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| Novell Files Motion to Dismiss SCO's Claims |
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Wednesday, February 11 2004 @ 03:55 PM EST
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News.com is reporting that Novell has filed a motion to dismiss, on the grounds that SCO hasn't proven that Novell doesn't own the copyrights and thus SCO can't establish that it owns Unix and UnixWare copyrights. The motion also seeks dismissal on the grounds that the allegations don't establish specific grounds for damages. "They are precisely the type of general allegations of some speculative injury that the special damages pleading requirements for a slander of title action are meant to avoid." SCO released a statement from whatever cave they have been hiding in all week.
Here is a snip from the article:
"'It is SCO's strongly held legal position that Novell has no rights to step in and change or alter the source code license agreements that SCO owns and holds with its Unix licensees,' SCO said in a statement. 'SCO has no intention of waiving any of its rights against Sequent or IBM. We will deal with Novell on all of these issues in court.'
"Novell also filed a motion Monday to dismiss SCO's slander suit, saying the company hasn't proven that Novell's claims are false. 'Without conclusively establishing that it owns the Unix and UnixWare copyrights, SCO cannot show that Novell's statements to the contrary are false, and cannot prevail,' according the filing.
"The motion also claims SCO's suit fails to establish specific grounds for damages. 'SCO's allegations are plainly insufficient,' according to the filing. 'They are precisely the type of general allegations of some speculative injury that the special damages pleading requirements for a slander of title action are meant to avoid.'" That's legalese for: they haven't got a case. They missed an important step. To bring a slander of title action, you must be the owner of the property. They can't prove that they own the copyrights to Unix and UnixWare, because Novell claims they do. Thus, they are hinting, they brought the wrong kind of case. They didn't prove the precise amount of money damages they have suffered, and they can't, under the circumstances, so they can't win. Damages must be precise, not just speculative, and all they presented to the court was vague "We've been damaged in some way" allegations, and since they have no clear title to the copyright, they can't prove the damages element until they prove they actually own the copyrights.
In a slander of title action, there are necessary elements you have to prove to win. It's like when you hit the ball in baseball, you don't get a home run unless you actually run around and touch all the bases. You can't just stand there and say, It's out of the ballpark, so I don't need to bother running around. In slander of title, one of the elements you must "touch" to get your "home run" is "that special damages were sustained thereby", and special here means specific, that you can show to the penny exactly what you lost. I'll explain more about slander of title elements in the next article.
Lamlaw's Lewis Mettler said they'd goofed by choosing a slander of title action instead of breach of contract and that it would prove fatal to their claims, and it looks like he just might be right.
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| Authored by: WhiteFang on Wednesday, February 11 2004 @ 04:17 PM EST |
I too had thought it odd that SCOX filed a 'slander of title' case. Especially
after their amended SEC filing indicated that they need to clarify their
alledged ownership of the copyrights.
Somehow, this sounds like a Kevin tactic.[ Reply to This | # ]
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| Authored by: fjaffe on Wednesday, February 11 2004 @ 04:19 PM EST |
Here is the docket infoCIVIL DOCKET FOR CASE #: 04-CV-139
SCO
Grp v. Novell Inc
Case Number: 2:04cv00139
Maybe this will
be declared a "high interest" (or whatever) case as well, and the documents
will be made available without a pacer account.[ Reply to This | # ]
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| Authored by: inode_buddha on Wednesday, February 11 2004 @ 04:20 PM EST |
Wait a minute... is that an SCO rep complaining about general allegations and
speculative damages? If so, then "BwaaahahaaHaahaa....".
---
"Truly, if Te is strong in one, all one needs to do is sit on one's ass, and the
corpse of one's enemy shall be carried past shortly." (seen on USENET)[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 04:21 PM EST |
This is turning into a bad week for SCO.
I am so happy I think I am going to bust.
<EOM>[ Reply to This | # ]
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| Authored by: cfitch on Wednesday, February 11 2004 @ 04:21 PM EST |
... is finally coming back to haunt them. SCO has attempted to have a PR-based
trial in the court of public opinion based on unspecified claims of
"Companies and evil linux users are stealing our valuable IP!" and
that stuff just does not work in court.
Too bad for them... could not happen to a nicer bunch!
[ Reply to This | # ]
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- Nicer? - Authored by: Anonymous on Wednesday, February 11 2004 @ 08:57 PM EST
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 04:24 PM EST |
SCOX is up $0.512 a share? What the heck is going on? If their case against
Novell is dismissed, what happens next? Stock goes up $1 a share?
This is a very strange market.
[ Reply to This | # ]
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- SCOX stock rises on news? - Authored by: stanmuffin on Wednesday, February 11 2004 @ 04:30 PM EST
- SCOX stock rises on news? - Authored by: robert on Wednesday, February 11 2004 @ 04:31 PM EST
- SCOX stock rises on news? - Authored by: Dominic Jackson on Wednesday, February 11 2004 @ 04:33 PM EST
- SCOX stock rises on news? - Authored by: Anonymous on Wednesday, February 11 2004 @ 04:33 PM EST
- SCOX stock rises on news? - Authored by: Anonymous on Wednesday, February 11 2004 @ 04:33 PM EST
- SCOX stock rises on news? - Authored by: WhiteFang on Wednesday, February 11 2004 @ 04:35 PM EST
- SCOX stock rises on news? - Authored by: Anonymous on Wednesday, February 11 2004 @ 04:37 PM EST
- SCOX stock rises on news? - Authored by: Anonymous on Wednesday, February 11 2004 @ 04:43 PM EST
- Same market that created dot.com - Authored by: cacruden on Wednesday, February 11 2004 @ 04:45 PM EST
- SCOX stock rises on news? - Authored by: PM on Wednesday, February 11 2004 @ 04:46 PM EST
- SCOX stock rises on news? - Authored by: Anonymous on Wednesday, February 11 2004 @ 04:49 PM EST
- SCOX stock rises on news? - Authored by: Anonymous on Wednesday, February 11 2004 @ 04:50 PM EST
- SCOX stock rises on news? - Authored by: rand on Wednesday, February 11 2004 @ 04:51 PM EST
- SCOX stock rises on news? - Authored by: Anonymous on Wednesday, February 11 2004 @ 04:59 PM EST
- SCOX stock essentially massless. - Authored by: AJWM on Wednesday, February 11 2004 @ 05:40 PM EST
- Stock moves before the news - Authored by: dkpatrick on Wednesday, February 11 2004 @ 06:01 PM EST
- SCOX stock rises on news? - Authored by: MattZN on Wednesday, February 11 2004 @ 06:17 PM EST
- SCOX stock rises on news? - Authored by: Anonymous on Wednesday, February 11 2004 @ 06:18 PM EST
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 04:30 PM EST |
And the stock is... UP!
You know, this is really scary. Is all of Wall St. full of companies that stink
this bad but whose stock is artificially inflated?
[ Reply to This | # ]
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| Authored by: Nick_UK on Wednesday, February 11 2004 @ 04:33 PM EST |
Well, Pamela... what yer gonna do when this is all over very soon?
I am in jest.
But it will be hard to follow whatever story is next, and I am sure a lot of
readers to your great site during this fable are grateful - where on earth would
we have got the current facts from otherwise?
Great stuff, and thanks.
Nick[ Reply to This | # ]
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| Authored by: gvc on Wednesday, February 11 2004 @ 04:38 PM EST |
I have wondered for some time about Lewis Mettler's credentials to run an
internet "Law Office." Is he a member of the bar someplace? There is
scant biographical information at Lamlaw.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 04:39 PM EST |
"Special damages" is a legal term that is used in slander and
defamation cases. To prove "special damages," you have to point to a
specific monetary loss--like a lost sale. A plaintiff cannot just make general
claims of damages to reputation or lessened likelihood of future sales.
From the article, it appears that Novell claims that SCO must allege that
they've suffered "special damages" to proceed in a slander of title
case. This means that SCO must state in their complaint that they've suffered
special damages (and must have a basis for making the allegation). It does not
mean, however, that they actually have to prove anything at this stage. They
just have to make the allegation.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 04:43 PM EST |
The scam-lawsuit against ibm is into it's 11th month and going strong. The scam
motion to dismiss against redhat has been sitting on the judge's desk for about
5 months so far.
If scox can delay, then scox wins. Scox was never expecting to actually go to
court and win this lawsuit. It's just a stock scam. The whole idea is pump scox
so big money investors can dump and make a fortune. And it's working, it's
working like all hell.
Looks to me like it will be cinch for scox to delay the novl lawsuit. That's all
scox really needs to do, just delay long enough to dump.
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| Authored by: TerryL on Wednesday, February 11 2004 @ 04:46 PM EST |
| OK, IANAL, blah, blah, blah... so maybe it's the way the legal profession use
words, legal jargon but it still seems odd to me when I see...
'It is
SCO's strongly held legal position that Novell has no rights to step in and
change or alter the source code license agreements that SCO owns and holds with
its Unix licensees,'
...how someone that owns the licences has to pay
100% of the licence fee over to another company who then pays them a 5%
'collection fee'...
Is this kind of deal, "we'll sell them to you but
keep the money from the licences for ourselves", a standard type of deal?
Why would anyone do that?
Maybe I should just forget about trying to look at
reasonable, logical, explanations and interpretations - I guess INWBAL (I Never
Will Be A Lawyer)
---
All comment and ideas expressed are my own
and do not necessarily reflect those of any other idiot... [ Reply to This | # ]
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| Authored by: blacklight on Wednesday, February 11 2004 @ 04:51 PM EST |
I don't know whether Novell's filing of a motion to dismiss the SCO Group's
slander of title suit is a desirable action: my rationale is that the SCO Group
should be allowed to persist in a lawsuit it does not have a prayer of winning.
If Novell is successful with its motion, what's to prevent the SCO Group from
filing a breach of contract lawsuit, which it has a better chance of winning
even though the chances are not good?[ Reply to This | # ]
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| Authored by: sef on Wednesday, February 11 2004 @ 05:03 PM EST |
So this was mentioned yesterday briefly, but I don't know if it was gone
into.
Let's assume that Novell has the right they claim (and my reading
of the
contracts agrees with them, but IANEAPL). SCO has now refused to waive,
as
directed by Novell. Can Novell now move to have the whole contract
voided?
[ Reply to This | # ]
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| Authored by: Anonymous Coward on Wednesday, February 11 2004 @ 05:25 PM EST |
I wonder if Novell is hiring lawyers from the same firm that IBM does. Either
the case gets dismissed (no merit) or the change of venue has to be approved due
to this case being about copyrights (needing a federal court) if I read the
newsworld article correctly.
But what is more interesting is the mailing of certificate of acknowledgment of
alternative dispute resolution.
It is sent both to SCO and Novell. So which of the two suggested an alternative
way to resolve this case and what is this alternative solution?[ Reply to This | # ]
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| Authored by: N. on Wednesday, February 11 2004 @ 05:27 PM EST |
If Novel filed this on Monday, how on earth did everyone (Groklaw AND the media)
not know about it until late Wednesday?
---
N.
(Recent convert to Linux)[ Reply to This | # ]
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| Authored by: KevinR on Wednesday, February 11 2004 @ 05:51 PM EST |
They did it a short while ago. Its on EDGAR.
I'm trying to understand - does each S-3/A replace the previous S-3 or S-3/A ?
Can someone explain ? Thanks
The numbers have changed from 3,850,000 at $14.73
to 3,703,704 at $13.43.
This may explain the price rise today as presumaby this
will alter the market tomorrow. It would look silly if the market pricewas below
this offer ? Wouldn't it ?
KevinR
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| Authored by: blacklight on Wednesday, February 11 2004 @ 05:52 PM EST |
"'It is SCO's strongly held legal position that Novell has no rights to
step in and change or alter the source code license agreements that SCO owns and
holds with its Unix licensees,' SCO said in a statement. 'SCO has no intention
of waiving any of its rights against Sequent or IBM. We will deal with Novell on
all of these issues in court.'"
So says the pig, but we'll make sure that the oinker dies hard. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 07:04 PM EST |
I would think that given TSG's refusal to waive rights, in accordance with the
contract is actionable. Isn't it just a matter of time before Novell sues for
breech of contract? Although whether or not the copyrights were transferred by
the contract can be disputed, the clause giving Novell power to order waived any
requirement on a licensee by Sco is there in black and white. Also, given that
Novell is still the copyright holder, was it legal for TSG to release any Unix
source code under a BSD style license?
Cecil[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 07:14 PM EST |
How is that when SCO increases its claims to $3B it's in the headline, but when
Novell files to dismiss SCO suit it's in the next to last paragraph of the
article?!!
--dennis
http://news.com.com/2100-1016-1017965.html?tag=nl
http://news.com.com/2100-7344-5157484.html?tag=nefd_hed
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| Authored by: cricketjeff on Wednesday, February 11 2004 @ 07:26 PM EST |
Surely they didn't file for breach of contract because they haven't actually
been complying with the contract, its rather tricky to say "please, Your
Honour, make them obey the fine print. When you've been withholding the cash,
not answering the audit questions, ignoring instructions etc. etc.. Compared to
those the fences they need to jump for slander of title look like miniature box
hedges.[ Reply to This | # ]
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| Authored by: odysseus on Wednesday, February 11 2004 @ 07:43 PM EST |
"It is SCO's strongly held legal position that Novell has
no rights to step in and change or alter the source code
license agreements that SCO owns and holds with its Unix
licensees,' SCO said in a statement."
Funny, I could have sworn those license agreements were
owned by Novell and only administered on their behalf by
SCO, hence 100% of the royalties flowing back to Novell.
Really, SCO has got to stop using this line in public, as
Novell will eventually spank them with it big time in
their counter-suite as willful mis-representation. Kind-a
like IBM has done, really :-)
Strongly held legal position? Indeed? We'll see after a
court actually rules on your re-interpretation of the
contract, until then it's only your strongly held belief.
I can't wait for that day in court when the guys from
Novell and Tarantella who negotiated the original deal
step up and say what the original intent was and SCO's
claims crumble to dust. For that matter, I can't wait
until IBM calls the head of AT&T licensing in '85 to
discuss the intent of the derivatives clause.
And it would be indicative of the quality of legal advice
SCO is getting if in using Slander of Title as a tatic to
avoid a full Federal copyright hearing that they forgot to
check the fine print. Just goes to show why you should
never take legal or financial advice from family...
John. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 10:22 PM EST |
A Warning to "SCO Group"
Have you every heard the phase "Beware the eyes of March".
To clairify:
In February, the death of your lawsuit for IBM.
Then for you the "Eyes of March" is the starting of the
counter-lawsuit from IBM.
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| Authored by: overshoot on Wednesday, February 11 2004 @ 10:49 PM EST |
| Seems pretty simple.
- Novell gets the case into Federal
court.
- Next, they file for a slam-dunk dismissal based on the
already-discussed-to-death fatal weaknesses of the "slander to title"
complaint.
- SCO's only real counter is to actually make the case about
contracts and ownership of copyright.
- At that point, the same contract is up
before the same Court, and Novell moves to combine the cases. The Court,
perhaps with the agreement of IBM, grants the motion.
At that point,
Novell and IBM are on the same side of the aisle in the same case over the same
contract and SCO has nowhere to hide. [ Reply to This | # ]
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- Game Plan - Authored by: Gerry on Wednesday, February 11 2004 @ 10:58 PM EST
- Counterclaims - Authored by: Anonymous on Wednesday, February 11 2004 @ 10:59 PM EST
- Game Plan - Authored by: Anonymous on Thursday, February 12 2004 @ 05:28 AM EST
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| Authored by: Anonymous on Thursday, February 12 2004 @ 04:37 AM EST |
Just a thought - might one of the recipient of SCO's "you need a
license" letters have sent a reply back saying "no we don't, because
Novell say they own the copyrights?"
Would this qualify as special losses?[ Reply to This | # ]
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| Authored by: maroberts on Thursday, February 12 2004 @ 04:41 AM EST |
Do like they did in the IBM case and file a set of amended claims that bear no
relation to the initial claims?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 12 2004 @ 01:25 PM EST |
I was just reading http://www.cl.cam.ac.uk/users/rja14/tcpa-faq.html. see point
11. If they get what they want, we might as well be back in the dark ages.
It's funny how all these guys have benefitted from the dawning of the modern age
but seek to turn back the clock.
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