[conspire] Novell beats SCO; also, CABAL meeting tomorrow! ;->

Fri Aug 10 19:44:37 PDT 2007

I thought I'd pass this along.  Also, mail from Darlene reminded me to
mention that tomorrow, 4 PM to midnight, is the CABAL meeting here in
Menlo Park.

I made the same sort of plum-jam marinade as last time, except _this_ 
time I'll have had a chance to let the meat (mostly beef, this time)
soak it up for 3+ days instead of a couple of hours.

So, don't be strangers.

Date: Fri, 10 Aug 2007 17:59:12 -0700
To: svlug at lists.svlug.org
From: Rick Moen <rick at linuxmafia.com>
Subject: [svlug] (forw) SCO v. Novell Decided

Groklaw coverage is at
http://www.groklaw.net/article.php?story=20070810165237718 .

Note also:  (1) Judge Kimball left Novell's claim against SCO Group for
slander of title still undecided.  (2) SCO Group now owe to Novell the
copyright royalties money it collected from Microsoft and Sun, which is 
considerably more money than it now has.  (3) The SCO v. IBM and Red Hat
v. SCO cases can now proceed.

----- Forwarded message from David Chait <davidc at bonair.stanford.edu> -----

Date: Fri, 10 Aug 2007 16:12:07 -0700
From: David Chait <davidc at bonair.stanford.edu>
To: "sulug-discuss at lists.Stanford.EDU" <sulug-discuss at mailman.Stanford.EDU>
Subject: SCO v. Novell Decided

For all of those who haven't heard yet, there has been a ruling on SCO 
v. Novell this afternoon, and SCO lost massively.

(reposted from groklaw.net)

CONCLUSION

For the reasons stated above, the court concludes that Novell is the 
owner of the UNIX and UnixWare copyrights. Therefore, SCO's First Claim 
for Relief for slander of title and Third Claim for specific performance 
are dismissed, as are the copyright ownership portions of SCO's Fifth 
Claim for Relief for unfair competition and Second Claim for Relief for 
breach of implied covenant of good faith and fair dealing. The court 
denies SCO's cross-motion for summary judgment on its own slander of 
title, breach of contract, and unfair competition claims, and on 
Novell's slander of title claim. Accordingly, Novell's slander of title 
claim is still at issue.

The court also concludes that, to the extent that SCO has a copyright to 
enforce, SCO can simultaneously pursue both a copyright infringement 
claim and a breach of contract claim based on the non-compete 
restrictions in the license back of the Licensed Technology under APA 
and the TLA. The court further concludes that there has not been a 
change of control that released the non-compete restrictions of the 
license, and the non-compete restrictions of the license are not void 
under California law. Accordingly, Novell's motion for summary judgment 
on SCO's non-compete claim in its Second Claim for breach of contract 
and Fifth Claim for unfair competition is granted to the extent that 
SCO's claims require ownership of the UNIX and UnixWare copyrights, and 
denied in all other regards.

Furthermore, the court concludes, as a matter of law, that the only 
reasonable interpretation of the term "SVRX License" in the APA is all 
licenses related to the SVRX products listed in Item VI of Schedule 
1.1(a) to the APA. Therefore, Novell is entitled to a declaration of 
rights under its Fourth Claim for Relief that it was and is entitled, at 
its sole discretion, to direct SCO to waive its claims against IBM and 
Sequent, and SCO is obligated to recognize Novell's waiver of SCO's 
claims against IBM and Sequent. Accordingly, Novell's motion for partial 
summary judgment on its Fourth Claim for Relief for declaratory judgment 
is granted, and SCO's cross-motion for summary judgment on Novell's 
Fourth Claim for Relief is denied.

Finally, the court concludes, as a matter of law, that the only 
reasonable interpretation of all SVRX Licenses includes no temporal 
restriction of SVRX Licenses existing at the time of the APA. The court 
further concludes that because a portion of SCO's 2003 Sun and Microsoft 
Agreements indisputably licenses SVRX products listed under Item VI of 
Schedule 1.1(a) to the APA, even if only incidental to a license for 
UnixWare, SCO is obligated under the APA to account for and pass through 
to Novell the appropriate portion relating to the license of SVRX 
products. Because SCO failed to do so, it breached its fiduciary duty to 
Novell under the APA and is liable for conversion.

The court, however, is precluded from granting a constructive trust with 
respect to the payments SCO received under the 2003 Sun and Microsoft 
Agreements because there is a question of fact as to the appropriate 
amount of SVRX Royalties SCO owes to Novell based on the portion of SVRX 
products contained in each agreement. Furthermore, because Novell has 
obtained the information that it would otherwise obtain through an 
accounting during the course of this litigation, the court denies 
Novell's Ninth Claim for Relief for an accounting. However, the court 
also notes that SCO has a continuing contractual obligation to comply 
with the accounting and reporting requirements set forth in the APA.

Accordingly, Novell's Motion for Partial Summary Judgment or Preliminary 
Injunction [Docket No. 147] is GRANTED IN PART AND DENIED IN PART; SCO's 
Cross-Motion for Summary Judgment or Partial Summary Judgment on 
Novell's Third, Sixth, Seventh, Eighth and Ninth Counterclaims [Docket 
No. 180] is GRANTED IN PART AND DENIED IN PART; Novell's Motion for 
Partial Summary Judgment on its Fourth Claim [Docket No. 171] is 
GRANTED; SCO's Cross-Motion for Partial Summary Judgment on Novell's 
Fourth Claim [Docket No. 224] is DENIED; SCO's Motion for Partial 
Summary Judgment on its First, Second, and Fifth Claims and Novell's 
First Claim [Docket No. 258] is DENIED; 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.

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----- Forwarded message from Breen Mullins <breen.mullins at gmail.com> -----

Date: Fri, 10 Aug 2007 18:53:14 -0700
From: Breen Mullins <breen.mullins at gmail.com>
To: svlug at lists.svlug.org
Subject: Re: [svlug] (forw) SCO v. Novell Decided

* Rick Moen <rick at linuxmafia.com> [2007-08-10 17:59 -0700]:

>Groklaw coverage is at
>http://www.groklaw.net/article.php?story=20070810165237718 .
>
>Note also:  (1) Judge Kimball left Novell's claim against SCO Group for
>slander of title still undecided.  (2) SCO Group now owe to Novell the
>copyright royalties money it collected from Microsoft and Sun, which is 
>considerably more money than it now has.  (3) The SCO v. IBM and Red Hat
>v. SCO cases can now proceed.

Thanks for the update, Rick. I'd have caught it in RSS tomorrow morning,
but this is a cheery way to end the week!

Breen
-- 
Breen Mullins
Menlo Park, California

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