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Caldera Government Operating Systems Software The Courts Unix News Your Rights Online

Novell Poised To Strike On Slander Of Title Claim 221

Xenographic writes "As seen in this Groklaw article, Novell is moving to dismiss SCO's slander of title claim with prejudice. They key to it is that SCO needs Novell's claims to be "knowingly false" to establish malice. Since the judge's own order on the motion to remand (see also part 2) questions whether there really was ever actually a copyright transfer, Novell's assertion that there was no transfer cannot be knowingly false, so SCO's case falls apart. Unfortunately, as Novell points out, the judge would be doing this without actually deciding the underlying issue of who owns what copyrights, and SCO could file a completely different suit for breach of contract or something, even though SCO would be unable to refile this slander of title suit. As an aside, I should mention that this isn't the first or only controversy over defamation we've seen in this fiasco by any means."
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Novell Poised To Strike On Slander Of Title Claim

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  • by Bad Move ( 774329 ) on Wednesday August 11, 2004 @09:01AM (#9938619)
    Read Rob Enderle's SCO Keynote [sco.com].
  • by doodlelogic ( 773522 ) on Wednesday August 11, 2004 @09:19AM (#9938740)
    While generally you guys get a lot of things right (constitutional protection, etc), one thing that maddens me about these "only in the USA" stories is the freedom you give to lawyers to run amok with cases and spend all their clients money, forcing the other side to spend even more.

    Here in the UK (well England and Wales at least), as you may know, the loser in litigation generally has to pick up the winner's legal fees. Where the claim was, e.g. an abuse of process, the fees can be payable on a punitive ("indemnity") basis. If either side is on a shaky financial footing, they can be forced to pay money into court to cover their opponent's litigation risk.

    Is anyone thinking of taking these sort of rules into the US system? Or would that not work with the constitution?
  • by Shirotae ( 44882 ) on Wednesday August 11, 2004 @09:26AM (#9938792)

    Another goods thing about Novell exposing SCO's games is that Judge Kimball is also presiding over the SCO v IBM case.

  • by will_die ( 586523 ) on Wednesday August 11, 2004 @09:34AM (#9938841) Homepage
    They come up ever so often under the term of tort reform and "looser pays". The biggest problem is that most of this comes down to a state decision, however it is something that we in the USA will have to solve because of the problems it is leading to in the area of medical and social affairs.
    As an example of how bad it is, the Las Vegas casinos were offered information on terrorist activities around various casinos, they declinded because once they know about the threats they will have more problems with the lawyers if anything happens then then whatever possible damage the terrorist could do.
    Here is one article on 2004 US election [newsbatch.com]. The American tort reform association [atra.org] has article detailing the various changes that various stats are doing.
  • by gowen ( 141411 ) <gwowen@gmail.com> on Wednesday August 11, 2004 @09:40AM (#9938876) Homepage Journal
    If the British system were to be imposed it would have a chilling effect on these types of cases such as malpractice, employee being illegally fired, and class action such as health damage due to materials, such as the asbetos or silicon implants,etc.
    Except, of course, we Brits have already noticed this, and set up a process to avoid it. Firstly, the awarding of costs is always at the discretion of the judge, and they rarely, if ever, force a personal litigant to pay the entire costs of a corporate defendant, except when they feel the case is malicious.

    Secondly, the government Legal Aid scheme exists to fund such actions, if the Legal Aid Service's lawyers think you have a good case. Like a State Defender, but for prosecutions and civil cases.
  • by Graf Typo ( 232832 ) on Wednesday August 11, 2004 @10:00AM (#9939026)
    Heise [heise.de] thinks that in the keynote he mixes up the Nuremberg trials (he can't even spell it) with the Milgram experiment [wikipedia.org].

    Ouch!
  • by ecklesweb ( 713901 ) on Wednesday August 11, 2004 @10:07AM (#9939078)
    That would be Godwin's law:

    As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.


    Of course, there's also Freiler's Maxim:

    Those that incorrectly invoke Godwin as proof that they have won the debate have in fact run out of relevant points to make, and have, by invoking Godwin, admitted defeat.
  • by gowen ( 141411 ) <gwowen@gmail.com> on Wednesday August 11, 2004 @10:23AM (#9939214) Homepage Journal
    Public defenders for civil suits. Now that is a sure fire solution to frivolous litigation.
    I'm sorry, are you illiterate? Let me restate:
    Legal Aid scheme exists to fund such actions,
    if the Legal Aid Service's lawyers think you have a good case
    See that there. Thats why there are few frivolous cases funded by Legal Aid. Let me explain in words a fool like you might even understand:

    If you go to them with a frivolous case, they tell you to fuck off.
  • by Tanktalus ( 794810 ) on Wednesday August 11, 2004 @10:29AM (#9939259) Journal
    IBM has a policy that says "no" to frivolous lawsuits. Generally speaking, just having the policy discourages most people.

    Others, who are not quite as quick on the uptake, must be fought simply to prove that the policy is valid.

    SCO just happens to be one of the latter group.
  • by Anonymous Coward on Wednesday August 11, 2004 @10:31AM (#9939274)
    In case anybody is wondering, he is probably referring to Milgram's experiment [wikipedia.org].
  • by sphealey ( 2855 ) on Wednesday August 11, 2004 @10:49AM (#9939470)
    Linux was based on Minix. [...] Over time, in adding functionality to Minix, Linus Torvalds found that he had created an entirely new kernel. I was very similar to Minix but used none of the Minix source code.
    Um, I am no expert, but I think you are off track a bit.

    Linux was inspired by Minux. But to say it is "based on" Minux is to say that every work of art done by every student since the beginning of time is "based on" the work of the teacher. I don't know many teachers who would take that position.

    Minux is a microkernel; Linux is a monolithic kernel. Changing one into the other would be like taking a dog and morphing it into a horse - very unlikely.

    sPh

  • by vidarh ( 309115 ) <vidar@hokstad.com> on Wednesday August 11, 2004 @11:07AM (#9939646) Homepage Journal
    There is absolutely no basis for your idea that Linus "added functionality to" Minix or that Linux was "baed" on Minix. Linus ran Minix, he didn't use it as a base for the Linux code. Given the massive structural differences between the two (Linux is a monolithic kernel, Minix is a micro kernel system) that should be quite apparent.
  • by gillbates ( 106458 ) on Wednesday August 11, 2004 @11:13AM (#9939711) Homepage Journal

    If you develop on the platform your IP may belong to the world and the value of that IP is part of your Linux price. I'm waiting for the day that someone at GM realizes that Linux developers there regularly talk to their Ford counterparts to solve critical problems and, because may they need to, provide access and confidential information about the company in the process. The Ford executives shouldn't feel too smug because similar information is flowing out of them. And key technologies may not belong to either because of this practice. [emphasis mine]

    Wow, I don't know if I could point out a more misunderstood statement regarding the GPL than this.

    In the first place, developing on Linux doesn't obligate you to release your code under the GPL. So, unless you're an idiot and release your code to the world, you could market and sell Linux applications without ever revealing your source. But that would be selfish - you've benefitted greatly from the benevolence of others, yet you feel no need to give back to the same community that gave so much to you? Let me guess, you're still trying to avoid paying taxes, too?

    Basically, the GPL prevents IP theft. The terms are simple - if you steal our code, you have to make your code available to the public, or risk a lawsuit. In fact, GPL'ing a piece of software is a sort of insurance policy against code theft - if someone copies my GPL'd code into their product, I can then demand they distribute their source code as well. Hence, it serves as a deterrent to the corporate parasites and leeches who make their living by stealing and repackaging the work of others.

    No, using GPL'd software for development won't give your IP to the world, as you suggest. But, the GPL ensures that code leeches can't steal the work of others for the sake of personal profit. You, Rob, didn't write the Linux kernel, nor the GNU utilities and libraries, and hence, have no right to use code you haven't written against the will of the author. Why is this so hard to understand? All the GPL says is that if you use someone else's code, you have to respect their terms. Is that really so hard?

  • by ahillen ( 45680 ) on Wednesday August 11, 2004 @11:16AM (#9939732)
    It seems that Mr. Enderle is confusing the Nuremberg Trials [wikipedia.org] and the Milgram experiment [wikipedia.org]... The rest is not too intelligent, either... ;)
  • Re:Filed copyrights? (Score:4, Informative)

    by UnknowingFool ( 672806 ) on Wednesday August 11, 2004 @11:55AM (#9940105)
    If this slander case does get dismissed, does this mean that the copyright filing stands unchallenged? Or is there another route SCO can go down in order to have the filing retracted?

    No, in the memorandum, Novell clearly states that the copyrights ownership is a separate matter for US Copyright Office or another case to decide. In this case, the judge only needs to determine if Novell has a valid case that they own the Unix copyrights. The judge already determined that the transfer of ownership document (Amendment 2) is ambiguous at best and he is leaning that in favor of Novell that they never transferred such copyrights. The judge does not have to decide who owns them but that Novell can demonstrate that they have legal grounds to claim that they own Unix copyrights for the case to be dismissed because "knowingly false" requirement.

  • by freezin fat guy ( 713417 ) on Wednesday August 11, 2004 @12:05PM (#9940199)

    Wow! Nice link! That's one disturbing piece of work. I took enough psych to see that the man is clearly egomaniacal, I'm curious if he's borderline delusional. Anyone with more training have an insight?

    Nor is this well formed apologetics as he fundamentally contradicts himself more than once. For example, he attacks the working man since he asserts that the majority of Linux users are not entrepeneurs. Not that the majority of any OS users are entrepeneurs but ok. So he calls people who work for a living "zombies". Later he proposes to be championing the case of the working man. Dude, you just called him a zombie! (And you wonder why people threaten you?)

    Also enjoyed the inference that many Linux users are clueless morons who don't code or play video games!? First, the fact that Linux finally has some non-coders using it is an indication that it is getting more user-friendly. Secondly, do you really want to compare the coding skills of the average Linux user with, say, the average XP user? (Not bashing any of the bright coders who do use XP but you also realize that you do not represent the average user.) And video games? Ooo, how sinister is that? What does that have to do with anything? (However you can make the case that Osama Binladen doesn't play video games. Is it such a stretch to think that non-gamers might be terrorists?)

    But let's not throw out the good with the bad. His point that no one has the right to threaten him (or anyone else) with violence is just. Point taken. This is an area where the OSS advocates need to take note and clean up their image a little.

    You still get the feeling he's using the image to try to paint Linux advocates as the bully and SCO/Microsoft as the victim.

    Too weird.

  • by Jeremy Erwin ( 2054 ) on Wednesday August 11, 2004 @12:46PM (#9940601) Journal
    Dans ce pay-ci, il est bon de tuer de temps en temps un amiral pour encourager les autres.--Voltaire

    "In this country, it is a good idea to kill an admiral from time to time, so as to encourage the others."

    In 1756, Admiral Byng was ordered to prevent the French from taking Minorca. He was supplied with a fleet of thirteen ships that were both ill equipped and undermanned. To make room for the soldiers he was to receive from the Gibraltar garrison, his marines were reassigned to other squadrons.

    In Gibraltar, when he requested the reinforcements, Byng was rebuffed, as the local governor feared a French attack on his city.

    The admiral sailed on to Minorca-- but his initial engagement with the French fleet proved disastrous. The relative positions of the French and British fleets made the standard "Fighting Instructions" ineffective-- the leading ships of Byng's line engaged the French fleet unsupported, and as a result, were quickly dispatched. Byng refused to break up his line, and shortly thereafter. was forced to withdraw, as his remaining forces could not possibly relieve the siege, even in the absence of a French fleet. He sailed for Gibraltar, and Minorca was taken. Byng was arrested, court martialed, and shot, as he had failed to do his duty.

    "Pour encourager les autres" is a rationale for exceptionally harsh punishment. If IBM were to sue SCO for patent infringement, receive the remainder of SCOs assets in a settlement, and then symbolically burn SCO to the ground, such actions could be construed as "Pour encourager les autres,"

  • by Landaras ( 159892 ) <neil@@@wehneman...com> on Wednesday August 11, 2004 @01:07PM (#9940814) Homepage
    I am in the process of writing a full critique of Enderle's keynote. Specifically, he employs numerous logical fallacies.

    Read what I have written so far. [fallinggrace.com]

    - Neil Wehneman
  • by duggy_92127 ( 165859 ) <doug.sheaNO@SPAMgmail.com> on Wednesday August 11, 2004 @01:16PM (#9940902) Homepage

    Oh my god, I know there have been a lot of comments about how this guy's a troll, but just reading that crap is amazing.

    That is why I stood up for SCO; they were being attacked because they were vulnerable. Those that attacked them did so because they could in a clear effort to deny the employees, the stockholders, and the customers of SCO their rights and, as a number of veterans have reminded me from time to time, heroes died for those rights and I believe it is our.... No my, obligation to uphold them.

    SCO is being attacked? Didn't they start all this? Oh, I see, they were just defending their rights that "heroes died for"... What a blatent pull at heartstrings. What utter crap.

    Doug

  • by Anonymous Coward on Wednesday August 11, 2004 @01:24PM (#9940979)
    No they didn't. The original is still here [thescogroup.com] just as it always has been. I grabbed a copy very shortly after it went up and it is no different then the one still there. Shit, ass, and bullshit are all still in there.
  • by Our Man In Redmond ( 63094 ) on Wednesday August 11, 2004 @01:25PM (#9940992)
    As pointed out on Groklaw, the Nuremberg experiments have nothing to do with the Nuremberg trials (other than the name Nuremberg). It's at most a semi-clever attempt by Enderle to both change the subject and try to link Linux advocates with Nazis without coming out and saying the N-word.
  • Confused (Score:1, Informative)

    by Anonymous Coward on Wednesday August 11, 2004 @01:49PM (#9941219)
    you have confused two items: federal and state lawsuits vis-a-vis criminal and civil lawsuits.

An Ada exception is when a routine gets in trouble and says 'Beam me up, Scotty'.

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