SCO Thwarted In Unix Decision

Some final matters of law still need to be hammered out, but it looks like a decision handed down in Utah by federal judge Dale Kimball has finally knocked out SCO’s claims to Unix copyrights.

Their lawsuit against Novell has drawn a 102-page ruling from the bench, and as Pamela Jones at Groklaw noted, it’s all about Novell:

Here is what matters most:

[T]he court concludes that Novell is the owner of the UNIX and UnixWare Copyrights.

That’s Aaaaall, Folks! The court also ruled that "SCO is obligated to recognize Novell’s waiver of SCO’s claims against IBM and Sequent". That’s the ball game. 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 also said the trial scheduled for September 17th "appears it will mostly (but not all) be about what SCO owes Novell. Novell’s slander of title counterclaim goes to trial, for example, but SCO’s does not."

SCO responded to the decision with a statement, saying they were "obviously disappointed" in the ruling.

"However, the court clearly determined that SCO owns the copyrights to the technology developed or derived by SCO after Novell transferred the assets to SCO in 1995," said SCO.

Both Microsoft and Sun licensed Unix technology from SCO in 2003.

Neither licensee has released a statement yet regarding the Utah court’s decision. The stock market has weighed in with its opinion, and the verdict from Wall Street has been a bigger bloodbath than the last Harry Potter novel.

Shares of SCO plunged from their 1.56 open to a current price of 44 cents. SCO may present a defiant tone in their post-verdict statement, but investors aren’t listening.

Viacom smacked Youtube with a billion-dollar lawsuit after negotiations with Google over licensing content fell through. Three months later, Viacom announced they would be part of the next financing round for Joost.

That round dropped $45 million into Joost’s piggy bank, and more importantly was accompanied by the news that no copyright problems are foreseen with Joost, thanks to its copyright licensing deals. Groklaw noted that Viacom mentioned Joost in its complaint against Google, while leaving out the bit about Viacom investing in Joost.

"And this Joost news does make my cynical side wonder: is this just another case of using the legal system as an anticompetitive business tactic?" asked Groklaw. "Even if it is, it raises some very serious questions, which will affect us all."

Those questions relate to fair use, the DMCA, and its safe harbor provisions. Lawrence Lessig’s comment, cited on Groklaw, said, "Viacom complains that YouTube shifts to it the burden of identifying infringing content. Not true. The DMCA does."

Until that piece of legislation changes, Viacom could be stuck with going after individual infringers, just as the RIAA has done with allegations of music piracy. "Maybe they’ve noticed how the RIAA is faring suing individual infringers who don’t have deep pockets," said Groklaw.

The RIAA has been beaten back in some of their actions, and even ordered to pay court costs for defendants. Viacom probably doesn’t want to go through the same experience.

SCO would like to know. Their attorneys have been pursuing her with subpoenas in hand. CEO Darl McBride would love nothing better than to find out if her Groklaw site is actually a front for IBM, according to Forbes. IBM has long denied a connection, as has she.

The last post attributed to her on Groklaw said she is taking a health break:

I can’t predict exact dates, because what I really need is a real vacation and time to just do nothing until I fully am myself again. I’ve done almost 3,000 articles on pretty much a daily basis, with a lot of time stress, since mid-May of 2003, and I think I’m a bit worn out, between SCO and the ODF thing.

The question is, does Pamela Jones really exist? Or is the name simply a pseudonym for one or several people, just like any one of thousands used on the Internet every day.

Back in 2005, journalist Maureen O’Gara tried to locate PJ, tracking her to an apartment building ten miles from IBM’s HQ in Armonk, NY, and then to her mother’s home in Darien, CT.

The subsequent outrage over O’Gara’s investigation by pro-Linux bloggers cost O’Gara her regular gig with technology publisher SYS-CON. Jones remained a mystery then, as she does today.

But if O’Gara’s account is correct, and Jones has a mom in New England, then there is a Pamela Jones at the front of Groklaw, the same Jones who managed to pickup some testimony from the trial a couple of days before it became public.

Maybe Jones is taking a health break somewhere warm, and more importantly out of the reach of SCO’s lawyers. Perhaps once the court puts a merciful end to SCO’s years of delaying tactics and wraps the case up for good, one way or the other, Jones will come back with a tan and a face to put with her Groklaw persona.

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IBM subpoenaed a quartet of tech companies to give testimony as it defends against SCO’s claims that source code from SCO made its way into the version of Linux that IBM distributes. Microsoft, Sun, Hewlett-Packard, and BayStar all have March appointments to provide more information about those companies and their dealings with SCO.

The Groklaw website has followed the case closely virtually since it began. The site’s secretive author, Pamela Jones, wrote about the news with the kind of excitement normally associated with small children, puppies, and Christmas morning:

IBM’s defense against SCO could bring some uncomfortable relationships to light. Microsoft and Sun both paid SCO for Unix licenses; H-P’s contracts with SCO are not known. BayStar’s involvement reportedly began with Microsoft referring SCO to them; BayStar later arranged a $50 million investment in SCO, CNet reported.

Suspicions have been voiced in the past about Microsoft and SCO, with Microsoft allegedly supporting SCO’s legal actions from behind the scenes. Those actions would help slow down Linux adoption in the lucrative enterprise market due to legal concerns.

Confirmation of those allegations would be “explosive stuff” indeed.

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David Utter is a staff writer for WebProNews covering technology and business.

The OSDL announced the project, and in a press release described a couple pieces of the foundation of the Patent Commons Project:

•  A library and database that aggregates patent pledges made by companies. The library will also aggregate other legal solutions, such as indemnification programs offered by vendors of open source software.
•  A collection of software patent licenses and software patents (issued and pending) held for the benefit of the open source community.

Groklaw mentions the importance of the prior art database:

One of the difficulties with software patents is that software was deemed patentable by a court decision, with no prior art database in place, no trained examiners, and only the most vague of guidance on how it all should work.

That passage may be a summary of why the Justice Department needed Adobe and Macromedia to submit more information about their products and businesses pending their proposed merger.

The Project says it will administer those patents to the betterment of the open source development communities. Under its stewardship, the project will ensure that the patents it manages won’t be used against developers of open source software.

Deflecting those potential legal actions is very important to the continued success of open source software. ”Making it easier for companies and communities that have patents to make those patents available in a common pool for people to use is one way to try to help developers deal with the threat,” said Linus Torvalds in the statement.

David Utter is a staff writer for WebProNews covering technology and business. Email him here.

… “Maybe they’re not so different from us…”

I like how he calls me “the one who Pubsub’s” and his tip for getting the Tablet PC more exposure is good. Now I gotta learn something about Solaris and see if I can continue this positive ping-pong match.

If any Sun employees visit Seattle, drop me a line.

Excerpt added by WPN editor:

It’s all too easy to think of Microsoft as a faceless, inhuman “Evil Empire” when reading sites like Slashdot and Groklaw or even listening to some of the comments made in the past by people in Sun from the executives down to the rank-and-file. And even though I know how often we in Sun are amused by some of the wacky theories out there about what Sun is up to (“It’s impossible to have a conspiracy of 30,000 people” is a response I’ve heard quoted a few times), it’s not always easy to remember that Microsoft is in the same boat. So while a lot of people recently were pointing to the story of Sun Opteron servers being installed in Microsoft’s Enterprise Engineering Center as “proof they’re not all bad”, I’ve found that hasn’t changed my opinion of Microsoft as much as their increasing openness via blogs and other forums.

Of course, the most visible of these and the person I’d say is most responsible for putting a human face to Microsoft is Robert Scoble, whose blog output I can barely keep up with reading, much less trying to match in writing (I’m lucky to get a few entries a month out – he almost always has several per day).

Robert Scoble is the founder of the Scobleizer blog. He works as PodTech.net’s Vice President of Media Development.

Go to Scobleizer …