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What's Left? - A Chart of the Summary Judgment Rulings in SCO v Novell
Sunday, August 12 2007 @ 12:36 PM EDT

The court's rulings on the numerous summary judgment motions in SCO v. Novell are in a document that is long and complex, and I'm still reading and analyzing it myself. We've grasped the big picture, that SCO is toast, but what's left to go to trial? There will be a trial starting on September 17, but it appears it will mostly (but not all) be about what SCO owes Novell. Novell's slander of title counterclaim goes to trial, for example, but SCO's does not.

To help us get beyond just the overview, Feldegast has done a chart showing what the decision was on each summary judgment motion and what claim or counterclaim it connects to. I've put urls to the documents in his chart so we can connect the dots. And below the chart, I've made a list of what each claim or counterclaim is about. The chart is in the order that Judge Dale Kimball listed them in his conclusion.

All of the summary judgment motions relate to claims or counterclaims by the parties, so to understand fully, you need to match them up. SCO's Amended Complaint is here. Novell's Counterclaims are here and here are the Amended Counterclaims [PDF] which added two more. You might also find this earlier chart helpful too, a chart of Novell's counterclaims and SCO's replies. If you scroll down to First Claim for Relief, that's the beginning of the Novell counterclaims.

Motion Docket Number Claim or Counterclaim Affected Moving Party Decision
SCO Novell
Novell's Motion for Partial Summary Judgment or Preliminary Injunction 147; text
6, 7
Novell GRANTED IN PART AND DENIED IN PART
SCO's Cross-Motion for Summary Judgment or Partial Summary Judgment on Novell's Third, Sixth, Seventh, Eighth and Ninth Counterclaims 180
3,6,7,8,9 SCO GRANTED IN PART AND DENIED IN PART
Novell's Motion for Partial Summary Judgment on its Fourth Claim 171; text
4 Novell GRANTED
SCO's Cross-Motion for Partial Summary Judgment on Novell's Fourth Claim 224
4 SCO DENIED
SCO's Motion for Partial Summary Judgment on its First, Second, and Fifth Claims and Novell's First Claim 258; text 1,2,5 1 SCO DENIED
Novell's Motion for Partial Summary Judgment on Copyright Ownership of SCO's Second Claim for Breach of Contract and Fifth Claim for Unfair Competition 271 2,5
Novell GRANTED
Novell's Motion for Partial Summary Judgment on SCO's Non-Compete Claims in its Second and Fifth Claims 273 2,5
Novell GRANTED IN PART AND DENIED IN PART
Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title and Third Claim for Specific Performance 275 1, 3
Novell GRANTED
Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title for Failure to Establish Special Damages 277 1
Novell MOOT


SCO's Claims:

  • First: Slander of Title
  • Second: Breach of the APA and TLA
  • Third: Alternative Breach of Contract Claim Seeking Specific Performance
  • Fourth: Copyright Infringement
  • Fifth: Unfair Competition

Novell's Counterclaims:

  • First: Slander of Title
  • Second: Breach of Contract (seeking specific performance of audit)
  • Third: Breach of Contract (royalties)
  • Fourth: Declaratory Relief (compelling SCO to recognize Novell's right to prior approval of new licenses and buyouts, such as Microsoft and Sun, and to order SCO to waive breaches/cancel terminations of IBM/Sequent agreements; or in the alternative for declaration that SCO had no right to enter into the Sun and Microsoft SVRX agreements or the SCOsource Linux end user licenses)
  • Fifth: Declaratory Relief (breach of covenant of good faith and fair dealing re SVRX License Program; seeking declaration of Novell's rights to audit, pre-approve, waive)
  • Sixth: Constructive Trust/Restitution/Unjust Enrichment (seeking restitution of monies due; constructive trust of monies SCO already had in hand)
  • Seventh: Breach of Fiduciary Duty (re special damages, seeks constructive trust of monies that SCO "unjustly received by failing to perform its administrative auditing and remittance obligations")
  • Eighth: Conversion (seeking a constructive trust on the SVRX royalties)
  • Ninth: Accounting


  


What's Left? - A Chart of the Summary Judgment Rulings in SCO v Novell | 196 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: RFD on Sunday, August 12 2007 @ 12:54 PM EDT


---
Eschew obfuscation assiduously.

[ Reply to This | # ]

OT Here
Authored by: SpaceLifeForm on Sunday, August 12 2007 @ 12:57 PM EDT
Please make any links clickable.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Freefall?
Authored by: chriseyre2000 on Sunday, August 12 2007 @ 12:58 PM EDT
How quickly will the SCO shares drop tomorrow?
I don't how this can be spun as good news.
However shares often go up on bad news...

[ Reply to This | # ]

What's Left? - A Chart of the Summary Judgment Rulings in SCO v Novell
Authored by: jig on Sunday, August 12 2007 @ 01:05 PM EDT

Congrats, PJ; congrats, all.

:)

[ Reply to This | # ]

What set Rochkind off-- "The view from SCO"
Authored by: stats_for_all on Sunday, August 12 2007 @ 01:08 PM EDT
Marc Rochkind got all huffy on Saturday, 8/11, about a PJ comment two levels deep in regards to an anonymous posting, purporting to be from an inside source at SCO.

The writing style of the "inside" post the at top of the thread which provoked Rochkind "The view from SCO" lends itself to very careful analysis.

The post is well formatted, but not html native. It uses of hyphens for bullet points, use of double colons for outlining, Use of "=> overall:" as shorthand for for its conclusiary bullet points. Studied avoidance of capitalization, except in the title. Groklaw produces minimal search results for the "overall:" combination. Some other eyes may have seen this author before, but I don't believe I have. This contributes to my belief that the posting may represent real information, and not just impersonation. It is also strange that Rochkind was paying close enough attention this posting to read the comments two levels deep, AND nowhere dismiss the statements made in the original post.

[ Reply to This | # ]

Novell's 2nd couterclaim
Authored by: Anonymous on Sunday, August 12 2007 @ 01:09 PM EDT
A motion seeking this was denied, on the theory that what they got in discovery
should contain everything they would have gotten via an audit.

[ Reply to This | # ]

Gratitude thread
Authored by: Aladdin Sane on Sunday, August 12 2007 @ 01:12 PM EDT
Please place thank you comments here.

Thanks for the chart, Feldegast! Yay!

---
"You interact with a computer differently when you can trust it to be reliable." --from a blog comment, 2007-07

[ Reply to This | # ]

Well, they finally made it into court...
Authored by: Anonymous on Sunday, August 12 2007 @ 01:13 PM EDT
but as defendants...

oh, this is so ironic...

[ Reply to This | # ]

SCO written code copyright in question
Authored by: Anonymous on Sunday, August 12 2007 @ 01:32 PM EDT
Well SCO might have copyright in SCO's home written code. Except for SCO's
derivative theory.

SCO's derived from argument as they attempt to apply it to IBM written code will
also apply to SCO's code. I.E. if IBM written code is derived from UNIX and
copyright should attach to the owner of the UNIX copyright then SCO written code
will also be attached to the owner of the UNIX copyright.

More work for Marc R. if he wants it. But very heavy lifting in fine details of
abstraction and filtration of copyright code. Comparisons between SysV Novell
copyright, Sys3 GPL'd, BSD open code and IBM code and SCO written code is
needed. Needing a knife edge to spilt it all apart.

[ Reply to This | # ]

What's Left? - A Chart of the Summary Judgment Rulings in SCO v Novell
Authored by: Anonymous on Sunday, August 12 2007 @ 02:17 PM EDT
In Denmark there once was a "wise" man that said "Bad publicity
is better than NO publicity".

The man was Simon Spies, and his business flourished on this saying. Often he
would do outrageous things, just so that people would not forget him and his
business.

The difference here is of course that Simon actually did have a product to sell,
and that - on the balance - people was satisfied with the product. Nevertheless,
the saying still holds true to some extent.

[ Reply to This | # ]

What's Left? - A Chart of the Summary Judgment Rulings in SCO v Novell
Authored by: Kevin on Sunday, August 12 2007 @ 02:22 PM EDT

Or, putting it from the perspective of "what's still on the table:"

SCO's Claims

  1. Slander of title.
    Novell wins.
  2. Breach of the APA and TLA.
    Novell wins.
  3. Alternative Breach of Contract Claim Seeking Specific Performance.
    Rendered moot by other summary judgments.
  4. Copyright Infringement.
    Hypothetically still on the table, if SCO can show that it has any copyrights to infringe. Not likely.
  5. Unfair competition.>
    Novell wins.

Novell's Counterclaims

  1. Slander of Title.
    Still on the table. (Novell may have trouble adducing evidence for special damages.)
  2. Breach of Contract (seeking specific performance of audit).
    Moot. SCO's books are open to Novell through discovery.
  3. Breach of Contract (royalties).
    Still on the table. The portion of the Sun and Microsoft royalties that can be ascribed to SVRx is still disputed as a matter of fact.1
  4. Declaratory Relief (compelling SCO to recognize Novell's right to prior approval of new licenses and buyouts, such as Microsoft and Sun, and to order SCO to waive breaches/cancel terminations of IBM/Sequent agreements; or in the alternative for declaration that SCO had no right to enter into the Sun and Microsoft SVRX agreements or the SCOsource Linux end user licenses).
    Novell wins. SCO's termination of the IBM and Sequent agreements is waived. The nature of the Sun and Microsoft agreements is still in dispute as a matter of fact.
  5. Declaratory Relief (breach of covenant of good faith and fair dealing re SVRX License Program; seeking declaration of Novell's rights to audit, pre-approve, waive).
    Novell wins. The audit rights are moot because SCO's books are open to Novell in discovery.
  6. Constructive Trust/Restitution/Unjust Enrichment (seeking restitution of monies due; constructive trust of monies SCO already had in hand)
    Novell loses, but only because the facts to establish the amount of the trust are still in dispute.
  7. Breach of Fiduciary Duty (re special damages, seeks constructive trust of monies that SCO "unjustly received by failing to perform its administrative auditing and remittance obligations")
    SCO stands in breach of its fiduciary duty. The constructive trust cannot be established while the facts to establish the amount of money owed are still in dispute.
  8. Conversion (seeking a constructive trust on the SVRX royalties)
    SCO is guilty of conversion, but the constructive trust cannot be established while the facts to establish the amount due Novell remain in dispute.
  9. Accounting.
    Moot. SCO's books are open to Novell in discovery.

1This is actually a brilliant move on Kimball's part. It forces the Sun and Microsoft agreements to get entered as evidence in open court, or alternatively for SCO to offer an undisclosed settlement of all these claims that Novell will accept. I don't think that after all these years, SCO can muster enough money to get Novell to agree to an undisclosed settlement. I'm just waiting to hear the Sun and Microsoft agreements read before the jury - or rather, before the Nazgūl in the courtroom. It'll be such a wonderful opportunity for schadenfreude.

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Sorting the claims - more questions
Authored by: Anonymous on Sunday, August 12 2007 @ 02:48 PM EDT
This is an excellent chart. It is very informative, however it also gives rise
to many questions. I would also like to see a chart of the claims with an
analysis of the decision with respect to the claims. For instance:

SCO's Claims:

* First: Slander of Title
Completely Denied

* Second: Breach of the APA and TLA
GRANTED IN PART AND DENIED IN PART
(What parts? What are the implications?)

* Third: Alternative Breach of Contract Claim Seeking Specific Performance
Completely denied

* Fourth: Copyright Infringement
Completely Denied

* Fifth: Unfair Competition
Completely Denied

I'm not knowledgeable to to a proper analysis of the above. I'm not even sure
the above is completely correct. The analysis of others would be appreciated.

[ Reply to This | # ]

What's Left? - A Chart of the Summary Judgment Rulings in SCO v Novell
Authored by: The Mad Hatter r on Sunday, August 12 2007 @ 03:12 PM EDT


So the next big date is the 31st. I suspect that there will be no agreement
between the parties at that time, and that the trial will be a mess.



---
Wayne

http://sourceforge.net/projects/twgs-toolkit/

[ Reply to This | # ]

SCO.com
Authored by: Bojan Sudarevic on Sunday, August 12 2007 @ 03:21 PM EDT
I've just been on SCO.com, and although they haven't released official statement yet, it's interesting to visit "Recent" SCO Headlines. My favorites are interview with Darl McBride and Chris Sontag from 2004, and explanation why SCO Should Win from 2005.

---
Bojan Sudarevic

[ Reply to This | # ]

What's Left? - No claims against IBM
Authored by: YMHEE_BCEX on Sunday, August 12 2007 @ 03:45 PM EDT
I am kinda sad that this saga is coming to an end. First, of course, because I got hooked on Groklaw, and with no cases to watch - I'll have severe withdrawal syndrome. But seriously, though, with SCO having no copyrights, they, of course, have no standing against IBM in particular, and Linux in general. Which will leave some twisted minds to assert that Linux is infringing on Unix, - it's just that Novell isn't interested in pursuing the case. Wouldn't it be better if it were determined (as one of IBM's SJ) that Linux is not a derivative of Unix, let alone unauthorized one.

[ Reply to This | # ]

nice commentary over at lamlaw
Authored by: ggiedke on Sunday, August 12 2007 @ 06:12 PM EDT

an interesting take on the effect of PSJs by Lewis A. Mettler: Speculation on whether there will be a settlement now (Mettler thinks there will be, since its clear to everybody now that SCO has lost) and the future of SCO (bankrupcy) and future lawsuits (SCO sharholders vs. SCO management vs SCO lawyers: "SCO, their stockholders and their lawyers can sue each other until the cows come home for all I care. They deserve each other." ;-)

[ Reply to This | # ]

When must SCO inform the judge...?
Authored by: Anonymous on Sunday, August 12 2007 @ 06:57 PM EDT
Since SCO was allowed to let their Novell litigation go before the IBM trial,
they are required to report to the court on the progress of said litigation.

When is it time for them to do so next?

[ Reply to This | # ]

why celebrate now???
Authored by: Anonymous on Sunday, August 12 2007 @ 07:57 PM EDT
Don't get upset now, because I love the work PJ is doing for covering all this
stuff, but...
It's been a long time since this saga had any bearing on Linux and free
software. Last time I remembered worth celebrating was when most of SCO's case
against IBM went up in smoke. That's when the final piece of Linux attacks went
bust.
So why are people getting fired up about SCO, Novell and IBM? It's just
corporate issues about contracts and some worthless IP. Yawn...
Ok, so we know SCO is the bad guy, but is Novell so much better???? I doubt it.
They are now cashing in all the MS money as their current puppy.
And IBM doesn't need this verdict to win their case because it doesn't matter
who own some ancient Unix code for them to win. All this does is to finish off
SCO faster than other scenarios, but the end result would be pretty much the
same.
In fact, I think it would be more satisfying to see IBM win without this
happening.
Let's face it, SCO lost a long time ago and the new bad dog in this fight is
Novell (whose "owner" MS likes dog fighting) who just got a leg up on
IBM since they won't be able to have their fair fight.
But all this doesn't really matter at all, because when the dogs are fighting,
other people gets on with life of improving and innovating free software.

/Happy Ubuntu user

P.S. and for those speculating about stock value... the stock market is smart
enough to have seen this coming, so the current price already accounts for SCO
losing. Hence, there will not be much change in SCOX price in the short term.
There will be speculation on settlements, I'm sure, like e.g. MS buying some
strange imaginary asset (may I suggest some sort of mobile services/software
license deal) from SCO that will allow them a nice settlement with Novell
without going bust. So, longer term it might be worth speculating in a higher
SCOX price...D.S.

[ Reply to This | # ]

What will be new ?
Authored by: Anonymous on Monday, August 13 2007 @ 02:06 PM EDT
My personal guess is that the lawsuits are not over yet
and that new ones will be started. However history will
probably show that I am wrong. Nevertheless :

From what I read here in the comments on Groklaw the judge
indicated that misleading and false statement have been
made both by the lawyers and people within SCO which
should have known better. And in my opinion Novell and/or
IBM will follow through on this. Indeed as some say, it is
easy to settle and go on doing their bussines. However
doing only that will show to other companies and lawyers
that they can get away with it. And thus other will try
again in the future. By following through and going after
the lawyers and the people within SCO and making them
personal liable for the costs both Novell and IBM will
show the outside world that they can not get away with it.
This new litigation will cost them some money in the short
term, but in the long term they will gain, since no
company officer will try again and no law firm will
cooperate because they now know they will be personally
hold responsible and accountable. This saves both Novell
and IBM in litigation costs in the future. Especially IBM
I expect to follow through. Why ? Because IBM had already
the chance to buy into SCO and solve their dispute in a
faster and less costly way. Nevertheless they decided to
follow through. Also IBM is also know for their strong
company ethics. So maybe what we have seen now is only
just the beginning of the end phase.

[ Reply to This | # ]

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