Submitted by “Judge Dale Kimball has issued a 102-page ruling on the numerous summary judgment motions in SCO v. Novell. Here is what matters most: [T]he court concludes that Novell is the owner of the UNIX and UnixWare Copyrights. The court also ruled that “SCO is obligated to recognize Novell’s waiver of SCO’s claims against IBM and Sequent”. There are a couple of loose ends, but the big picture is, SCO lost. Oh, and it owes Novell a lot of money from the Microsoft and Sun licenses”, GrokLaw writes.
Court Rules: Novell Owns the UNIX and UnixWare Copyrights
About The Author
Eugenia Loli
Ex-programmer, ex-editor in chief at OSAlert.com, now a visual artist/filmmaker.
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Bye-Bye, SCO:-)
For once, justice has been served. This travesty of using the court system and the press to make all kinds of wild inaccurate accusations without ever having to provide meaningful evidence had to come to a stop.
I went out and celebrated with some of my closest friends. Good food, good wine, and the feeling that for a few moments the world wasn’t as wretched a place as we often think it.
All I hope is that IBM, Red Hat and Novell will not stop at this ruling and prevail in their existing counter litigation and make sure that SCO is so dead when this whole affair is over that no other company will try to pull a similar stunt.
Thanks to all the involved companies for doing what’s right for their shareholders and Linux.
And now that Novell clearly owns the Unix copyrights, wouldn’t it be great if they released them under the BSD or GPL and allow all of us to move on.
Myself, I’m betting they [the copyrights] get sold to Microsoft — now that the court’s transferred the ownership of UNIX from SCO to Novell, it doesn’t require any special insight to predict what they’ll do with it.
You could almost suspect Microsoft planned it this way from the start.
Edited 2007-08-11 19:29 UTC
Doubtful; if Novell owns all the rights to UNIX, then Microsoft and Sun probably have the right to sue SCO selling something they first don’t own, falsely claiming ownership of property, then if they sent any of the contracts by mail, those involved could be charged with mail fraud – in NZ referred to as ‘fraudulently using a document’.
Microsoft would gain nothing out of purchasing SCO – if Sun and Microsoft do go to court to sue SCO, the settlement might include dividing up SCO’s assets – given they own virtually nothing, nothing would be gained.
As for Novell and Microsoft purchasing them – I would say that Novell will either hold onto them or give them fully under an opensource licence – CDDL would be great; finally have one UNIX out there which would provide Solaris with OpenServer and UnixWare compatibility.
It would piss IBM off, make Sun happy – and they would easily win customers who are currently looking for a future direction for OpenServer/UnixWare products – many POS terminals out there currently use OpenServer backends. Yum Brands being one of the biggest.
Edited 2007-08-11 19:35
Why would they need to sue for anything?
MS and Sun bought licenses from SCO (which SCO had the right to sell) and Novell is entitled to part of the money that MS and Sun paid (95% or what was it?)
Actually no.
The agreement was that if SCO was bought out, they lose rights to the code; SCO was bought out by Caldera, SCO lost rights to the code, so therefore, if Microsoft or Sun needed to purchase rights, they had to go back to the holder whom it reverted back to after the Caldera buyout.
http://www.betanews.com/article/Judge_Novell_Not_SCO_Owns_UNIX_Copy…
SCO was acquired, therefore, SCO owns nothing. Like I said, Microsoft and Sun paid the wrong people for the technology. Considering that these arrangements were most likely confidential, both companies worked with SCO with good faith that SCO had the rights to the intellectual property they were attempting to licence.
What’s more, the two companies’ technology license agreement (TLA) stated that for a two-year period after the deal commenced, should Santa Cruz become acquired, Novell “shall automatically have unlimited, royalty-free, perpetual rights to the Licensed Technology.”
Did Caldera buy SCO during those two years?
AFAIK, this case revolved around the fact that the copyrights was never included in the deal to begin with.
IT’s amazing how much misinformation commentors are posting on this board. You are completely and utterly wrong.
That 2 year period had absolutely nothing to do with ownership of the Unix copyrights, or the rights to license said copyrights, whatsoever. It was regarding future derivatives that SCO WOULD own the copyrights to, and Novell’s rights under a LICENSE SCO granted to them. Read the ruling for Christ’s sakes, it says so right in it. Don’t rely on news sites that also apparently don’t know how to read.
You’re wrong, the contract specifically prohibited SCO from entering into those licensing agreements, which forms the basis for one of Novell’s counterclaims against SCO. If Novell really pushed that issue instead of asking for money, they could likely have the licensing agreements declared invalid. It makes sense for them to go after the money instead though, which is what they did.
Section 4.16b of the APA states:
(b) Buyer shall not, and shall not have the authority to, amend, modify
or waive any right under or assign any SVRX License without the prior
written consent of Seller. In addition, at Seller’s sole discretion and
direction, Buyer shall amend, supplement, modify or waive any rights
under, or shall assign any rights to, any SVRX License to the extent so
directed in any manner or respect by Seller. In the event that Buyer
shall fail to take any such action concerning the SVRX Licenses as
required herein, Seller shall be authorized, and hereby is granted, the
rights to take any action on Buyer’s own behalf. Buyer shall not, and
shall have no right to, enter into future licenses or amendments of the
SVRX Licenses, except as may be incidentally involved through its rights
to sell and license the Assets or the Merged Product (as such term is
defined in the proposed Operating Agreement, attached hereto as Exhibit
5.1(c)) or future versions thereof of the Merged Product.
Considering that Microsoft and Sun would already have to line up behind Novell, IBM and Red Hat, it wouldn’t be worth the legal fees. After Novell is completely finished with SCO, which should be after the remaining issues are tried next month, the IBM trial will immediately proceed. After the court rules that IBM hasn’t infringed SCO’s copyrights, Red Hat will likely ask the judge overseeing their case against SCO to lift the stay and allow it to proceed.
And with this court ruling, SCO’s sales are going to be affected because while it was clear that SCO was unstable, with this ruling they are essentially insolvent. Novell has been granted judgment on the fact that SCO owes them large amounts of money….the only question remaining for trial being how much.
It would piss IBM off, make Sun happy – and they would easily win customers who are currently looking for a future direction for OpenServer/UnixWare products
…which is one of the reasons Novell probably won’t open-source it. IBM is one of their biggest customers, and they don’t want to help Sun out any more than they can help it.
Might it not be more likely that MS now buys Novell? After all, buying the certified owner of Unix must be a good move?
We would not be celebrating then….!
IBM is going to buy Novell. Well, at least that’s the way it looks if you look at their recent history of liquidating assets and putting a bunch of IBM execs on the board.
Watching the way they are starting to license things to small business I’d say IBM is exerting a great amount of influence over Novell at the moment.
Ummmm…how do you figure the court transferred ownership of Unix from SCO to Novell? The court ruling specifically states that Novell never transferred the Unix copyrights to SCO (or, more accurately, oldSCO), and they were never SCO’s at any point in time. Novell has always owned them in other words.
Novell has already waived such claims against Linux.
The GPL says you can only distribute the code which is under the GPL if you undertake not to sue any “downstream” recipients of the code.
Novell’s stake in Linux has no value to Microsoft for these reasons.
And now that Novell clearly owns the Unix copyrights, wouldn’t it be great if they released them under the BSD or GPL and allow all of us to move on.
You can’t “release” copyright ownership under a copyright license. That doesn’t compute. Novell isn’t the sole owner of the UNIX copyrights either, so they don’t have the authority to relicense the covered works. The SVR4 codebase is proprietary and will remain proprietary.
All that really matters in this case is that as a copyright owner, Novell has a say in prosecuting alleged copyright infringement involving UNIX. In this case, Novell is expected to instruct the courts to dismiss SCO’s case against IBM. It’s their right to decide who gets sued for infringing their own copyrights.
The implications are mixed for the Linux community. On the one hand, Novell has the power to dismiss any claims that Linux violates UNIX copyrights. On the other hand, Novell could conceivably use this power prejudiciously against competing Linux distributors.
I’ve previously argued that Microsoft’s covenant not to sue Novell’s customers is actually a disincentive for them to sue other Linux users. The risk of losing jeopardizes the existing agreements. But the deal gives Novell undeniable leverage over other vendors.
Once again, Novell has used a legal maneuver in an attempt to protect Linux users. And once again, it gives them an advantage over competing Linux vendors. This time, though, I believe the good outweighs the bad.
My wording might have been poor, but if you are the sole owner of a copyrighted work, you can certainly release said work under any license of your liking, GPL or BSD included.
On the other hand, Novell could conceivably use this power prejudiciously against competing Linux distributors.
not novell, but SUN might, if it buys novell.
Edited 2007-08-11 20:51
“On the other hand, Novell could conceivably use this power prejudiciously against competing Linux distributors.”
These thoughts sprung to my mind as well. Will Novell start asking for Unix royalties from Red Hat et al? A few years ago at the start of the SCO case, I would have never imagined such a scenario; now, I’m not so sure.
I would hope that Novell would declare that they plan to use their copyright ownership to benefit all open-source distributors, sort of like what Sun did with its patent covenants. Unfortunately, I can also imagine them having a very different mindset….
Novell would have even more hurdles to clear than SCO. After telling the world that Linux is safe from UNIX infringement claims, if they turn around and pull the same stunt SCO did, a Judge would most likely not hesitate to issue Rule 11 sanctions against Novell and their legal team.
Novell has released any offending Unix code in Linux that they own under the GPL, plain and simple. Just like SCO will innevitably be told, Novell can’t turn around and change their mind years later and expect people to pay them money for something they authorized.
Novell isn’t the sole owner of the UNIX copyrights either, so they don’t have the authority to relicense the covered works.
Who else owns them then? I was under the impression that SCO’s requests for licensing fees were based on the idea that they were the sole owners of at least some quantity of code, hence this ruling would suggest that Novell are the actual sole owners. Which would give them the right to relicense that code. Or am I missing something? (perhaps something about derived works etc etc?)
This doesn’t actually follow.
Linux isn’t a copy of Unix. Linux doesn’t infringe UNIX copyrights.
SCO’s case against IBM boiled down the the claim that IBM’s license to use UNIX source code included a requirement for IBM to keep “UNIX methods and concepts” as a trade secret.
Novell has already waived that claim against IBM. SCO objected to Novell’s waiver.
Now it turns out that Novell’s waiver stands.
Linux is already vindicated.
I think that is too much to say that justice has been served. Novell was the owner, they purchased the code when started UNIXWARE business, and it was confirmed in court.
SCO was going down the drain anyway, and it is going to be over soon. Nothing much changed for them.
SCO management, on the contrary, made plenty of money out of it. Their stock was very low before the lawsuit, and increased, maybe, hundredfold after it. I remember the article that reported of stock sold by Stowell, Sontag and McBride. There is no justice served here.
Linux vendors lost, because some customers were in doubt and declined from Linux. SCO will go bankrupt and probably never going to pay for the damage. Again, no justice served.
This also means that Novell is less dependent on GNU than some people think. If they need to, they could, with some effort, replace “GNU tools” with traditional UNIX tools (grep, awk, etc.) which they legally own now.
They wont do that. They can use code from them to make the GNU tools better but if they fork too far they will give Red Hat and Oracle the upper hand because they will be way incompatible. Remember RedHat is #1 and most developers develop for Red Hat first and then make versions for other versions of Linux later.
If it’s too hard to make their software work on Suse then they are just going to drop or ignore Suse or everyone will have to compile from source. That means they will just buy Red Hat or at the least buy Oracle.
Novell’s business (Which is not that big anyway) will crumble.
I don’t think Novell will do anything. At worst they will try to promote that that have the MS deal and they own the copyrights to Unix which makes them the real Unix / Linux vendor and that they are the best choice because of that.
They wont do that. They can use code from them to make the GNU tools better but if they fork too far they
As a matter of fact, UNIX utilities in Linux (GNU Tools) are not always backward compatible. Command line switches do change occasionally, sometimes for POSIX compliance, sometimes for other for other reasons. Introduction of traditional UNIX versions of those programs won’t change much.
The problem with this thinking is that now it is more desirable to be “Linux interoperable” and “run on Linux” than it is to be “UNIX interoperable” and “run on UNIX”.
I don’t agree. There are several POSIX compliant systems today:
– Linux
– Solaris
– BSD’s
– OS/X
– Windows server with SFU (services for UNIX)
– others, like Wind River and SCO
Solaris is strong as server and OS/X has many workstation installations. I don’t know how many people use SFU, I have business relation with one company that does. Those who run mixed networks are likely to use it. Linux takes a lot of media attention these days, so it is hard to tell. Here in Croatia, it is strong in Academic networks, and not that strong elsewhere.
Pam must be so happy she should launch a companion site to Groklaw: GrokLOL. It should be a gathering point where everyone can laugh at SCO’s expense
This is way bigger than the SCO vs Linux thing; this effectively puts everyone in the clear, be it SysV licensees, the BSDs, and of course the Penguin-themed one
Gosh, can’t wait until Monday to see how sharply SCO’s stocks will drop. I’m betting on a few cents above flatline.
Can the VC who invested in SCO be refunded because of this moronic scam? Can they sue SCO now for tricking them into injecting money on this moribund company?
And will Darl et al finally open their mouth and point their fingers at Redmond as the ones who really deserve the blame?
Exciting times
Edited 2007-08-11 18:45
Can the VC who invested in SCO be refunded because of this moronic scam? Can they sue SCO now for tricking them into injecting money on this moribund company?
Sure they can — anyone can sue anyone else at any time for any thing. The more appropriate question is “why would they do that?” If the VC prevails in the suit, that would entitle recovery of damages which would be drawn from SCO. What assets do they have? I don’t imagine they have much cash left, and there is little else of value to the company. So what would back any judgment the VC would recover?
Also, the VC undoubtedly holds preferred stock and so would have liquidation preference over the holders of common stock (namely, management and the employees). If the VCs controls the board, then it would be a lot quicker and less costly simply to dissolve the company and return any remaining assets to the holders of preferred stock.
Why make the lawyers rich when you can do this in the board room?
Grats to Novel!
So this means if my business is slowly dying I *shouldn’t* go on an aggressive lawsuit campaign and hope to come across a senile judge?
What does it mean that “Novell is the owner of the UNIX and UnixWare Copyrights”? How does that affect all the Linuxes and Unixes?
Looks like they better update their Legal page now.
http://www.sco.com/company/legal/
That’s interesting. The legal page says, “UNIX and UnixWare, used under an exclusive license, are registered trademarks of The Open Group…”
But The Open Group is not mentioned in either the Groklaw article or the legal brief. And the opengroup.org website lists five member companies, but does not include (or even mention) SCO or Novell.
It seems like some information is missing.
Trademarks and copyrights are not the same thing. They are entirely different things.
It is entirely possible for two different parties to hold the trademark to something and the copyright to something.
Holding a trademark only gives a party a right to control use of a particular name or brand … as in advertising or PR. Holding copyright to a work gives a party the right to control copying of the work by other parties. These rights are not the same rights.
Edited 2007-08-12 13:23
http://www.sco.com/company/news/
Enderle’s “SCO Should Win”
http://www.eweek.com/article2/0%2C1895%2C1545173%2C00.a…
http://www.eweek.com/article2/0,1759,1563242,00.asp
Dvorak’s “Linux Community Implodes”
http://www.pcmag.com/article2/0,1759,1816439,00.asp
I’m sure they can write plenty more gems for their advertising
Edited 2007-08-11 20:33
What is a mistery to me is how Enderle stays in business. I don’ say that he is incompetent. He understands IT and makes good points sometimes.
What confuses me is the way he openly breaks the basic rules.
At one time he openly said that he favors Microsoft and about being grateful to Bill Gates. AS an analyst, he was supposed to be neutral.
The other situation was shocking. Recently there was an article about Apple attempting to enter enterprise market. One of the “reasons” why they could not was that they “did not embrace the analyst community”. The next sentence was how Dell payed a big amount of money to some other analyst to them a favor (promotion or something). Well, I call that extortion. It seems to me that Mr. Enderle is flagrantly breaking several laws.
What do you think ?
He’s not breaking any laws, but he’s certainly not objective. As a result, his “analysis” generally holds very little value.
The good news is that just like Ann Coulter, only the loons take him seriously.
Edited 2007-08-11 23:27
It is not just about being objective. What he says is “if you don’t bribe the analyst, we will do our best to destroy your business”. That is far worse, and he gets away with this.
Forbes, Dan Lyons:
What SCO Wants, SCO Gets:
http://www.forbes.com/2003/06/18/cz_dl_0618linux.html
Dan Lyons also screamed hysterically many times about the anonymous bloggers who were bashing scox. Then it turned out that Lyons was the fake Steve Jobs.
three cheers to novell, they saved the day twice; first they defeated USL, when they buy them out and the case USL vs freebsd was settled and now they defeat SCO.
In the BSD case, the Judge said that Novell/USL was most likely going to lose and they may also be liable for infringing on BSD copyrights. That’s what prompted the settlement. Before that, Novell was actively pursuing the BSD case.
one shouldn’t forget his friends.
Laura Dido!
Robert Enderle!
I’m waiting for you to come clean, now that the very base of SCO’s claim has been blown to pieces, now that SCO failed to show any thread of evidence supporting their claims in years and years before the courts.
However, I do suspect that I’ll wait in vain…
…but I’ve a feeling that Novell had publicly stated their intention not to go after anybody doing anything with Linux at all WRT UNIX copyrights. In any case, they can’t: they’ve released Linux themselves under the GPL, and so they can’t sue anybody else from doing the same. This was always the backup defence with SCO vs IBM: SCO was continuing to distribute Linux code (that they claimed to be infringing) under the GPL, after the cases kicked off.
Besides that, Novell may be a bit dumb, but their entire business is built around Linux; to start any legal action in that respect would cause it to implode overnight, and the whole company would pretty much collapse.
Besides that, Novell may be a bit dumb, but their entire business is built around Linux; to start any legal action in that respect would cause it to implode overnight
That could be exactly the outcome they want. With the other Linux players out of the way, they could that much more effectively hawk their Frankensteinian enterprise product created out of a combination of OSS and proprietary MS and UNIX technologies.
…after all, if Apple can get away with these sorts of mixed-source shenanigans, why not Novell?
Edited 2007-08-11 23:38
Haha, with the other Linux players out of the way. Read up on the law my friend, Novell’s distribution of Linux under the GPL will pre-empt any claims they may have, as the court will no doubt rule in the IBM case with respect to SCO.
Yes, this is my hope too, but I guess this is sort of my point: This just-transpired ruling does very little to protect Linux itself; all it does is take SCO out of the picture. There has in fact still been no ruling that says Linux is free of UNIX code, or for that matter that SCO was not in fact allowed to distribute said code under the GPL (yes, the GPL says they weren’t, so it should be airtight, but the court still hasn’t ruled on it). And that’s important because that ruling could potentially affect the Novell-Microsoft pact as well, given that Novell is as we speak distributing GPL software that is allegedly laden with proprietary IP.
Until a clear-cut ruling is made (hopefully in the IBM/SCO case) that bolsters the strength of the GPL, we’re not quite in the clear yet.
…but I suppose I should be more trusting of Novell, and less paranoid. It’s just…difficult.
Edited 2007-08-12 02:53
Not really.
SCO had source code access to a UNIX derivative (Unixware and Openserver), and they had access to all of IBM’s AIX code, through all of it’s development, and they had access to 10+ years worth of Linux source code.
All of these codebases amount to millions of lines of code.
How much did SCO come up with that was potentially up for debate?
Some 326 lines. That is it. 326 lines in “dispute” … none of those even “proven”, just “claimed”.
Linux is not a copy of UNIX. The SCO case proves it beyond all doubt, and it won’t even go to trial.
I hear you, and I agree with you. I’m just saying, the courts’ job’s not done yet.
“Myself, I’m betting they [the copyrights] get sold to Microsoft — now that the court’s transferred the ownership of UNIX from SCO to Novell, it doesn’t require any special insight to predict what they’ll do with it.”
You have been watching too many conspiracy theory movies.
Posted today:
http://www.novell.com/prblogs/?p=379
I think it’s a good thing for Linux in the short and long term that this happened.
-m
I don’t know if it means anything, but Novell is a member of Open Invention Network, which protects Linux community. Citation: The OIN patents are available royalty-free to “any company, institution, or individual that agree not to assert its patents against the Linux operating system or certain Linux-related applications.”
Novell could actually benefit from opening it’s UNIX code, becaus it will become hero and gain a LOT of popularity. If history teaches us anything… going the other way seems to end ugly…
From TFA:
“””
All right, all you Doubting Thomases. I double dog dare you to complain about the US court system now. I told you if you would just be patient, I had confidence in the system’s ability to sort this out in the end.
“””
Did anyone honestly think that justice would fail and SCO would win their cases? Or were people complaining that frequently, by the time a court rules, the ruling has already become irrelevant?
Guess what? The show’s not over yet. It’s been more than 4.5 years since SCO began their legal shenanigans. The whole SCO issue has long since become irrelevant. (To everyone except for long-memoried, grudge-bearing persons on vendettas, like Pamela Jones.)
And one of the courts involved has now ruled.
Yes. I can see what a wonderful and effective justice system that we have.
Anyone want to run squares on the date SCO disolves?
It would be in Novell’s best interest to open UNIX before IBM buys them out. Human nature being what it is – I really doubt it.
IBM is still stinging from the MS days. It’s just a matter of time befor ethey go after MS.
Novell should get what, 1/10 of SCO assets, $500k fro m each executive party, something from execs from other firms placed on the board…the rest accruing to IBM? And when McBride is disgraced and fined and hung out low and ordered to do massive community services and donate blood weekly…I should get his Experian rating and a few pints to feed the roses.
From the end of the GrokLaw article, after the kibosh put on SCO (partly for not pursuing claims):
Novell’s Motion for Partial Summary Judgment on Copyright Ownership of SCO’s Second Claim for Breach of Contract and Fifth Claim for Unfair Competition [Docket No. 271] is GRANTED; Novell’s Motion for Partial Summary Judgment on SCO’s Non-Compete Claims in its Second and Fifth Claims [Docket No. 273] is GRANTED IN PART AND DENIED IN PART; Novell’s Motion for Summary Judgment on SCO’s First Claim for Slander of Title and Third Claim for Specific Performance [Docket No. 275] is GRANTED; and Novell’s Motion for Summary Judgment on SCO’s First Claim for Slander of Title for Failure to Establish Special Damages [Docket No. 277] is MOOT.
Moot because the claim has been dismissed on other grounds, the ruling says; summarized later as that SCO presented some background on simultanaity of damages that did not suck. …..
Later it says Novell effectively got an accounting, so none will be ordered, yet: the question of fact as to the SVRX portion of the 2003 Sun and Microsoft Agreements precludes the court from imposing a trust for the appropriate amount.
Oh well; more damages to allocate for IBM and Sun. And I guess the blood can just go on any roses, really.
What I find strange is how CIOs with multiple letters behind their name still pay money to people like Enderle who have nothing going for them but their lack of objectivity.
What Enderle tells these people for a fee this year I already knew to be hogwash 5 years ago. Maybe the problem is not people like Enderle but the quality of the CIOs that hire people like him.
This case sets a good precedent for similar contract deals such as the one between Amiga, Inc. and Hyperion Entertainment, VOF. The soap opera seems to be nearing a close.
Imagine the amount of time, money & talent wasted on this entire.
I wonder how long it will be before Darl McBride (CEO) & others in the executive staff start stepping down after this huge defeat.
I know im being a kill-joy but lets not forget SCO going under does also mean a lot of lost jobs. You may not like some of their buisness decisions but lets not forget the people who are now facing redundancy likly have families to support before we start dancing in the street
Oh man, SCO’s stock is down over 70%. Trading below Fiddy cents.