http://www.news.com/Posted on 07/31/2005 11:35:35 PM PDT by Ernest_at_the_Beach
By Stephen Shankland
http://news.com.com/Novell+hits+back+at+SCO+in+Unix+dispute/2100-1014_3-5811081.html
Story last modified Fri Jul 29 17:00:00 PDT 2005
In the latest step in a legal battle over Unix copyrights, Novell has filed a countersuit against the SCO Group, charging it with twice breaking a contract.
The software company also accused SCO with slander of title for claiming ownership of the Unix copyrights in the countersuit, filed Friday in U.S. district court in Utah. That's the same charge SCO leveled against Novell in its own 2004 suit.
Novell, which sells a version of the Linux operating system, also denied numerous SCO charges in the filing.
"SCO made its public statements claiming ownership of the Unix copyrights...with knowledge that title to these copyrights remains with Novell," Novell said in its filing. "SCO made such statements with the intent to cause customers and potential customers of Novell not to do business with Novell (and) to slander and impugn the ownership rights of Novell in Unix and UnixWare."
The months-old legal dispute is a key foundation to two SCO court cases concerning proprietary Unix and open-source Linux, directed against IBM and car parts retailer AutoZone. If Novell can show it owns the Unix copyright, both those cases are seriously compromised.
SCO, based in Lindon, Utah, said its lawyers are reviewing Novell's filing and that counterclaims aren't unexpected in such cases. It did not comment further.
Suit laid out
In Friday's suit, Novell argues that SCO broke the terms of a 1995 contract called the Asset Purchase Agreement, in which Novell transferred some Unix assets to the Santa Cruz Operation. That company in 2000 sold its Unix assets to SCO, which was named Caldera Systems at the time.
SCO has said that a 1996 amendment to the agreement shows that Unix copyrights were transferred as part of the assets. Novell flatly denies the claims. "Neither (the amendment) nor the Asset Purchase Agreement were intended to, nor do they actually, transfer ownership of the Unix or UnixWare copyrights owned by Novell...Title to the Unix copyrights...remains with Novell," according to the Friday court filing.
SCO's first contract violation lies in its failure to comply with requirements to supply Novell with information about licensing activities regarding versions of Unix System V, Novell argues. Specifically, Novell says the company should provide details of Unix licensing deals in 2003 with Microsoft and Sun Microsystems that brought SCO millions of dollars.
The second violation arises from a provision in the Asset Purchase Agreement that calls on SCO to give Novell 95 percent of any license revenue from Unix System V, Novell says. That money includes revenue received from Microsoft and Sun, Novell asserts.
"Under the Asset Purchase Agreement, SCO had no authority to enter into the Sun and Microsoft (Unix) licenses," Novell said.
Novell is asking the Utah court to compel SCO to provide the contracts with Sun and Microsoft and to put revenue from those deals in a trust so that Novell can get it before SCO spends it.
SCO has had difficulties of late. In a 2002 memo that came to light in July, a SCO engineer said he had not found a "smoking gun" that showed evidence of Linux copyright infringement. In June, the company reported the latest in a series of difficult financial quarters, as its Unix product sales continued to decline. And in February, a judge criticized SCO's inability to produce evidence to support its legal claims.
Things haven't all gone Novell's way, either. The Waltham, Mass.-based company in June lost a bid to have SCO's case dismissed.
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Sinking SCO:The Cnet reports that Novell has put yet another broadside into SCO, filing a countersuit that it has twice violated the Asset Purchase Agreement and its amendment. Both of which govern the Unix assets SCO is based on. Further in the suit, they again refute SCO even owns the copyrights they claim.
Now SCO probably now wishes it had been dismissed, then Novell wouldn't have filed its response with these claims.
Novell: "Not only are we the truthful owners of the SCOUnix license, we want our money owed... and then some more."
We are seeing the last days of the company formally known as SCO.
Back in May of 2003, SCO announced that Microsoft had paid them millions, and we were told this is what they paid for:This is an excerpt...According to a statement from Microsoft, the company will license SCO's Unix patents and the source code.Remember that detail? Patents. Plural. At the time, everyone, including me, took them at their word that such patents existed and had been licensed, even if only as cover.But now that Ninja Novell has put its SCO cards on the table, including at least an implied fraud card, no pussyfooting around, in its Answer and Counterclaims [PDF], it's clear there will be discovery in SCO v. Novell regarding the Microsoft license, and they will be looking more closely at the deal struck. We're all looking more closely. Novell has asked to see the license, and it's very likely they will get to see it. Discovery is very broad, as you may have noticed in the SCO v. IBM case. Anything the least bit relevant is usually ordered turned over. So, if they do depositions of SCO and/or Microsoft employees, here's a question I'd like Novell to ask:
What patents, exactly, did Microsoft license?
Excerpt here:
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| About Those "Patents" MS Licensed from SCO in 2003: What I'd Like Novell to Ask SCO or MS in Discovery |
| Authored by: pallmall on Sunday, July 31 2005 @ 04:11 AM EDT |
| Ninja Novell ... I like that. The Ninja has put SCO in an awkward spot about their licensing to MS and Sun. Novell claims that 95% of the license fees paid to SCO belongs to them. Now SCO will have to respond and give some attempt to explain, for the record, why Novell is not entitled to the $25 million. What explanations will they give? That the licenses they sold were not for anything covered by the APA? That would raise questions regarding their earlier SEC filings. And if SCO takes a position that the contractual provisions regarding Novell's compensation are not valid, then the whole contract is invalid -- but SCO is claiming that their contract with Novell gives them the right to sell such licenses to *customers* like MS and Sun. So what is it, SCO-boys? Did you sell the licenses to MS and Sun without telling them that the licenses really weren't what you sold them as? Did you sell them and now claim that the agreement authorizing you to sell them is invalid? Or, how about this one: Did MS and Sun buy these licenses knowing that they were not valid and knowing that the fees would be used for litigation and not for fulfilling contractual obligations with Novell? In light of PJ's observation of the mystery patents, the last question is extremely legitimate and can no longer be dismissed as a far out conspiracy theory. If a company pays millions of dollars for a patent that they do not use, or does not exist, then the company is grossly incompetent or they are paying for something other than what they say they are. And I've never heard the term incompetent used to describe MS. Bravo, PJ. You're a true Ninjette. [ Reply to This | # ] |
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There is documented evidence of a pushpoll being circulated with regards to MS and Linux.
I doubt you'll accept this, though. It isn't from a "trade journal."
Is Microsoft preparing Linux law suites?
From DistroWatch Weekly, Issue 111, 1 August 2005
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Is Microsoft preparing Linux law suites?
Is Microsoft getting ready for patent infringements law suits against Linux? There are those who believe that this is indeed the case. Their reasoning was given further credibility last week when an independent survey company representing several major IT players conducted a paid survey among IT decision makers. A large section of this survey was devoted to public perception about how Red Hat Enterprise Linux infringes on Microsoft patents. Here is one of the questions: "Given this statement, would you be more or less likely to believe that Red Hat Enterprise Linux infringes patents owned by Microsoft?" The survey then went on to present a hypothetical situation that Microsoft granted patent rights to Red Hat, but not to other Linux vendors, then asked: "How would that impact your interest in deploying other brands of Linux in your IT system?"
Is this a beginning of a new Microsoft versus Linux battle? And are we going to witness an endless series of patent infringement law suits against Linux companies? Whatever it is, it seems that the largest software company in the world is getting more and more desperate every day....
Yeah--that's where I got the link in Post #12
According to the employer of PJ from Jokelaw, Lunix infringes on as many as 300 US patents in the kernel alone.
Microsoft, desperate? ROFL, they set record profits every single quarter. What's desperate are you guys that hate them, having to deal with the fact that nobody else cares about your fascination/disorder. Don't even deny it, reality calls.
http://www.cnn.com/2005/BUSINESS/07/21/microsoft.earnings.ap/index.html?section=cnn_latest
"2005 turned out to be a much better year than we expected," Chris Liddell, the Redmond, Washington, company's chief financial officer
i guess they skipped the easy install of apts patent.(grin)
people would have caught on then.
Remember, the word "potentially" does change the meaning of the sentence, and the motive of the entity claiming it matters as well.
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