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Novell The Courts News

Novell Wins Against SCO Again 152

duh P3rf3ss3r writes "The Tenth Circuit Court of Appeals has just affirmed the District Court ruling in SCO v Novell (PDF) in its entirety. The decision is quite a good read and lays out the reasons why the court has rejected, in toto, SCO's attempt to re-argue the case before the Court of Appeals. Is this the last gasp for SCO or will they try to appeal this to the Supreme Court? The betting lines open at 11..." Realistically this is the end of the line for the case.
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Novell Wins Against SCO Again

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  • Not Dead Yet? (Score:4, Interesting)

    by UnknownSoldier ( 67820 ) on Tuesday August 30, 2011 @06:05PM (#37258782)

    Seriously, how does SCO _still_ have any money left to pursue legal costs??

    • It's me. (Score:5, Funny)

      by Anonymous Coward on Tuesday August 30, 2011 @06:10PM (#37258836)

      I've been giving them $5 a week.

      Look, I'm sorry, but it's the best entertainment available. :(

    • Re:Not Dead Yet? (Score:4, Informative)

      by bmo ( 77928 ) on Tuesday August 30, 2011 @06:18PM (#37258924)

      BS&F signed a contract saying they'd help pursue the case until the heat death of the universe.

      Because Ralphie had them bamboozled at the beginning citing "Sagans" of dollars if they win.

      No scam without a greedy mark.


      • Which also means massive clawback from breach of contract if BS&F backs out.

        They quit and they have to refund their legal fees.

    • Considering that scox's case was obviously meritless from day one, you can't expect the courts to move too fast.

    • Re:Not Dead Yet? (Score:5, Informative)

      by nyet ( 19118 ) on Tuesday August 30, 2011 @07:13PM (#37259470) Homepage

      Answer: BS&F are still hoping for brazillions back, even though SCOG is broke.

      A better question is, where did all the money go anyway? Novell never got paid the money that SCOG owed them.

      Answer: Delaware bankruptcy court (specifically Judge Gross in this case) is utterly corrupt and broken. They siphon money away from creditors and towards lawyers, making sure that ALL creditors get stiffed, until there is no money left.

      Why do you think incorporating in Delaware is so popular?

      • Since Novell had the benefit of a constructive trust, would somebody at SCO be personally liable for tortious conversion?

      • By 1842, the failure of the Chancery courts, wherein the substance of the litigants was entirely consumed by the legal system was recognized, and the system began to be reformed. The situation was dramatized by Charles Dickens in "Bleak House" []

        Is it not a good thing that such abuses have been eliminated in these modern times?

    • More importantly, if they do, why is it being wasted on lawyers instead of being paid out to creditors?

      Particularly Novell which actually has a constructive trust on a large chunk of that money, which means that it actually belongs to Novell and is merely in SCO's custody.

      Which means that SCO had no legal right to spend it in the first place and is therefore liable for tortious conversion.

      Novell might consider *personally* suing whoever at SCO authorized the payments without first coughing up Novell's funds

      • I would be curious to see what connections the SCO lawyers have. I can't help feel there was some embezlment going on. Basically carrying on a court case, that has no chance of winning, to channel a corporation's money into some black hole.

        How come the stock holders didnt vote the CEO out of power?

        What are we all missing? I would love to have some investigation performed into all this to identify the real crooks and what the real crime was.

        • Re:Not Dead Yet? (Score:4, Insightful)

          by MightyMartian ( 840721 ) on Wednesday August 31, 2011 @12:29AM (#37261604) Journal

          No matter how you look at it, SCO was basically reconfigured by McBride and Co. into a scam. At first it was simply trying to extort IBM into paying it off in a now all-too-common form of IP extortion. When it became clear that IBM had no interest in undermining its investment in Linux, it basically evolved into a pump and dump. SCO and its allies took the opportunity to use disgusting little fuckers like Daniel Lyons to give their ludicrous claims weight. Of course, greedy morons gathered from near and far to hand SCO money because it was going to be getting all these licensing fees from every copy of Linux out there. Once that plan flopped spectacularly and SCO's underlying claims finally deep-sixed completely, it then transformed into a lawyer's scam.

          The whole thing leaves me very disgusted with the civil law system. That a company who could not even produce any clear evidence of IP theft or infringement was allowed to just keep reinventing its case over and over for years, to make ever more shrill and absurd claims, is beyond me. Why the system isn't built so that if you don't have the goddamned evidence clear as a bell ready to submit when papers are field, you're not even allowed through the door, is beyond me. This is truly a system built simply to make lawyers lots of money.

          • by julesh ( 229690 )

            Why the system isn't built so that if you don't have the goddamned evidence clear as a bell ready to submit when papers are field, you're not even allowed through the door, is beyond me.

            That was always the intention. The problem is that SCO and their victims got caught up arguing about whether or not the court should open the door, and spent their millions litigating over that issue. The entire case was decided in requests for summary judgment, which is basically the courts way of deciding whether or not

            • There's got to be some one to require that clear evidence be provided. SCO was literally throwing out thousands of pages of code and pointing at the stack and saying "There's the evidence." The judge should have the power to say "Please show clear passages showing infringement by the next hearing or your case will be thrown out."

              A judge doesn't have to know anything about programming to know that he's witnessing a snow job. Do you think, for instance, in a plagiarism trial that a judge even during a prel

          • by jonadab ( 583620 )
            > The whole thing leaves me very disgusted with the civil law system.

            Civil law isn't the problem. Common law is the problem. It doesn't matter what the law says. The lawyers can argue forever, dredging up and misapplying the history of every even marginally similar court case in the history of the Western world. If one judge or jury ever caves in to a sob story and steps away from what the law clearly intends, every case from then until the end of time can cite it as a legal precedent.

            The intent of a
          • by rgviza ( 1303161 )
            Well the "system" is designed _by lawyers_.

            Getting congress (or any legislative body, federal or state) to change it would be just about as likely as getting congress to impose term limits.

            Ain't gonna happen because they are screwing themselves if they do it. Never mind what's "right" for the country and it's legal system... they are all far too greedy to do what's right. Law is big business and so is elected office. Our entire government is designed in such a way that it makes as much money as possible for
    • They do not. They've sold off all assets. All that's left is a shell.

      Personally, since helping to cover the case when it was SCO v Daimler-Chrysler in the Oakland County, MI District Court, I'm happy to see that it's played out to this end. We've known for years that SCO hasn't had a case since day one, and now this is the final nail in the coffin.

      • And why are they still paying their legal bills instead of coughing up Novell's constructive trust?

        That money doesn't even belong to SCO to begin with, so they (and possibly the legal firm they are paying) would be hard pressed to justify it.

        • Just to waste it so Novell can't get it back?

          • At this point I would put it on simple greed. The lawyers want to hog the kitty for themselves and are doing everything they can to milk SCO dry just to make sure NOBODY else gets anything, since a dollar going into a creditor's pocket is a dollar not going into theirs.

            They probably know they haven't a snowball's chance in hell of winning, but since they made a deal to keep the case alive they may as well keep charging legal fees while they are at it.

            Of course, considering that Microsoft was caught backdoo

  • Does SCO even exist now? Do they have an office or any employees? Or is SCO the same as it ever was, a legal instrument for patent trolling?

    I guess they were fairly innovative in their field (patent trolling), you can give them that much. Even evil can be exquisite.

    The genius of that! The genius! The will to do that! Perfect, genuine, complete, crystalline, pure.

    • Re:The horror... (Score:5, Insightful)

      by the linux geek ( 799780 ) on Tuesday August 30, 2011 @06:15PM (#37258898)
      Back in the day, they (and their predecessor companies) made good products. Caldera OpenLinux was one of the most user-friendly Linux distributions of the day, and the two flavors of SCO UNIX had a large customer base. There are still a fair number SCO UNIX customers left, but I would assume they're seriously evaluating their migration options.

      That side of the business is now owned by an entity called Unxis, [] and I would guess the remainder of SCO itself is mainly to continue this lawsuit.
      • by fermion ( 181285 )
        The SCO Group, AFAIK, is not Santa Cruz Operation(SCO). SCO did provide some products many years ago, but when I last looked at them 25 years ago they could not make a competitive case in the small bussiness arena competing against MS and Apple.The pricing was to compete against IBM, not against the new agile model based on redundant cheap hardware. Like MS now, they were a primary player, but not flexible enough to respond to new competition.

        Never did anything with Caldera. It is clear that they SCO g

        • by Teancum ( 67324 )

          I knew a couple of SCO developers in Utah County, Utah (yeah, the state is actually named after the county, to show how weird this universe can really get) where there was an honest attempt to make a legitimate business. There certainly were some pretty interesting products developed and they had a reasonable number of developers and engineers considering the markets they were pushing for.

          And then came Microsoft and the people who got greedy within the company, where the rest as they say is history. It wa

          • I knew a couple of SCO developers in Utah County, Utah (yeah, the state is actually named after the county, to show how weird this universe can really get)

            You mean, kind of like New York (City) located in New York (County) located in New York (State)?

            I was going to get snarky but then I saw your name and thought, oh it's ok. Although I didn't grow up in Utah, and don't live there now, I did go to school and got married in Utah County so I'm a little protective. (Plus I have to teach some teenagers early tomorrow morning, so I should be behaving anyway. : )

            • by Teancum ( 67324 )

              In fairness to the people of Utah, Congress didn't accept the #1 choice for the state name (Deseret) and the translation of the word "Utah" can mean "Mountain of God", which is something that most people of Utah really don't mind and was generally considered acceptable at the time the name was chosen. The name for Utah County (or Utah Valley) was selected much earlier and before the name of the state/territory was decided upon. So there was a delegation of elected representatives from Utah County in the D

        • I have to disagree. In the mid 80s to mid 90s the case for UNIX, particularly SCO UNIX was particularly strong, and we typically 50% or less that the cost of a Novell or NT based network, especially if using dumb terminals. The problem was all the people who knew DOS couldn't figure out UNIX and would choose Novell or later, NT by default, even though it cost twice as much and ran half as fast and was half as reliable.
        • Facts: Caldera purchased SCO, Inc. Life was good. Then investor Ralph Yarro pushed Caldera into a radical direction in 2002. First, most of SCO was spun off as Tarantella. Second, SCO was renamed the SCO Group and began trying to extort license revenue out of companies that used Linux.

          It was bizarre. A near 100% reversal of direction. To date, no one, and I mean no one, from Ransom Love (former Caldera CEO) to Darl McBride (CEO pushed in by Yarro who displaced Love) can explain what happened. Up unitl 2002

          • I worked at Caldera when the buyout occured. There was a complete shift of focus away from the OpenLinux line. I gladly left a few months after the purchase, but I do recall in the immediate aftermath, many of the SCO eployees came in and many of the developers/staff from Caldera leaving. Ransom Love was respected and created a great company (OpenLinux bunlded in Grub, Webmin, and a graphical installer before the other major distros at the time), but that buyout of SCO was a fiasco.

        • SCO group (AKA SCO). So, same group in it's entirety. []

          Just a small clarification.

    • by Plombo ( 1914028 )
      You mean copyright trolling, not patent trolling.
    • Patents were never an issue in this case. SCO never held any that were relevant to the case. No, it's been about copyrights and who has the keys to the castle that would open up the litigation win treasure chest. Unfortunately for them, SCO has gasped its last.

    • by EdIII ( 1114411 )

      Even evil can be exquisite.

      Somehow that reminds me of......

      Dr. Evil: The details of my life are quite inconsequential... very well, where do I begin? My father was a relentlessly self-improving boulangerie owner from Belgium with low grade narcolepsy and a penchant for buggery. My mother was a fifteen year old French prostitute named Chloe with webbed feet. My father would womanize, he would drink. He would make outrageous claims like he invented the question mark. Sometimes he would accuse chestnuts of being lazy. The sort of gener

  • by Meshach ( 578918 ) on Tuesday August 30, 2011 @06:11PM (#37258842)

    Over SCO’s objection, the district court allowed Novell to show the jury a slide containing a quote from a BusinessWeek article referring to SCO as “The Most Hated Company in Tech.” (R. Vol. VIII at 2815; R. Vol. XIV at 5091).

    From the PDF, Page 11

    • And it was allowed only because SCO's "expert witness" included damages from after the initial ruling in Novell's favor. Had the expert properly stopped his estimate as of the date of the initial ruling, Novell would have had no grounds to introduce this quote to contradict the expert testimony. So because of SCO's own mistake, we now have evidence in the trial record that SCO is "The Most Hated Company in Tech.". Classic.
      • Also it counters SCO's claim that because Novel claimed SCO didn't own Unix, SCO's reputation was damaged. The article as well other sources noted by the court confirmed that SCO's low standing the tech world had sunk more because of the hated Linux licensing program.
        • Yes, but since the ruling is that SCO never owned the copyrights, Novell did, SCO's claim was factual and therefore, not libelous. Therefore, this quote was irrelevant outside of countering SCO's expert witness.
          • No, at the trial the ownership of the copyrights was still in question. The Judge had previously ruled in Novell's favor, but it had been reversed on appeal. SCO didn't want that previous ruling mentioned, but Novell was allowed after SCO claimed slander damages from after that ruling. Even if it was overruled, Novell couldn't be claimed to be maliciously slandering SCO if they had good reason to believe what they said was true.

            The "Most Hated Company" bit was just to further cut at the damages. Novell's cl

            • SCO objected to their article being mentioned because they claimed it might prejudice the jury; however, they opened that door when they claimed that it was only due to Novell's actions that their reputation was damaged and business was lost. Novell was able to show otherwise.
    • by jd ( 1658 )

      As far as I can tell from the document, that one slide is the only thing SCO had anything close to a reasonable objection to. I'm forced to agree with SCO that it was hearsay (although I'd argue that it's also probably entirely accurate), although as grstrickler notes it was only in the case because of mis-steps by SCO over the objections of the trial judge. The appeal claimed that it probably had no effect. I don't like that kind of reasoning because each piece of evidence can't really be considered indepe

  • "Realistically"? (Score:2, Insightful)

    by Anonymous Coward

    After years of this nonsense? Long after 99.99% of people could see that it was nonsense, including the courts? Since when have "realistic" evaluations of the legal case ever mattered to SCO's legal efforts? I expect it to go to the Supreme Court, and after that to various international courts. And maybe after that the interplanetary court.

    The answer to "Will they try to appeal this to the Supreme Court?" can be found in the answer to the question: "What strategy will net the SCO lawyers the most money?

    • Re:"Realistically"? (Score:4, Informative)

      by v1 ( 525388 ) on Tuesday August 30, 2011 @06:24PM (#37258984) Homepage Journal

      The SCOTUS doesn't have to hear your case, they only take on cases with merit. Even if they do request this case to be heard, it has zero chance of actually happening. So they're done now. At least in the courtroom.

      If anyone has them, I'd love to see some actual statistics of how many cases are presented and how many are heard, giving a percentage. (on the average, over the last few years, or even to see how the numbers change over the years) I bet they have a fairly low percentage of cases heard. (10%?)

      • Re:"Realistically"? (Score:4, Informative)

        by rkfig ( 1016920 ) on Tuesday August 30, 2011 @06:35PM (#37259082)
        According to "The Court receives approximately 10,000 petitions for a writ of certiorari each year. The Court grants and hears oral argument in about 75-80 cases." So, roughly, just shy of 1%
        • by Teancum ( 67324 )

          The only reason why the Supremes would hear this case is to not only nail the coffin together for SCO, but to hammer home to the entire computer industry to never pull a stunt like this again and to basically do something ugly to the lawyers who put this case together in the first place and possibly go after the major shareholders and financiers of this whole endeavor and tell Novell "anything you wish will be granted".

          Since Novell isn't really asking for much here other than purely money and a few legal tr

        • More to the point, the Supreme Court looks for cases with a constitutional question and prefers cases in which lower courts have disagreed. This has neither.
      • Re:"Realistically"? (Score:5, Informative)

        by rjh ( 40933 ) <> on Tuesday August 30, 2011 @10:17PM (#37260814)

        This is pretty close, but not quite accurate. SCOTUS takes cases principally according to:

        1. Issues of original jurisdiction (cases involving diplomats or ambassadors, or in which a state is a party). For these cases, SCOTUS is allowed, but not required, to be the trial court. In practice, only cases involving two states get this expedited original-jurisdiction treatment: everything else gets to go through normal federal channels.
        2. Statutes which expressly state they may be only heard by the Supreme Court (yes, there are a few)
        3. Cases in which two different appellate courts, applying the same SCOTUS precedents to similar cases, have reached different decisions

        The first category is really astonishingly rare. The second is almost as much so. The third accounts for the overwhelming majority of SCOTUS's workload.

        Note that SCOTUS really doesn't care if your case "has merit." No judge really does. A judge's job isn't to decide if your case has merit: that's the jury's job. A judge's job is to make sure the laws are applied fairly and without bias to both parties.

        At the SCOTUS level, SCOTUS cares whether their precedents are creating confusion among the appellate courts. If two appellate courts come to two different readings of SCOTUS's precedents, then SCOTUS will generally hear a case so that their opinion can help bring clarity to the courts.

        With respect to the number of cases heard per year, approximately 1 in 200 cases appealed to SCOTUS will be heard by the Court. The buck stops at the appellate level 99.5% of the time.

        (Source: David R. Hansen, former Chief Judge of the Eighth Circuit Court of Appeals. IANAL: I'm just reporting what he's said.)

        • by v1 ( 525388 )

          Thank you for the clarifications, I'm poor at doing that sort of research :)

  • Again? (Score:4, Insightful)

    by MrEricSir ( 398214 ) on Tuesday August 30, 2011 @06:12PM (#37258858) Homepage

    Realistically this is the end of the line for the case.

    How many times have we heard that?

  • by Dynamoo ( 527749 ) on Tuesday August 30, 2011 @06:14PM (#37258874) Homepage
    Rinse and repeat. Until dead.
    • by Teancum ( 67324 )

      If a corporation is legally a person, when is it dead? This company is a zombie that has more lives than several dozen cats.

      The whole case seems like an episode of Get a Life [], where the main character dies in each episode only to come back to life in the next episode as if nothing happened. That pretty much defines SCO.

      My question is more in terms of who has SCO stock certificates? Those are most certainly collector items now.

      • by jd ( 1658 )

        It is dead when making sequels falls out of fashion. And Hollywood will never let that happen.

        Actually, it's more like a cross between Goundhog Day and Texas Chainsaw Massacre.

    • by 6Yankee ( 597075 )
      Then rinse in one of these: []
  • Realistically? (Score:4, Insightful)

    by Blackeagle_Falcon ( 784253 ) on Tuesday August 30, 2011 @06:14PM (#37258886)

    "Realistically this is the end of the line for the case."

    SCO has not been realistic at any time during this case.

    • Granted, but there's only so far you can (even unrealistically) pursue things. If SCOTUS doesn't pan out, where do you appeal next? The UN Human Rights Council? The Pope?
      • by hesiod ( 111176 )

        Sue the Supreme Court? Sue the American people for not supporting them (cue "Coupon: The Movie")!

        • You can't sue the supremes without permission from the federal government. Hilarity ensues.

          • by hesiod ( 111176 )

            So sue congress for making a law that says they can't sue the supreme court? Sue the American people (again) for electing people who would limit their right to sue. Sue themselves for nearly bankrupting themselves in the crazy effort to sue everyone!

  • by Hartree ( 191324 ) on Tuesday August 30, 2011 @06:25PM (#37258988)

    This is the lawsuit that doesn't end
    Yes, it goes on and on my friend
    Some people started litigating it not knowing what it was
    And they`ll continue litigating it forever just because...

  • by clemenstimpler ( 1472471 ) on Tuesday August 30, 2011 @06:58PM (#37259320)

    The lawyers were paid upfront - so they may be forced to beat single bones of this skeleton to an en-banc-hearing or the Supreme Court. Both are dead ends.

    I guess this charade will have taught Boies Schiller & Flexner that such arrangements are a bad deal. Larry Ellison will have to cough up money for every step he wants to go in Oracle vs. Google (maybe the best coming out of this case).

    And, of course, the counterclaims of SCO vs. IBM may have to be dealt with.

  • by Xtifr ( 1323 ) on Tuesday August 30, 2011 @07:08PM (#37259436) Homepage

    This is just one case. There's still several other cases to be resolved: SCO v IBM, Red Hat v SCO, SCO v Autozone (or Daimler/Chrysler), and, of course, the upcoming SCO v Boies, et al, where SCO sues their own lawyers for not winning these unwinnable cases. :)

    I'm also hoping to see SCO v Microsoft, where SCO sues Microsoft for not providing sufficient funds to slow the growth of Linux as agreed, and Microsoft countersues because SCO didn't achieve the success they promised with the initial round of funding.

    • Actually, the results of the previous trial and this appeal clearly indicate that SCO never owned the copyrights and so never had standing to sue IBM. IBM should file for immediate dismissal for lack of standing and/or summary judgement in IBM's favor. I don't know as much about the Red Hat or Autozone cases, but those may fall into the same category.

      SCO's stockholders and creditors should consider suing Darryl McBride and/or other officers responsible for pursuing this baseless litigation in breach of the

      • Red Hat vs SCO, if I recall correctly, was an action brought by Red Hat *against* SCO - basically saying that SCO was making unfounded threats against Red Hat's customers, and interfering with their business (I might not have that exactly right, but I think it was something like that - essentially Red Hat was on offense, trying to get damages from SCO).

        If anything, the fact that SCO never had the copyrights it was basing such threats against Red Hat's customers, strengthens Red Hat's case.

        I just went back a

        • You're partially correct, Red Hat vs SCO [] "On the 11th of October 2007 the case was closed with leave to reopen after the SCO group leaves Chapter 11 bankruptcy." However, first, SCO must emerge from bankruptcy. Given that there is no money to go after, I believe that case is dead.

          SCO vs Autozone [] is already settled. "On October 22, 2009, Edward Cahn, SCO's Chapter 11 trustee, sought bankruptcy court approval for an agreement he reached with AutoZone. According to the court filings, the confidential settleme

    • by Teancum ( 67324 )

      I totally forgot about SCO vs. Autozone. Yeah, the zombie is going to continue to crawl out of the ground for some time to come.

      Perhaps SCOTUS will simply merge all of the cases together and tell SCO to die once and for all. Somehow I doubt it.

      • by jd ( 1658 )

        If corporations are people, do zombies have citizenship?

        • by Teancum ( 67324 )

          As a philosophical exercise, I think the definition of citizenship is undefined in that situation. Besides SCO, do you know of another zombie?

  • Ha! (Score:5, Funny)

    by superdave80 ( 1226592 ) on Tuesday August 30, 2011 @07:09PM (#37259444)

    Realistically this is the end of the line for the case.

    You must be new here.

    • No kidding.

      This one has been more dramatic than the 'Duke Nukem Forever' vaporware series that run on for years.
      Season after season, it kept getting renewed for another yet another season.

      I heard the next season will be renewed for SCO, with IBM's Nazgul guest starring as their foes...

  • Huh, I always thought lawyers that said "in toto" were just saying "in total" with a folksy accent.
  • Realistically this is the end of the line for the case.

    Realistically, this is also the year for Linux on the desktop.

  • Me, Inc is hiring.

  • Yes, SCO has, in effect, sued their own business into bankruptcy. That's a pretty amazing feat considering they never sued themselves. Slow death by initiating baseless litigation.

  • by pionzypher ( 886253 ) on Tuesday August 30, 2011 @08:38PM (#37260204)
    Seriously.... at what point do they have to remove this shit [] from their site?

    SCO is the owner of the UNIX Operating System Intellectual Property that dates back to 1969, when the UNIX System was created at AT&T's Bell Laboratories. Through a series of mergers and acquisitions, SCO has acquired ownership of the copyrights and core technology associated with the UNIX System.

    • And who are you to question the almighty SCO? Just pay the license fee and ask no questions. -- The opinions expressed in the post are not the actual opinions of the poster.
    • by julesh ( 229690 )

      That's an interesting question. There's a possibility Novell could sue them for slander of title. Ironically, this is one of the things SCO sued Novell over. See groklaw here [].

  • It's like watching a star falling through the event horizon of a black hole.

  • by Morky ( 577776 )
    SCO could have been Red Hat. They were THE Intel UNIX, and could have moved their huge, loyal base to Linux, and continued to grow it. They even had large hardware vendors supporting their OS when Linux was still a baby. Unfortunately, they decided to hire a short-sighted, litigious CEO. Good night, SCO. Good riddance, Darl.
  • by anwyn ( 266338 ) on Tuesday August 30, 2011 @11:42PM (#37261350)
    The most outrageous thing about this whole fiassco is the bankruptcy's trustee's complicity in SCO's theft. This is not money that SCO owes Novell. This is money that never was SCO's in the first place. Courts have ruled it was "converted" which means stolen. Yet the backruptcy trustee corruptly continues to hold and spend Novell's money. This makes him complicit in that theft.

Vitamin C deficiency is apauling.