Did SCO Get Linux-mob Justice?

An anonymous reader writes "According to Fortune's legal blogger Roger Parloff, "once in awhile a judicial ruling comes down that's so wrong at such a basic level that you're just left scratching your head". He claims that Judge Kimball's "102-page ruling (about SCO) was greeted with widespread rejoicing and I-told-you-so's", but "the problem is not that Judge Kimball's view of the facts is wrong". Was the ruling unfair?"

Since when?...

Since Darl figured out how to create a slashdot account.

Re:Since when?...

I'm just amazed at how many supposedly-knowledgeable people continue to fall for what is utter BS. Anyone reading the comments posted to the article within hours of its' first appearance would have seen the whole thing torn apart - in particular, the legal requirement for a transfer of copywrite to include a written transfer, and that, withut that, judge Kimball could NOT rule in favour of SCO even if he wanted to.

This is the same level of "journalism" as pretendrle and mogtroll. Uninformed. Ditto with all those "analysts" who also came out with buy recommendations, talking through their goatse.cx orifices.

The one thing this experience has taught is that many and "analyst", "journalist", "expert" or "lawyer" is just another opinionated asshole, too lazy to do any fact-checking.

1. Boies could have checked the facts and told SCO "you have no case."
2. All the analysts could have checked the facts and told the world "SCO has no case."

While the average slashdotter may not be a lawyer, we seem to have a better grasp of legal fundamentals than many of the "experts". Why? Because we write code, and we know the consequences of overlooking a missed semicolon, a typo, or starting from wrong assumptions. Lawyers, on the other hand, don't have a financial incentive to give good advice or dig too deeply when it means generating less revenue.

Shakespeare had it right. "First, we kill all the lawyers."

Re:Since when?...

The one thing this experience has taught is that many and "analyst", "journalist", "expert" or "lawyer" is just another opinionated asshole, too lazy to do any fact-checking.

1. Boies could have checked the facts and told SCO "you have no case."

2. All the analysts could have checked the facts and told the world "SCO has no case."

You seem to make the assumption that Boies and the analysts didn't know, where ignorant of the fact that SCO "had no case". Sometimes it may seem like these people are idiots, but the thing to remember is that they all have vested interests.

Take Boies: He's a lawyer, and lawyers represent guilty people all the time. Most lawyers are essentially mercenaries. The same thing can be said for so-called "analysts", most of whom are fare from "independent". The same goes for "journalists", who, contrary to what they would like you to think, are far from analytically unbiased.

My point is that you suggest all these talking heads are "too lazy to do any fact-checking" and in general ignorant of the facts. I think you are wrong, I think the facts are obvious, and we must look to other, self-serving reasons for their various proclamations.

Re:Since when?...

Three points:

1. Copyright law REQUIRES that all transfers be in writing. The parties can't agree to do a work-around.
2. The APA specifically excluded copyrights, since Santa Cruz didn't have enough $$$ to buy everything.
3. SCO obviously didn't believe that the copyrights had transferred, because before they filed their suit against IBM, they repeatedly asked Novell to transfer them.

The whole thing was a stock scam.

Re:Since when?...

I have only looked at the excerpts of the contract included in TFA, but I don't see where people are getting the obvious conclusion that the copyright was not transferred in writing.

And that's the problem. The article utterly mischaracterizes the language in the APA.

If you interpret the language from the contract that says Novell is transferring "all rights and ownership of UNIX ... including source code . . ., such assets to include without limitation" as including the copyright...

But you can't interpret the language that way because that very sentence is followed by...

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 Schedule 1.1 (b) specifically lists the following...

V. Intellectual Property:
A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.
B. All Patents

There's no ambiguity. The contract basically says, "I give you everything in set A, excluding those things that are in set B." You're arguing that set A is really big, but that doesn't matter at all. The thing that they want is specifically enumerated in set B, so it's excluded.

Then there's some frantic spinning to try to suggest that because pretty much everything in items I through IV of the Excluded Assets specifically refers to NetWare, obviously "All copyrights" must mean only NetWare copyrights, too. Of course, that's nonsense: the fact that "NetWare" is repeated in every item that refers specifically to NetWare suggests that this item most certainly does not refer to NetWare. Moreover, "the trademarks UNIX and UnixWare" clearly do not refer to NetWare, so why would "All copyrights"? And a final kicker, SCO does not claim (and has never claimed) to have received any patents from the APA, while patents are excluded in precisely the same manner as copyrights.

The arguments presented in the article are bogus: they were already offered to the court, and were resoundingly rejected.

Re:Since when?...

Unfortunately, the author of TFA is a known SCOtroll, like the mogtroll, lyin' lyons, and pretenderle, and chose not to include in his citation the list of rights specificially excluded; that list excludes the copyright transfers.

Originally, Santa Cruz (not Caldera (later to change their name to SCO), who only bought a part of Santa Cruz - the rest became Tarantella) was supposed to buy everything, but they didn't have the money. So, they paid a lesser amount to became Novell's agent in the handling of the Unix licenses, passing on 100% of the revenue, and Novell then remitting them a 5% fee.

This is why Ransom Love (head of Caldera, before the name change) stated that Caldera couldn't open source Unix - others held the copyrights.

SCO, as supposedly Caldera's "successor in interest", (but not Santa Cruz's successor in interest, as they did NOT buy out all of Santa Cruz, contrary to the FUD they have been spreading - just some of the assets) should have known this; the lawsuits were predictably as DOA as the rebadged Maxtor drives from the China factory currently being sold by Seagate.

unfair?

Was the ruling unfair?

Hmmm, I can't think of a more appropriate place to ask that question...

Nope

SCO (and Darl in particular) didn't get enough mob justice. I'm thinking keelhauling is about right.

Link to said ruling

Link to said ruling [wordpress.com]

Re:How?

How can it be unfair when THEY were the ones at fault? When THEY were the ones lying and making false claims? Whatever they get now is perfectly fair game.

Contrary to how the US Justice System is viewed today, despite the actions of any party accused or convicted of wrong-doing, there is a widely-held belief that party should be judged with objectively and conviction be dealt without malicious intent or a decision be made against the party based on personal opinion.

No.

His hyperventilation amounts to ignoring SCO's inflated claims of ownership to everything, failure to prove they owned what they claimed -- which, by the way, they were never able to show in court what it was that they claimed they owned! This is legal wankery at its lowest, folks. Nothing to see here. Move on.

Re:No.

he never claimed they were or weren't guilty, just that from the evidence it probably should have gone to trial.

And that is just a flat-out stupid thing for him to say. There was no evidence! SCO invented this absurd "methods and concepts" legal theory out of whole cloth, but that's not evidence.

Re:No.

The right to a jury trial is not universal. A jury is only needed if there are questions of fact to be decided - juries decide facts, judges decide the application of laws.

In this case, the law was quite clear - without a written transfer of copyright, there were no facts in question for a jury to decide, just the application of the law, which is for a judge.

SCO's theory of an "implied transfer of copyright", without citing a single legal statute, or a judgement or precedent that was not later reversed on appeal, left no legal basis for a jury trial.

Re:No.

Well, TFA seems to disagree with your interpretation

Well, TFA is a troll who doesn't know what he's talking about. Copyright law is very, very, VERY clear on this -- there is no such thing as a transfer of copyright unless there is a written, explicit transfer of copyright. And even then, there are situations where explicit transfers can be made null and void, and situations where transfers can be undone years after the fact.

Basically the writer is claiming that the judge is somehow obligated to entertain a novel new legal theory with no basis in law, and that it is "unfair" for the judge to rule on the law as it is clearly written.

Re:No.

The law is clear-cut. Juries are only there to determine the facts of a case. If there are no facts in dispute, there is no option for a jury trial.

In this case, SCO could not show a dispute around the facts. It could not show that there was a law or statute, or even a precedent, that allowed for "implied" transfers of copyright, which would have then led to the "question of fact to be decided by the jury" of whether, in fact, there had been an implied transfer of copyright.

Juries don't decide on points of law. Just the facts of a case. (and yes, I've served on a jury).

Re:No.

Actually, SCO's theory was that said "implied transfer of copyright" should supersede a written and signed agreement that stated that the copyrights were not transfered. If SCO's line of argument were legally permissible, it would eliminate the entire point of contracts.

Re:No.

Looking at other IP court cases can lead one to believe that SCO was treated differently from other companies. If SCO sued Average Little Company Technologies Inc they may have been able to put on a good show and have a decent chance of winning. But SCO didn't sue a small company, they sued IBM, RedHat, Novell, etc and when you take a large corporation to court and provide no evidence, and use extortion style tactics on those corporation's customers, the corporation is going to fight back.

Did SCO get a black eye from the fight? Yes
Might SCO have got away clean if it was a smaller company? Yes
Is it right that this same dance in a courtroom could have defeated a smaller company? No
Should you expect to get hurt when you wage war with large amounts of people and companies? Yes

Was SCO Treated unfairly? No! If you present no evidence, and base most of your case on false assumptions the law is quite clear that you should loose. And when you base all your financials on something you should loose, you go bust.

Re:No.

To be fair, he was criticizing an apparent failure to follow proper legal process in ruling against a trial jury for SCO, he never claimed they were or weren't guilty, just that from the evidence it probably should have gone to trial

Then that is a matter for appeal. The trial judge ruled on a matter of law. If one of the parties thinks the ruling was in error, take it up to the next level. That's how it is done. The Court of Appeal can:

1. Decline to hear the appeal - original trial court ruling stands
2. Hear the appeal and deny it - original trial court ruling stands
3. Hear the appeal and grant it - original trial court ruling reversed
4. Hear the appeal and send the matter back to the trial court for a rehearing of the ruling on appeal
5. Hear the appeal and order some sort of baby-splitting

All of which is always subject to further appeal. All it takes is lawyers and money; guns optional.

Re:No.

Actually, the reason this wasn't mob justice is because we didn't use our torches and pitchforks.

good point

it's the BSD guys who have the pitchforks

Some bad reasoning behind a good call (maybe)

That's my understanding of the article. It has more to say to law students than FOSS advocates. The title, however, is inflammatory, probably just to make us read it.

Re:Not quite yet

I think if we ever come up with Star Trek matter replicators, the "IP" crowd wil somehow make them illegal.

Re:TACO???

who do you beat it?

I am not understand you're question! :P

No A$$hole Rule

Anyone ever hear of the book "No Asshole Rule"? It applies to hiring and firing staff (and if you're a manager you should probably browse through it.) On a real gut level I think corporations should abide by the ideas in that book. If you can't play nice in the playground with the other kids, you deserve to get your face punched in. Similarly, if you build your business on open source software, you play nice by going to the software developers and saying, "We think you're infringing this IP.. can you work with us to fix that?" If you wanna be the asshole that goes around suing everyone, blatantly lying to the press, and tell Wall Street another set of lies then you deserve to file bankruptcy.

Re:No A$$hole Rule

If all businesses followed the "No Asshole Rule" there would be nobody left to run Comcast, AT&T, Vivendi, News Corporation, Universal, BMG, Time-Warner, ExxonMobil, Halliburton, Microsoft, Paramount, Exelon... I could go on but I'm sure you get the idea.

Re:No A$$hole Rule

You seem to imply that would be a bad thing.

Yodeling

It looks as if this guy believes the judge plainly shouldn't have ruled on the issues he did. I think he should put his money where his mouth is and, pro-bono, file an appeal on SCO's behalf reverting Kimball's decision and repeating the entire 5-year process. My guess is he won't; a good way to generate buzz about your writings is to be on the opposing side of a losing argument, and doing your best to confound things and give reasonings as to why everybody else (against SCO) is wrong. I believe this behavior is known in certain circles as "trolling". That, folks, is why everybody hates lawyers; they just complicate things and can make a problem many times worse, all while taking 5 years to do it.

Re:Yodeling

I posted this on another sub-thread, but I'll repeat myself here.

The judge gets to rule on what is admissable evidence. In fact, he has to, because part of the definition of "admissible evidence" is "evidence that the jury is allowed to see". So the jury can't be the one to determine what is admissible - they'd have to see the evidence to determine that. So it has to be the judge, nobody else can do it.

In the SCO case, the judge threw out a bunch of SCO's BS precisely because it was BS. Second-hand information, for instance, is hearsay, not admissible evidence. Kimball, rightly, threw out the stuff that wasn't actual evidence. Then he ruled against SCO, assuming the most positive (for SCO) interpretation of the admissible evidence.

He seems to have missed the point

As I understand it copyrights can only be transferred by contract where there is explicit language transferring the copyright. Sco was arguing for an "implied" transfer which as far as I know isn't allowed in copyright law. Therefore everybody's testimony is irrelevant absent an agreement which explicitly transfered the copyrights to Sco.

Caldera knew this when they bought the unix business from the Santa Cruz Operation - They were asked if they planned to opensource unix at the conference call and said they'd like to but didn't have the necessary copyrights to do so.

Article date: September 10, 2007, 6:14 am

• That blog article is almost three months old: September 2007.
• That blog article has a provocative title but little substance.
• That blog article is horribly biased.
• That blog article claims that Judge Kimball did not know what he was talking about (especially regarding the APA), while he was praised by others (who are not part of the "Linux-mob") for this deep analysis of the facts.

That blog article is just old FUD.

Nyet

An anonymous reader writes ... Was the ruling unfair?

Hey anonymous reader, why don't you write down allllll your thoughts on this matter and mail them to five years ago when I might have cared.

Re:Why Are People Angry At The Author?

He actually makes a good point. From a legal standpoint, the judge (most likely) should not have granted Novell's motion for a summary judgment. The judge (probably) should have let the matter go to trial. From a "rules of the bench/bar" standpoint, the author is probably correct.

No, he doesn't make a good point. Judges are under no obligation to entertain novel new legal theories for years on end in their courtroom. The case was based on copyright, which requires explicit written transfer. There was no explicit written transfer of copyright, therefore there was no reason for the trial to go forward.

"Mob justice" Good grief!

SCO has had several years in court and nothing that they have come up with in terms of a legal theory to support their position has had any lift to it. This is hardly "mob justice". If anything, there should be complaints that Judge K give them too much slack.

It is about time that the slow turning wheels of justice move to end the long suffering of IBM, Novell, the linux community, and open source in general.

Re:Some of the things that get glazed over...

There are a few things that you are missing:

1. Yes, Novell always wanted to sell the whole business including copyrights. Unfortunately, SCO's predecessor didn't have the money to afford paying for the copyrights, so the copyrights were excluded. So the question that the CEO was asked isn't the one that counts: He was asked "what was your intention to sell". He was not asked "and what _did_ you actually sell". 2. Novell and SCO signed a contract. And that contract is absolutely one hundred percent clear: Copyrights were not included. That's what the words of the contract say. Now the wording of the contract is undisputed. SCO can argue as much as they want what the contract _means_, but there is no disagreement about the text. As the text of the contract is undisputed, the judge can and must decide what the contract means as a matter of law. No jury required, no jury actually allowed because there are no disputed facts. With the written contract available, there is no need for any witnesses. Actually, the judge is required by law to _ignore_ all witnesses that contradict the clear text of the contract. TFA claims that "nobody remembers anymore what the contract means". That is nonsense. The text of the contract is available, so you just give it to the judge to read and the judge will tell exactly what it means. That's why you write down contracts, so that you don't rely on people's memories.

3. Even if a contract claims to sell the copyrights, copyrights need to be transferred by a separate transfer document. That is a legal requirement. As SCO cannot show such a transfer document, Novell still holds the copyrights. Now SCO could have tried to sue Novell to have the copyrights transferred, but they haven't. The copyrights are Novell's until Novell signs a transfer document, no matter what the contract says.

Corporate Juries

How is that "accused's right to a jury of their peers" supposed to work when a corporation like SCO is accused? Is it supposed to be composed of CEOs, or board members, or representatives of other corporations whose execs and directors vote on the testimony?

That one flaw shows what a farce it is to treat corporations as "persons" with the same rights as humans. As if there were any shortage of reasons. Like this corporate flackery from _Fortune_'s Parloff, which is whining that a judge didn't waste even more years, time of people in juries and elsewhere in the legal system already overworked subsidizing corporate warfare like SCO's desperate, doomed extortion of IBM.

Re:Corporate Juries

Saying a corporation is a person is wrong and is a straw man. Corporations aren't people. They can't vote, they don't have human rights. However, they do *exist* and they need to have treatment under the law. A convenient way to treat them under the law is to allow them to function as a person would, in many circumstances -- though, of course, not all circumstances. It would be patently absurd to have a corporation sit on a jury, so obviously we don't treat corporations as people for the purposes of jury duty. On the other hand, corporations can own property, so for the purposes of establishing property rights, it is both convenient and equitable to allow the corporation to assert its property rights in the same way an individual does.

You are committing a couple logical fallacies; most clearly, the fallacy of the excluded middle. Corporations are not people, but also are not totally legally un-person-like. They are in fact between those two things (legally).

Fobes+Daniel Lyons=FUD

This is the same Fobres that employs Daniel Lyons who has repeatedly attacked Groklaw since the case started and defended Maureen O'Gara's stalking of Pamela Jones.

Somebody walk me through this...

Judge Kimball is a "Linux-mob?"

I stopped RTFA after first paragraph.

"... effectively dooming most of SCO's claims in closely related cases against IBM Corp. (IBM), AutoZone (AZO), and Red Hat (RHT), too "

Er, idiot, Redhat sued SCO, not visa-versa.

If he can't understand the difference between plaintiff and defendant, why should I consider any of his other opinions?

Fortune's headlines are even worse than /.'s

Neither "Linux" not "mob" is mentioned anywhere in the article, except for the headline.

The article is about the Novell vs SCO case, it advocate well that the issue of ownership is UNIX(TM) is far from clear cut, and leaps to the conclusion that it should have been decided by a jury rather than by a judge.

A jury is *closer* to to "mob-justice" than a judge, and Linux is rather irrelevant to the question of ownership of UNIX(TM), the headline makes no sense.

Was the headline selected by someone else than the author? Does Fortune get significant money from click hits? If so, maybe an editor chosed the headline to infuriate the Linux "mob".

Re:hmm

I suspect very few of the "call the Waaaambulance" type people here have actually read the article. There's actually quite compelling evidence of shady or unfair goings on in that trial. Completely striking the testimony of one of the main negotiators because of a family member with vested interests (having a wife work at one company is worse than you working for another company?) does seem extremely odd. It's not even slight testimony, it essentially was confirmation that SCO were told and led to believe they had ownership of Unix rights. Although this testimony could've had holes picked in, to completely discount something so incredibly important to the case is odd.

You haven't followed this case, have you?

There is an absolutely, one hundred percent clear contract between Novell and SCO: The contract says "Novell sells the business to SCO, excluding any copyrights". That's what the contract says. Sure, Novell _intended_ to sell the copyrights as well, but SCO didn't have the money for that. SCO's witnesses were excluded for a very good reason: The contract is absolutely clear. It means what it says. Any witness that says otherwise can and must be ignored. That's what the law actually says: Any witness contradicting the meaning of a written contract must be ignored.

SCO was never "told and led to believe they had ownership of Unix rights". They tried to buy these rights. Novell wanted to sell them. SCO didn't have the money.

Just yesterday I went to a shop selling 50 inch LCD TVs. I wanted to buy one. I said "would you sell that TV to me"? They said "Of course, absolutely yes". I said "How much is it?" They said "$3,000". I said "Umph. I've only got $200". I left the shop with a tiny 15" TV. But I have a dozen witnesses that I wanted to buy the 50" one, and they can all confirm that the shop wanted to sell me one. Even the shop assistant and his manager witnessed under oath that they wanted to sell me a 50" TV. So surely I have the right to get that TV for my $200?

What actually happened

This is old. It's from September.

What actually came out about the asset purchase agreement was straightforward. The written agreement says Novell didn't transfer the UNIX copyright to SCO. Earlier discussions between Novell and SCO had discussed transferring the copyright, and SCO wanted to do that. But Novell wanted all the money up front before irrevocably transferring the copyright. (In case SCO went bankrupt or didn't pay, of course.) SCO didn't have enough cash to pay in full. So the actual agreement as signed called for payments to be made over time, and no copyright transfer, just a license. Some people on both sides thought the copyright had been transferred, because that's what had been discussed in early meetings, but that's not what was actually in the signed documents.

Once all this came out in court, the Judge ruled for Novell.

Legally, He's Right

I'm posting this anonymously since I work in the legal field.

The article is right. This wasn't a trial. It was a motion for summary judgment, which has a very strict standard. In order to get to summary judgment, the side trying to get the case thrown out has to say that even if everything the other side alleges is true, they don't meet the elements of their claim. The language is that there is no "general issue of material fact" in their case. (It's Rule 56(c) of the Federal Rules of Civil Procedure [cornell.edu] for those of you playing at home.) Basically, there has to be absolutely no chance that a reasonable jury could ever apply the law correctly and still find for the other side. (That's Anderson v. Liberty Lobby, 477 U.S. 242 (1986), a case which is cited in damn near every summary judgment brief I've ever seen.)

The problem is that the judge can't say "I think that this witness isn't credible" in order to find for summary judgment -- that's a function of the jury which is the factfinder. All a judge can do on summary judgement is say that the case law doesn't give the other side a claim even if everything they say is true.

The SCO decision has a lot of parts of it where Judge Kimball makes credibility judgments. That's not his place at that phase in the case, and he shouldn't be deciding those issues -- the jury should. That's the problem.

Ultimately, it doesn't matter. SCO was wrong on the law anyway, and even if those goes up for appeal, it's probably not going to get overturned. (Even though an appellate court has to review summary judgment orders de novo -- they don't need to defer to the decision of the trial court.) As a matter of law, SCO doesn't have a case.

That still doesn't mean that Judge Kimball should have been inquiring into the credibility of witnesses. It may not matter in this case, but it's bad procedure, and in another case it could easily have been grounds for reversal on appeal.

Rubbish.

Starting from the deliberately inflammatory headline -- note that he never tries to explain how a ruling by a District Court judge after three years of trial amounts to "mob justice" -- Parloff is scrounging for a pro-SCO angle here. He finally settles on this:

And as any second-semester law student knows, a judge can grant such a motion only when, as innumerable courts in every state and federal jurisdiction have repeatedly written, "the evidence, viewed in the light most favorable to the party opposing the motion [i.e., SCO, in this situation], shows there are no genuine issues of material fact."

That's right, as far as it goes. Kimball actually said that SCO didn't have any genuine issues of material fact on their side. Parloff then goes on to pull up some stuff he thinks qualifies as "issues of material fact":

The then-CEOs of both Santa Cruz and Novell (yes, of Novell too) each supported SCO's position in their testimony -- i.e., the position Judge Kimball rejected without even letting a jury hear it.

True enough. The trouble is that the CEOs weren't involved in writing that contract. All the lawyers who were actually involved (on both sides) agreed with Novell. As did all the contemporaneous documents.

But the key issue is that none of that matters. The contract has specific language, called an "integration clause" saying that only what's in the contract matters. Anything outside the contract, like who remembers what, is irrelevant. The contract cannot possibly be read to say that SCO owns the copyrights because the contract explicitly says that copyrights are not to be transferred. Parloff actually touches on this near the bottom of his article, but then dismisses it based on SCO's argument that -- elsewhere in the contract -- it says "all rights and ownership". Now he's just being coy because the actual wording is something more like "all rights and ownership, except those included in section X". And copyright law is very explicit about the kind of language you have to use to transfer copyrights.

It's not always possible to tell a shill from an honest journalist, but SCO and their obvious shills (like Maureen O'Gara) started making claims that Kimball was legally incompetent and often overturned on appeal (not true) at about the same time Parloff came up with this bit of legal opinion. None of the regular press came to the same conclusion. Since he's playing the same riff, I'm guessing he's with the band.

Well "mob justice" is rhetorically over the top

Unless you can show judge Kimball was intimidated by the number of people on Slashdot who hate SCO, it's irrelevant that they do. It's a free country and you can hate anybody you want.

TFA does raise a rather more interesting point: did the judge have legal authority to dismiss the case as he did in the ruling.

Novell asked Kimball to grant a summary judgment. A summary judgment is a ruling by the judge on the elements of the case where there is no legally relevant factual dispute. If I sue you for promising to fly me to the moon for $100, and you admit that you did, there is no factual dispute, only a legal one of whether such a promise is binding. However, if you deny making that promise, we have two different versions of the facts. The judge can't grant me victory because he finds you less credible than me; unless we both agree to let him do that, it's up to a jury. On the other hand, if there was something about the promise that made it non-binding in that (e.g., it was "opposite day") the judge could summarily rule for you, because none of the facts in dispute are relevant.

So the question is whether the judge simply ruled the factual disputes were not relevant to the claims, or whether he improperly took the role of jury and decided to favor one set of evidence as more credible than another. Or maybe he did a little of both, which would be par for this case.

Ultimately, SCO is going to lose because it won't have the money to appeal this decision. If the decision was a proper one that's all to the good. If it were an improper one, then that is a situation any of us might find ourselves in some day, fighting a richer opponent and at the mercy of a judge that favors that opponent.

It's good news when the bad guys get defeated fair and square. It's not entirely good news if they are defeated by biases in a system we depend upon to be fair.

Poor Legal Journalism

The author apparently doesn't understand contract law. If the writing in the contract is unambiguous, then parole evidence (witness testimony) can not be taken into account. Even if everyone on both sides agrees that they meant something else, that is too bad because the contract is unambiguous. That is the case here. The assets transferred have their own schedule and specifically exclude anything in another schedule of excluded assets. Under "Intellecutal Property", only these assets are included:

V. Intellectual property - Trademarks UNIX and UnixWare as and to the extent held by Seller (excluding any compensation Seller receives with respect of the license granted to X/Open regarding the UNIX trademark).

Under "Excluded Assets" we have the following:

V. Intellectual Property:
A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.
B. All Patents

So the only "IP" included are certain trademarks. Copyrights, patents, and all trademarks except "UNIX" and "UnixWare" are specifically excluded. There is no way to read the contract that would transfer copyrights. It doesn't matter what anyone thought they were doing, they should have read the contract (let that be a lesson to you). However, the person that wrote the contract remembers exactly why they didn't transfer the copyrights and why they weren't needed to conduct the business. He discussed it with the board of directors (they run the company, not the CEO) and together decided that copyrights wouldn't transfer because they were worried about Santa Cruz's solvency. Even SCO admits it doesn't have the patents, but that never affected UnixWare licensing. Their own statements (that they bought "all" of UNIX) would logically mean they must own the patents too, but they don't even claim that.

The contract was amended later so that schedule 1.1(b) V. now says:

A. All copyrights and trademarks, except for the [...] copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. However, in no event shall Novell be liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks.

This was done after the sale, and copyright law doesn't allow copyrights to be transferred in this way. STILL no where in "included assets" even under "intellectual property" are copyrights included in the transfer, therefore they are excluded by default. This only modifies the exclusion so there is no way to read it that would legally transfer copyrights. The copyrights to transfer are not included, and are not "required for SCO to exercise its rights". Telling is the fact that Santa Cruz wanted much stronger wording and to have the copyrights transferred, but Novell only agreed to this wording for the amendment. Telling also is the fact that SCO wrote Novell multiple times in 2002 and 2003 to attempt to get them to actually transfer the copyrights and Novell declined.

Only SCO questions?

Madsen wrote in her declaration, "I do not recall anyone in the negotation teams ever saying, or suggesting, that Novell would retain any UNIX copyrights. The negotiation team for Santa Cruz never discussed the possibility, as far as I am aware, that Novell sought to retain any UNIX copyright."

Several declarations say this same thing. "I understood that the copyrights would be transferred. I don't remember anyone saying they wouldn't be transferred." The problem is though that no one remembers anyone ever saying that they would be transferred. It seems to have been an unspoken understanding that doesn't carry any weight in a courtroom. It seems that SCO cannot find a single person that remembers hearing or saying that copyrights would be transferred. That's pretty damning when the contract specifically excludes them and the only people that remember having any discussions on copyrights remember the reasons that they were NOT being transferred.

Chatlos also testified that there was no discussion about excluding or including copyrights because he believes it was implicit in the deal that the copyrights would be transferred.

Duff Thompson, a former Novell executive who now chairs SCO's litigation committee, testified that testified that his recollection of the deal was the initial direction from Frankenberg to sell the whole business. Decl. Mark James Ex. 10 ("Thompson Decl.") at 4. Thompson did not recall "any specific discussions around copyrights" or any "discussion with SCO about the excluded asset schedule" during negotiation of the deal.

Burt Levine, a former Novell in-house attorney who went to work for Santa Cruz after the APA, testified that he worked on some early drafts of the APA but cannot remember which specific provisions. Levine did testify, however, that during APA negotiations, he reviewed and marked up drafts of Schedules 1.1(a) and (b). Decl. Mark James Ex. 14 ("Levine Dep.") at 72- 74. He revised the list of included assets but did not add copyrights. [...] However, he testified that he would have been surprised to hear that Novell retained the UNIX and UnixWare copyrights. Assuming, however, that the copyrights were excluded from the APA, he testified that SCO would have an inherent license to use those copyrights in the business.

William Broderick, a contract manager and member of the Novell APA transition team who is now the Director of Software Licensing for SCO, testified that his understanding of the sale of assets was that the UNIX copyrights were transferred. Decl. Mark James Ex. 15 ("Broderick Decl.") 1, 6, 11. Although SCO claims that Broderick testified that his understanding was based on Novell's explanation of the transaction during company-wide meetings and meetings of the transition team, he testified in his deposition that he did not recall any specific discussion about the transfer of copyrights.

Jim Wilt, a business development executive at Santa Cruz, testified that it was his understanding and intent during the negotiations that SCO would acquire Novell's entire UNIX and UnixWare business, including the copyrights. Decl. Mark James Ex. 19 ("Wilt Decl.") 8. He viewed the copyrights as essential to the acquisition of a software company. Id. Ex. 20 ("Wilt Dep.") at 76-80. Although SCO refers to Wilt as the lead negotiator for Santa Cruz, Ed Chatlos testified that Wilt "dropped out" in the latter half of the negotiations of the Santa Cruz- Novell deal and Wilt, himself, concurred that he was less active at the end of the negotiations when the APA was being drafted. Chatlos IBM Dep. at 184-185; Wilt Dep. at 20-21. He also testified that the lawyers did the drafting of the APA. Wilt testified that he did not recall anyone from Novell stating that copyrights were being transferred.

So it's like me

Re:Don't forget...

and we knew who we weeeeere then,
trolls were trolls, and girls were men,
you know we could use a man like CleverNickName again
Everyone would moderate,
then take a break to masturbate
Gee, our old Slashcode ran great
THOSE...WERE...THE...DAAAAAAAAAAAYYYYSSS