Text 6357, 71 rader
Skriven 2005-07-30 10:05:58 av Mike '/m' (1:379/45)
Ärende: Novell Files Answer and Counterclaims, and Tells Us the Rest of the SCO
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From: Mike '/m' <mike@barkto.com>


http://www.groklaw.net/article.php?story=20050729190708887

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I know you are waiting with eager anticipation, because today is the day Novell
was to file its answer to SCO's slander of title complaint. I have verified
that they have done so. Here is what I know so far, with the document to follow
as soon as possible. UPDATE: Here it is [PDF], Novell's Answer and
Counterclaims.

Here's the big news. Novell tells the court that SCO contacted Novell after
Darl McBride took the helm, and they asked Novell to go in with them in a
"Linux licensing program". Novell refused to participate, calling it a
"scheme". It was in that context that SCO asked Novell to give them the Unix
copyrights. They repeatedly made such requests, asking Novell to amend the
Novell-Santa Cruz agreement to give SCO the copyrights. Novell repeatedly said
no.

The next biggest news is Novell is bringing Microsoft and Sun Microsystems into
the picture. It looks like we will eventually find out what role they played,
if any. Novell tells us that it began an audit of SCO's activities in July of
2003, which it was entitled to do under the contract, but SCO refused to turn
over requested information regarding Sun Microsystems' and Microsoft's licenses
or any others under the SCOsource program. Novell says that SCO had no
authority to enter into new SVRX licenses with Sun, Microsoft, or anybody else
and they noted that the IP License for Linux SCO was offering appeared to be
SVRX licenses, because they purported to grant rights related to UNIX System V
or UnixWare. SCO never turned over anything, and that is the foundation of
Novell's breach of contract claim, and it leads to the breach of obligation to
remit royalties claim. SCO never asked Novell for permission to enter into any
new SVRX licenses, so none of the new licenses, Novell asserts, falls within
$1.2(e)'s exception to SCO's general duty to remit 100% of SVRX royalties to
Novell. They are asserting their rights to all but 5% of what Sun and Microsoft
paid.

They ask the court for specific performance, to compel SCO to comply with its
audit *and remittance* obligations. Specific performance is legalese when you
are asking the court to make the other party to a contract do what it said it
would. They also ask the court to set up a constructive trust for SCO to
deposit the revenues from Sun, Microsoft, and all revenue from its
"Intellectual Property Licenses with Linux end users and UNIX vendors," to
protect Novell from "SCO's wrongful retention of monies owing Novell due to
SCO's failure to perform its remittance obligations." That should get the SCO
lawyers to wake up with a start. Do you think SCO is finally sorry it started
down this road? I'll bet the lawyers are, even if SCO isn't. Novell has just
handed them a lot of work to do, with uncertainty as to getting paid for it.
That uncertainty is also why Novell asks the court to order a trust be
established, because, Novell says, SCO is quickly dissipating its assets.

Discovery, here we come. We'll get to see those Sun, Microsoft and SCOsource
licenses yet, methinks. If the court sustains these claims, all the SCOsource
money SCO ever got or ever could get would go to Novell, with a small handling
fee to them for their trouble. Actually not even that. Novell says SCO was
unjustly enriched by keeping the revenue but not fulfilling its administrative,
remittance and audit obligations, so they don't deserve the 5% either. Novell
is aiming its arrows straight at SCO's heart, where it lives, namely its
pocketbook. Oh, my, oh, my. Not to the moon after all?

Novell lists a number of affirmative defenses and several counterclaims,
including slander of title. Yay. At last. I was pretty sure that was going to
show up.

Novell's affirmative defenses are:...
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 /m

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