...making Linux just a little more fun!
Rick Moen [rick at linuxmafia.com]
----- Forwarded message from Rick Moen <[email protected]> -----
Date: Fri, 10 Aug 2007 19:44:37 -0700 To: [email protected] From: Rick Moen <[email protected]> Subject: [conspire] Novell beats SCO; also, CABAL meeting tomorrow! ;->I thought I'd pass this along. Also, mail from Darlene reminded me to mention that tomorrow, 4 PM to midnight, is the CABAL meeting here in Menlo Park.
I made the same sort of plum-jam marinade as last time, except this time I'll have had a chance to let the meat (mostly beef, this time) soak it up for 3+ days instead of a couple of hours.
So, don't be strangers.
Date: Fri, 10 Aug 2007 17:59:12 -0700 To: [email protected] From: Rick Moen <[email protected]> Subject: [svlug] (forw) SCO v. Novell DecidedGroklaw coverage is at http://www.groklaw.net/article.php?story=20070810165237718 .
Note also: (1) Judge Kimball left Novell's claim against SCO Group for slander of title still undecided. (2) SCO Group now owe to Novell the copyright royalties money it collected from Microsoft and Sun, which is considerably more money than it now has. (3) The SCO v. IBM and Red Hat v. SCO cases can now proceed.
----- Forwarded message from David Chait <[email protected]> -----
Date: Fri, 10 Aug 2007 16:12:07 -0700 From: David Chait <[email protected]> To: "[email protected]" <[email protected]> Subject: SCO v. Novell DecidedFor all of those who haven't heard yet, there has been a ruling on SCO v. Novell this afternoon, and SCO lost massively.
(reposted from groklaw.net)
CONCLUSION
For the reasons stated above, the court concludes that Novell is the owner of the UNIX and UnixWare copyrights. Therefore, SCO's First Claim for Relief for slander of title and Third Claim for specific performance are dismissed, as are the copyright ownership portions of SCO's Fifth Claim for Relief for unfair competition and Second Claim for Relief for breach of implied covenant of good faith and fair dealing. The court denies SCO's cross-motion for summary judgment on its own slander of title, breach of contract, and unfair competition claims, and on Novell's slander of title claim. Accordingly, Novell's slander of title claim is still at issue.
The court also concludes that, to the extent that SCO has a copyright to enforce, SCO can simultaneously pursue both a copyright infringement claim and a breach of contract claim based on the non-compete restrictions in the license back of the Licensed Technology under APA and the TLA. The court further concludes that there has not been a change of control that released the non-compete restrictions of the license, and the non-compete restrictions of the license are not void under California law. Accordingly, Novell's motion for summary judgment on SCO's non-compete claim in its Second Claim for breach of contract and Fifth Claim for unfair competition is granted to the extent that SCO's claims require ownership of the UNIX and UnixWare copyrights, and denied in all other regards.
Furthermore, the court concludes, as a matter of law, that the only reasonable interpretation of the term "SVRX License" in the APA is all licenses related to the SVRX products listed in Item VI of Schedule 1.1(a) to the APA. Therefore, Novell is entitled to a declaration of rights under its Fourth Claim for Relief that it was and is entitled, at its sole discretion, to direct SCO to waive its claims against IBM and Sequent, and SCO is obligated to recognize Novell's waiver of SCO's claims against IBM and Sequent. Accordingly, Novell's motion for partial summary judgment on its Fourth Claim for Relief for declaratory judgment is granted, and SCO's cross-motion for summary judgment on Novell's Fourth Claim for Relief is denied.
Finally, the court concludes, as a matter of law, that the only reasonable interpretation of all SVRX Licenses includes no temporal restriction of SVRX Licenses existing at the time of the APA. The court further concludes that because a portion of SCO's 2003 Sun and Microsoft Agreements indisputably licenses SVRX products listed under Item VI of Schedule 1.1(a) to the APA, even if only incidental to a license for UnixWare, SCO is obligated under the APA to account for and pass through to Novell the appropriate portion relating to the license of SVRX products. Because SCO failed to do so, it breached its fiduciary duty to Novell under the APA and is liable for conversion.
The court, however, is precluded from granting a constructive trust with respect to the payments SCO received under the 2003 Sun and Microsoft Agreements because there is a question of fact as to the appropriate amount of SVRX Royalties SCO owes to Novell based on the portion of SVRX products contained in each agreement. Furthermore, because Novell has obtained the information that it would otherwise obtain through an accounting during the course of this litigation, the court denies Novell's Ninth Claim for Relief for an accounting. However, the court also notes that SCO has a continuing contractual obligation to comply with the accounting and reporting requirements set forth in the APA.
Accordingly, Novell's Motion for Partial Summary Judgment or Preliminary Injunction [Docket No. 147] is GRANTED IN PART AND DENIED IN PART; SCO's Cross-Motion for Summary Judgment or Partial Summary Judgment on Novell's Third, Sixth, Seventh, Eighth and Ninth Counterclaims [Docket No. 180] is GRANTED IN PART AND DENIED IN PART; Novell's Motion for Partial Summary Judgment on its Fourth Claim [Docket No. 171] is GRANTED; SCO's Cross-Motion for Partial Summary Judgment on Novell's Fourth Claim [Docket No. 224] is DENIED; SCO's Motion for Partial Summary Judgment on its First, Second, and Fifth Claims and Novell's First Claim [Docket No. 258] is DENIED; Novell's Motion for Partial Summary Judgment on Copyright Ownership of SCO's Second Claim for Breach of Contract and Fifth Claim for Unfair Competition [Docket No. 271] is GRANTED; Novell's Motion for Partial Summary Judgment on SCO's Non-Compete Claims in its Second and Fifth Claims [Docket No. 273] is GRANTED IN PART AND DENIED IN PART; Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title and Third Claim for Specific Performance [Docket No. 275] is GRANTED; and Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title for Failure to Establish Special Damages [Docket No. 277] is MOOT.
--++**==--++**==--++**==--++**==--++**==--++**==--++**== The SULug web page is at http://sulug.stanford.edu and lists many resources for the new and experienced linux users.
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----- Forwarded message from Breen Mullins <[email protected]> -----
Date: Fri, 10 Aug 2007 18:53:14 -0700 From: Breen Mullins <[email protected]> To: [email protected] Subject: Re: [svlug] (forw) SCO v. Novell Decided* Rick Moen <[email protected]> [2007-08-10 17:59 -0700]:
>Groklaw coverage is at >http://www.groklaw.net/article.php?story=20070810165237718 . > >Note also: (1) Judge Kimball left Novell's claim against SCO Group for >slander of title still undecided. (2) SCO Group now owe to Novell the >copyright royalties money it collected from Microsoft and Sun, which is >considerably more money than it now has. (3) The SCO v. IBM and Red Hat >v. SCO cases can now proceed.
Thanks for the update, Rick. I'd have caught it in RSS tomorrow morning, but this is a cheery way to end the week!
Breen
-- Breen Mullins Menlo Park, Californiahttp://lists.svlug.org/lists/listinfo/svlug
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----- Forwarded message from Rick Moen <[email protected]> -----
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----- Forwarded message from Rick Moen <[email protected]> -----
Date: Sun, 12 Aug 2007 22:42:53 -0700 To: [email protected] From: Rick Moen <[email protected]> Subject: [conspire] SCO Group Launches War GamesIt's true! But it's just an amusing namespace collision: http://www.alalam.ir/english/en-NewsPage.asp?newsid=041030120070809144134
Troops from the Shanghai Cooperation Organization (SCO) member states -- China, Kazakhstan, Kyrgyzstan, Russia, Tajikistan and Uzbekistan -- have taken part in the war games underway in northwest China. [...]
SCOX (the erstwhile software firm in Lindon, Utah) closed on the NASDAQ at $1.56, this past Friday, shortly before Judge Kimball handed down the partial summary judgement. Suggested cheap entertainment for Monday morning: Check http://finance.yahoo.com/q?s=scox , to watch what happens.
Their next 10-Q statement, due out on Halloween, should also be fun: http://finance.yahoo.com/q/is?s=scox
Cribbing in part from (of course) Groklaw.net, here are the remaining cases and remains of cases:
SCO v. IBM (including IBM's 2nd Amended Counterclaim aka "Oh yeah? I sue you right back" charge):
Alleges that IBM wrongfully donated (unidentified) code to the Linux kernel that was encumbered by (unidentified) trade secrets disclosed by SCO to IBM. Alleges that IBM violated its AT&T System V software licence (thus, breached contract) and related obligation of confidentiality by "supporting, assisting and promoting the transfer of UNIX technology to Linux, and using its access to UNIX technology to accomplish this objective", by transferring unspecified "Unix System V source code, derivative works, modifications, documentation related thereto and methods based thereon" to India without export permission from SCO, by helping implement in Linux NUMA support, AIX JFS, PPC 32- and 64-bit support, enterprise LVM code, threading, cluster support, PPC 32- and 64-bit support, various service / scaling / performance improvements and other areas in the 2.4 and later kernels that SCO claims are (for unspecified reasons) proprietary to SCO (impliedly trade secrets?), by stating an intention to open-source IBM AIX (ditto, vaguely claimed to be proprietary to SCO, and in fact claimed to be a "Sublicensed Product from SCO"). Alleges that IBM did likewise regarding the AT&T Unix System V licence bought by Sequent Computer Systems (which company IBM bought), and IBM's open-sourcing of Sequent's Dynix/ptx OS under GPLv2, which SCO likewise claims to be SCO-proprietary for unspecified reasons. Alleges that IBM violated a "Sublicensing Agreement" by continuing to offer IBM AIX after SCO ordered them to cease doing so. Alleges that IBM's continued activity to "reproduce, prepare [unspecified] derivative works of, and distribute UNIX software, source code, object code, programming tools, and documentation related to UNIX operating system technology constitutes copyright violation. Alleges IBM unfairly competed by revealing (unidentified) SCO trade secrets ("source code, methods, trade secrets and confidential information"), breaching contract and related obligation of confidentiality, and contributing (unspecified) "protected source code and methods" to the Linux kernel. Alleges IBM interfered with SCO's contractual relations with its customers including Sherwin Williams and AutoZone by "inducing" them to "breach their corporate licensing agreements" by action to "reverse engineer, decompile, translate, create derivative works, modify or otherwise use the UNIX software in ways in violation of the license agreements" in unspecified ways that are implied but not stated to involve Linux development. Alleges likewise regarding IBM's Sequent division. Alleges that IBM wrongfully interfered with SCO's existing and potential business relationships with Hewlett Packard and others, by informing them that "IBM was discontinuing doing business with SCO", and suggesting that they do likewise.
SCO seeks minimum US $10^9 for breach of contract, plus injunction ordering IBM to cease offering AIX and other "protected Software Products" and prevent their donation to open source. Seeks a second minimum US $10^9 for breach of contract by publishing IBM AIX. Seeks a third minimum $10^9 for breach of contract regarding Sequent's AT&T Unix System V licence and a fourth minimum US $10^9 regarding Dynix/ptx (along with the same sort of inunction as for AIX). Seeks actual, statutory, and punitive damaages concerning copyright violation. Seeks a fifth minimum $10^9 for unfair competition. Seeks actual and punitive damages for "tortious interference" with SCO's business. Seeks an injunction against IBM putting more "protected Software Products" into open source.
IBM's Second Amended Counterclaim (SCO infringement of IBM copyrights and patents, breach of contract):
Alleges SCO violated express contractual duties under IBM's software licence to Unix System V (and related mplied covenant of good faith and fair dealing), including "purporting to terminate IBM's irrevocable and perpetual UNIX rights and/or refusing to provide IBM adequate notice and opportunity to cure its alleged misconduct". Alleges infringement of IBM's trademark rights by causing customers to have "confusion and mistake [...] as to the characteristics of IBM's goods, products and/or services". Alleges related unfair competition. Alleges "tortious interference" with IBM's current and prospective business partners by false and misleading statements about IBM not having the right to distribute AIX, Dynix, and Linux. Alleges "related unfair and deceptive trade practices" as defined in New York state law. Alleges copyright violation against IBM through redistribution of its contributions to the Linux kernel in breach of IBM's GPLv2 conditions for such redistribution (e.g., SCO imposing additional restrictions). Asserts (in a related claim) that SCO had created the expectation ("promise") that it would redistribute IBM's Linux contributions only under GPLv2 terms, creating good-faith reliance on that promise, and so should be barred as a matter of legal equity from doing otherwise completely aside from matters of copyright violation. (in law, this is called the doctrine of "promissory estoppel", and is a type of quasi-contract.) Alleges that SCO violated Library of Congress-registered IBM copyrights on 16 IBM codebases in the Linux kernel, by redistributing that code with restrictions beyond IBM's specified GPLv2 terms. Alleges that IBM should be granted a declaratory judgement (a protective finding from the court) that AIX, Dynix, and IBM's contributions to Linux do not infringe SCO's purported copyright to Unix. Alleges that SCO has violated, in its UnixWare and OpenServer product, two IBM data-compression patents an IBM data-transmission patent, and an IBM clustering patent. Alleges that IBM should be granted a declaratory judgement that SCO has violated contractual obligations towards IBM, has violated IBM's trademark rights, has engaged in unfair and deceptive trade practices, has violated IBM copyrights, and has violated IBM patents, and is barred by promissory estoppel from asserting proprietary rights to IBM GPLed Linux kernel code that SCO has redistributed.
IBM seeks compensatory and punitive damages on various items, treble patent damages, declaratory relief cited, and injunctive relief barring SCO from continuing any of the violations cited.
SCO v. Novell (some remaining unfair competition, breach of contract, and breach of implied covenant of good faith and fair dealing claims; next court date Sept. 17):
Alleges (or rather, alleged) that Novell committed "slander of title" in stating in public that it, not SCO, owned the basic copyrights to Unix and UnixWare, that Novell breached contract, carried out unfair competition, violated a non-compete agreement, violated a contract of good faith and fair dealing that was implicit in their (Novell and oldSCO's) explicit Asset Purchase Agreement (APA) and Operating Agreement contracts.
SCO sought injunction requiring Novell to assign all relevant copyright registrations to SCO, and cease claiming to own copyrights to Unix and UnixWare. Sought slander of title damages.
Novell's Amended Counterclaims alleged that SCO committed slander of title against Novell's copyrights (granted by Kimball's summary judgement), that SCO failed its obligations under oldSCO's APA contract with Novell, that SCO failed to pay royalties owned Novell under the APA, that SCO violated the APA (which gives Novell the sole right to cancel Unix licences, or to issue new licences for Unix System V) by purporting to cancel IBM and Sequent's Unix licences, and by issuing new Unix System V licences to Sun and Microsoft.
Novell seeks damages for slander of (copyright) title an injunction requiring that SCO withdraw its copyright registrations, plus one ordering SCO to fulfill its obligations under the APA, and sought creation of a trust to hold royalties SCO has collected to safeguard them against SCO's financial losses. (Judge Kimball denied the request to order a trust, on grounds that it's currently uncertain how much in royalties SCO owes to Novell.) Novell also asks for restitution of those royalties and a full accounting, for declaratory relief that Novell owns the copyrights (granted), for punitive damage to punish the unauthorised Sun and Microsoft licence agreements, and an injunction forbidding SCO from violating the APA further.
Red Hat v. SCO: Seeks declaratory relief (a protective finding from the court) that Red Hat's products don't infringe any SCO copyrights or trade secrets that might exist, given SCO's claims in public to the contrary. Seeks declaratory relief that SCO's campaign to vilify the legality of Linux violates Red Hat's trademark rights (the tort of "trademark disparagement") and constitute deceptive trade practices, entitling Red Hat to treble damages, and constitute unfair competition, tortious (wrongful) interference with prospective business, and trade libel / disparagement. Seeks an injunction prohbiting SCO from any further such actions. Case is stayed (deferred) until resolution of SCO v. IBM.
SCO v. AutoZone: Alleges AutoZone infringes SCO's (now proven nonexistent) copyrights by using Linux in business. Seeks damages under the Copyright Act (17 USC 504) and to enjoin AutoZone from further use of Linux.
SCO v. DaimlerChrysler: Alleges DaimlerChrysler infringes its licence to use AT&T System V software (and thus breaches contract) by failing to send SCO a required annual report certifying its ongoing compliance with that licence's obligations. The legal complaint also claims that Linux is a (in an unspecified fashion) derivative work of Unix System V, which would make DaimlerChrysler's use of Linux a further breach of its AT&T Unix contract. However, SCO doesn't seek damages for the Linux usage in this trial; it merely implies the threat of a future complaint for so doing in (alleged) violation of DaimlerChrysler's Unix contract's terms.
Oddly enough, it's conceivable that SCO Group might eventually win the DaimlerChrysler case, if it lasts long enough. However, its position has been crippled in all the rest of the cases, and Kimball's recent judgement may cause the firm's complete collapse before much else happens in any of the cases.
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Rick Moen [rick at linuxmafia.com]
Following up on my summary of the various SCO cases:
> SCO v. DaimlerChrysler: Alleges DaimlerChrysler infringes its licence > to use AT&T System V software (and thus breaches contract) by > failing to send SCO a required annual report certifying its ongoing > compliance with that licence's obligations. The legal complaint > also claims that Linux is a (in an unspecified fashion) derivative > work of Unix System V, which would make DaimlerChrysler's use of > Linux a further breach of its AT&T Unix contract. However, SCO doesn't > seek damages for the Linux usage in this trial; it merely implies the > threat of a future complaint for so doing in (alleged) violation of > DaimlerChrysler's Unix contract's terms. > > Oddly enough, it's conceivable that SCO Group might eventually win the > DaimlerChrysler case, if it lasts long enough. [...]
However, I somehow missed this case having been dismissed on December 26, 2004: http://www.groklaw.net/article.php?story=20041226135736488 http://www.groklaw.net/article.php?story=20040721122325926
During the hearing, DaimlerChrysler's attorney explained to the judge that the firm hadn't used any of SCO's software for over seven years, and thus SCO's demand for a list of CPUs running their software was a bit laughable, and that, since they hadn't been running SCO's product at all, their failure to certify licence compliance within 30 days of SCO's demand was immaterial. The judge agreed -- and also agreed that SCO's basically dead contract gave it no rights to go on a fishing expedition into DaimlerChrysler's usage of other software not even mentioned in the contract at all (including Linux).
Total court time: 18 minutes, start to finish.
René Pfeiffer [lynx at luchs.at]
On Aug 12, 2007 at 2247 -0700, Rick Moen appeared and said:
> ----- Forwarded message from Rick Moen <[email protected]> ----- > [...] > Date: Fri, 10 Aug 2007 17:59:12 -0700 > To: [email protected] > From: Rick Moen <[email protected]> > Subject: [svlug] (forw) SCO v. Novell Decided > Groklaw coverage is at > http://www.groklaw.net/article.php?story=3D20070810165237718 . > Note also: (1) Judge Kimball left Novell's claim against SCO Group for > slander of title still undecided. (2) SCO Group now owe to Novell the > copyright royalties money it collected from Microsoft and Sun, which is > considerably more money than it now has. (3) The SCO v. IBM and Red Hat > v. SCO cases can now proceed.
There was a celebration and a ritual at the Chaos Communication Camp involving a couple of SCO installation CDs, potato guns, a lighter and possibly the Four Sysadmins of the Apocalypse:
http://www.monochrom.at/hax0rcise/
The movie has 75 MB, be careful if you lack a broadband connection.
Best wishes, René.