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Did SCO Get Linux-mob Justice? 320

Posted by CmdrTaco
from the look-everyone-kick-this-horse-corpse dept.
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?"
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Did SCO Get Linux-mob Justice?

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  • Since when is 2-month-old news that we already read about (cf: "widespread rejoicing") news?

    • by msauve (701917) on Wednesday December 05, 2007 @01:45PM (#21587227)
      Since Darl figured out how to create a slashdot account.
      • Re:Since when?... (Score:5, Insightful)

        by trolltalk.com (1108067) on Wednesday December 05, 2007 @01:55PM (#21587373) Homepage Journal

        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?... (Score:5, Insightful)

          by Frosty Piss (770223) on Wednesday December 05, 2007 @02:47PM (#21588123)

          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: (Score:3, Funny)

            Jurisprudence has settled that wilfull ignorance is not a defense. Besides, Boies et al should have asked for the decumentation that would allow them to legally prove SCO's case. When you go to see a lawyer, you bring your paperwork with you. Its like going to the shit-house - "The job ain't complete until the paperwork is done."

            Boies was lazy and/or incompetent. This isn't the first time, btw.

  • unfair? (Score:5, Funny)

    by gEvil (beta) (945888) on Wednesday December 05, 2007 @01:25PM (#21586897)
    Was the ruling unfair?

    Hmmm, I can't think of a more appropriate place to ask that question...
    • Fa(ir|re) is what you pay to ride a bus.
      Happiness is inversely proportional to one's expectation of fairness from the universe.
      Conversely, one should export fairness in all directions.
  • Nope (Score:5, Funny)

    by $RANDOMLUSER (804576) on Wednesday December 05, 2007 @01:25PM (#21586907)
    SCO (and Darl in particular) didn't get enough mob justice. I'm thinking keelhauling is about right.
    • Re: (Score:3, Funny)

      by confused one (671304)
      For keelhauling to be properly effective (as it was intended), you'd have to find an old ship with a barnacle encrusted hull.
      • This [navy.mil] should work.

        • by spun (1352)
          Except the Constitution has always had copper plating to keep the barnacles off. How about we use the Vasa [wikipedia.org] ? It might not be floating anymore, or covered in barnacles, but it gives off hundreds of kilograms of sulfuric acid every year. We could even give him goggles to protect his eyes...
          • Re: (Score:3, Funny)

            by peragrin (659227)
            give him? oh hell no those goggles cost $699 a pair to make. we can sell them at cost however.
            • Re: (Score:3, Funny)

              by TheLinuxSRC (683475) *
              "give him? oh hell no those goggles cost $699 a pair to make. we can sell them at cost however."

              You sir, while I admire your bravado, are completely wrong. We do *not* sell anything. We license it. Having said that, we also license based on an arbitrary limit set by ourselves. In this case, the OPU (Ocular Processing Unit; a.k.a. eye). Now, being that Darl has 2 OPUs, we will need to license accordingly.

              To sum up; we will license the goggles to Darl based on the extremely affordable and justifiable flat
      • by bhima (46039)
        You get said parties ready for said keelhauling and I swear to the fucking gods I will provide an old ship with a barnacle encrusted hull to do the keelhauling with.

        Bring Roger Parloff too.
    • by gstoddart (321705)

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

      Arrr ... ye be thinkin' of Pirate justice or possibly them scallywags in the British Navy.

      Ye average mob will mostly just stone you or lynch you with things at hand. Thar be too much planning involved in keelhauling as it involves a boat, plenty of rope and fewer landlubbers. =)

      Cheers
    • My thoughts exactly. If SCO hadreceived the mob justice they so richly deserved [elizabethan-era.org.uk], they'd have had Elizabethan justice: hung (gently, so as not to snap the vertebrae), their privy members cut off and burnt on a brazier in front of them, drawn (disembowled, preferably in the words of a contemporary witness whilst "alive and seeing"), these also being burnt on a brazier in front of them, before quartering, from the bottom up. (Precise descriptions of that are available from your friendly local google, if you've
      • Re: (Score:3, Funny)

        by Basehart (633304)
        Can we squeeze a thumbscrew and flogging in there while they're roasting his member on the brazier? There's really nothing else going on during that bit.
  • Link to said ruling (Score:5, Informative)

    by oahazmatt (868057) on Wednesday December 05, 2007 @01:26PM (#21586911) Journal
    Link to said ruling [wordpress.com]
  • No. (Score:5, Insightful)

    by Scareduck (177470) on Wednesday December 05, 2007 @01:30PM (#21587001) Homepage Journal
    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: (Score:3, Informative)

      by orclevegam (940336)

      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.

      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.

      Of course as far as I'm concerned, we should just go find a nice tree and a bit of rope. I'd classify SCO as either terminally stupid, or patent/copyright trolls, either way we're better off without them.

      • Re:No. (Score:4, Interesting)

        by timster (32400) on Wednesday December 05, 2007 @01:47PM (#21587261)
        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.
        • 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.

          According to TFA the issue had to do with the ambiguity in the contract between SCO and Novell and that the legal process requires viewing of the plaintiff's claims in the light most favorable to the plaintiff. Essentially his argument was that the judge was falsely taking on the role of jury in finding against SCOs contract dispute with Novell, and that it should have proceeded to a jury trial even if SCO was ultimately found to have no case.

          • Re:No. (Score:5, Informative)

            by trolltalk.com (1108067) on Wednesday December 05, 2007 @02:07PM (#21587555) Homepage Journal

            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. (Score:4, Insightful)

              by ZachPruckowski (918562) <zachary.pruckowski@gmail.com> on Wednesday December 05, 2007 @02:36PM (#21587993)
              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. (Score:4, Insightful)

              by N1ck0 (803359) on Wednesday December 05, 2007 @02:46PM (#21588105)
              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. (Score:4, Insightful)

        by Kozar_The_Malignant (738483) on Wednesday December 05, 2007 @02:10PM (#21587597)

        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. (Score:4, Insightful)

      by thewiz (24994) * on Wednesday December 05, 2007 @01:55PM (#21587367)
      Actually, the reason this wasn't mob justice is because we didn't use our torches and pitchforks.
    • Re: (Score:3, Interesting)

      by MightyMartian (840721)
      Let's be blunt here. Wall Street was a big part of this scam, as they usually are with most stock scams. Part of it, I suspect, is because most "experts" are just dumb-ass crap journalists who know nothing about the companies they give thumbs-up or thumbs-down to. They just talk out of their ass, either out of greed (they own the stock and are using their pulpit to pump their investments) or because they are just morons.

      I'll be charitable with this guy and say he's a moron, a scammed idiot.
  • by ProteusQ (665382) <dontbotherNO@SPAMnowhere.com> on Wednesday December 05, 2007 @01:32PM (#21587029) Journal
    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.
  • TACO??? (Score:2, Funny)

    by someone1234 (830754)
    If you know it is a dead horse, who do you beat it?
  • No A$$hole Rule (Score:5, Insightful)

    by vinn (4370) on Wednesday December 05, 2007 @01:33PM (#21587053) Homepage Journal
    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.
  • Yodeling (Score:4, Insightful)

    by Roadmaster (96317) <roadmr@@@tomechangosubanana...com> on Wednesday December 05, 2007 @01:34PM (#21587073) Homepage Journal
    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.

    • The blogger is not trolling. He actually makes a good point: judges are not allowed to play the fact-finder on summary judgment--this would deprive the litigants their right to a jury trial. That's legal minutiae, however, to those who hate SCO and are happy to see it lose. SCO pretty much was losing this thing and a jury trial would have just dragged everything longer. Summary judgment probably saves everyone a lot of time. BUT the thing is that we have to be consistent in our applications of law so we get
      • Re:Yodeling (Score:4, Informative)

        by rewt66 (738525) on Wednesday December 05, 2007 @03:29PM (#21588747)
        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.
      • Re: (Score:3, Informative)

        by ppanon (16583)
        The process of discovery [wikipedia.org] is about identifying evidence relevant to a case. A jury is required when there is conflicting evidence or testimony is in dispute to determine appropriate weight to the relevant testimony. Remember all those court-room TV cases where the defending or prosecuting attorney says "Objection your honor! Irrelevant!" when his opponent tries to introduce a line of questioning or evidence? Remember how the judge says either "overruled" or "sustained"? That's part of the judge's job and it
    • 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.

      In the article, he addresses the appeal point. Kimball denied SCO's request to immediately appeal the decision. They can still appeal it, but only after the jury trial concludes and they'll be able to appeal everything. If the author's notes on c
  • by terrymr (316118) <{moc.liamg} {ta} {rmyrret}> on Wednesday December 05, 2007 @01:35PM (#21587085)
    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.

    • 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.

      IANAL and I haven't been scrutinizing this case closely as it's happened, but my understanding is that the "UNIX source code and copyrights" being disputed were actually ne
      • Re: (Score:3, Informative)

        by SEE (7681)

        my understanding is that the "UNIX source code and copyrights" being disputed were actually never Novell's property in the first place,
        Your understanding is wrong. Novell bought Unix System Labs (an AT&T subsidiary specifically formed to operate AT&T's Unix business) from AT&T back in 1993, including the Unix trademark and the AT&T copyrights.
  • by Anonymous Coward on Wednesday December 05, 2007 @01:36PM (#21587089)
    • 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.

    • 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.

      In particular, he was praised by Judge Gross, the Delaware judge handing the SCOX BK case.
  • Nyet (Score:3, Funny)

    by sacrilicious (316896) on Wednesday December 05, 2007 @01:40PM (#21587139) Homepage
    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.

  • 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.

    Heck, he even allows that the RESULT of the ruling is most likely correct, but the act of the ruling itself is the issue.
    • by jimicus (737525)
      I think you've got to bear in mind the background of the case. By the time Novell filed this motion for summary judgement, SCO had spent years making all sorts of legal noise but had not produced one iota of evidence.
    • After reading through the author's argument, I agree that he did have a point. However, upon further reflection I believe the real issue is that SCO made it clear that they didn't actually want a trial. They wanted to delay things as long as possible so that they could continue to harass IBM and Autozone in hopes that SOMETHING would pop up in their favor.

      Asking for a jury was one method of continuing these delay tactics. The judge saw right through the matter and made a summary judgment instead.

      Rule #1: Do
    • Re: (Score:2, Insightful)

      by miffo.swe (547642)
      The reason for the ruling was simple, SCO had no evidence supporting its claims about anything. Most of SCO witnesses was third part and so their testimoney was pure hearsay. This while IBM could line up both witnesses and piles of documentation including notes from real metings about the APA and other stuff.

      In the five years SCO has had access to just about every single line of code ever written by IBM they still couldnt find a shred of evidence of the "literal copying". Add to that the BSD vs AT&T agr
    • by NMerriam (15122) <NMerriam@artboy.org> on Wednesday December 05, 2007 @02:46PM (#21588117) Homepage

      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.
  • by dogsbreath (730413) on Wednesday December 05, 2007 @01:40PM (#21587155)
    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.
  • Pretty telling, actually.

    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. Each former CEO said that it was his understanding that Novell had sold Santa Cruz the entire UNIX operating system business, including copyrights. Here's how Novell's then CEO Robert Frankenberg testified:

    Q. Was your initial intent in the transaction that Novell would transfer copyrights t
    • by gnasher719 (869701) on Wednesday December 05, 2007 @02:11PM (#21587611)
      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.
    • Re: (Score:3, Informative)

      (I am not a lawyer)

      Of course the case isn't about what was intended, it was about what had actually taken place.

      Did the CEOs intend to transfer the copyright? Sure.

      Did they actually perform the transfer with a specific written document? Evidently not.

      The Novel CEO could have intended to sell the copyright, but SCO couldn't cough up the cash.

      The Novel CEO could have intended to sell the copyright, but the employees closer to the negotiation decided against it.

      Who knows why the terms changed?

      Evidently

  • Corporate Juries (Score:4, Insightful)

    by Doc Ruby (173196) on Wednesday December 05, 2007 @01:41PM (#21587183) Homepage Journal
    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: (Score:3, Informative)

      by Myopic (18616)
      Americans don't have the explicit right to a jury of their peers, merely to a jury. The "jury of your peers" language is from the Magna Carta, so it is in a way implied by common law tradition, but that phrase doesn't appear in the American constitution.
    • Re: (Score:3, Insightful)

      by Myopic (18616)
      Moderators, please, I must insist that the parent post is not insightful, it is ignorant. Corporations are not people, they are merely treated in a similar fashion under the law in some circumstances (and not other circumstances).

      The factual basis of the post is wrong:
      • the accused don't have the right to a trial by a jury of their peers (not in America, anyway);
      • corporations are not treated as persons (in all circumstances);
      • corporations don't have the same rights as humans.

      At most, the post is Interesting (bu

  • by christurkel (520220) on Wednesday December 05, 2007 @01:47PM (#21587263) Homepage Journal
    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.
  • by greenguy (162630) <estebandido@NosPAm.gmail.com> on Wednesday December 05, 2007 @01:48PM (#21587269) Homepage Journal
    Judge Kimball is a "Linux-mob?"
  • by weave (48069) on Wednesday December 05, 2007 @01:48PM (#21587271) Journal

    "... 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?

  • by Per Abrahamsen (1397) on Wednesday December 05, 2007 @01:50PM (#21587307) Homepage
    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".

  • hmm (Score:2, Interesting)

    by abigsmurf (919188)
    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 t
    • by geekoid (135745)
      "told an led to believe"

      Here is a clue "When you sign a contract READ IT and UNDERSTAND IT first." It was very clear the there was no contract or evidence of any kind the Unix copyright had been bought by SCO.

      "Completely striking the testimony of one of the main negotiators because of a family member with vested interests..."
      That's pretty normal in a court. I mean they did have a stake in the out come.
    • Re:hmm (Score:5, Insightful)

      by gnasher719 (869701) on Wednesday December 05, 2007 @02:27PM (#21587867)

      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?
  • According to Fortune's legal blogger Roger Parloff

    Who would be in a better position to determine the definition of "fair" as it applies to SCO? A seasoned federal judge who spent years listening to SCO's side of the case? Or paid blogger who pulls his legal opinions out of his wazzu?

  • by Animats (122034) on Wednesday December 05, 2007 @01:52PM (#21587317) Homepage

    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 (Score:3, Informative)

    by Anonymous Coward on Wednesday December 05, 2007 @01:56PM (#21587389)

    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.

  • There are lots of idiot analysts and journalists out there.

    This post had kerosene poured on it.

    It makes you wish for less people running around with lit matches.
  • Sevens amendment only gives you absolute jury trial rights in criminal cases, where you are involuntarily dragged to court by the government and have your life or freedom at stake. On the other hand, in civil cases the rights of both parties are to be considered equally. A citizen or company has a right to be free of arbitrary, repeated harassment by the party that was shown to have abused the court system over and over again. SCO has certainly shown to be a corporate crackpot by repeatedly changing claims,
  • Rubbish. (Score:5, Insightful)

    by Jaywalk (94910) on Wednesday December 05, 2007 @02:16PM (#21587691) Homepage
    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.
    • Re: (Score:3, Informative)

      by jwilcox2009 (1175035)
      Whether a contract is completely integrated or not is much more complicated than you are making them out to be. For example, the presence of a strong integration clause is only a factor in determining whether the contract is completely integrated. Other factors include the completeness of the agreement (does it have all the terms you would reasonably expect to be in an agreement of this sort) and specificity (is the contract specific enough), which are used to conclude whether it is reasonable to think the
  • by hey! (33014) on Wednesday December 05, 2007 @02:37PM (#21588007) Homepage Journal
    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.
    • Re: (Score:3, Informative)

      by Todd Knarr (15451)

      Judge Kimball says on page 52 of the ruling that all the witness testimony is irrelevant because the wording of the contract is clear and unambiguous. So even if he had an opinion on the credibility of the witnesses, he doesn't need to consider their credibility at all.

      And a judge is allowed to rule on the evidence (matters of fact) in summary judgement. He's simply limited in how he can do so. A jury can weight the evidence and decide which is more credible. A judge can only rule if he can find that the e

  • by jgoemat (565882) on Wednesday December 05, 2007 @03:18PM (#21588595)

    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.

  • by jgoemat (565882) on Wednesday December 05, 2007 @03:48PM (#21588993)

    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

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