SCO Amends Novell Complaint

rm69990 writes "According to Groklaw, SCO now seeks to amend their complaint against Novell. SCO says it 'seeks leave to file a Second Amended Complaint in significant part in consideration of the counterclaims that Novell asserted in its Answer and Counterclaims.' SCO now accuses Novell of infringing SCO's copyrights by distributing SUSE Linux, of breaching a non-compete clause between the two companies, and SCO is also asking for specific performance forcing Novell to turn over the Unix copyrights to SCO. So SCO is essentially admitting that Novell owns the copyrights at this point, but is saying that Novell breached the contract (that specifically excluded copyrights) by failing to transfer them to Santa Cruz."

From The Article

[putko]

This looked the most meaty and techy from TFA:

    EXHIBIT B

          Novell's unauthorized copying in its use and distribution of SuSE
          Linux includes but is not limited to the appropriateion of the
          following data structures and algorithms contained in or derived
          from SCO's copyrighted material:

          1. SuSE's implementation of the "Read/Copy/Update" algorithm
          2. SuSE's implementation of NUMA Aware Locks
          3. SuSE's implementation of the distributed lock manager
          4. SuSE's implementation of reference counters
          5. SuSE's implementation of asynchronous I/O
          6. SuSE's implementation of the kmalloc data structure
          7. SuSE's implementation of the console subsystem
          8. SuSE's implementation of IRQs
          9. SuSE's implementation of shared memory locking
          10. SuSE's implementation of semaphores
          11. SuSE's implementation of virtual memory
          12. SuSE's implementation of IPC's
          13. SuSE's implementation of load balancing
          14. SuSE's implementation of PIDs
          15. SuSE's implementation of numerous kernel internals and APIs
          16. SuSE's implementation of ELF
          17. SuSE's implementation of STREAMS
          18. SuSE's implementation of dynamic linking
          19. SuSE's implementation of kernel pre-emption
          20. SuSE's implementation of memory mapping
          21. SuSE's implementation of ESR
          22. SuSE's implementation of buffer structures
          23. SuSE's implementation of process blocking
          24. SuSE's implementation of numerous header files

/. editors up to their usual form

[puzzled]

  SCOX is arguing that Novell has infringed on their copyrights with SuSe Linux. They've also argued that Novell has failed to properly transfer the copyrights to them. Two lines of argument, each in opposition to each other, are perfectly fine the the court system. I forget the name for this, but basically SCOX is offering judge Kimball two different ways to give them 'relief' for Novell's supposed wrongdoing.

  SCOX has admitted nothing. The meaning of 'admit', to a court, is that one of the parties involved is giving up information to the court that the other side can't prove. If SCOX were 'to admit' a lack of copyrights in lawyerspeak their case would instantly disintegrate and the door would open to Lanham Act claims and all sorts of other nastiness. SCOX never, ever 'admits' to anything.

  There are plenty of people with knowledge of this case - see groklaw.net for mind numbing detail, or go to the Yahoo SCOX board if you'd like rowdy commentary and a sad, funny little troll named backinfullforce.

Re:Wha?!?

['nother poster]

Here is the short version. Novell contracted with SCO to manage the UNIX licensing, but did not transfer the ownership of the Copyrights. This is disputed by SCO. Part of that agreement, according to SCO, was that Novell would continue to sell it's existing line of OS products. This is not competing since they are handled by the license agreement and SCO would get a pittance for each copy sold by Novell. SCO says that Linux violates this because they don't get any money from Novell selling Linux because it's not part of the license agreement, therefore competing.

They also claim that parts of UNIX were misappropriated into Linux, therefore they should get ownership of those parts also, but that is a seperate part of the complaint

Re:How can they keep doing this?

[confusion]

The answer is that they're not doing well financially at all. They continue to get infusions of cash from private investors to cover ongoing legal costs: http://www.forbes.com/2005/12/22/jetblue-applied-s ignal-cx_dn_1222eyeonstocks.html [forbes.com]

I suspect they can keep it up for another year or so before they start running out of investors to screw.

Jerry
http://www.cyvin.org/ [cyvin.org]

Re:Didn't SCO have a ceiling agreement

[martyb]

Try these:

• [google.com]http://www.google.com/search?hl=en&q=SCO+legal+fee s+limit [google.com]
• SCO Puts limit on its Legal Payments [zdnet.co.uk]
• Start-up hedges companies' bets against SCO [geek.com]
• SCO Cuts deal for legal expenses [arstechnica.com]
• SCO Puts a Cap on its Legal Expenses [slashdot.org]
• SCO's case doesn't fit, but the lawyers won't quit [networkworld.com]

Re:Wha?!?

[IllForgetMyNickSoonA]

AFAIR there was a "shall not compete in UNIX bussiness" clause in the original SCO/NOVELL UNIX contract.

IBM or Novell should just buy SCO out

[Khopesh]

SCO's Fiscal 2005 Results [sec.gov] noted that their assets total roughly $30 million (down from $56 million the previous year). See also the SCOfacts.org Scorecard for SCO vs. World [scofacts.org]. IBM's numbers [yahoo.com] are all measured in billions of dollars, and Novell's numbers [yahoo.com] all exceed a hundred million.

If IBM or Novell (or some trust composed of several heavy hitters) completely bought SCO out, all of this legal crap would go away. It's not too far-fetched, either. We could even see SCO's copyrighted UNIX code released under the GPL ... in the event that we actually wanted it ;-)

Maybe my suggestion is a year or two early; at the rate SCO is shrinking, its value will soon drop below the cost of defending its claims in court.

Re:/. editors up to their usual form

[mkoenecke]

Just to clarify a bit, as an attorney: it's termed "pleading in the alternative," and in this case SCO's claim is better described as "We maintain that we own the copyrights; but even *if* that were not the case, we would win anyway because Defendant was contractually obligated to transfer them to us." It is not the same thing as admitting, even conditionally, that they might not own the copyrights.

(Note: just pointing out how "pleading further and in the alternative" works, not - Heaven forbid - supporting those clowns at SCO.)

Re:Wha?!?

[Anonymous Coward]

To be clear.

Here is the short version. Novell contracted with Santa Crus Operations to manage the UNIX licensing, but did not transfer the ownership of the Copyrights. Santa Cruz Operations sold its UNIX licensing operation to Caldera. Caldera changed their name to The SCO Group. This (the non-transfer of copyright) is now disputed by The SCO Group .

I wanted to clarify the difference between 'SCO' and 'SCO'.

Re:Okay, so just to be sure

[kimvette]

FYI strictly speaking Linux is not Unix because it is a clean-room clone of UNIX - it is not derived from the original code.

From functionality/feature set, performance, and user experience Linux may as well be considered Unix but the semantical distinction is very important for precisely this kind of issue (e.g., SCO trying to get all Linux users to fork $600/processor over to them)

ALSO as an aside:

SCO is guilty of not paying the 90%+ of licensing fees that they owe to Novell. I believe the suit against Novell was launched because the shit was about to hit the fan with Novell's demanding that they receive the royalties for the use of their copyrighted works, since SCO was under contract to handle UNIX license brokering.

Now, for the conspiracy theories of Microsoft's being the puppeteer behind SCO's actions since 2000 - well, that's open for debate and I don't know whether or not to believe them, but I do know that projects like Linux, BSD, and OOo are striking fear deep into the hearts of Microsoft execs, because they know vendor lock-in is a dying business practice in modern computing. Think of it as the third PC revolution:

PC revolution 1. PCs entered homes and small businesses in the late '70s, early '80s. There was no standardization, and file sharing/networking was largely limited to sneaker net, and god help you if you didn't buy all your computers from the same vendor because one computer won't read another computer's disks/tapes/etc.

PC revolution 2. The IBM PC came in with semi-standardized hardware and Microsoft came in with an OS which later introduced some networking capability, and shortly thereafter a usable GUI and an suite of office apps which were (relatively) easy to use, and was relatively inexpensive (at the time) due to competing standards. Microsoft did not dominate the market by far then, so DOS, Windows, and Office became downright cheap to buy, and Microsoft actually took market share from then-king-of-mainframe-word processing WordPerfect.

PC revolution 3. 15 years later, Microsoft owns the market. Whether you like it or not you own and run Windows - on at least one computer in your office. That computer has the latest version of Microsoft Office on it so you can exchange files with other companies. Competitors have been killed off (SmartSuite) or effectively killed off (Corel Office/WordPerfect) or unnoticed (StarOffice). Windows and Office skyrocketed in price - quadrupling over the course of a few years, far ahead of inflation and not following the trend of the rest of the software and hardware world (coming down in price) Frustrated vendor lock blocking ANY opportunity to compete against the monopoly, Sun Microsystems gave away Star Office and even opened up the source, targeting a rewrite and eventually an opportunity to level the playing ground to make their platform attractive to customers once again. The availability of OpenOffice with its improved M$ format filters make Linux and Solaris attractive alternatives to home and business users alike, and improved security is a nice benefit in the deal. SCO has a monkey on their back because they haven't paid the 85%-90% of the UNIX licensing fees they have collected to Novell. Microsoft, knowing their days of vendor lock are at risk, and knowing SCO's position, buys a pile of UNIX licenses and whispers in Darl McBride's ear that perhaps SCO can convince courts that they own the copyrights to UNIX (not merely holders of the licensing brokerage rights) and that Linux violates those copyrights. This tactic is designed to scare companies which are considering open source or other alternatives right back to Microsoft.

Possible? Definitely.
Is it actually true? only Darl McBride and Microsoft insiders know for sure.

Re:IBM or Novell will *NOT* just buy SCO out

[petermgreen]

getting back the copyrights to the historic unix source would not make linux an official unix. to do that linux would have to be passed by the open group like all other official unicies are.

Re:Wha?!?

[rm69990]

Never mind that the non-compete clause was rendered inneffective when Santa Cruz sold their assets to Caldera. (The TLA offered Novell a full license back of Unix and SCO's modifications, but with some restrictions. The contract stated that those restrictions caese to exist in the event of a change of control of SCO.)

Read these linked PDFs.

http://www.novell.com/licensing/indemnity/pdf/8_20 _03_n-sco.pdf [novell.com]
http://www.novell.com/licensing/indemnity/pdf/10_7 _03_n-sco_tla.pdf [novell.com]
http://www.novell.com/licensing/indemnity/pdf/10_9 _03_sco-n.pdf [novell.com]
http://www.novell.com/licensing/indemnity/pdf/11_1 9_03_n-sco.pdf [novell.com]

As you can see, SCO brought up the non-compete clause in the press back when Novell first announced the aquisition, but never addressed the issue with Novell. Novell said that claim was baseless.

Also notice the difference in wording from the two lawyers corresponding back and forth. Lasala (Novell) always mentions specific clauses in the agreement that support his position, and lays it out very clearly, whereas Tibbits (SCO) simply says "We don't agree, fuck off" (paraphrased of course).

Also, in the SCO complaint you will notice SCO says "Why would Novell need a license if they retained the copyrights?"

The TLA specifies the licensed technology as "any code not owned by Novell as of the date of this agreement". This means that Novell retained the copyrights over Unix (due to copyrights being excluded elsewhere in the agreement), and also a license to any SCO modification or derivative. In the first linked letter, Novell demands all versions of Unixware and Unix under SCO's control. This includes the latest versions containing copyrighted SCO code.

So, if the copyrights didn't pass to SCO (very likely) Novell is allowed to distribute their own code, and has a license to redistribute SCO's code, without any restrictions (due to the change of control of SCO). If the copyrights did or do transfer, Novell still has a license to all of Unix with no restrictions.

Novell has killed any hope SCO had of ever holding any Linux users or vendors liable for copyright infringement.

Re:How can they keep doing this?

[killjoe]

People who own stock in MS and Sun for one. There are also many many companies such as SAP, Oracle etc who see a tremendous threat from the open source ecosystem.

Re:From The Article

[msobkow]

1. SuSE's implementation of the "Read/Copy/Update" algorithm

RCU was developed by Sequent as part of NUMA IIRC, with the express intent of it being used by multiple operating systems. I was working on a Sequent S81 years ago, and their sales reps were quite excited about the idea. IBM subsequently acquired the rights by purchasing Sequent. SCO will lose this one.

2. SuSE's implementation of NUMA Aware Locks

See above RE: RCU.

13. SuSE's implementation of load balancing

Nonsense. If SuSE used SCO/SVR load balancing, it would fall over at a pathetically small number of CPUs the way SCO's implementation does.

14. SuSE's implementation of PIDs

LMAO. Ah, now process id's are something new to SCO. Must be really good drugs for them to come up with this one...

15. SuSE's implementation of numerous kernel internals and APIs

Ah, the ever-popular boogeyman of "and other stuff". Without specifics, the courts will toss it.

16. SuSE's implementation of ELF

Lots and lots of really good drugs!

24. SuSE's implementation of numerous header files

Another "and other stuff" boogeyman.

Can't speak to the rest as I haven't a clue, but these points are largely the ones held against IBM, and I'm pretty confident that the best SCO can hope for on the points has already happened -- they weren't summarily dismissed as a frivolous lawsuit. But actually win any of them? Not likely, methinks.

Not likely at all...