands are clean in the Linux kernel in the past.

There is a likelyhood of shared code, but is 3 lines 'infringement'? 1 line? 30? 3000? 300,000?

It would be best that there is no code. But being able to be shown what code may have questionable parentage and fix that would also be acceptable.