Meanwhile, back in Utah...

[Posted March 10, 2010 by corbet]

The SCO case has long since dropped off the radar for most. It is worth noting, though, that the Novell "slander of title" trial is now underway in Utah. Groklaw has detailed coverage of the testimony thus far. "Why did Novell slander SCO's title? Because of Linux. Linux started as a hobbyist tool. It's open source; 'nobody can be completely sure where the code comes from'. Starting around 2000, IBM inserted into Linux stuff that belonged to SCO. SCO sued, and started their licensing program (SCOsource). Novell stated that SCO doesn't have the copyrights and can't sue IBM."

Meanwhile, back in Utah...

Posted Mar 10, 2010 20:14 UTC (Wed) by smoogen (subscriber, #97) [Link] (8 responses)

"Novell stated that SCO doesn't have the copyrights and can't sue IBM."

and now the Elliott Associates LP makes more conspiracy sense. A purchase of Novell would allow for all kinds of lawsuits to move forward or be extended (ok SCO can't sue, but maybe Novell can?)

Meanwhile, back in Utah...

Posted Mar 10, 2010 20:27 UTC (Wed) by elanthis (guest, #6227) [Link] (7 responses)

I believe though that since Novell has explicitly and intentionally released
that code under the GPL, they can't really sue at this point.

IANAL and could be totally wrong, obviously.

Meanwhile, back in Utah...

Posted Mar 10, 2010 20:30 UTC (Wed) by charlieb (guest, #23340) [Link] (5 responses)

Oh, they can sue. SCO did, and they *also* released linux under the GPL.

Of course, they can't win.

Can they? :-)

Meanwhile, back in Utah...

Posted Mar 11, 2010 2:36 UTC (Thu) by elanthis (guest, #6227) [Link] (4 responses)

I believe SCO's case was that they did not knowingly do so, having not
realized Linux contained the other code, and they pulled their Linux
releases once they started the lawsuit.

Novell would no longer be able to make that claim since it has been brought
up to them quite explicitly by the courts, and they claimed they had the
rights so it was okay.

At least to my limited understanding of the matters.

Meanwhile, back in Utah...

Posted Mar 11, 2010 5:22 UTC (Thu) by dlang (guest, #313) [Link] (3 responses)

Except that SCO didn't stop distributing linux after starting their lawsuit. They continued to distribute it for a year or two after fileing their lawsuits

Meanwhile, back in Utah...

Posted Mar 11, 2010 15:50 UTC (Thu) by leoc (guest, #39773) [Link] (2 responses)

The register covered that.

Meanwhile, back in Utah...

Posted Mar 12, 2010 17:06 UTC (Fri) by giraffedata (guest, #1954) [Link] (1 responses)

I don't see where licensing Unix under GPL affects anything. This license was not offered at the time the alleged copyright violations took place was it?

Also, remember that what SCO did that brought Novell to the microphone was order IBM to stop shipping AIX, under SCO's privilege as Unix copyright holder. Novell said, "SCO doesn't own that copyright, we do, and go right ahead and ship AIX, IBM." A GPL license from the Unix copyright owner, whoever it might be, wouldn't be useful to IBM for AIX purposes.

Meanwhile, back in Utah...

Posted Mar 12, 2010 17:19 UTC (Fri) by dlang (guest, #313) [Link]

since they are alleging continuing violation of their copyright, it very definitely does matter.

Meanwhile, back in Utah...

Posted Mar 10, 2010 20:46 UTC (Wed) by bucky (guest, #53055) [Link]

I remember an old Phil Hartman bit from Saturday Night Live:

"Myth #8: In order to be successful, a lawsuit must have merit. False."

Funny because it's true.

Meanwhile, back in Utah...

Posted Mar 10, 2010 21:43 UTC (Wed) by jeleinweber (subscriber, #8326) [Link] (6 responses)

For those who have turned their attention elsewhere, the current situation is roughly:

* In Delaware: SCO is bankrupt, being run by a chapter 11 trustee, with Daryl McBride's CEO position abolished. They hope that the prospect of a 2 million dollar loan from a group headed by Ralph Yarro (largest shareholder) will stave off chapter 7 liquidation long enough to perhaps sell off what remains, or at least let them continue their court cases. Monthly legal fees probably now exceed monthly payroll, and revenue from continuing operations continues to decline sharply.

* In Nevada: SCO vs Autozone was settled, but the terms are confidential. SCO did not receive any large amount of money as a result.

* In Michigan: SCO vs DaimlerChrysler is a zombie. SCO lost all substantive issues on summary judgment years ago, and can't appeal the one remaining trivial issue (timeliness) unless they first pay the defendant's legal fees. As any potential recovery would be much smaller than said fees, no further action by either party is expected.

* In Switzerland: SuSE vs SCO is still on hold, to the annoyance of the arbitration panel. The issue is whether SCO violated its UnitedLinux contract. A victory by SuSE could result in considerable damages, as well as eviscerating most of what's left of SCO's claims against IBM.

* RedHat vs SCO (Delaware) and SCO vs IBM (Utah) are still on hold, awaiting the outcome of SCO vs Novell.

* SCO vs Novell has gone 4 different directions. In Utah: SCO lost in district court by summary judgment and bench trial. In Colorado: The Utah verdict was appealed, and the appeals court affirmed most of the decision, but remanded a couple of issues back to Utah for jury trial. In Washington, D.C.: Novell has appealed one of the remanded issues (use of extrinsic evidence to effect copyright transfers) to the US supreme court, which hasn't yet said if it will consider the petition. Back in Utah: they're now at day 3 of an expected 3 week jury trial, with the main remaining issues being who now owns the archaic SysV Unix copyrights, and did either party commit slander of title.

Really, you need popcorn to watch this complete tour of the US legal system.

Meanwhile, back in Utah...

Posted Mar 10, 2010 21:58 UTC (Wed) by ncm (guest, #165) [Link] (5 responses)

Thank you for this.

Anybody who thinks the U.S. court system makes any sense at all should take this case as proof to the contrary. What is it better than, again?

Red Hat waiting for IBM

Posted Mar 10, 2010 23:43 UTC (Wed) by dmarti (subscriber, #11625) [Link] (2 responses)

I thought the Red Hat v. SCO case was actually waiting on the IBM case -- so Red Hat is last in line for whatever is left of SCO.

Red Hat waiting for IBM

Posted Mar 11, 2010 1:44 UTC (Thu) by jeleinweber (subscriber, #8326) [Link] (1 responses)

Yes; I probably oversimplified. SCO vs IBM won't restart until both the SCO vs Novell trial and the SuSE vs SCO arbitration are done. The time-line on that is very uncertain, as no one is betting that the second SCO vs Novell trial won't result in a second appeal, and SCO might end up in chapter 7 bankruptcy liquidation at any moment. SCO vs IBM has been reduced by summary judgments and lack of SCO evidence to consisting mostly of IBM counterclaims. RedHat is probably waiting on everything, including SCO vs IBM. The first SCO vs Novell bench trial ended with SCO owing Novell about $3.7 million, which was upheld during the appeal, but has not been paid - a fact that may play into Novell's "unclean hands" defense during the current second jury trial. The smart money would bet that all the other cases will also end with SCO owing SuSE, IBM, and RedHat money too.

Given that SCO originally lost to Novell in the bench trial, it's not terribly likely that a partial do-over in front of a jury will produce a different result - they don't have any new evidence to present.

For SCO to get a big win from IBM, they have to improbably convince a series of courts, arbitrators, and juries that:
a) the Santa Cruz contract with Novell transfered copyrights in spite of explicit clauses excluding them and lack of a legally required written list of which ones would be involved - under California law, which is very particular about copyright transfers due to many cases from Hollywood
b) another contract clause allowing Novell to waive claims against IBM should somehow be ignored
c) the copyright assignments and waivers in the UnitedLinux contract Caldera signed should be ignored
d) SCO distributing the stuff it is complaining about under the GPL should be ignored
e) the fact that after applying standard software copyright case rules (abstract-filtration-comparison test, scene-a-faire, public domain, compliance with published standards, SCO's own donations, ...) SCO will have no infringed materials
f) SCO's damages from SCO's weak claims are somehow much larger than IBM's damages from IBM's strong counterclaims

Linux users who aren't fascinated by our legal system can probably just relax and ignore the whole thing.

Jurors who don't know any tech stuff

Posted Mar 16, 2010 1:31 UTC (Tue) by golding (guest, #32795) [Link]

The trouble at the moment is the jury were deliberately picked on not having
any tech knowledge, so what they decide may well depend on what side bamboozles them the most with double-speak.

Meanwhile, back in Utah...

Posted Mar 11, 2010 12:57 UTC (Thu) by nix (subscriber, #2304) [Link] (1 responses)

The only thing I can think of that it's certainly better than is argument by force of arms / strongman / political power. (Instead, it's often argument by size of bank account, which is subtly different.)

Meanwhile, back in Utah...

Posted Mar 12, 2010 11:30 UTC (Fri) by man_ls (guest, #15091) [Link]

Wow, what a great phrase to parse. But you are right. It is also certainly better than the Spanish court system, where probably none of the issues would have reached trial by now, and where the appeals process could easily take 10 more years.

Apart from speediness, and that is mostly a matter of SCO delaying matters unnecessarily, I don't see so much that can be improved: issues were taken to court, and they are being resolved. What else would you change? Keep in mind that court systems were not designed to tackle complex technical affairs, but issues in common law much simpler to resolve.