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Judge Stewart Denies Novell Motion in Limine No. 7 - Updated 4Xs - More Orders Put SCO in a Real Pickle
Monday, February 22 2010 @ 02:43 PM EST

Judge Stewart has denied Novell's Motion in Limine No. 7, saying that the motion is "essentially one for partial summary judgment and, as such, is untimely." He also says they can bring their issues up in jury instructions. That was SCO's argument, which has been adopted wholesale.

But I think it's a bit of sleight of hand to say it's a matter for summary judgment. In theory, it is true that Novell could have brought it up again on a motion for partial summary judgment, but in real-life terms, I think it would have been a waste of time to do so, since the judge's order goes on to say that the issues Novell raises are issues of fact that must be decided by a jury. That telegraphs to my brain that any such summary judgment motion would be denied on the grounds that it's the jury that has to decide the matters. Unless in some alternate universe, SCO suddenly had agreed with Novell on all the facts. Hardy har. But I'm just a paralegal by training, so I could be missing something here. Anyway, it's too late now.

So, what I'm saying is, that as far as I can determine, Novell just got told no, period, final answer. It's up to the jury now. I am only guessing, but after the appeals court ruled that Judge Dale Kimball shouldn't have ruled on copyright ownership but should have left it to the jury, the new judge assigned is very likely to leave to the jury as much as he can. It takes longer, meaning it costs more to get there, but it's not a bad place to be, before a jury.

There have been so many motions in limine, you probably would like more of a clue as to which one it was, so here is the Novell Motion in Limine No. 7 and SCO's Opposition, both PDFs:

I've put text versions below. First though, here are all the latest filings:

02/22/2010 - 703 - NOTICE OF CONVENTIONAL FILING of Exhibit 1 filed by Plaintiff SCO Group re 693 Memorandum in Opposition to Motion, (Hatch, Brent) (Entered: 02/22/2010)

02/22/2010 - 704 - MEMORANDUM DECISION denying 633 Motion in Limine. Signed by Judge Ted Stewart on 02/22/2010. (asp) (Entered: 02/22/2010)

02/22/2010 - 705 - NOTICE OF CONVENTIONAL FILING of Exhibit 2 filed by Plaintiff SCO Group re 699 Memorandum in Opposition to Motion, (Hatch, Brent) (Entered: 02/22/2010)

02/22/2010 - 706 - NOTICE OF CONVENTIONAL FILING of Expert Report, Rebuttal Report and Declaration of Dr. Christine Botosan, filed by Plaintiff SCO Group re 701 Memorandum in Opposition to Motion, (Hatch, Brent) (Entered: 02/22/2010)

02/22/2010 - 707 - NOTICE OF CONVENTIONAL FILING of Expert Report and Rebuttal Report of Dr. Gary Pisano filed by Plaintiff SCO Group re 702 Memorandum in Opposition to Motion, (Hatch, Brent) (Entered: 02/22/2010)

[ Update: Here's the latest, and after we have a chance to upload them and analyze it all, I'll swing back by:
708 - Filed & Entered: 02/22/2010
Order on Motion in Limine
Docket Text: MEMORANDUM DECISION denying [643] Motion in Limine. Signed by Judge Ted Stewart on 02/22/2010. (asp)

709 - Filed & Entered: 02/22/2010
Order on Motion in Limine
Docket Text: MEMORANDUM DECISION granting [645] Motion in Limine. Signed by Judge Ted Stewart on 02/22/2010. (asp)

710 - Filed & Entered: 02/22/2010
Order on Motion in Limine
Docket Text: MEMORANDUM DECISION denying [632] Motion in Limine; denying [651] Motion in Limine. Signed by Judge Ted Stewart on 02/22/2010. (asp)

711 - Filed & Entered: 02/22/2010
Order on Motion in Limine
Docket Text: MEMORANDUM DECISION granting [650] Motion in Limine. Signed by Judge Ted Stewart on 02/22/2010. (asp)

712 - Filed & Entered: 02/22/2010
Order on Motion in Limine
Docket Text: MEMORANDUM DECISION granting in part and denying in part [649] Motion in Limine. Signed by Judge Ted Stewart on 02/22/2010. (asp)

713 - Filed & Entered: 02/22/2010
Order on Motion in Limine
Docket Text: MEMORANDUM DECISION taking under advisement [647] Motion in Limine. Signed by Judge Ted Stewart on 02/22/2010. (asp)

716 - Filed & Entered: 02/22/2010
Order on Motion in Limine
Docket Text: MEMORANDUM DECISION granting [635] Motion in Limine. Signed by Judge Ted Stewart on 02/22/2010. (asp)

717 - Filed & Entered: 02/22/2010
Order on Motion in Limine
Docket Text: MEMORANDUM DECISION granting in part and denying in part [637] Motion in Limine; granting in part and denying in part [638] Motion in Limine; granting in part and denying in part [639] Motion in Limine; granting in part and denying in part [640] Motion in Limine; granting in part and denying in part [641] Motion in Limine; granting in part and denying in part [642] Motion in Limine; granting in part and denying in part [644] Motion in Limine; granting in part and denying in part [648] Motion in Limine. Signed by Judge Ted Stewart on 02/22/2010. (asp)

Since docket numbers 714 and 715 are missing, I assume there will be more to come. You'll find the motions in limine by both parties all listed here, so you can match them up. But the orders tell you what each one is about. - End Update.]

[Update 2: 717, for example, is about SCO's witnesses and whose testimony the jury will hear. William Broderick is out, I gather. Jean Acheson can testify to what she heard at meetings, but not at the water cooler. Lawrence Bouffard can testify if he can find anything to testify about, other than his personal opinions after reading the APA. Frankenberg can testify about the parties' intent and course of performance. But he has no knowledge about Amendment 2, the judge rules, so he can't testify about that. Same with Duff Thompson and Ty Mattingly and Doug Michels. Ed Chatlos also can't testify about Amendment 2, and neither can Burt Levine. Kim Madsen, poor thing, who testified that she didn't recall any conversations about Amendment 2, will nevertheless be allowed to testify to her general impression of the intent of the overall deal.

So, SCO's testimony on Amendment 2, as far as this goes, is Kim Madsen, who will get on the stand and have to say she never heard a word about Amendment 2 but she thought it was a confirmation of SCO's intent to get the copyrights. Except there's a problem. I think the judge didn't weigh in that she also testified at her deposition that she doesn't recall any specific mention of copyrights at all. It was just "assumed", she testified. And if you read that deposition, I think you'll agree she really didn't seem to understand the APA very well anyhow, so if she tries to do better, Novell will surely let the jury know what she said that unfortunate, for SCO, day.

What does it mean? Here's how I understand things. That SCO is in a real pickle on copyright ownership. I think this order alone pretty much ensures that Novell will prevail on the copyrights issue. SCO has no specifics to present on Amendment 2. None. And since that is the only ambiguous aspect to the agreements, according to the appeals court, and so subject to witness testimony, they have no meaningful witness testimony about that, which has been obvious for a long time, and was pointed out by The Honorable Judge Dale Kimball, who seems to have gotten it exactly right, and the end result is, in any fair universe, the very same as what he ruled in 2007 on summary judgment, that the copyrights didn't transfer.

After all, if the only ambiguous part is Amendment 2, and the appeals court already ruled that the APA itself is clear that copyrights were excluded, if SCO can't prove anything about Amendment 2, all it can do is present testimony that various folks thought the original deal was supposed to include copyrights, but somehow it didn't. They can't explain the allegedly ambiguous wording in Amendment 2. Ergo if it didn't include copyrights in the APA, it didn't in Amendment 2, according to SCO's ability to tell the jury about that. End of story. Especially because Novell does have witnesses, the two lawyers who drafted the APA and Amendment 2, who *can* explain the wording of both.

The other orders are more favorable to SCO on the slander of title issue, but if the jury finds that the copyrights didn't transfer, that's the end of that in any meaningful sense.

And what about Groklaw? Here's the deal:

The Court agrees with Plaintiff’s general premise that sources of commentary on this and related SCO litigation has little, if any, relevance to this case. However, there may be some relevance as it relates to Defendant’s argument that Plaintiff’s SCOsource initiative failed for reasons other than Defendant’s statements concerning copyright ownership.

As to Plaintiff’s concern regarding any prejudice from possible jury investigation, the Court will instruct the jury that it is not to do any investigation whatsoever on anything that could relate to this trial. Because of these considerations, the Court is unable to grant Plaintiff’s broad request for exclusion.

Rather, the Court will rule on Plaintiff’s objections to specific exhibits as they arise during trial.

It is therefore ORDERED that Plaintiff’s Motion in Limine No. 4 (Docket No. 647) is TAKEN UNDER ADVISEMENT.

No. I can't explain why it says it's taken under advisement, since he seems to have ruled. But that is what it says. So, they can mention Groklaw, but SCO can object each time, and the judge will rule as they happen. - End Update 2.]

[ Update 3: Here are the rest:

02/19/2010 - 714 - **SEALED DOCUMENT** Exhibits A-C re 679 Memorandum in Opposition to Motion, filed by Defendant Novell, Inc.. (asp) (Entered: 02/22/2010)

02/19/2010 - 715 - **SEALED DOCUMENT** Exhibits A, C, D re 678 Memorandum in Opposition to Motion, filed by Defendant Novell, Inc.. (asp) (Entered: 02/22/2010)

02/23/2010 - 718 - **SEALED DOCUMENT** Exhibit 1 re 693 Memorandum in Opposition to Motion, filed by Plaintiff SCO Group. (asp) (Entered: 02/23/2010)

02/23/2010 - 719 - **SEALED DOCUMENT** Exhibit 2 re 699 Memorandum in Opposition to Motion, filed by Plaintiff SCO Group. (asp) (Entered: 02/23/2010)

02/23/2010 - 720 - **SEALED DOCUMENT** Exhibit 3 re 701 Memorandum in Opposition to Motion, filed by Plaintiff SCO Group. (asp) (Entered: 02/23/2010)

02/23/2010 - 721 - **SEALED DOCUMENT** Exhibit 4 re 701 Memorandum in Opposition to Motion, filed by Plaintiff SCO Group. (asp) (Entered: 02/23/2010)

02/23/2010 - 722 - **SEALED DOCUMENT** Exhibit 3 re 702 Memorandum in Opposition to Motion, filed by Plaintiff SCO Group. (asp) (Entered: 02/23/2010)

02/23/2010 - 723 - **SEALED DOCUMENT** Exhibit 2 re 702 Memorandum in Opposition to Motion, filed by Plaintiff SCO Group. (asp) (Entered: 02/23/2010)

02/23/2010 - 724 - MEMORANDUM DECISION granting 631 Motion in Limine. Signed by Judge Ted Stewart on 02/23/2010. (asp) (Entered: 02/23/2010)

02/23/2010 - 725 - MEMORANDUM DECISION denying 634 Motion in Limine. Signed by Judge Ted Stewart on 02/23/2010. (asp) (Entered: 02/23/2010)

#724 is interesting:
II. DISCUSSION

The mandate rule is an "important corollary" to the law of the case doctrine. "The mandate rule is an 'discretion-guiding rule' that 'generally requires trial court conformity with the articulated appellate remand,' subject to certain recognized exceptions." The mandate rule "provides that a district court must comply strictly with the mandate rendered by the reviewing court." While "a district court is bound to follow the mandate, and the mandate 'controls all matters within its scope, ... a district court on remand is free to pass upon any issue which was not expressly or impliedly disposed of on appeal.'" Further, the Court may decide issues that were necessarily implied by the mandate. However, the mandate rule prevents a court from considering an argument that could have been, but was not, made on appeal.

Plaintiff argues that the Court’s alternative ruling was premised on the Court’s other rulings—that (1) the APA can and should be read independent of Amendment No. 2; (2) extrinsic evidence cannot be considered; and (3) the APA merely gives SCO an implied license—which have now been reversed. Therefore, the Court may revisit them because they are necessarily implied by the mandate. The Court disagrees.

The Court’s alternative rulings were not predicated on those now-reversed rulings. Unlike the Court’s decision concerning Plaintiff’s slander of title claim, which was solely based on the Court’s finding that Defendant owned the copyrights, there were alternative, independent bases for the Court’s ruling on the copyright ownership portion of Plaintiff’s implied covenant of good faith and fair dealing claim. As those alternative rulings were not appealed and, thus, not reversed, the Court is without authority to revisit them on remand. Therefore, the Court will preclude litigation of the copyright ownership portions of Plaintiff’s claim for breach of the implied duty of good faith and fair dealing.

III. Conclusion.

It is therefore

ORDERED that Defendant's MOtion in Limine No. 4 to Preclude SCO from Contesting that Novell had an Objectively Reasonable, Good Faith Basis for its Statements Regarding Copyright Ownership (Docket No. 631) is GRANTED.

You can find SCO's arguments that just got shot down here in docket number 684, if you'd like to review. And Novell's motion which was just granted is here, number 631. - End Update 3.]

[ Update 4: Another Novell motion in limine denied, another SCO motion in limine granted, and we have updated the chart to reflect that:

02/24/2010 - 728 - MEMORANDUM DECISION denying 636 Motion in Limine; granting 646 Motion in Limine. Signed by Judge Ted Stewart on 02/23/2010. (asp) (Entered: 02/24/2010)

The Novell motion was to exclude evidence of substantial performance; the SCO motion was to exclude reference to Novell's prior money judgment against SCO. I can't explain the judge's reasoning on the former. He says he disagrees with Novell's argument that SCO failed to perform by not paying Novell the royalties from Sun, and that the district court so found. The judge says that what the court ruled was that SCO was liable for breach of its fiduciary duty, conversion and unjust enrichment, but since all of that springs from the agreement and not doing what the agreement said SCO should do, I can't follow his logic. Probably Novell can't either. The judge doesn't explain granting the SCO motion. - End Update 4.]

Here's the judge's order as text, and so it will be more meaningful, I've put Novell's motion in limine that it is talking about after it, and then SCO's Memorandum in Opposition. If you hold the SCO memo up next to the judge's order, I think you'll find they match very closely:

**********************************

CENTRAL DIVISION

THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff/Counterclaim Defendant,

vs.

NOVELL, INC., a Delaware corporation,
Defendant/Counterclaim Plaintiff.

____________________

Case No. 2:04-CV-139 TS

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT'S
MOTION IN LIMINE NO. 7 TO
DETERMINE THAT COMMON
LAW PRIVILEGES APPLY TO
ALLEGEDLY DEFAMATORY
PUBLICATIONS

This matter is before the Court on Defendant's Motion in Limine No. 7. In that Motion, Defendant seeks a ruling that: (1) its private correspondence to Plaintiff is not actionable because it is protected by the common law litigation privilege; and (2) its broader publications are not actionable unless Plaintiff can prove that Defendant acted solely out of malice or bad faith because they are the subject to the recipient's and rival claimant's privileges. Defendant's Motion is essentially one for partial summary judgment and, as such, is untimely. Considering the merits of the Motion, it will be denied.

1

I. DISCUSSION

A. ABSOLUTE PRIVILEGE

Defendant argues that its publication of its ownership claim in private pre-litigation correspondence to SCO, responding to SCO's demand letter, is protected by the litigation privilege.

"The general rule is that judges, jurors, witnesses, litigants, and counsel involved in a judicial proceeding have an absolute privilege against suits alleging defamation."1 The Utah Supreme Court, following the Restatement (Second) of Torts, has set out the litigation privilege as follows:

A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.2 The privilege "exists for the purpose of preserving both the integrity of the judicial proceeding and the associated quest for the ascertainment of truth that lies at its heart."3

In order for this privilege to apply, the following elements must be satisfied: (1) the statement must have been made during or in the course of a judicial proceeding; (2) the statement must have some reference to the subject matter of the proceeding; and (3) the statement must have been made by someone acting in the capacity of judge, juror, witness, litigant, or counsel.4

2

"The first element requires examination of whether the statement was made during or in the course of a judicial proceeding."5 "The second element requires that the statement have some reference to the subject matter of the proceeding."6 "The third and final element of the judicial proceeding privilege requires that the party claiming the privilege was acting in the capacity of judge, juror, witness, litigant, or counsel."7

The Utah Supreme Court has "indicated that the judicial proceeding privilege may be lost due to excessive publication."8 "The excessive publication rule, in the context of judicial proceeding privilege cases, is to prevent abuse of the privilege by publication of defamatory statements to persons who have no connection to the judicial proceeding."9 The issue of whether there has been excessive publication is a question of fact.10

The Court finds that the determination as to whether this privilege applies to Defendant's statements and whether it has been lost due to excessive publication are issues for the jury.

B. CONDITIONAL PRIVILEGES

Defendant argues that its broader communications are protected by two additional conditional privileges: (1) the recipient's privilege; and (2) the rival claimant's privilege.

3

Defendant seeks an order that its communications are covered by both privileges. Defendant seeks a ruling that its public disclosures are covered by both privileges.

"Whether a publication is conditionally privileged is a question of law to be determined by the trial court, unless a genuine factual issue exists regarding whether the scope of the qualified privilege has been transcended or the defendant acted with malice."11 Because there are factual issues concerning whether these privileges apply, whether the scope of these conditional privileges have been transcended, and whether Defendant acted with malice, the Court cannot rule that Defendant's statements are conditionally privileged.

C. EXCESSIVE PUBLICATION

Defendant also requests the Court rule that Plaintiff cannot show excessive publication, leaving malice as the only question for the jury. The Court declines to do so. As indicated, excessive publication is an issue for the jury.

II. CONCLUSION

It is therefore

ORDERED that Defendant's Motion in Limine No. 7 to Determine that Common Law Privileges Apply to Allegedly Defamatory Publications (Docket No. 633) is DENIED. Both parties may submit proposed jury instructions on these issues.

DATED February 22, 2010.

BY THE COURT:

[signature]
TED STEWART
United States District Judge

4

1 Krouse v. Bower, 20 P.3d 895, 898 (Utah 2001).

2 Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997)(quoting Restatement (Second) of Torts § 587).

3 O'Connor v. Burningham, 165 P.3d 1214, 1222 (Utah 2007).

4 Price, 949 P.2d at 1256.

5 Id.

6 Id. at 1257.

7 Id. at 1258.

8 Krouse, 20 P.3d at 900.

9 Id.

10 Brehany v. Nordstrom, Inc., 812 P.2d 49, 58 (Utah 1991).

11 Id.

*******************************************
*******************************************

NOVELL’S MOTION IN LIMINE NO. 7 TO DETERMINE THAT COMMON LAW PRIVILEGES APPLY TO ALLEGEDLY DEFAMATORY PUBLICATIONS

SCO alleges that Novell slandered SCO’s title to certain copyrights by asserting that Novell, and not SCO, owns those copyrights. (Dkt. 96 at ¶ 91.) According to SCO, Novell published that allegedly defamatory matter in: (1) a public letter dated May 28, 2003; (2) private correspondence sent to SCO in June and August 2003; (3) copyright applications submitted to the United States Copyright Office in September and October 2003; and (4) various other public announcements, including a December 22, 2003 press release that republished hitherto private correspondence with SCO. (Id. at ¶ 37.) By this motion, Novell seeks rulings in limine that (a) its private correspondence to SCO is not actionable because it is protected by the common law litigation privilege; and (b) its broader publications are not actionable unless SCO can prove that Novell acted solely out of malice or bad faith because they are subject to the recipient’s and rival claimant’s privileges.1

I. ARGUMENT

All of Novell’s allegedly defamatory publications were made after SCO sent demand letters to Novell and to 1,500 other companies, in which SCO published its own claim that it owned the copyrights at issue in this case and demanded that the recipients pay for licenses.2 (Dkt. 121 at ¶ 52.) Under these circumstances, a rule imposing liability on Novell for disputing SCO’s ownership would be unfair both to Novell and to the third parties from whom SCO wants to extract licensing fees, and it is not the law. Slander of title requires a false statement made “without privilege,” Dowse v. Doris Trust Co., 116 Utah 106, 110-11, 208 P.2d 956 (1949), and Novell’s publications were privileged.

Novell’s publication of its ownership claim in private pre-litigation correspondence to SCO, responding to SCO’s demand letter, is protected by the litigation privilege, which is

1

absolute. See Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997) (quoting Restatement (Second) of Torts [“Rest.”] § 587) (“A party to a private litigation … is absolutely privileged to publish defamatory matter … in communications preliminary to a proposed judicial proceeding … if the matter has some relation to the proceeding”).3

Novell’s broader publications, in turn, are protected by two other, conditional privileges. First, “[t]he law has long recognized that a publication is conditionally privileged if made to protect a legitimate interest of the … recipient.” Brehany v. Nordstrom, 812 P.2d 49, 59 (Utah 1991) (citing, inter alia, Rest. § 595); see also Rest. § 646A (privilege applies to slander of title).4 Second, a further privilege applies specifically to a rival’s publication of its claim to property (including intangible property). Rest. § 647; see also id. cmt. b (privilege is “applicable to … injurious falsehood”); Jack B. Companies v. Nield, 751 P.2d 1131, 1134 (Utah 1988) (“slander of title … is … injurious falsehood”). Novell seeks in limine rulings that its public disclosures are covered by both privileges. See O’Connor v. Burningham, 165 P.3d 1214, 1224 (Utah 2007) (“Whether a statement is entitled to the protection of a conditional privilege presents a question of law; whether the holder of the privilege lost it due to abuse presents a question of fact”). Taking them in order, the other recipients of Novell’s publications—to whom SCO also sent demand letters—have a legitimate interest in ascertaining the true ownership of the copyrights SCO is threatening to sue them on, so the recipient’s privilege also applies. See Rest.

2

§ 595. And the rival claimant’s privilege applies, by definition, to any assertion by Novell that it owns the copyrights claimed by SCO.

SCO bears the burden of overcoming the conditional privileges “by proof of malice or excessive publication.” Brehany, 812 P.2d at 59. Novell also requests that the Court rule in limine that SCO cannot show excessive publication because it is suing Novell for publishing to precisely those third parties that have interest in the true ownership of the copyrights, and any publication to disinterested parties is irrelevant to SCO’s supposed damages. See Rest. § 599 cmt. b (“If the harm done by the abuse is severable, and can be distinguished from the harm done by a part of the publisher’s conduct that would properly be privileged, he is subject to liability only for the excess of harm resulting from his abuse”); see generally O’Connor, 165 P.3d at 1224 (the Restatement’s teachings on privilege “enjoy close ties to common sense and thus appear worthy of our confidence”). The only remaining issue that would leave for the jury to decide is whether Novell made those publications in bad faith, solely out of ill-will, and with no intent to protect the legitimate interests of the recipients. See Rest. § 603 cmt. a. (“if the publication is made for the purpose of protecting the interest in question, the fact that the publication is inspired in part by resentment or indignation at the supposed misconduct of the person defamed does not constitute an abuse of the privilege”); id. at § 647 cmt. b (rival claimant’s privilege “permits the publisher to assert a claim … provided that the assertion is honest and in good faith, even though his belief is neither correct nor reasonable”).

II. CONCLUSION

This Court should rule, in limine, that (1) Novell’s publication of its ownership claim to SCO is subject to the absolute litigation privilege; and (2) any broader publication of that claim is conditionally protected by the recipient’s interest and rival claimant’s privileges.

___________________

1 A companion motion in limine (no. 8) addresses the Noerr-Pennington privilege applicable to Novell’s copyright applications.

2 SCO was also the first to go public, as more fully explained in Novell’s motion in limine no. 3.

3 For convenient reference, Restatement sections cited herein are reproduced in Exhibits 7A-7F hereto. As SCO itself has elsewhere observed: “Thus, for example, the sending of a demand letter, settlement letter, or a cease and desist letter is absolutely privileged.” SCO’s Mem. Supp. Mot. Summ. J. at 5, SCO Group, Inc. v. IBM, No. 2:03CV294 (D. Utah Sep. 25, 2006). Arguably, this privilege also protects Novell’s publications to the broader Linux community. See Krouse v. Bower, 20 P.3d 895, 900 (Utah. 2001) (“The excessive publication rule, in the context of judicial proceeding privilege cases, is to prevent abuse of the privilege by publication of defamatory statements to persons who have no connection to the judicial proceeding”).

4 Property interests are a “legitimate interest” within the ambit of the recipient’s interest privilege. See Rest. § 595 cmt. d.

****************************************************
****************************************************
****************************************************

SCO'S OPPOSITION TO "NOVELL'S MOTION IN LIMINE NO. 7 TO DETERMINE THAT COMMON LAW PRIVILEGES APPLY TO ALLEGEDLY DEFAMATORY PUBLICATIONS"

Novell asks the Court to rule that certain common-law privileges apply to Novell's claims of copyright ownership that are the subject of SCO's claim for slander of title.

1. Novell's motion should be denied without prejudice to request appropriate jury instructions. The subject of this motion would more appropriately be addressed in the context of jury instructions.1 Novell does not discuss in its motion Judge Kimball's prior rulings with respect to the applicability of privileges. Novell sought to have the slander of title claim dismissed on the basis of privilege. The Court denied the motion in June 2005. (Docket No. 75.) With the
exception of the "absolute privilege," Novell argued then for application of the same privileges it asks the Court to apply now. In denying the motion, the Court noted that SCO may establish that the asserted privileges do not apply or prove that Novell acted with an intent or through conduct that removes the privilege:

  • Where "'the disparaging matter was published maliciously,'" the defendant has published the matter "'without privilege to do so.'" Id. at 11 (quoting Dowse v. Doris Trust Co., 208 P.2d 956, 958 (Utah 1949)).
  • The qualified or conditional privileges that Novell invokes do not apply if "'the scope of the qualified privilege has been transcended or the defendant acted with malice.'" Id. (quoting Brehany v. Nordstrom, Inc., 812 P.2d 49, 57 (Utah 1991)).
  • The plaintiff may prove 'that the wrong was done with an intent to injure, vex or annoy,' or 'because of hatred, spite or ill will.' Or, 'malice may be implied where a party knowingly and wrongfully records or publishes something untrue or spurious or which gives a false or misleading impression adverse to one's title under circumstances that it should reasonably foresee might result in damage to the owner of the property.'" Id. at 12 (quoting First Sec. Bank of Utah v. Banberry Crossing, 780 P.2d 1253, 1257 (Utah 1989)).

  • "'Statements that are otherwise privileged lose their privilege if they are excessively published, that is, published to more persons that the scope of the privilege requires to effectuate its purpose.'" Id. at 15 (quoting Krouse v. Bower, 20 P.3d 895, 900 (Utah 2001)). "The issue of whether there has been an excessive publication is a question of fact." Id. (citing Brehany, 812 P.2d at 58).

SCO does not dispute that jury instructions may be appropriate with respect to certain applicable privileges, and their limitations. On the "legitimate interest" qualified privilege, for example, the defendant must be under "a legal duty" to the recipient to publish the statement. O'Connor v. Burningham, 165 P.3d 1214, 1224 (Utah 2007). Novell owed no "legal duty" to the public to make its statements.2

2. The issue of "excessive publication" is for the jury to determine. The Court's prior
rulings defeat Novell's instant request for a legal ruling that SCO cannot show "excessive publication." That is an issue for the jury. Indeed, where the very notion of a qualified privilege precludes "widespread or unrestricted communication," Spencer v. Spencer, 479 N.W.2d 293, 297 (Iowa 1991), a "defense of qualified privilege does not extend to a publication to the general public." Knudsen v. Kan. Gas and Elec. Co., 807 P.2d 71, 79 (Kan. 1991).

3. Novell is not entitled to any "in limine" relief. The question of excessive publication therefore is for the jury, and if Novell acted with malice, no qualified privilege applies. Even if SCO were to be required "actual malice," as Novell seeks to require in Motions in Limine Nos. 2 and 3, evidence of common law malice will be admissible at trial. D. Elder, Defamation: A Lawyer's Guide § 7:3 (2009).

4. Novell's claim of "absolute privilege" fails under the relevant law. The absolute privilege for litigation generally applies to a "party to a private litigation." Hansen v. Kohler, 550

2

P.2d 186, 189-90 (Utah 1976); see also O'Connor v. Burningham, 165 P.3d 1214, 122-23 (Utah 2007). The purpose of the privilege is to "promote candid and honest communication between the parties and their counsel in order to resolve disputes." Krouse v. Bower, 20 P.3d 895 900 (Utah 2001). In certain limited situations, pre-litigation correspondence such as cease-and-desist letters may qualify for the privilege. It is an open factual question, however, whether Novell's letters are consistent with any such purpose. In addition, those letters were later published to the world - which is clearly not consistent with the privilege. Contrary to Novell's suggestion, moreover, excessive publication (such as publication to the public) is a defense to this privilege as well. Id. That question, again, is for the jury to resolve.

Conclusion

SCO respectfully submits, for the reasons set forth above, that the Court should deny Novell's "Motion in Limine No. 7," without prejudice to Novell's right to request appropriate jury instructions on privileges.

DATED this 19th day of February, 2010.

By: ___/s/ Brent O. Hatch______
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Edward Normand
Sashi Bach Boruchow

Counsel for The SCO Group, Inc.

_______________

1 Insofar as part of Novell's motion seeks a ruling that certain of the slanderous statements are not
actionable because of an absolute litigation privilege, that is a motion for partial summary judgment that
was required to have been brought - like Novell's other summary judgment motions - by April 20, 2007,
the deadline for dispositive motions.

2 Likewise, financially motivated public claims of copyright ownership do not fall within the alternate "decent conduct" standard.


  


Judge Stewart Denies Novell Motion in Limine No. 7 - Updated 4Xs - More Orders Put SCO in a Real Pickle | 473 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: bugstomper on Monday, February 22 2010 @ 02:53 PM EST
Please summarize the error->correction or s/error/correction/ in the Title
box for ease of scanning

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Monday, February 22 2010 @ 02:55 PM EST
Please put the title of the News Pick you are picking in the title box for ease
of scanning. And use HTML to make your links clickable for ease of clicking.

[ Reply to This | # ]

COMES goes here
Authored by: bugstomper on Monday, February 22 2010 @ 02:57 PM EST
Here is where to post your text translations of COMES documents. Preferably with
HTML markup but posted as Plain Old Text so PJ can copy and paste it easily

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Monday, February 22 2010 @ 02:58 PM EST
Please stay off topic and use HTML to make links clickable

[ Reply to This | # ]

Judge Stewart Denies Novell Motion in Limine No. 7
Authored by: Anonymous on Monday, February 22 2010 @ 03:04 PM EST
" It takes longer, meaning it costs more to get there, but
it's not a bad place to be, before a jury."

Maybe it's better to be before a jury than J. Stewart,
but Kimball had a deeper, better, more comprehensive,
and wiser view of this than any jury will.

The jury option is legal roulette.

[ Reply to This | # ]

Judge Stewart Denies Novell Motion in Limine No. 7
Authored by: mupi on Monday, February 22 2010 @ 03:16 PM EST
So the Jury gets to decide, after hearing the evidence, whther they should have
been allowed to hear the evidence? How is that supposed to work, exactly?

Isn't the whole point of privilege to keep the Jury from hearing stuff they
shouldn't? How is the jury supposed to forget they heard it?

I find it interesting how, at least so far, the jusdge is siding 100% with SCO.
I know it is early in this game, but it sure seems like a game is afoot.

[ Reply to This | # ]

More Judge Stewart Orders on Motions in Limine
Authored by: ChrisP on Monday, February 22 2010 @ 03:17 PM EST
There's another 6 orders up to keep PJ busy...

643 - denied
645 - granted
632 - denied
651 - denied
650 - granted
649 - granted in part, denied in part
647 - under advisement

I haven't looked to see what the motions were yet.

---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.

[ Reply to This | # ]

2 denials down, 17 to go
Authored by: Anonymous on Monday, February 22 2010 @ 03:30 PM EST

Well, to be fair, Webster predicted this one, too, although of the 24 motions,
he has only 7 in favor of Novell. So, I guess he is still on track.

Well, so am I: all Novell motions denied, all SCO motions granted.

[ Reply to This | # ]

Seven More Motions in Limine Decided
Authored by: RFD on Monday, February 22 2010 @ 03:33 PM EST
The total in now up to nine! I have not had time to digest them yet.

---
Eschew obfuscation assiduously.

[ Reply to This | # ]

"untimely" in this instance means "too late"
Authored by: Anonymous on Monday, February 22 2010 @ 03:42 PM EST
i.e., Novell could have bought it up in a motion for partial summary judgment if
they had done so earlier, but now that time is passed and motions for partial
summary judgment will no longer be accepted.

[ Reply to This | # ]

PJ, just curious, have you ever been on a jury?
Authored by: Anonymous on Monday, February 22 2010 @ 03:45 PM EST
You've never mentioned any personal experience that I recall. All I can say
right now is that it's not a pretty sight.

[ Reply to This | # ]

Does that mean that quotes from Groklaw can go before a jury too?
Authored by: The Mad Hatter r on Monday, February 22 2010 @ 04:02 PM EST

It would seem logical.


---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

Still 3 hours to go
Authored by: Anonymous on Monday, February 22 2010 @ 04:09 PM EST
Lots of rulings today, with three hours to go in Utah's work day.

[ Reply to This | # ]

All toghether now...
Authored by: jbeadle on Monday, February 22 2010 @ 04:13 PM EST
Think: The Theme from the Pink Panther...

Deny, deny

Deny

Deny, deny, deny, deny

Denyyyyyyyyyyyyyy...

-jb

.

[ Reply to This | # ]

Judge Stewart Denies Novell Motion in Limine No. 7 - Updated - More Orders
Authored by: Anonymous on Monday, February 22 2010 @ 04:24 PM EST
This is worse than doing the pools. Some interesting ones but this part and part
is going to be even more interesting.

Tufty

[ Reply to This | # ]

Judge Stewart Denies Novell Motion in Limine No. 7 - Updated - More Orders
Authored by: Steve Martin on Monday, February 22 2010 @ 04:35 PM EST

Based on these rulings, the determination that agreements that postdate the APA may constitute SVRX Licenses is the law of the case and Plaintiff will be precluded from presenting evidence or arguing otherwise. Turning to the argument raised in Plaintiff’s response, which seeks to preclude Defendant from arguing that SCOsource licensing agreements entered after the APA are SVRX licenses, the Court finds that this issue is not properly before it. This would have been an appropriate matter for a motion in limine, but neither party has raised it and the time for doing so has now passed. Therefore, the Court makes no ruling on this issue.
HAHAHAHA! So the old "you shoulda but didn't" argument bites both ways after all.

---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

  • Maybe not : - Authored by: Anonymous on Tuesday, February 23 2010 @ 03:13 PM EST
716 Granted
Authored by: Steve Martin on Monday, February 22 2010 @ 04:39 PM EST

"It is therefore ORDERED that Defendant’s Motion in Limine No. 10 to Preclude SCO from Presenting Argument Relating to Issues Stayed Pending Arbitration (Docket No. 635) is GRANTED as set forth above."
So the arbitration issues are still stayed, and won't be argued in Utah. This means no final judgment until the arbitration is complete.

---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

I've lost track....
Authored by: Lazarus on Monday, February 22 2010 @ 04:47 PM EST
Of the ones that were decided today, which ones were put in by Novell, and which
ones by SCO?

---
I have no opinion on things I know nothing about.

This separates me from 90% of the human race, and 100% of politicians.

[ Reply to This | # ]

717 looks decent to Novell from my reading?
Authored by: Anonymous on Monday, February 22 2010 @ 04:48 PM EST
Does SCO have anyone left to testify as to the purpose of Amendment 2?

[ Reply to This | # ]

Don't talk about Amendment 2 if you weren't there
Authored by: Anonymous on Monday, February 22 2010 @ 04:49 PM EST
In deference to the Appeals Court, anybody that had anything to do with the APA
can talk about their own adventures.

However, there's going to be very few people talking about Amendment 2: no
Broderick, Bouffard, Acheson, Frankenberg, Thompson, Mattingly, Michaels, or
Chatlos. Levine - depends; Madsen, only non-hearsay stuff.

Wow. WOW. Basically, SCO now has to rely on the APA 'cause they can't talk about
Amendment 2. If Stewart had granted SCO's #1 (643), this case would be *over*.

cpeterson, WINAL

[ Reply to This | # ]

The Groklaw Ruling
Authored by: Guil Rarey on Monday, February 22 2010 @ 05:10 PM EST
If I understood the ruling on outside media -- aka the Groklaw ruling, the judge
was agreeing that, of course, duh, he'll instruct the jury to not do any outside
research on this case.

He also conceded that reference to outside media was relevant to Novell's
defense that there were other reasons than their alleged slander of title for
the failure of SCOsource. He said he would handle each reference on a piecemeal
basis as they were introduced during trial.

In other words, selected articles on Groklaw are probably IN. Despite PJ's
formal anonymity, she sources and researches her material carefully and it
shows. Calling her stuff "prejudicial" falls into the "the truth
hurts" category. The comment threads, where we were, umm, a trifle more
freewheeling, would be out.

---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so

[ Reply to This | # ]

SCO is in a pickle -- again
Authored by: Anonymous on Monday, February 22 2010 @ 05:15 PM EST
SCO has been in a pickle for seven years. We're getting way ahead of ourselves
-- again. After ISO, we still haven't learned that 2 plus 2 isn't necessarily
4.

[ Reply to This | # ]

In Limine "ScoreCard" as Google Doc Table
Authored by: Anonymous on Monday, February 22 2010 @ 05:15 PM EST
Downloadable version of the "Scorecard" on in Limine motions as a Google Doc. Not hot linked because of GL's caution on Google doc sources.

https://spreadsheets.google.com/ccc?key=0AnH7Ru-k1dP3dGtuTERqYnRiWW9jdDBNaW 9PdnE0VHc&hl=en

I've tried to distill my readings of the orders to shade the meaning expressed by the Judge.

[ Reply to This | # ]

Judge Stewart Denies Novell Motion in Limine No. 7 - Updated - More Orders Put SCO in a Real Pickle
Authored by: mossc on Monday, February 22 2010 @ 05:18 PM EST
One thing I hope is clear in the trial,

"Santa Cruz" and "The SCO Group(TSG)" are two separate
entities.

I hope TSG are forced to make the distinction in the trial.

I recall filings where TSG used SCO to refer to Santa Cruz and TSG in the same
paragraph. If a confused jury is helpful to them calling the two entities the
same thing will be good for their case.

I don't recall any documents showing that Caldera purchased UNIX copyrights from
Santa Cruz. It has already been ruled that Caldera did not acquire the entire
company.

Even if Santa Cruz thought the copyrights transferred, TSG should have no
standing to sue for slander of title unless they bought SOMETHING from Santa
Cruz that appeared to be UNIX copyrights.

If there is no transfer of (or listing of) copyrights as Santa Cruz assets it
doesn't support their case that everyone believed they had transferred from
Novell.

[ Reply to This | # ]

No Kangaroos!
Authored by: Anonymous on Monday, February 22 2010 @ 05:23 PM EST
I don't mean any disrespect to the 10th Cct. or Judge Stewart, but after Judge
Stewart's hard line on procedure and the mandate rule, and then rulings on these
motions, it strikes as though what is being said is "Ok, if the 10th Cct.
wants us to hold this kangaroo court, we will: but no kangaroos will be allowed
to attend!"

[ Reply to This | # ]

  • Not bad... (n/t) - Authored by: Grog6 on Monday, February 22 2010 @ 09:14 PM EST
  • KFC - n/t - Authored by: Anonymous on Tuesday, February 23 2010 @ 10:44 AM EST
So what is simplest argument for Novell for jury?
Authored by: Anonymous on Monday, February 22 2010 @ 05:33 PM EST
Something like:

Of course it would be our intent to sell the whole business, "lock, stock
and
barrel" at the beginning. Then it turns out that SCO didn't have the money
to
pay for the whole business, so we kept our assets, and let them keep 5% for
their trouble.

Also put in very foresighted clauses about negotiating new licenses, which
SCO failed to perform and has not yet paid. As well as being able to waive
something SCO is doing in case it goes against our business needs. Any
foresighted person would want clauses in there in case the business gets
sold to someone who would do something differently with it than the person
you sold it to.

And also obviously, if it's taken 7 years to figure something out (slander of
title), then of course there was good reason for us to think we had the
copyrights. If it were easy this would have been solved long ago and wouldn't
be before a jury.

[ Reply to This | # ]

On SCO being in a pickle
Authored by: Anonymous on Monday, February 22 2010 @ 05:38 PM EST

Looks to me like Judge Stewart did a good job in parsing
out which person had direct knowledge of what parts of the agreement.

The thing that was looking shaky was whether the "all APA considered as a
whole" doctrine was going to allow those associated with the original
drafting to spout about the amendments even though they had no directly
knowledge.
The Judge makes the right call and lets people talk about discussions and
negotiations in which they were personally involved but not about any other
parts.

Good Job Judge!

Since SCO doesn't have any pony to trot out regarding the amendments, will they
have nothing to say?


[ Reply to This | # ]

What's left for the hearing?
Authored by: Anonymous on Monday, February 22 2010 @ 06:03 PM EST
What, if anything, is left to be decided at the hearing on the 25th?

MSS2

[ Reply to This | # ]

Fair enough -- SCO appears to be doomed
Authored by: jbb on Monday, February 22 2010 @ 06:30 PM EST
I think Judge Stewart did a very good job in finding a reasonable path through the minefield of all these motions. I think his rulings to date (up to update 2 on this page) are fair. On most issues he said in effect: let's put the facts (not opinions) in front of the jury and let them decide.

IMO by far the most important thing is what PJ pointed out: SCO's got nearly nuthin' regarding Amendment Two. She also pointed out that these rulings basically confirm Judge Kimball's summary judgment ruling that was later overturned by the 10th Circuit CoA. If SCO's got no evidence then you don't need a jury to decide in favor of Novell because Novell has some great evidence (the people who wrote the APA and the amendment).

I believe that with these rulings Judge Stuart created a reasonable and level playing field. It also appears that on any reasonable and level playing field SCO is doomed. I wonder what Trustee Cahn thinks of all this? Does he still think playing the litigation lottery is in the best interest of the creditors? Is there any way SCO can win without a massive miscarriage of justice? IMO all he is doing now is flushing Novell's money down the toilet. Even though the services of BS&F are already paid for, Novell is paying for all the other expenses on both sides of this litigation.

You know, in at least one way, maybe it is a good thing that this trial has not been delayed until Novell's appeal to the Supreme Court has been resolved. Judge Stewart's rulings today show that SCO's got no evidence regarding Amendment Two therefore there is absolutely no reason to try this case in front of a jury. This helps bring home the point that there was something haywire in the CoA ruling that Novell is now asking the Supreme Court to review. You should not get a jury trial if you've got absolutely no credible evidence.

---
You just can't win with DRM.

[ Reply to This | # ]

Judge Stewart Denies Novell Motion in Limine No. 7 - Updated - More Orders Put SCO in a Real Pickle
Authored by: Anonymous on Monday, February 22 2010 @ 07:01 PM EST
It is therefore ORDERED that Plaintiff’s Motion in Limine No. 4 (Docket No. 647) is TAKEN UNDER ADVISEMENT.
I think the under advisement may mean that the judge intents to instruct the jury they can't look up groklaw (or other websites) at the time of trial. Otherwise, public evidence is allowed. Is this correct???

[ Reply to This | # ]

Judge Stewart - I apoligise
Authored by: Anonymous on Monday, February 22 2010 @ 07:10 PM EST
... for all the bad thoughts I was thinking about you. I'll think a few extra
good thoughts about you now to redress the karmic balance.

Ladies and Gentlement, it looks like the fix ISN'T in and we may have a real
trial. I still can't imagine what the appeals court was smoking when it came up
with its inexplicable ruling. If the supremes grant certiori they may have
something to say about that in due course.

This is going to be an unusual trial because Kimball was really right - whether
or not the APA is sufficient to act as a copyright transfer document isn't
really something a jury should be asked to decide. It is purely a matter of law,
not of fact. But they are going to have to decide it here.

Judge Stewart will have to explain the law relating to copyright transfer and
what constitutes a writing very carefully to make sure the jury doesn't get
distracted by the wookie.

[ Reply to This | # ]

714 and 715
Authored by: Steve Martin on Monday, February 22 2010 @ 07:44 PM EST

[PJ:] Since docket numbers 714 and 715 are missing, I assume there will be more to come.
PACER now shows that 714 and 715 are sealed exhibits to filings 679 and 678, respectively. No further decisions posted as of 5:45 PM Utah time.

---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

The Relevance of Groklaw
Authored by: Anonymous on Monday, February 22 2010 @ 08:46 PM EST
The Court agrees with Plaintiff’s general premise that sources of commentary on this and related SCO litigation has little, if any, relevance to this case. However, there may be some relevance as it relates to Defendant’s argument that Plaintiff’s SCOsource initiative failed for reasons other than Defendant’s statements concerning copyright ownership.

The relevance of Groklaw in this case is that SCO is claiming damages based on the public perception of the validity of their claims. That public perception will be based on many sources of information, not just on Novell's statements. If only Novell claimed that SCO's statements don't hold water, then Novell's statements could be seen as the reason for SCO's problems. However, if everyone was already saying that SCO was being "economical with the truth", then Novell's statements would have only had a partial contribution to SCO's problems.

If you type "sco linux" (without quotes) into Google, the top three sources are (in order):

  1. Wikipedia.
  2. SCO's own home page.
  3. Groklaw's home page.

If you search using Yahoo, then SCO's web site is at the top, Wikipedia has the next two links, and Groklaw is next. (With Bing, Groklaw gets pushed onto the second page after a bunch of 5 to 6 year old sites that I've never heard of - why doesn't that surprise me?).

That shows what is in today's ranking, not what it would have been five or six years ago. However, it does show what current potential customers would see if they were to do some very basic research into the issue. If SCO wants to talk about damages due to "public perception", it would be unreasonable to exclude the statements from the major independent sources on this issue.

If someone was to do a bit of basic research into the issue before handing over any money to SCO, the first thing they would do would be to type a few key words into Google and read up on it. If most of the major links in the first half of the first page say that SCO is wrong, and if one of those links provides reasoned argument with documented facts to back it up, then a reasonable person would conclude that SCO's claims may perhaps have the same validity as the claims which those nice Nigerian gentlemen send out on a regular basis.

I won't be surprised to see Novell introducing Groklaw in this manner. I do expect to see SCO objecting to it. When we look at it from this perspective, SCO's obsession with Groklaw makes sense.

[ Reply to This | # ]

The real meaning of "under advisement"
Authored by: bugstomper on Monday, February 22 2010 @ 09:07 PM EST
647 is under advisement, meaning that Judge Stewart can't pull himself away from
reading all of the Groklaw archives and has put all other decisions on hold
until he can finish reading.

[ Reply to This | # ]

Broderick seems NOT to be excluded by the order
Authored by: Anonymous on Tuesday, February 23 2010 @ 09:17 AM EST
At least as concerns his "personal knowledge" from company-wide
meetings at Novell.

[ Reply to This | # ]

A question about juries
Authored by: Alan(UK) on Tuesday, February 23 2010 @ 01:41 PM EST
Does the jury actually get to read the APA & Amendment 2 or does that amount
to, 'doing their own research'?


---
Microsoft is nailing up its own coffin from the inside.

[ Reply to This | # ]

Do I Understand This Correctly?
Authored by: Anonymous on Tuesday, February 23 2010 @ 03:19 PM EST
What I am reading is that SCO can introduce any evidence that they actually
have. I am not totally certain, but that sounds like too high a bar for SCO and
BSF to overcome.

[ Reply to This | # ]

Hot off PACER -- Two more rulings
Authored by: Steve Martin on Tuesday, February 23 2010 @ 04:19 PM EST

Docket 724:

"Defendant’s Motion in Limine No. 4 to Preclude SCO from Contesting that Novell had an Objectively Reasonable, Good Faith Basis for its Statements Regarding Copyright Ownership (Docket No. 631) is GRANTED."
Docket 725:
"Defendant’s Motion in Limine No. 8 to Preclude SCO from Relying on Novell’s Applications for Copyright Registration (Docket No. 634) is DENIED."

---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

If the jury finds that the APA transferred copyrights, SCO loses
Authored by: Anonymous on Tuesday, February 23 2010 @ 07:39 PM EST

It looks to me like there's nothing left of SCO's case now except the claim for specific performance. The ruling has created a paradoxical situation.

If the jury finds that the amended APA transferred all the copyrights that Santa Cruz needed to exercise its rights, then SCO loses. There's no need for specific performance. No judgment in SCO's favor, no res judicata.

If I'm right, then the only hope left for SCO is to argue at trial that the APA did not transfer any copyrights, but that Novell promised to transfer them in the future and should do so now.

[ Reply to This | # ]

Ambiguous Amendment 2
Authored by: cbc on Tuesday, February 23 2010 @ 09:46 PM EST
Amendment 2 is hardly ambiguous. It transfers any identified copyrights
required to do business. For some years, none were required. When the
requirement was identified, the request lacked (surprise) specificity. Since
Unix in all of its beauty comes from many sources, Novell could not possibly
provide ALL of the copyrights to original code. And SCO, to date, has failed to
identify any code to which they believe they need the copyright, i.e. the Unix
code that might be in Linux. They need to be embarrassed in front of the jury.
They do not know what they think they own, and they almost certainly have sued
the wrong parties.

[ Reply to This | # ]

Change in tone
Authored by: Anonymous on Wednesday, February 24 2010 @ 04:47 AM EST
Hmmmmm. If you read the early post here you would have thought that the judge
was an employee of SCO - he would do anything that they asked.

Now it seems he has ripped a big hole in their case.

With hindsight were his original decisions consistent, and just delivered in an
order that sent a confusing message?

[ Reply to This | # ]

636/646 rulings are questionable
Authored by: Anonymous on Saturday, March 06 2010 @ 10:04 PM EST
And may well form the basis for an appeal by Novell if anything goes against
them.

That said it seems likely Novell will simply win.

[ Reply to This | # ]

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