Novell Bombards SCO with Summary Judgment Motions 98
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 (Score:5, Insightful)
Re:I remember (Score:5, Interesting)
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 (Score:5, Interesting)
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 (Score:5, Insightful)
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 (Score:5, Interesting)
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.
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 (Score:4, Interesting)
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Re:I remember (Score:4, Interesting)
From a lawyer. As a friendly recommendation, mind you, not legal advice. Still, I take what he says seriously.
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 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.
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It seems to me to be a bit paranoid.
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Liability dosn't appear to be a big issue in the first place.
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.
Such a disclaimer is subject to the "law of
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Yep.
The existence or absence of a person who claims copyright isn't relevant. If they can track down the author, they can sue him.
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But you *are* reinventing the wheel when you have to reimplement a closed-source addition that some company did to the original code without sharing, or sharing it with a more restrictive license (like FreeBSD cannot tak
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In practice we live in the period of unlimited and condoned greed.
If you allow Greed Unlimited (R) to use your public domain software, that you generously donated to mankind, you
- open yourself to being sued by the greedy user for shortcomings; like lost data.
Meaning, that you could end up as a bankrupt.
- invite the greedy industry to
Re:I remember (Score:5, Informative)
"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.
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Even that term is quite long in terms of the useful life of software. Especially software produced as a "widget" rather than that custom written for a specific situation. (With the possible exception of embedded systems, assuming the hardware is capable of lasting that long.)
the source must be placed in a government approved repository
The appropriate entity in the US would probably be the Library of Congress, considering that this is akin to it's origina
LGPL helps prevent "embrace and extend" (Score:2)
Now, if you don't care about that, then public domain or a BSD type license is fine.
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This discourages spurious (and non-novel patents), reducing the workload on the patent office while giving the patent offices more resources to examine patents.
Really, of course they just shouldn't have
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Skip that.
Make their pay dependent upon their productive performance.
Pay $10.00 per rejected patent. Deduct $5.00 for each patent that is granted.
Add a $10K bonus for every 5,000 patents that are processed in one month.
Amber
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That would be theft, yes, and DOES deserve to go to court. (Copyright infringement, whatever.) Assuming it really happened, of course. The reasons this case is going on so long is because SCO hasn't really been wronged, and it will -never- be possible to prevent idiots from attempting to sue. (Unless nobody can sue, ever, and that would pretty much defeat the point.)
"Are you convinced five years is enough time to reap the benefits from an invention?"
For the
Re:I remember (Score:4, Informative)
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 (Score:5, Funny)
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Or maybe he's a zealous visionary. Why is that a bad thing?
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Commitment to principles, passion and forward thinking shows other people up for their apathy and shortsightedness. Rather rude of RMS to make others feel bad like that. Must never make people feel bad, even if they are, didn't you know?
Re:I remember (Score:5, Insightful)
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.
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Both I'd say. I think of him as the founding father of Open Source and clearly a very smart dude.
Being a founding father of something doesn't imply perfection though. I think his "attitude" sometimes does more harm than good. Mixing software issues with the politics of Cuba doesn't help much. There are enough people who equate Open Source
Re:I remember (Score:4, Insightful)
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.
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> I used to -hate- the GPL
Uh? How can one hate a software license?? You can choose not to use it and to avoid software licensed under the GPL, but *hating* it?
> Now, I like the LGPL
Strange, because that's a bad license: the no-static linking restriction is quite stupid IMHO..
And I'm not the only one to think this: there's dozen of LGPL-derived license which keep the intent of the license but without the static-linking restriction, the number of these LGPL-derived licen
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The no-static-linking clause is mainly to allow upgrades to that library for the people using your application. If it's statically linked, and you don't release your code, I'm stuck with an app on my system that I can't upgrade the libraries for. The main reason to want to upgrade
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"viral license" is a stupid wording, you can choose to use GPL software or not. I'd really like it I could choose not to have real viruses..
I call it myself an 'fair exchange license' to use this code, you have to release your own code (BSD being the gift license).
>If it's statically linked, and you don't release your code, I'm stuck with an app on my system that I can't upgrade the libraries for.
I see but if this is really the issue, wouldn't it be enough to require a wa
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Sure, that license is called the GPL. The ONLY way to recompile the application is to distribute the source. The LGPL, as it is, allows you to keep your source closed but use LGPL libraries. That is MUCH better than requiring the source to be distributed.
And yes, library upgrades don't always work. But in the case of a bug fix, you can backport the b
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OK, I shouldn't have said recompile but rebuild, relink for this you need only a set of object files (which can be obfuscated).
As for the 'viral license', it's still a very poor analogy: 'chosing' not to have a real virus is very hard: it requires you to 'take the most insane safety precautions', but it's *totally up to you* to choose to use GPL code or not in your application..
So this is a flawed analogy, not neutral at all, used to pu
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Viral my a@@ (Score:2)
The allegory is idiotic, it is enough to know who enunciated it first to understand it.
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After all, none of this SCO crap would have started if only Linux was licensed under the GPL!
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I think it must be. I made a perfectly valid comment about something, and it was first because I happened to load the site just when the story popped up, and I got modded as offtopic ... just for being the first to comment.
I don't think that's fair, and I don't moderate someone down just for having commented first. I only moderate down first-post posts if that's all they say, or something else equally silly that is obviously an attempt to post fir
No such thing (Score:5, Insightful)
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
Software pantents are BS (Score:2)
I say sure, lets have some software patents. You produce the source code that will be shared with the world, and I'll grant you a patent. The code gets dumped on the net, and in a couple years, anyone can use it for whatever they want.
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Perhaps if people had paid more attention to the politics back then, things wouldn't have become as bad as they are now.
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When was this?
well, normally i'd be happy (Score:1)
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It's been at least 20 minutes since they've filed suit against someone. They're probably getting all fidgety.
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Coincidence?
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You write like the judgments have already been ruled for, but this is unlikely. The Microsoft Whore Novell will win the case in the end, but with patent law as it now stands, Linux will lose as more and more Patent Kings come out of the woodwork for their slice of the pie. Unless there is patent reform, in the years to come, for businesses Linux will be no freer than Windows.
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Re:well, normally i'd be happy (Score:4, Interesting)
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.
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Novell's number one motivation for aggressively defending the slander of libel suit was to not cede the Unix copyrights (whatever those might be) to Caldera/SCO.
The copyrights had a value, Santa Cruz/SCO didn't have the scratch to pay, and so Novell didn't sell them. I suspect Novell bought SuSE to nail the point that whatever Unix ip had escaped (and it could be none) into Linux, Novell's Linux customers had a clear, unambiguous license to Linux. In other words, Novell had no interest -- in 2003/2004 --
Variations on a theme - Novell and EV1 (Score:5, Insightful)
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....
Left hand versus right hand (Score:2)
It's interesting though, because now Microsoft is actually on both sides of this fight.
They just recently partnered with Novell [slashdot.org], and were funding SCO through Baystar. [com.com]
Wouldn't it be great to just have 1% of the money that Microsoft has wasted on this? I'd retire.
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It's interesting though, because now Microsoft is actually on both sides of this fight.
They just recently partnered with Novell [slashdot.org], and were funding SCO through Baystar. [com.com]
Wouldn't it be great to just have 1% of the money that Microsoft has wasted on this? I'd retire.
lol, that's a great way to think about it. retiring. although you could probably find a cure for aids and cancer with that sort of money, which is what i'd opt for. mind you, retiring at 26 would be great too.
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That's not good enough. I want more. I want to see my bank account do this [nationalpriorities.org]! That's some serious fundage... dude.
It's marketing money well spent (Score:2)
You don't count it like that. SCO was about keeping linux from gaining too much share before Vista was released. It worked.
Novell is about keeping linux from taking the fore until Vista is replaced with something that works. It's working so far - some large customers are taking the bait. Probably in a year they'll set the hook. Sooner maybe if the mainstream press picks up on the "Vista is Windows ME 2.0" meme, which seems to be gaining buzz. Hopefully a few more OEMs will join the "XP available for
IANAL but I don't think this means much (Score:3, Insightful)
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 (Score:5, Interesting)
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.
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The Novell-75.pdf [groklaw.net] [PDF] document is the order. In it, the judge says:
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Keep in mind that the real point of summary judgment motions at this stage of a case is to narrow down what issues need a trial and which can be decided by the judge as a matter of law. So while Novell can win these motions, in a sense it can't lose anything by them. The worst that happens is that it all goes forward to trial. The whole idea is that after discovery, you kind of know what should be excised from the case, and both sides norm
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Obligatory Groklaw Links (Score:5, Informative)
Also exciting (Score:2)
Tor Braham doesn't just explain. He provides drafts to show what was proposed and the copyright transfer was proposed by Old SCO, rejected by Novell and explicitly excluded... SCO's witnesses "recall" what may have been intended. This guy knows and provides documents to prove it.
Today's The Inquirer [theinquirer.net] MOTD is nice:
The show isn't over until it's over, but it seems like it's getting close.
Subsequent events show how wise Novell was to protect t
ALL RIGHT...THIS IS GETTIN' GOOOOOODDDD!!!!!! (Score:1)
This is fantastic entertainment!!!!:-)))))
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With Boy on Boy action, the manage a trois between Ron,Darl and Chair_Thrower() Mr Balmer, and small time players like Baystar not forgetting that Sco poster girl Maureem it might well be an 21+ age feature.
I thought Microsoft 'partners' (thats Darl and Ron) where not allow to sue each other. I bet Mr Balmer is going to get mad on Monday.
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I ain't had this much fun since the pigs ate my little brother.
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Is that something done by business-jism?
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Didn't they get the memo from MSFT not to do this? (Score:2)
SCO 2.0? (Score:3, Insightful)
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In the end I don't see Novell selling SuSE, I think Microsoft buying Novell is a more likley scenario.
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This may be the beginning of the end for SCO (Score:5, Insightful)
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 (Score:1, Troll)
I am certain SCO knew they never had a case ... (Score:2)
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Sad , Sad joke (Score:2, Interesting)
Left hand sock puppet.... (Score:2)
I'll play know patent wars! What can we destroy? What about that cuddly stuffed penguin?