CNET News.com
February 27, 2004, 5:42 PM PT
Posted on 02/28/2004 1:09:29 PM PST by Bush2000
Judge accepts expanded SCO lawsuit
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By Stephen Shankland CNET News.com February 27, 2004, 5:42 PM PT |
Because IBM didn't oppose SCO's motion to amend its claims--a motion that was "subject to IBM's right to move against the amended pleadings"--Magistrate Judge Brooke Wells accepted SCO's new legal attack, he said in a filing Wednesday in the U.S. District Court in Utah.
The second amended complaint drops SCO's claim that IBM misappropriated trade secrets, but adds a charge of copyright infringement. SCO seeks $1 billion in damages for unfair competition and $1 billion for each of four allegations of breaching various contracts by which SCO licensed Unix to IBM and a company Big Blue acquired, Sequent.
When SCO's suit against IBM began, in March 2003, it sought more than $1 billion in damages. In April, an amendment to the suit raised the figure to $3 billion.
"The amount is starting to become breathtaking," said John Ferrell, an intellectual-property attorney at law firm Carr & Ferrell, referring to the damages SCO and its attorney, David Boies, are seeking.
(Excerpt) Read more at zdnet.com.com ...
In other words, if SCO can't prove the latter, they can't prove the former. If they can prove that IBM was not permitted to release the IBM-created UNIX-derivative AIX code due to the reach (as SCO alleges) of the Confidentiality clause, then such release would be a breach of copyright as well as a breach of confidentiality.
So it makes no sense for IBM to make it's fight on the amended complaint -- the ballgame is on the larger issue as to whether SCO can even show any re-use of the UNIX code, and on the interpretation of the Confidentiality clause, especially in view of the recently-emerged 1985 newsletter from ATT that undercuts SCO's legal theory of the Confidentiality clause.
| Novell Inc. |
The SCO Group, locked in a bitter war against Linux and embroiled in a US$5 billion ($7 billion) lawsuit against IBM, may be heading into trouble with the regulatory authorities in New Zealand and Australia.
Asserting it holds the rights to the Unix operating system, SCO's Australia/New Zealand subsidiary is demanding licence fees of A$285 ($320) per desktop and A$999 per server from all Linux users. SCO says that Linux contains code copied from Unix, but to date its claims remain unproven.
Asked if SCO ANZ's demands for licence fees could be a breach of the Fair Trading Act, Commerce Commission's spokeswoman Jackie Maitland says its preliminary view is that ``no one should pay an invoice unless they are clear on the obligation to pay''. Furthermore, Maitland says that ``it is not clear that SCO are entitled to charge end- users who have downloaded a product on the condition they understood the product was free''.
A person or a company falsely claiming to have ownership of a product or service or the rights to payment could breach the Fair Trading Act, said Maitland.
The commission is at this stage not clear what if any representations have been made in NZ, but says it is aware that the ACCC in Australia and FTC in the US ``are dealing with [SCO's licensing demands]''.
Intellectual property lawyer Craig Horrocks says the commission's comment about representations made in New Zealand is hard to understand, because SCO's Intellectual Property Licence for NZ was widely reported in media here.
Horrocks also asks whether New Zealand has adequate consumer protection in the technology arena if the commission simply defers to overseas agencies instead of taking action itself.
Before its crusade against Linux, Caldera, which later renamed itself The SCO Group, offered its own version of the free operating system called OpenLinux. It was well- received, especially as a desktop operating system alternative, and eventually ended up as the foundation of the United Linux consortium which featured large Linux distributions SuSE, Conectiva and TurboLinux.
Renamed ``SCO Linux 4.0'' and costing between US$600 and US$2200 the last version of SCO's Linux distribution was not a commercial hit, and is no longer for sale. However, Linux itself has always been covered by the GNU General Public Licence, which states any software offered under its terms is freely distributable, copyable and modifiable. This apparent paradox has not prevented SCO from claiming licence fees.
| Terms of use © 2002 Dow Jones Reuters Business Interactive LLC, trading as Factiva. All rights reserved. |
That is an error of fact. What the judge ruled on was SCO's "Plea for leave to file an amended complaint." At this point, the only thing that has happened is that the judge has ruled that yes, SCO has permission to file an amended complaint. That is not at all the same thing as the judge "accepting the changes."
The author does not understand what that first part means, and has therfore told us something that is not true in the second part. This is lawyers dancing on the head of a pin. What IBM did not oppose was giving SCO leave to file an amended complaint. They explicitly reserved the right to "move against the amended pleadings" themselves, when they arrive. Between where we are now, and the judge actually "accept[ing] the SCO Group's changes," there are at least 4 steps. SCO has to actually file the amended complaint. Then IBM gets some period of time in which to "move againt the amended pleading." SCO gets to answer that, and sometime after that there will be a hearing, followed by a decision as to whether to accept the amended complaint. To read this article, you'd think all that is done. But it hasn't even begun yet. How might IBM move against a claim of copyright infringement? They will almost certainly demonstrate to the court that two separate companies have registered the same copyrights, and that those are the ones at issue in SCO's amended complaint. There is therefore a dispute concerning the ownership of these copyrights, a dispute that SCO should be required to settle before they bring charges of copyright infringement against anyone. Why waste the court's and IBM's time trying a case that may be moot? This is a reasonable request on IBM's part, and it has a very good chance of being granted. SCO will have to go off and resolve its contract dispute with Novell over who owns the copyrights. IBM is not even a party to that dispute, so it's not something that can reasonably be addressed as part of this lawsuit. Meanwhile, SCO has done something useless and stupid in the form of suing Novell for "slander ot title." Well, they can't really do that either, because that also gets back to whether SCO even has title. Somewhere out of that dreck there has to come a new lawsuit, a contract dispute, over how all those contract terms and amendments between the old SCO and Novell are to be interpreted. SCO says it means this, Novell says it means that, both companies have registrations on file with the Copyright Office, so until some court rules one way or the other, no one can be sure who really owns the copyrights. So it may well turn out that the judge in SCO v IBM will decide not accept SCO's amended complaint, on the grounds that SCO cannot demonstrate that they even own the copyrights they are accusing IBM of infringing.
We are left to wonder who the "he" is that sentence. It is not Magistrate Brooke C. Wells.The reporter didn't even check. That's how sloppy the reporting is. |
I think you should go ahead and declare a Great Victory on whatever your proposal for June 2005 is. I couldn't care less about your grandstanding stunts.
You could start by not misrepresenting what I said. On no occasion have I never said that Microsoft is going to get "slapped with libel for its part in licensing software from SCO." I have said that Microsoft could get slapped with a huge libel suit — 11-digit numbers — should a "snitch" come forward with credible evidence that Microsoft and/or Gates personally was the source of funds behind the BayStar/RBC PIPE deal, or is the source of funds for institutional buys that have had the effect of propping up the SCO stock price while SCO insiders unload for cash. SCO's officers and directors have so far collected $43 million selling shares of a worthless company into a market populated entirely by institutions who are fronting for "clients." Maybe Microsoft has nothing to do with shoveling money at SCO. Maybe they do. They certainly have motive, opportunity, and means. But we'll never know for sure unless someone spills beans that are not normally spilled. Should that happen however, Microsoft will have been caught funding a truly rancid trade libel effort directed at its competitors. I would assume that IBM, Red Hat, and many others would blacken the skies with lawyers if that happens. But I admit it's a big "if." None of the principals are going to talk. It'll be some secretary or bookkeeper or under-assistant deputy lawyer who squawks... if anyone does.
There is enough stuff on the record now to charge SCO with securities fraud. Whether they ever get charged or not is in the hands of the SEC. I don't run the SEC.
Nicky, I think you've got enough if's in there to cover your arse. You may have set a record for conditionals. Congrats... That was downright clintonian!
For reference, your original claim...
I don't know why you won't take up Bush2000 on that wager... Look at it this way: In the off-chance you win, you might actually have some credibility around here.
Submitted for your approval: A large American corporation that has Munchkins operating in discussion forums all around the Internet... spewing insults, cackling like jackals, and behaving like thugs.
What sort of corporation does this? What kind of personality is at its core? And what of the people who join it, like it, and stay?
You're about to be transported into a world of egotistical greed beyond your imagination. A world where truth and lies have no distinction; where anything can and will be said to win the moment; and where insult and bombast are the order of the day.
Welcome to the world of the Internet Thug, and a corporate face that could only have spawned in... the Twilight Zone.
Finally, the root of what we've been waiting for. Everyone with a brain knew that this was a copyright case, yet until now it wasn't even in the lawsuit.
I would presume that the judge is going to want the copyright claims simplified in black and white:
1. What relevant copyrights have been filed and are on-hand at the Library of Congress?
2. What is the chain of ownership for those copyrights?
3. What physical lines of code violate said copyrights?
Let's see the code! Let's see the filed copyrights! Let's see the chain of ownership!
...And then let's get this case settled.
Thank you for deciding this matter.
And that's supposed to be me??? LMAO!
Tell you what... I'll give you another chance to put your money where your mouth is...
I'll bet you... let's say $50K... that I don't work for Microsoft... don't receive a paycheck from them... don't consult for them.
It's your claim. Why not back it up?
PS. Last time you made the claim that I'm paid to post by Microsoft, I offered you this same opportunity to back up your BS... But you didn't put your money where your mouth is.
You're basically just a chickensh!t blowhard.
Want to put some money on it?
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This has all become so complicated that hardly anything reported in the press is true. The reporters are either too sloppy, or too ignorant, to understaand what is going on.