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."
Re:Why not just make this go away? (Score:5, Insightful)
I think they'll crush them into the ground. Then spit on them.
Re:Why not just make this go away? (Score:5, Insightful)
Why can't IBM ... just buy these clowns?
"Pour encourager les autres". It would send a clear message to every Self-serving Cynical Organisation that playing fast-and-loose with the law against legitimate businesses is an acceptable and profitable activity.
Best result here is for SCO to die horribly - and publically[1].
([1] OK, my best result is Darl et al serving time, but I'll settle for Joe Q WallStreet knowing that SCO's business model was suicide)
Re:Why not just make this go away? (Score:4, Insightful)
a) a waste of money
b) likely to be seen by some at least as implicit admission that they had a case
Strike 2... (Score:3, Insightful)
That is 1 damning excerpt! If the court has ruled that malice cannot be proven, and slander MUST have malice, logic dictates SCO loses again (FUD: courts are not always logical).
Another nice point was Novell's allusions to the Red Hat and IBM cases - kinda like saying 'Since I appear honest and forthright to you, your honor, I wish to state my endorsements of the positions offered by these fine 2 companies in their battle with the plaintiff in OUR case'
Brilliant!!!
Re:Why not just make this go away? (Score:3, Insightful)
Lying, cheating, stealing, and then cooking the books to cover it has been a suicide business model for years yet it doesn't stop companies from continuing to do it.
Re:Why not just make this go away? (Score:5, Insightful)
Instead, you want to make sure that IBM and others continue to use their formidable might to squash these bugs into oblivion.
Re:Free Software and the Idiots who Buy It (Score:5, Insightful)
Mods, do not be mislead by the title (lifted wholesale from the original Enderle Troll article at www.sco.com) - this is an informative post, that links to Rob Enderle's now (in)famous speech at SCO Forum last Tuesday. I've been looking for this transcript for a few days now - kudos to Bad Move for posting this.
Re:Why not just make this go away? (Score:5, Insightful)
If you dig into the copious records, you will find that being bought by IBM is one of the things SCO set out to achieve. The idea was that various people would walk off with a large pile of cash from IBM just to get rid of them. They have now discovered that it is not that easy to squeeze cash out of IBM by being irritating.
The principle is much like that of not paying a blackmailer or extortionist. If you pay one, they will queue up for their handout. If you grind the first one into the dust, others are not so likey to try it on.
Re:Why not just make this go away? (Score:5, Insightful)
The only acceptable punishment for these people is the complete destruction of their lives and their families lives. It's no less damaging than what they did to their employees. Pure Hammurabi code here.
Re:Free Software and the Idiots who Buy It (Score:5, Insightful)
Re:Why not just make this go away? (Score:3, Insightful)
Still, regulations, the possibility of prison time, the destruction of one's career, etc., do serve as some deterrent, and I don't think it's overly optimistic to think that the overwhelming majority of exces and investors will play it straight, whether for fear of repercussions or by their own integrity.
The stocks again (Score:5, Insightful)
Lets have a look at their 6 months movement.
This little chart [nasdaq.com] shows how newSCO's stock is doing. Their recent pressreleases and blabbering during the SCOforum left a certain spike upwards, then things settled again, and the price is currently at around $4.30. Compared to such companies as Novell, wich you can see the comparison of here [nasdaq.com], there clearly is a trend that whenever newSCO releases some FUD to the general public and the eager-to-cover media their stock is up for a short time, and the companies they are in legal battles with are down. Then it all slowly goes back as it was before. IBM [nasdaq.com], RedHat [nasdaq.com] and Novell are all three doing rather well [nasdaq.com] in comparison to newSCO.
It's sad to see how this hunger for money drive a former great company into the ground. I hope both investors and current stockholders realize that the only thing that is going to save newSCO is to focus on their product [sco.com] and shuffle Darl and his litigation off into the void.
Re:Why not just make this go away? (Score:3, Insightful)
sPh
SCO doesn't want to file a contract suit here (Score:4, Insightful)
The last thing SCO wants is to file a contract suit against Novell here. The only ones they could file that would touch on the copyrights at all would all involve a claim of "They're obliged to transfer the copyrights, make them.". If they don't make that claim, there's nothing else in the APA to hang a case on. If they do make that claim, they instantly kill all their other cases because it's an admission that they don't own the copyrights right now.
Re:Free Software and the Idiots who Buy It (Score:4, Insightful)
His tales of working at Rohm/IBM were interesting. He holds a very big grudge towards IBM. He held a lot of different positions. It sounds like he was unstable. Reading between the lines it sound like they finally got tired of his act and showed him the door.
He spent a lot of times talking about spys in the audience. He then did not understand or pretended not to understand "free" software. He talked about software that was free as in beer instead of free as in speech.
Re:Disadvantage of US vs British legal system (Score:2, Insightful)
Re:Why not just make this go away? (Score:4, Insightful)
This kind of assumes I can kill my relatives if I think they are about to do anything I will be destroyed for. Hopefully you don't have a gun-carrying uncle with an unusual fondness for DMCA.
I don't know if jail is the right answer either. I would be scared to stay in a "country club" where Darl might try to fsck my unauthorized backdoors.
The thing is, all SCO/Darl did is hand in some papers to court. The judge could have consulted slashdot, Grocklaw or just his/her own common sense and told Darl to use the papers to clean his own backdoor. That's also what would happen in most countries, or in US 10-20 years ago. Except for slashdot, Grocklaw or female judges that is.
The real solution is to clean up the legal system so that you need a darn good evidence to start a lawsuit, you need to convince a skeptical judge before you even contact another party with an C&D letter and you have to pay the costs government wasted on your case if you fail.
Re:So I can clearlynot choose the wine in front of (Score:2, Insightful)
Re:So I can clearlynot choose the wine in front of (Score:5, Insightful)
To make SCO lose the suit, Novell can attack either or all of these. An obvious way to win the suit would be for Novell to get the issue of copyright decided. If Novell can prove that they own the copyright (by getting the judge to consider whether the APA with amendments satisfy the federal rules for a copyright transfer or not) then SCO has lost (and Novell might have a case for a counter suit...).
So while you're right that they aren't sued for copyright infringement, that is irrelevant - the ownership of the copyright can still potentially decide the case.
However deciding the ownership of the copyright could potentially drag out - it would likely require discovery, and we know from SCO vs IBM that SCO are good at dragging out discovery.
What Novell has chosen instead is to try the quick option, while still leaving the more painfull option open for later. They try for the dismissal now, arguing that regardless of who owns the copyright, the ownership isn't clear (pointing out that the judge too said it wasn't clear) which would in itself mean that SCO can't win the case because they can't prove malice. They also argue that informing about the dispute is priviledged communication (meaning you can't sue for slander over it, amongst other things) and as such the statements they made can't be slander.
They then claim that this can be decided as a matter of law based on filings so far, and their references to public statement, without need for discovery.
The worst thing that can happen to Novell is that the judge decides that the matter isn't quite so clear cut, and Novell can try for a summary judgement again later in the process after some discovery.
The worst thing that can happen to SCO is that their case is dead, dismissed with predjudice, preventing them from refiling the same or similar claims against Novell. This would essentially permanently cast doubt on whether they actually own any copyrights at all, making it near impossible for them to try to enforce copyright claims against anyone else, meaning that Novell gets almost the same benefits with much less risk (each unused opportunity to kill SCO's claims increases the chance that Novell might get screwed over by a mistake later, so why take the risk)
(ObDisclaimer: IANAL)
Re:Free Software and the Idiots who Buy It (Score:5, Insightful)
This is a classic troll. If you can't win with facts, change the subject. Also appear like you dont care either way, but you want your opinion out there. Durring my years working at some comapny, my boss was shot in the face, this is why sco has a good solid case.
All I got from the sections that applied to the subject was that he has a very clear misunderstanding of how open source works. He attempts to get the reader to belive that if you write software for linux, you must make it open source (kinda like saying if you write software for MS windows, it must be closed source, and MS owns the software).
The only truth I read was when he pointed out that companys only give things away for free when they know they will make money on it. WELL DUH! Why does IBM want to sell linux? Hardware and support contacts. But that is not proof positive that linux costs money. It does not cost money. Linux is not hardware, it is not training, it is not support. Those are things you may need to run linux, but you will need all those thngs to run any other OS out there. And I would be happy to burn you off a CD of any linux distro you like, FREE of charge.
Oh well, its all crashing down around them anyways. I'll just sit back and drink my coffee.
Actually, I've been researching Enderle... (Score:5, Insightful)
You are right--he is a troll, effectively. You see, for a long time he's worked to be someone the media quotes (they still do, all too much, even though he doesn't know what the hell he's talking about half the time--he even mentions some of the trouble he got in in that speech).
In fact, his Enderle Group sells his quotability as a service--pay us, and we'll tell the press good things about you. That, plus as he admitted in his speech, he supports Microsoft for unrelated personal reasons.
Now then, people have started attacking his credibility en mass due to the SCO debacle. Some have even (gasp!) insulted him online. He hates this, because the more reasoned of us (e.g. me) are working to make it known that we believe that he is as paid shill and does not know whereof he speaks. Obviously, this message is getting out.
Thus, he works to portray all those who attack him as unintelligent, angry zealots. You said it well when you said he had a "very clear misunderstanding" of how this all works and what we mean by free. But that's not quite all: he knows what we mean and is deliberately twisting the facts to act as a troll.
Elsewhere, he's gone with a "BSD is better" line. The point of this is that he's trying to stir up or exacerbate whatever divisions exist among us--e.g. to sow strife and dischord. So far, I don't get the sense that he's doing it very well, but he's conciously trying to start flame wars.
Why? The controversy suits him--if he can get people mad enough, he can discredit them with their own angry rants (and there's always someone to supply these even if the rest of us hold our tongues). Moreover, he can use the controversy to put himself in the spotlight (get quoted even more in the media, etc.).
Thus, the best counter-strategy for us is to supply as many calm, rational and even-toned responses to his nonsense as is possible, and to simply ignore the flamebait portions of his talks.
The more reasonable people we can get who present sensible, articulated responses to his utter nonsense, the more we can discredit him in spite of the supply of angry hatemail he has to wave around.
I'm not some angry nitwit who is going around threatening anyone, and I refuse to have him defame us all by painting with one broad stroke.
To that end, I'm open for suggestions on how to help the media get a clue that he's not a credible source, and should not be trusted or used for quick & easy quotes.
Re:Filed copyrights? (Score:3, Insightful)
Quite right, but as Novell points out, the filing of a rival claim is privileged and specifically contemplated in the law as a means to assert a rival claim to the copyrights, so that they wouldn't be said to have waived their claim by silence.
(This is all stated in Novell's Memorandum in Support of the Motion to Dismiss, BTW
Re:SCO doesn't want to file a contract suit here (Score:3, Insightful)
They can, but they can only sue for infringement that happens after they acquire the copyrights. They don't want that, because to force the transfer of the copyrights they have to identify the code they're claiming copyright on, and by the time the ruling comes down the Linux developers will have removed any questionable code and SCO'll be left holding a handful of air.
Enderle and the media which believes him (Score:2, Insightful)
He may have invited such comments by his flamebait, but that's all the more reason we should NOT take the bait.
Work to discredit him by writing those journalists who have quoted him. Point out the interesting service he sells--positive spin in the media for money--and ask how that squares with ethical journalism. Right now, he's quoted all too often--please stick to exposing his cluelessness to the media and discrediting him for spouting nonsense. DO NOT flame him, he merely uses that against ALL his critics, including those of us who are reasonable and oppose him based on logic and common sense, rather than some personal ill-will or malice.
He's TRYING to start flame wars here; don't let him and don't help him. Discredit him. It's what he seems to fear most.