Once in a while, I come across a post that is so wrong at such a basic level, that I am just scratching my head, wondering why someone inflicted the damage to their reputation by writing it. Over at Fortune magazine’s blog there is one such post.
Roger Parloff has a long tirade against Judge Dale Kimball, who has just ruled in the SCO vs IBM case. Just in case you had doubts about Roger’s position, the title “Did SCO get linux-mob justice?” should key you in. (Although,as a side note, it does fit in with the headline-as-a-question phenomena I had noted, although that was mainly in the context of public health articles.)
Roger doesn’t pull any punches, claiming that Judge Kimball’s ruling is “so wrong at such a basic level that you’re just left scratching your head” and that Judge Kimball does not know things “any second-semester law student knows.”
So I am not pulling any punches either or even being very polite with the question I am asking. It is absolutely clear from his post that he has some ax to grind, and that he is very selectively filtering the facts to distort truth of the SCO case. But this isn’t really news, because the whole world knows it, too. First, some choice extracts from his post:
Once in awhile a judicial ruling comes down that’s so wrong at such a basic level that you’re just left scratching your head.
Still, as a piece of judicial craftsmanship, Kimball’s work falls squarely within that rare category I describe in the first sentence of this post.
If SCO had asked to have its case tried before a judge (a “bench trial”), and if judge Kimball had then held that trial — so he could see the witnesses testify in the flesh and make informed judgments about their live demeanor — his ruling would make perfect sense and I’d have no objection to it.
But SCO didn’t ask for a bench trial, and Judge Kimball never held one. SCO asked for a jury trial, and Judge Kimball was, therefore, only ruling on Novell’s pretrial motion for summary judgment. And as any second-semester law student knows, a judge can grant such a motion only when, as innumerable courts in every state and federal jurisdiction have repeatedly written, “the evidence, viewed in the light most favorable to the party opposing the motion [i.e., SCO, in this situation], shows there are no genuine issues of material fact.” (If that weren’t the rule, our Seventh Amendment right to a civil jury trial would be a hollow joke.) In ruling on such a motion, a judge cannot “act as the jury and determine witness credibility, weigh the evidence, or decide upon competing inferences,” according to the well-worn case law.
Now one of the items noted by several respondents is the anonymous posts are almost the only ones supporting Parloff. But wait! when you attempt to post, you get this little screen, which as we can see “comments that do not include your name city and state will not be posted”
But what do we have here, an anonymous post, supporting SCO:
I think nearly all of the comments here prove Mr. Parlov’s article. I am AMAZED at the vitriolic attitude of Linux militants. ANY negative comments about Linux and you are beheaded by the Linux terrorists. This is the very reason, as an IT consultant, that I cannot recommend Linux to customers. It is motivated, pushed, and propagandicized by zealots you can’t reason with. You twist the facts to fit your arguement. I think this article was accurate in its representation of the facts. Mr. Parlov has a law degree. He practiced. I know most everyone here, including the Groklaw fools think they are the experts. In reality, their approach is killing Linux. Did you see the report today that Linux adoption is declining? I’ve worked for some of the big software companies and frankly, they cheat to get ahead. Whether its IBM, Microsoft, Novell or whomever. They will cheat and they do. It’s time they get caught. And frankly you are all being used by these cheats to obtain their PR purposes. IBM and Novell are riding you like a rented mule and laughing all the way to the bank. Judge Kimball appears to be either lazy, incompetent, or corrupt. The facts show that he simply handed SCO (especially with the denial of the jury trial) the perfect, guaranteed appeal. If he had let a jury decide and SCO lost, they would have had a very difficult time appealing. Not now.
Posted By Anonymous : September 11, 2007 1:24 am
But of course this is just more misinformation, as there’s actually little vitriol in the comments, just rehashing of the facts that groklaw has been out there publicizing. I especially like the line “Linux terrorists,” showing that those who oppose free software are taking the moral high road. But, in any case here’s a smattering of the comments from all around the world, and I am excerpting some of them here, as they might not stay around at the Fortune Magazine blog.
So, some are rather gently correcting:
Seems you don’t like the ruling. SCO knew they had no evidence all along and have failed to produce anything believable after four years. I would say that you’ve missed that last four years, but there are a lot of people who are very upset that suing without evidence is not being allowed to continue. I suppose maybe SCO should have listened to their own engineers who said they had no evidence at all.
Posted By Chuck Talk, Austin, Texas : September 10, 2007 8:30 am
Well, let’s look at the basics:
1. Did Novell even own all the copyrights to the SVRX codebase? The answer is “not really” if you look at was has been revealed in the UCB case.
2. Was there ever a proper transfer of copyrights? No. Wade through all the evidence, and its not there. The original SCO knew this as was OK with this. If Caldera (the new SCO Group) didn’t realize this when they purchased the Unix business, that was their problem.
3. The agency agreement. 100% of the money goes back to Novell for SVRX licences, and then 5% goes back to SCOG for administering it. That tells you who is supposed to own SVRX right there.
Sure, the APA is very poorly worded, and as a legal document is a joke. But that’s what the original parties signed.
Judge Kimball’s ruling was completely fair. If fault is to be found, it is with the original lawyers on both sides who crafted the APA.
Posted By James Graves, Chicago IL : September 10, 2007 8:49 am
Others see bias, and ask what that bias is based in:
Correct me if I’m wrong, but isn’t the most daming bit the amendment that was added after SCo couldn’t come up with the $600 million asking price? The original intent was most certainly for Novell to ditch Unix, but since SCO couldn’t afford it, they wrote the amendment that allowed for Novell to retain the important bits, and for SCO to resell and advance Unix. Saying the judge acted as jury is a bit misleading. He wrote a large volume of information in a ruling to cover all bases. So I can only come to two conclusions about your article:
1) Your in it for the flame attention, as you know the Groklaw folk will write and pick apart your every sentence
2) You have stock in SCO, and you need to raise the price a little to break even.
Which is it?
Posted By John Spangler, Frederick MD : September 10, 2007 9:53 am
The most interesting phenomena for me, though is the obvious effect that Groklaw’s reporting has had on the public knowledge about this case, and the many, many facts which are cited in these comments establish a clear pattern of education about the details of this case. I don’t think there is any civil case ever that has occassioned this level of interest, and this level of knowledge about the details of the case, ever. So, I’ll end with some of my favorites:
Except you’ve missed an important point — under the law, copyrights can only be transferred in writing. All of the testimony as to what the parties intended is completely beside the point if there is no section 402 transfer of copyright. The judge already ruled was back in 2004 that it was indisputed thaT the original APA did not confer copyrights. The judge also ruled at that time that the Amendment did not confer copyrights. Kimball was looking for someone to come up with a bill of sale notarizing th transfer *as there was when the original APA was signed*.
Posted By Roy Murphy, Garden City, New York : September 10, 2007 10:11 am
1) The minutes from the Novell board meeting immediately signing the Santa Cruz agreement specifically mention their retention of copyright.
2) The “95% of license fees” item only makes sense if Novell had retained ownership, doesn’t it? Why would SCO be obliged to send money back if they owned it outright?
3) The IBM case hinges on SCO’s claim of IBM passing UNIX code into Linux, yet the only code SCO has produced to date are header files defining POSIX standard error codes, which can’t very well be claimed. And given Kimball’s ruling that the Novell contract means what it says, Novell can compel their agent, SCO, to drop the case, which leaves SCO open for the countercharges of interference with trade, etc.
While I’m sure Certain IT Companies are disappointed at the failure to derail the Linux bandwagon here, the majority of us are delighted to see an IP troll getting their just desserts.
Posted By Robert Halloran, Jacksonville FL : September 10, 2007 10:21 am
If Mr Darl McBride believed SCO already owned the copyrights to SVRX, why did he (and Yarro) repeatedly request those rights from Novell prior to initiating litigation? Why does the purchase agreement from Santa Cruz to Caldera indicate that there is no chain of title from Novell but they would try to get it? Why does the law require an explicit writing to transfer copyright if you can apparently acquire it without? The APA from Novell to Santa Cruz is clear. The section on included assets explicitly and clearly states that items in excluded assets take precedence. The first two items in excluded assets are All trademarks except UNIX and UnixwareAll copyrightsThe Santa Cruz lawyers would not have missed anything this clear if it was a scrivener’s error.
Posted By Tim Bolshaw, Bangkok, Thailand : September 10, 2007 10:26 am
What Parloff forgets to mention is that Darl McBride asked Novell for the copyrights, thus conceding that the SCO Group did not have them. Kimball’s ruling to strike SCO’s jury request represents due process and the law. Kimball ruled the SCO Group does not own the UNIX copyrights and that they violated the APA and stole Novell’s money. Mr. McBride will probably have to answer to the SEC for lying to stockholders.
This factually inaccurate article by Fortune is incompetent. “Writers” such as Parloff should check their facts before writing.
Posted By Joe, Charlotte NC : September 10, 2007 10:36 am
Dig out your notes from your first-year law course on contracts, and look up “parol evidence rule.” It doesn’t matter how many witnesses SCO had. The contract says, “excluding all copyrights and patents.” It doesn’t say, “excluding all copyrights and patents in NetWare,” or “excluding all copyrights and patents except the ones Buyer really, really wants.” It says, “excluding all copyrights and patents.” The APA as a whole isn’t particularly clear, but on this point at least, it is unambiguous. If SCO has a claim to the copyrights, it has an equally strong claim to the patents — stronger, in fact, since there is no language in the APA to the effect that Novell retains an equitable interest in the royalties on those. Yet SCO has never claimed in court to own any UNIX patents.
Also, what was transferred wasn’t merely licensing rights to UNIX, but a reseller channel which at the time had considerable value.
Posted By Oronyx, Newport Beach, CA : September 10, 2007 10:44 am
If SCO truly believed they were entitled to the copyrights, why did they sue Novell for Slander of Title and not for performance of contract? The answer is because they in fact had the APA and knew the copyrights were excluded. There’s nothing ambiguous about it – Excluded Assets are Excluded Assets
Posted By Pete Henry, Acton, MA : September 10, 2007 10:48 am
You misrepresent the ruling when you say that Kimball was ruling on a summary judgement motion because of his evaluation of parol evidence. Kimball ruled on the basis of the parol evidence rule that excludes such evidence, on the basis that the contract, “was unambiguous and not reasonably susceptible to SCO’s interpretation”.
Hence he didn’t rely on ANY of the witnesses for his ruling (although he took some time to point out that the witnesses agreed with his interpretation as well; for example, your favourite witness, Frankenberg, was found to have contradicted the minutes of the board meeting, the testimony of Novell’s negotiators, himself, and admitted not being intimately involved with the deal.)
And you’ve clearly not READ the APA, (did you just use the SCO press release as cliff notes or something?) or you wouldn’t quote it out of context in order to claim it was ambiguous.
The part you quote (”All rights and ownership of UNIX and UnixWare…”) is from Schedule 1.1a, which is an ancilliary part of the contract. It is referred to in the main body of the contract with the words
“On the terms and subject to the conditions set forth in this Agreement, Seller will sell … to Buyer and Buyer will purchase … the assets and properties … identified on Section 1.1 (a) hereto. Notwithstanding the foregoing, the Assets to be so purchased shall not include those assets (the “Excluded Assets”) set forth on Schedule 1.1 (b)”
That’s abundandly clear. If it’s in Schedule 1.1 (b) it’s not transferred, otherwise if it’s in Schedule 1.1(a) it’s transferred.
No other interpretation is reasonable or consistent with the wording or the notion of even having a schedule of Excluded assets.
Have SCO’s PR people being surreptitiously doing the rounds to you guys? You’re singing the same tune as SCO’s press release, although going into slightly more detail…
Posted By David Sinclair, London, England : September 10, 2007 10:51 am