Submitted by Not too long ago, Ben “Yahtzee” Croshaw explained he had found the perfect husband for Lara Croft: Jason Voorhees. They both have way too many sequels all following a default plot, they both murder a lot and spend a lot of time underground, but most of all: none of them will ever just die. In that light, I suggest another husband for Miss Croft: Darl McBride. Instant update: Darl McBride responds. See inside.
Yes, you thought it was all in the past, that the lawsuit was over, and that SCO was a thing of the past we would no longer be able to point to and laugh at. Well, a federal appeals court ruled on Monday that SCO has a right to a jury trial on its claims that it owns the UNIX operating system, which could, potentially, lead to renewed legal fuss about Linux.
This ruling reverses an earlier decision by a lower court in 2007 which said that SCO was not the owner of the UNIX operating system, ending a long drawn-out legal battle between SCO and various other companies.
Without taking any sides, the court of the current decision states that the copyright case is simply too close to call. “We take no position on which party ultimately owns the Unix copyrights or which copyrights were required for Santa Cruz to exercise its rights under the agreement,” the court wrote, “Such matters are for the finder of fact on remand.”
So now we’re going to have a jury decide over these matters. Pardon my ignorance about the intricacies of jury-based trials (we don’t have that in The Netherlands), but does this mean a bunch of random people, possibly without any expertise or knowledge about these matters, get to decide who owns the copyrights?
Anyway, Darl McBride is happy with the decision, obviously, and he states that SCO may pick up its claims against the various Linux companies again. “Today is not the end of the war but it certainly is a key battle that we’ve won,” said McBride, “Now it’s time to move on to the next series of battles with our victory in hand.”
Unfortunately, yes … a jury of ‘peers’ will get to decide what happens.
This is like beating a dead horse, but the horse is already a pile of bones on the dry desert floor.
With all its faults, I still think the US court system is the most fair in the world, generally speaking. However, it’s situations like this that make me question my feelings about its impartiality. There is absolutely no way that six or twelve random people could ever truly understand the situation well enough to rule fairly for either side.
I think technologically complex cases like this should be decided by a panel of five or seven judges, with one or two impartial expert witnesses to clarify any questions the judges have about the technical aspects of the case. As difficult as it may be to find techies that are truly impartial given SCO’s track record, it’s got to be better than a box full of truly clueless local citizens, no matter how intelligent they may be in their own field of expertise.
Do you have any justification for this or is it just a vague feeling based on yourself being from the US?
Well, I work for the system so I have a first hand viewpoint. As I said, it has its faults and there is much room for improvement.
So…the inevitable follow-up question would probably be “And how many other legal systems have you been exposed to?”
Excellent point, and you’re right: I only have first hand experience with our own here in the US. I base my comparison of others on what I get from the worldwide media.
But I can pose a similar question: What do non US citizens base their opinions on? Have they been exposed to the US system?
It goes both ways, my friend.
Absolutely. However…my sister is a US citizen and the experiences she’s had with the US system make ours here in Australia look pretty bloody good.
Like most things in the US…if you can’t pay, you can’t play. As with health care, legal fees in the US are astronomical compared to Aus.
Luckily she’s been financially secure enough to see through any legal issues, but for the everyday ‘Joes’ trying to get a little justice, it’s potentially crippling financially.
My initial reaction to this statement: ouch!
It’s merely my opinion, which anyone can easily dismiss. I find it quite silly that only one person so far has read past my first sentence and actually commented on the heart of my post, which concerns what I believe to be the utter stupidity of using a jury trial in a case like this.
But never mind that, I’m called out because I still have faith in the US court system.
Nah, it isn’t that hard to follow at all.
FTA:
— Actually, the code that IBM put into Linux, which is SMP and RCU and the JFS filesystem, is IBM’s code. Some of this code was written originally for OS/2, and some of it was written by Sequent (now IBM) for Dynix, and then also put into Unix.
FTA:
— Actually, the code that IBM put into Linux is IBM’s code.
It doesn’t matter if SCO has copyrights to Unix or not … there is no Unix code in Linux. Any IBM code that is in Linux is copyright IBM.
As I said, it isn’t really all that hard to understand at all.
You’re right, and to those of us who are in the tech field for employment or even as hobbyists, it’s cut and dry. But put a savvy lawyer up there and I guarantee you he’ll confuse the hell out of the jury by the end of the trial. A panel of judges isn’t as easily swayed by petty lawyer tricks. I’ve seen it a thousand times and it never ceases to amaze me how much non-factual influence both prosecuting and defending attorneys can get away with during the course of a trial.
There has to be a decision to take it to trial first.
Given that there is such a simple defence … “there is no Unix code in Linux” … what sane management would take this case to trial? They would get crucified in the countersuits.
Now I know that you might reply by saying that SCO management are clearly not sane … but I would point out that it is no longer SCO management who will decide what happens with these lawsuits from here on in.
http://arstechnica.com/tech-policy/news/2009/08/sco-still-up-creek-…
A chapter 11 trustee has now been appointed.
http://www.groklaw.net/article.php?story=20090825175606636
Then what do you make of the recent ruling which I’d paraphrase like this: customers have “fair use” rights but it’s forbidden for anyone to make tools that would let them exercise their rights.
You may say it’s the law, not the courts. But it doesn;t really matter. It’s the legal system. And it has been piling crap on top of other crap for so long that it’s now mostly a dung hill. And don’t get me started on the patent system…
Edited 2009-08-26 08:22 UTC
The most annoying thing about having a Jury Trial on this case is that Jurors selected for the case must not have prior knowledge of the case!
… what techie with any knowledge of non-windows OS’s doesn’t know about this case? So the jury would exclusively be filled with american citizens who, most likely, don’t have a clue what Linux or Unix is, let alone what an OS is.
The story, as pointed out, can be summarized, but anything technical about it can not. Luckily – or unluckily as the case may be – this is not going to be a case about whether Linux has Unix code or not, but rather, whether or not SCO legally owns UNIX.
Still, I think the Jury might struggle with the concepts if they are, as a whole, relatively ignorant of the workings of computers. And that might make them unable to understand what Novell did and didn’t sell to SCO. And that might make them find in SCO’s favor.
It’s all who’s got the better Lawyer again. That said, how much money does SCO still have???
Don’t worry, the case will really be decided at the appellate level and perhaps even by the Supreme court. A jury trial is only a legal fiction in a case like this and everyone knows it. Of course no matter what the ultimate outcome there will be many who will disagree but that is to be expected.
Right and you would think “Peers” would mean people in business etc. But no it’s going to mean housewives and guys who don’t understand business. Its going to be a mess and a waste of money! And if Novell still wins a for sure waste of money!
Wow!
So they’re going to have to find 12 slime-balls, on Darl’s level, before the trial can proceed?
They can just get a bunch of CEO’s together. How about Bill Gates and Steve Jobs for starters??
Now be fair. Gates isn’t so bad
. I’m sure if I ever got to know the guy, I’d get along quite well. It’s that overgrown used-car salesman, Ballmer, that I take issue with. He’s like what would happen if you crossed Gil (the down and out guy who’s always selling something different and one step from suicide – refer to his attempt at selling computers to see why I picked him) and Lionel Hutz from the Simpsons with a Wacky Waving Inflatable Arm-flailing Tube Man, and fed it pure red cordial syrup.
Bill McEwen (Amiga inc. CEO) sure would fit that bill of being in the computer industry and one of the worst slimeballs in the world outside SCO.
DIE ALREADY! They are wasting taxpayer $$$ for frivilous lawsuits that are destined to go nowhere.
So your last resort is trying to mislead people with no expertise on copyright laws… gotta be proud
Darl is not in control anymore, The bankruptcy court is. The appeals court also ruled that the money paid to sco by sun should have gone to the copy write holders. So if the jury reinstates the original summary judgment, they’d be in the whole even more than they are now.
In fairness to you: Darl was unaware that the new trustee had been appointed and approved by the judge at the time he made his [ludicrous] remarks. The judge whose ruling was remanded back to the district court knows that they have no evidence. The judge who is the new trustee specializes in dispute resolution and complex litigation. I suspect he will be smart enough to see that the case is not worth pursuing if there is no evidence of infringement. He won’t spend money belonging to the creditors of the estate on a frivolous suit in the hope that Novell and IBM will back down now after fighting off this zombie for nearly 7 years.
*facepalms*
Even as an engineer with a fair bit of background knowledge in the case, I sure wouldn’t want to go anywhere near this case as a juror, sounds like a life sentence.
Darl reminds me of the Monty Python sketch, the Black Knight (John Cleese) would not die even after having all four limbs and his head chopped off, bleeding profusely, shouting out cowards!!!
“I am invincible! The Santa Cruz Organization always triumphs!”
SCO is not the old Santa Cruz Org. SCO is the old Caldera.
Oh I know, but I’m not one to ever let accuracy get in the way of a good Python reference.
I think the O in SCO stands for operation.
I thought it stood for obnoxious.
LOL! Today it does.
“It’s just a flesh wound.”
and SCO’s lawyers will be the only things alive after nuclear war.
Guess we’re getting back to the days where SCO’ll sue grandma’s nursing home if they think the reception desk is running Linux.
If I ever got a lawsuit letter from SCO, I’d mail them a stool sample.
Edited 2009-08-25 16:20 UTC
Would a lawyer explain how the appeals panel found Kimball’s summary judgment “premature” ?
From groklaw: The appeals court found that the Kimball ruling was premature because he didn’t remand it to a jury. When ever there is a question/case that could go either way, a jury is suppose to decide. However, McBride is no longer in control. SCO was appointed a Chapter 11 Trustee, who now gets to make ALL decisions for the company. And then there is the fact that SCO has been completely unable to prove any of its claims. The sad part is that this is just burning through money that won’t be able to be given to Novel. They are just going to get whats left (which isnt much at this point).
If I understand correctly, the point of a summary judgment is to avoid the expense and time of a jury trial. I guess the appeals court ruled that Kimball cut his decision too fine for their comfort?
More or less.
AFAIK the appeals court ruled that although Novell had a strong argument about its Unix copyrights never being assigned to SCO, it was not absolutely clearcut enough for this to be decided by summary judgement. Hence it now goes to a jury trial.
Note … all this is only about who owns the copyrights in the first place … Novell owns them, and SCO has no instrument of transfer, but SCO do claim a dispute about all this.
None of this has anything at all to do with the question if any Unix copyrights (whoever owns them) have been infringed in Linux or not. So far, there is absolutely zero evidence on the table to support this latter claim of SCO.
They pick twelve jurors from a random jury pool, so it’s not quite random. Among other things, the lawyers get to kick out some jurors. If they find that one of the jurors has as much intelligence as moss growing on a stone, either lawyer can object to him.
For the record: I (personally) have confidence in the common decency and sensibility of the average American citizen, even the morons. I say that under the assumption that the companies involved hire good lawyers, who lay out their cases properly.
Nor do I mean to say that Americans are better than common people everywhere. Having associated with common people in a lot of places, I think that they are generally decent and sensible.
Don’t prove me wrong, guys…
Will sco die already? WTH As posted already they are down to trying to fool “joe the plumber” into thinking they own code that can be found in linux etc and that they do indeed own unix. Well show us the code the code in linux thats exactly the same as it is in “their” unix. Guess what they cant since they cant put up they need to shut up.
Even if they did, it would be fabricated anyway, I’m sure.
What if the jury finds this case in favor of SCO? What happens then? Another round of appeals?
Only if it should actually go to trial, which is not at all guaranteed.
Novell still has the option of requesting that the entire roster of Appeals Court judges review the case (en banc review). This may overrule the 3 who heard the first appeal.
This request may also be declined by the court. So it’s a contingency ; it could go either way.
I suppose a jury may find in The SCO Group’s favor, but in order for that to happen the copyrights must first be ruled to belong to tSCOg rather than Novell. That was ruled inappropriate for summary judgment, not an incorrect assessment. And THEN tSCOg will have to do what they refused to do even after being ordered by the court 3 times to comply — produce some evidence.
So while things may look bad from one perspective tSCOg are actually no further ahead than they were two years ago right before Judge Kimball ruled against them. As a matter of fact they are *much* more broke than they were, having made no progress during the bankruptcy in rehabilitating a company that has NEVER made a profit. And potential investors have had quite a while to see what clowns they are. The appeals court has supported the ruling that they converted $2.5 million of Novell’s money to their own use (and owe a million in interest on that amount even though they only have $625k of Novell’s money left in their possession) and the old management team is out and a judge is going to be running the company as trustee. His job is to protect the estate and the creditors, not to pursue the lawsuits that have ruined/saved the company. (They would have run out of cash 6 years ago if they hadn’t started the lawsuit lottery to attract investors, but they aren’t very “alive” either.)
So don’t empanel a jury of technically challenged feebs to hear this case just yet. This “win” hasn’t won them anything except to have their rotting corpse dug up and re-examined. They are not reanimated and running about pillaging the IP landscape again just yet.
And did I mention that Darl is embroiled in a lawsuit with the former partner of one of the advisor/investors whose deal to sell the company was just rejected by the BK judge?
This is the type of “win” tSCOg has been celebrating for nearly 7 years. Please don’t encourage them.
They’re like a zombie that just keeps on coming. Fortunately, like a zombie, bits keep falling off them and their case… Surely, eventually, they have to just die? Right? …. please?
In Romero’s flick it turned out that alive people are worse than zombies – so be careful here
Appeals Court Resurrects SCO Lawsuit
Requiem aeternam dona eis, domine.
Sometimes I get the feeling that this FiaSCO will never end…
Seriously, just let it die already… along with any memories of the company.
sco is dead. It died a long time ago.. the head just has realized it yet. I think the judge knows that the wanna-be ceo is loony and is humouring him. As if to say “Ok sonny boy, just one more time on the fantasy merry-go-round. And then you have to go home to your mommy.
I guess sco enjoys having their butt spanked by Novell and the rest of the Open-source world.