Novell Pulls Out Their Ace Against SCO

mattOzan writes "Groklaw is reporting that Novell has just filed a reply with an exhibit in support of their motion to dismiss SCO's complaint. The exhibit consists of "1995 minutes from the corporate kit of a meeting of the Board of Directors, which clearly and unequivocably say that Novell was to retain the UNIX copyrights in the sale to Santa Cruz that year."

Does that mean . . .

[by Anonymous Coward]

. . . I owe Novell $699?!

Re:Does that mean . . .

[Zeebs (577100)]

Not quite, it appears that Novell has patented artificialy inflating stock prices with FUD. So you owe Novel $699 for each share of SCO you own.

Groklaw coverage

[Malfourmed (633699)]

Groklaw coverage here [groklaw.net]

Trump card? Submitter is a bit off...

[Xenographic (557057)]

Since I know no one here RTFA, it might be nice if they'd given any indication of why this is some kind of trump card.

Frankly, the corporate kit isn't much of anything new (see Groklaw if you want to know what the hell the kit is--PJ explains it well). Novell already lined up pretty damn near everyone who had anything to do with that agreement to testify that SCO is full of it. SCO found *ONE* person who was part of the early part of the deal, who LEFT during it, and wasn't really able to contradict any of what Novell's witnesses said anyhow. Yeah, I know, it really does go to show you that Novell's stance on what they own isn't new, but they've already established this to my satisfaction six ways from Sunday... :] Of course, that's just good lawyering, and they do have good lawyers.

Now then, let's go on to the actual trump card. Novell found SCO including information outside of its original complaint. So what, you're probably thinking, but this is important. Due to some legal stuff (rules on parole evidence or something), Novell found a case that calls doing what SCO did a poor tactical maneuver. Basically, because of the crazy court rules for these things, the Court can convert Novell's motion for dismissal to one for summary judgement.

If they dismiss it (as they would now), SCO could refile with new, weird allegations they pull out of a hat (unless the judge dismisses it with prejudice, but then they have to show that *no* set of claims SCO could make could prevail... hard to do without ruling on the facts of the case, not just the law, as the jury has dominion over the facts).

If they go the summary judgement route, as Novell is urging, the Court gets to rule on the case here & now. Forget further wrangling, with that, the Court could rule on the case directly and SCO would have to appeal if the ruling went against it.

Now then, I don't claim to be a lawyer (I just read Groklaw, which is about as close as Slashdot often gets to having one), so I have no idea whether or not the Court will buy this. All I know is that it's an opportunity for the Court to get rid of SCO; something I'd do in a heartbeat, personally.

Re:Yes,

[by Anonymous Coward]

Good luck. I'm connected with IPX.

Re:Does that mean . . .

[by Anonymous Coward]

may i introduce you? asapien, paragraph. paragraph, asapien.

well guess that's it

[kalpol (714519)]

Party's over, let's go home, if there's no SCO to bash there's just no joy in living.

Re:well guess that's it

[Short Circuit (52384)]

"Go home" yourself. I've been glued to this terminal for over four years; I'm not leaving Slashdot yet!

Re:well guess that's it

[by Anonymous Coward]

I've been glued to this terminal for over four years

Dave - you're still there? Jeez, sorry we forgot to give you the solvent! Did you graduate?

Re:well guess that's it

[SirTalon42 (751509)]

Just a little fact, Linus actually was going to release Linux as Freax (he originally referred to it as Linux before, so the guy who first hosted it for him on his FTP convinced him to release it as Linux)

Re:well guess that's it

[jusdisgi (617863)]

At least Bill Gates didn't have the ego to name an OS after himself like Linus did!

Perhaps that's because he didn't write it?

Dumb question...

[wrinkledshirt (228541)]

Why didn't Novell bring this up a long time ago? Could have saved everybody a lot of time and money, as well as spared bad PR for Linux.

Re:Dumb question...

[LiquidCoooled (634315)]

It got Linux into the heads of PHBs didn't it?

Bad publicity is still publicity.

In the words of GWB - Mission accomplished!

Re:Dumb question...

[empaler (130732)]

OTOH it proves the credibility of SCO and how one should trade with them (both eyes open and a taperecorder running)...

...addressed in filing

[Charles Dodgeson (248492)]

I've just been making my way through Novell's reply [groklaw.net] and it addresses exactly this question. First of all, in this particular case, SCO is suing Novell for making Novell's claim to the copyright public. So SCO has no grounds to complain that Novell didn't come forward earlier. (Novell says that they had contacted SCO privately)

SCO is trying to claim that Novell was malicious in knowingly publishing a false claim (that Novell owns Unix copyrights). Novell says that it had every right to publish its claim and it has reason to believe that the claim is true.

The particular memo doesn't prove anything about ownership but is one more (small) piece of evidence that Novell sincerely believes its claim (of ownership of copyrights), and so are in no way guilty of knowingly publishing a falsehood.

Novell's case is overwhelming, but this particular document is part of a filing in response to a filing by SCO alledeging that Novell knew it didn't own the copyrights.

I could be entirely misunderstanding things. There will certainly be a compentent analysis on groklaw soon enough.

Re:Dumb question...

[FyRE666 (263011)]

I'd venture they wanted to give SCO "enough rope" first. This is a good thing; SCO are haemoraging cash in fashion that would put the most ridiculous dot.coms to shame. They've alienated virtually everyone - customers and partners, rid themselves of staff and are now largely owned a law firm. A year ago they might have backed out of this hole, but now the reverse gear has gone - they can only move forward and deeper into the mess.

Novell has decided to start shoveling the dirt in on top of them...

Re:Dumb question...

[oliverthered (187439)]

Have you ever tried to find some paperwork from 1995, maybe it turned up again when you moved house. I'm sure Novell has a lot more paperwork in a far bigger attic than you have.

Re:Dumb question...

[by Anonymous Coward]

Public companies (or their lawfirms) are required to keep this stuff readily accessable. Novell has a buttload of paperwork, to be sure. But they know exactly what they have and exactly where it is.

Have you ever worked for a large bureaucracy? The company rarely has everything in the same system for anything - source control, document management, personnel databases, whatever you can imagine, they aren't doing it consistently. Legacy systems, competing systems in different departments, etc. can all cause things to be not where you expect them to be.

They brought this out now for a very good reason (see the "'nough rope" cousin post).

I don't buy that argument. If Novell could have killed this thing long ago, they would have. It's not in their interest to have the trial drag out any longer than it has to. They have legal bills to pay, too.

Re:Dumb question...

[iocat (572367)]

Are you kidding me? Have you ever tried to find a document from something old at your company? Even with the best retrevial policies in the world, stuff just goes missing. And even if it isn't missing, the people who know where it is leave. Heck, we just lost some source from a project that finished only two months ago. (wtf -- I know, no one followed the correct archive procedures, but luckily a packrat kept it).

More than that, you have to first REMEMBER the minutes from 10 years ago contained this awesome point, and then track it down. More likely, they've had some poor 1st year lawyer or paralegal searching through EVERYTHING in the hopes of finding something, and this just turned up.

They didn't have the money...

[MarcQuadra (129430)]

...to fix their copy machine until yesterday when Microsoft settled with them for $0.5BN?

Re:They didn't have the money...

[Short Circuit (52384)]

Scary to think it might not be a coincidence that Novell didn't pound SCO until they settled with Microsoft. /me wonders what was in that settlement aside from half a billion dollars and Novell's not supporting the European antitrust issue. Or what wasn't in that settlement that Novell wanted in there.

Re:Dumb question...

[mlynx (812210)]

Aside from the earlier statement about finding older documents, another thing to remember is that SCO filed a "Slander of Title" lawsuit. Novell has only had to do enough work to demonstrate a lack of malice in their public claims. The letters from SCO asking for copyright transfer should have been enough to show that the ownership was in question and Novell was not acting with malice in stating they still retained copyright.

SCO was also looking for a way to remove the Novell issue from the IBM lawsuit without introducing their weak interpretation of the contracts involved.

Re:Dumb question...

[Ohreally_factor (593551)]

You are correct, sir. Novell has brought out these minutes from a meeting of the board in answer to SCO's attempting to use Chatham's declaration as proof of malice.

The minutes do NOT conclusively prove that Novell owns Unix, only that they believed they did, and were acting WITHOUT malice, but in good faith.

Novell does not need to prove that they own Unix at this point. The burden is upon SCO, and so far, SCO is failing miserably.

Re:Dumb question...

[utlemming (654269)]

If they had coughed it up earlier, then SCO might have still had a chance. But since SCO spent all the earlier time jerking around, they just waited for the right moment. You know, when hunters spot a deer, they don't go blasting away -- the hunter will wait until the right moment. The hunter may know that he can hit the deer through the brush, but waiting until he can get a clear shot in the meadow is better. Novell warned them, and then waited for the moment. I see nothing wrong with it. Now Novell has taken aim, fired and is waiting for the finality of the bullet. My hat goes off to Novell -- not all Utah software companies are idiots.

Re:Dumb question...

[Dachannien (617929)]

According to Novell's argument, the introduction of outside evidence also raised the stakes - Novell says that now they're playing for the whole ball of wax: a summary judgment in the case rather than merely a dismissal of the complaint.

What now?

[micromoog (206608)]

All right, the election's over, SCO is dead . . . what now? Emacs vs. vi?

p.s. vi kicks emacs' ass

Sounds exciting

[by Anonymous Coward]

1995 minutes from the corporate kit of a meeting of the Board of Directors

I'm sure they will be on the edge of their seat the entire time.

A million monkeys with typewriters

[alexo (9335)]

> Not everyone speak English natively on slashdot, so those that don't know
> exactly what that means: minutes means a referendum of a meeting

Isn't it ironic that a post about the English language is moderated "informative" by
people who do not know the difference between a referendum [reference.com] and a memorandum [reference.com]?

Are we sure this is an ace?

[LostCluster (625375)]

This filing seems to be a little over-hyped here on Slashdot. It most clearly says what Novell's board of directors thought they were agreeing to... but is that what they actually got themselves into? Seeing that statement in a contract signed by both sides would hold a whole lot more value if that can be found.

Aaaah!

[k98sven (324383)]

This filing seems to be a little over-hyped here on Slashdot. It most clearly says what Novell's board of directors thought they were agreeing to... but is that what they actually got themselves into?

Aaa.. You see this is exactly the point!

SCO didn't file suit against Novell for breach of contract with respect to the alleged copyright transfer.

What SCO sued for was Slander of Title for saying nasty harmful things about SCO, namely that they owned the Unix copyrights.

The problem here is that.. it's not slander if you actually believe what you're saying. And Novell has proved that they have had every reason to believe that they owned the copyrights.

(The Judge himself has indicated that it does not at all appear clear who does own the copyrights. But the copyrights aren't what's in dispute here, even if SCO says otherwise)

Re:Are we sure this is an ace?

[tomhudson (43916)]

This filing seems to be a little over-hyped here on Slashdot. It most clearly says what Novell's board of directors thought they were agreeing to... but is that what they actually got themselves into

... and in a slander of title suit (which is what SCO vs Novell is), intent is important. You have to intentionally make a false claim as to title. In this case, the minutes show that, regardless of who actually holds the copyrights, Novell is on the record that they were under the impression they still held them. In this case, intentions DO count.

Re:Are we sure this is an ace?

[The Cisco Kid (31490)]

It doesnt matter.. SCO was charging that Novell was claiming it owned the Unix copyright when it knew for a fact that it didnt - this shows that that is absolutely NOT the case, that Novell full beleived that it did in fact retain that ownership.

Re:Are we sure this is an ace?

[rgmoore (133276)]

It most clearly says what Novell's board of directors thought they were agreeing to... but is that what they actually got themselves into?

That actually matters less than you realize. SCO's suit is for "Slander of Title", which means that SCO is claiming that Novell maliciously made false statements that caused SCO harm by calling their ownership of System V into question. SCO must prove every part of that claim: that Novell made false statements, that the statements were made maliciously, and that the statements did SCO damage. Novell doesn't have to prove that they actually do own the copyrights (i.e. prove that their claims were true), though this is certainly good evidence of that point. Novell only has to show that their claims were not made maliciously, and an honest, well-founded belief that they still owned the copyrights is sufficient to do so.

The contract does exclude copyrights

[jjo (62046)]

Exactly that statement is in fact in the contract signed by both sides. The contract explicitly excludes 'all copyrights'.

SCO, bizarrely, is trying to dismiss this crystal-clear statement as some sort of 'scrivener's error', and has offered the statment of a former Novell employee (who wasn't even there when the contract was signed) to the effect that, no matter what the contract says, Novell really meant to transfer all the copyrights. The Novell Board document kills this (already absurdly weak) theory.

Novell our best friends.

[by Anonymous Coward]

Now actually why do we care so much about Novell ? Have they done anything spectacular to us that deserves so much hype around them ? Sure they might kick SCO into the butt and might have done the one or other thing that would chill people but thats all.

What I want to say is we should not see Novell as our friends, our buddies or whatsoever these are clear minded people who run all for the big cash. Cash is what matters and not the entire open source movement or whatsoever.

I know a few people from Novell who work for them and they told me that Novell doesn't really give a damn slight fuck for open source, the community or the entire movement. What matters for them is cash and outsourcing. As long as it gets them money in their pockets they do everything it's simply a new marketing segment they invest in.

So before overhyping Novell we should calm down and reconsider again. What ough to be our friend today can be our worst nightmare tomorrow.

Re:Novell our best friends.

[by Anonymous Coward]

Please, show me a large company who isn't in it for the money. They all are, and we're all fooling ourselves into thinking that they are doing it for some ideologic reason rather than cash. Hell, I do work for a non-profit Catholic hospital, and all the execs and managers are in it for the money. So excuse me if I don't hold it against Novell that they are trying to make a living.

Well

[mcc (14761)]

* They've made decent-quality products in the past
* They currently own SUSE, which is a very nice Linux distribution, and they've been doing interesting things with it since taking over. Meanwhile they've actively been doing good things for the open source community. [computerworld.com] So whoever's side they were on before, they're certainly on our side now.

Re:Novell our best friends.

[Coryoth (254751)]

Now what did they open source that wasn't open sourced before under a different company ?

Hmm, how about the two major closed source items (and hence revenue generating products) from the closed source companies they bought: Yast from SuSE, and Ximian Connector from Ximian. Both were kept closed source as a proprietary "this is the good stuff that you're paying for" part of each compnies offering. Both are now GPL and out in the wild in source form. I'd say that's significant.

Jedidiah.

Mental image coming to mind

[TWX (665546)]

I played a lot of Warcraft II back in the mid to late nineties. The mental image of a bunch of Troll Axethrowers surrounding an enemy's farm, the farm in flames, with a continuous stream of axes flying into it just sticks so well in this case...

Proves Novell *believed* it had copyrights

[Flexagon (740643)]

From the Groklaw discussion, the real importance of this document is not necessarily that it proves that Novell has the copyrights (that's actually more difficult to prove), but that it does prove that Novell firmly believed that it has them. This is a direct defense against the specific slander charge against them.

Re:Proves Novell *believed* it had copyrights

[MO! (13886)]

If you've followed any of the discussions on Groklaw you'd understand that it's not for Novell to prove they own the copyrights. The way it works is this - if there's any doubt about whether the APA + amendment transferred the copyrights, then assumption is the original owner retained them. So it's not up to Novell to prove they own the copyrights - the court assumes they do if there's doubt. It's up to SCO Group to prove the contract did in fact transfer, proving SCO Group owns them. So far, SCO Group have not done an impressive job in any court and I would doubt they can prove a transfer occurred.

PDF's of the arguments are ok..

[CtrlPhreak (226872)]

But for the rest of us a link to the actual groklaw story [groklaw.net] and it's analysis is more helpful. Legalease is too much for me.

This doesn't mean Novell owns Unix at all.

[john_anderson_ii (786633)]

Novell is the defendant in this case. SCO has brought allegations against Novell in another attempt to steal money (basically). SCO has accused Novell of releasing statements to discredit SCO. Early on in the SCO drama Novell announced that it actually owned the rights to Unix. When Novell realized that it may not actually own those rights, SCO sued Novell for publishing those statements with malicious intent. (Whatever the hell that means). Anyway, these records could show that Novell had reason to believe that it still owned the copyrights to Unix. If they can still show they had reason to believe they owned Unix, the case might get thrown out because it will be really hard for SCO to then prove that Novell issued these claims with the intent to discredit SCO.

four links...

[jnp42 (224647)]

There are four links listed in that post and none of them are to the actual story [groklaw.net] at Groklaw. Can you knock off the linking of every term in a post that has a website or at least make sure to give us the one link that's most relevant to a post? Please?

Good summary at Lamlaw

[bstadil (7110)]

As always there is a good read about this over at LamLaw [lamlaw.com]

This defends the slander of title charge...

[rkhalloran (136467)]

SCO's charges against Novell aren't breach-of-contract or infringement, it's "slander of title". IA so NAL, but it boils down to (a) you're falsely claiming ownership of something and (b) you're spreading deliberate falsehood that the other party that REALLY owns it doesn't.

Well the judge has said ON THE RECORD that the purchase agreement between Novell and Santa Cruz Operation (which Caldera bought then renamed themselves The SCO Group) doesn't appear to be a valid transfer of copyright, so that shoots down the first part, because the copyright ownership is now questionable.

Now these minutes show that Novell believes they would be retaining the copyrights after the deal. If you think you still own the copyrights, claiming so can't be malicious, so there goes the other argument.

Case closed.

The side-effect is that it throws SCO's claims to the copyrights into limbo, which should give the other folks they've dragged into court ammunition to claim SCO doesn't have the right to sue them.

And SCO starting a new suit vs. Novell to force the transfer at this point would just confirm that and scuttle the rest of their cases.

The Big SCObowski...

[ErnstKompressor (193799)]

NOVELL: They finally did it. They killed my fucking car.

DARL: Vee vant zat money, Lebowski.

SCOLAWYER1: Ja, uzzervize vee kill ze girl.

SCOLAWYER2: Ja, it seems you forgot our little deal, Lebowski.

NOVELL: You don't have the fucking girl, dipshits. We know you never did. So you've got nothin' on my Johnson.

LINUXUSERS: Are these the Nazis, Walter?

IBM: They're nihilists, Donny, nothing to be afraid of.

DARL: Vee don't care. Vee still vant zat money or vee fuck you up.

SCOLAWYER1: Ja, vee still vant ze money. Vee sreaten you.

IBM: Fuck you. Fuck the three of you.

NOVELL: Hey, cool it IBM.

IBM: There's no ransom if you don't have a fucking hostage. That's what ransom is. Those are the fucking rules.

DARL: Zere ARE no ROOLZ!

IBM: NO RULES! YOU CABBAGE-EATING SONS- OF- BITCHES--

SCOLAWYER1: His girlfriend gafe up her toe! She sought we'd be getting million dollars! Iss not fair!

IBM: Fair! WHO'S THE FUCKING NIHILIST HERE! WHAT ARE YOU, A BUNCH OF FUCKING CRYBABIES?!

NOVELL: Hey, cool it IBM. Listen, pal, there never was any money. The big SCObowski gave me an empty briefcase, man, so take it up with him.

IBM: AND I'D LIKE MY UNDIES BACK!

Re:The beginning of the end...

[whoever57 (658626)]

This will put an end to the malice claim in the copyright dispute, which should unravel the IBM case as well...

I'm sorry ... insightful?

SCO's case is for slander of title. There is some chance that the judge might decide that SCO does not own the SysV copyrights, but this filing won't be the document that pursuades him so to do.

This document clearly spells out a lack of malice, since it shows that Novell's execs had a reason to believe that Novell still owns the SysV copyrights.

Furthermore, lack of SysV copyrights won't actually unravel SCO's mostly contract case, but it will advance IBM's counter claims.

Re:What movie is this?

[dead sun (104217)]

No, it shows that the submitter's and editor's English isn't as good as they'd like to think it is. What they said was:

1995 minutes from the corporate kit of a meeting of the Board of Directors

But what they meant was:

Minutes from the corporate kit of a 1995 meeting of the Board of Directors

Or even:

Minutes from the corporate kit of a meeting of the Board of Directors held in 1995

There's no reason for the editors to leave such ambiguity in the summary when they could easily have avoided it. I've spoken English as my primarily language my whole life and seeing it as 1,995 minutes opposed to minutes from a meeting in 1995 was how I parsed it first as well. Also reference all the jokes high up in the list about a 33 hour meeting.

Re:Interesting but irrelevant

[bhima (46039)]

You are aware that SCO is suing Novell and it's different than the SCO vs. IBM deal, YES?