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August 01, 2005
Geek Group Hug Time
I wonder how many people actively read Slashdot during the weekend.... if you missed it, there was a pointer to a very important development which is documented over at Groklaw. I would like to quote the first few substantive paragraphs and then explain why this is so important to Unix Geeks:
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.
You may remember that we have discussed the history of Unix before and at the time I pointed out that the only "safe" Unix (free from potential attack by SCO) were the BSD family (including FreeBSD, NetBSD, OpenBSD and Darwin/MacOSX) and Solaris (due to an existing arrangement). Now it turns out that Sun is being dragged into the debate after all. Without reading the full (and boring) legal documents I can't tell if that relates to the new Solaris Open Source arrangements or simply an extension of their existing licences.
What is clear is that Novell is demanding at least 95% of the revenue collected from Sun and Microsoft (95% is what they are entitled to but the other 5% is for 'administration' and Novell claim that SCO weren't doing their job). Note that the money does not go direct to Novell, instead it is to be 'set aside' in a trust until the matter is decided. That transfer of those funds should make SCO pretty close to legally bankrupt which could make them a lot cheaper on the stock market. They would also be more attractive to IBM at this point because IBM's biggest Unix rival (Sun) has now been dragged into the mud pit as well. The common understanding was that Sun could withstand IBM's purchase of SCO because of the existing agreements, that may no longer be a viable position.
So why is a 'Geek Group Hug Time'? Because the white knight (Novell) has ridden out to do battle with the SCO dragon which is holding the princess (IBM) captive. Mind you, the dragon has two black eyes, numerous bruises and only two remaining teeth due to the ferocity of the princess. Oh yeah, the knight has also made it clear that he is going to enforce the 'Do not feed the dragon' sign by putting the dragon feeders (Microsoft, Sun) in the stocks.
If you want a happy ending - use Apple. MacOS X is BSD-based and therefore exempt from all this shenanigans.
Posted by Ozguru at August 1, 2005 07:00 AM
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