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SCO and Novell Ask for More Time to Haggle About Final Judgment or Not, Interest Amount
Wednesday, July 30 2008 @ 08:57 PM EDT

SCO and Novell have jointly filed an intriguing document, Joint Motion for Extension Regarding Deadlines for Proposed Final Judgment and Pre-Judgment Interest Submission [PDF], and we find out what's been going on since the trial ended early in May.

SCO wants the Utah District Court's July 16th order to be a final judgment, presumably so it can appeal, as they just told their customers and partners they intend to do shortly. And the Order instructed Novell to file within fifteen days a brief telling the court what Novell seeks in the way of prejudgment interest and also the final judgment "consistent with these Findings of Fact, Conclusions of Law, and Order, the courts's August 10, 2007 Memorandum Decision and Order, and the parties' stipulations with respect to the disposition of certain causes of action." Novell believes it's inappropriate at this time to enter a final judgment. Here's why:

Novell has informed SCO that it believes entry of Final Judgment is inappropriate given the pendency of claims subject to an arbitration-related stay and given the Bankruptcy Court's reservation of issues pertaining to the entry of a constructive trues.

Novell is saying the whole story isn't decided yet, until there is a decision on the trust and also until there is word from the arbitration in Switzerland, which is currently stayed [PDF] by the Bankruptcy Court in Delaware.

SCO's position is that it has some "material related to that resolution" which it expects to be able to turn over to Novell within ten days, whatever that means. Maybe they're sorry now they got the Swiss arbitration stayed. It would be ironic indeed if it delayed their appeal.

They are also haggling over the amount of pre-judgment interest, but the reason they are haggling is because they hope to reach a stipulation on it. It's always better to work things out, if you can. It's a lot cheaper. So they jointly ask for more time, until August 22, to try to resolve all these issues. I don't doubt the motion will be approved, since they both want it. It's been referred to Magistrate Judge Brooke Wells. I know. It's just like the good old days.

Here's the Docket entry:

543 - Filed & Entered: 07/30/2008
Motion for Extension of Time
Docket Text: Joint MOTION for Extension of Time Regarding Deadlines for Proposed Final Judgment and Pre-Judgment Interest Submission filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order) Motions referred to Brooke C. Wells.(Sneddon, Heather)

What does the part mean where the judge told Novell to construct the final judgment consistent with the parties' stipulations? Remember that the parties shaved off certain issues, that may or may not ever be litigated but for sure were not litigated in the trial that just happened? In the parties Joint Status Report, filed back in mid-August of 2007 -- heavens, almost a full year ago -- SCO and Novell each told the court what it thought was left for trial after the August 10th order. Here's a relevant snip from that order:

The parties agree that the Court did not dismiss any alleged portion of the claim concerning technology other than the UNIX and UnixWare copyrights the Court has held were retained by Novell. The parties disagree as to whether SCO has pled or can pursue such a claim, but agree that any such portion is stayed by the Court's August 21, 2006 Order pending resolution of the SuSE arbitration. No aspect of this claim will be tried during the September 2007 trial.

Of course, SCO filed for bankruptcy relief, which delayed the trial until April of 2008. Also, the judge wrote in the August 10 order a section about the SUSE arbitration, because those claims were divided off of the main trunk of the litigation, to coin a phrase, and that branch is in Switzerland, not yet decided:

The parties, however, have not specifically addressed whether any of SCO's copyright infringement claims are based on copyrights SCO may have obtained in derivatives of the technology included in the Assets. In the copyright ownership discussion, Novell recognized that SCO would have the copyright to the new merged product. Novell also recognized that joint copyright notices are used that demonstrate a copyright ownership by SCO as of 1996. SCO's non-compete and copyright infringement claims also relate to SUSE Linux. The SUSE Linux claims have been stayed pending arbitration.

And Novell reserved certain rights in case SCO decides to pursue any further issues, after the trial. Here's what the Joint Status Report said was left of SCO's claims after the August 10 order that would *not* go to trial that could conceivably be resurrected:

2 - Breach of the APA and TLA: The parties agree this claim is dismissed to the extent it concerns the UNIX and UnixWare copyrights the Court has held were retained by Novell, and to the extent it concerns Novell's waiver of claims asserted against IBM and Sequent. The parties agree that the Court did not dismiss any alleged portion of the claim concerning technology other than the UNIX and UnixWare copyrights the Court has held were retained by Novell. The parties disagree as to whether SCO has pled or can pursue such a claim, but agree that any such portion is stayed by the Court's August 21, 2006 Order pending resolution of the SuSE arbitration. No aspect of this claim will be tried during the September 2007 trial....

4 - Copyright Infringement: The parties agree that this claim is stayed by the Court's August 21, 2006 Order pending resolution of the SuSE arbitration.

5 - Unfair Competition: The parties agree this claim is dismissed to the extent it concerns the UNIX and UnixWare copyrights the Court has held were retained by Novell, and to the extent it concerns Novell's waiver of claims asserted against IBM (including Sequent). The parties agree that the Court did not dismiss any alleged portion of the claim concerning technology other than the UNIX and UnixWare copyrights the Court has held were retained by Novell. The parties disagree as to whether SCO has pled or can pursue such a claim, but agree that any such portion is stayed by the Court's August 21, 2006 Order pending resolution of the SuSE arbitration. No aspect of this claim will be tried during the September 2007 trial.

And here's what the parties thought was left of Novell's claims, the parts that would not be handled at the trial:

1 - Slander of Title: The parties agree that Novell shall dismiss this claim without prejudice to renewing it should there be any subsequent adjudication or trial of copyright ownership-related issues. The parties will incorporate this agreement into the proposed final judgment....

9 - Accounting: The parties agree that the Court's Order moots this claim. No aspect of this claim will be tried during the parties' September 2007 trial.

Further, the parties have agreed that Novell will not pursue punitive damages under any claim, without prejudice to seeking such relief should there be any subsequent adjudication or trial in this action or any enlargement of the issues for this trial beyond that contemplated by this report. The parties will incorporate this agreement into the proposed final judgment.

That is why, quite aside from the appeal, I kept telling you that this SCO saga is far from over. It would not a bit surprise me to find SCO suing Novell next for post-APA copyrights for UnixWare and OpenServer, which is what it keeps talking about over and over, and for breach of the APA and TLA, but if it does, Novell can bring back to the table its slander of title claim and can then seek punitive damages, which it was otherwise willing to forego.

Litigation isn't like the olden times, when a couple of guys would go into a meadow and have a gun duel to settle their differences. That tended to be final rather quickly, rightly or wrongly. Litigation is more like chess, but not a single game. It's like a tournament, where winning one game isn't enough to prevail altogether. So hang on. There is a lot more to go.

But here's what was definitely established, subject only to reversal on appeal, even before the trial:

The parties agree that the Court's Order establishes that Novell is entitled to direct SCO to waive claims against IBM, Sequent, and other SVRX licensees; that Novell is entitled to waive such claims on SCO's behalf; and that SCO is obligated to recognize such a waiver.

That means that when IBM revs up again, it will be all about IBM's counterclaims. That's the part I don't hear SCO talking about lately.


  


SCO and Novell Ask for More Time to Haggle About Final Judgment or Not, Interest Amount | 217 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic
Authored by: Kilz on Wednesday, July 30 2008 @ 09:15 PM EDT
Please make links the clicky kind. :)

[ Reply to This | # ]

Corrections
Authored by: Kilz on Wednesday, July 30 2008 @ 09:17 PM EDT
Please post any mistakes that you may find so they can be corrected.

[ Reply to This | # ]

Bit late, aren't they?
Authored by: Anonymous on Wednesday, July 30 2008 @ 09:32 PM EDT
They submitted their request for an extension on the day the court had ordered
them to submit the document. Shouldn't requests for more time be done in time
for the court to grant the extension before the deadline? Otherwise it seems
like they get the extension (at least, the first few days of it) without the
judge getting any say in the matter. I know the chance of the judge saying no is
pretty much zero, but it still seems strange that such disregard for the court's
imposed timetable is allowed.

[ Reply to This | # ]

SCO and Novell Ask for More Time to Haggle About Final Judgment or Not, Interest Amount
Authored by: JamesK on Wednesday, July 30 2008 @ 09:39 PM EDT
"I kept telling you that this SCO saga is far from over."

Too bad popcorn is so expensive these days! :-(

---
"Ubuntu" is an African word meaning "SUSE is too hard for me".

[ Reply to This | # ]

[NP] News Picks discussion
Authored by: Aladdin Sane on Wednesday, July 30 2008 @ 10:02 PM EDT
Discuss Groklaw News Picks here.

Please tell us which News Pick you are commenting on.

Thanks.

---
"Experience is what you get when you didn't get what you wanted." --R. Pausch

[ Reply to This | # ]

SuSE arbitration
Authored by: bbaston on Wednesday, July 30 2008 @ 10:08 PM EDT
Expect the SuSE arbitration to result in loss by tSCOg of its post-APA copyright claims for Linux.

That should dry the well for tSCOg's future fund-raising efforts.

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Novell's License for Unixware
Authored by: rsteinmetz70112 on Wednesday, July 30 2008 @ 10:11 PM EDT
I believe that the APA gave Novell a license for Unixware going forward and
reserved the Netware stuff exclusively to Novell. The language is a little
unclear, exactly what was licensed to Novell and what was reserved, at least I
couldn't quite parse it.

I don't know what that means but if Caldera put any of Novell's stuff (Netware
Novel Directory) in Linux, there could be an issue there.

I'm a little strained to see what SCO could sue Novell for, except possibly some
post APA enhancement to Linux from Unixware, which seems a very small universe
to construct a claim from.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Clarification please
Authored by: Anonymous on Wednesday, July 30 2008 @ 10:55 PM EDT
The parties agree that the Court did not dismiss any alleged portion of the claim concerning technology other than the UNIX and UnixWare copyrights the Court has held were retained by Novell.

What technology (other than the UNIX and UnixWare copyrights) are they talking about?

[ Reply to This | # ]

Judgement Day for IBM?
Authored by: Anonymous on Wednesday, July 30 2008 @ 11:13 PM EDT

Best case scenario:

No Linux with enterprise capabilities among IBM's offerings


Worst case scenario:

No Linux with enterprise capabilities among IBM's offerings
No AIX

[ Reply to This | # ]

Novell pulls a SCO
Authored by: Anonymous on Wednesday, July 30 2008 @ 11:30 PM EDT
This is almost poetic justice. Novell says that this case can't be resolved
until the arbitration is done. But the arbitration was stayed by the bankruptcy
court in Delaware. But the BK court needs the Novell ruling in order to know
what the score is in the bankruptcy.

This looks so much like the games SCO played with the Novell, IBM, and RedHat
cases, it's funny.

(This is not to say that Novell doesn't have a point.)

MSS2

[ Reply to This | # ]

SCO and Novell Haggle for More Time to Haggle About Final Judgment or Not, Interest Amount ...
Authored by: webster on Thursday, July 31 2008 @ 12:32 AM EDT
..
... and Stayed Arbitration Hagglings and Stipulated Hagglings.

As ye sow so shall ye reap. People just won't see things SCO's way.

Poor SCO. Their staff and assets are going to consist of just a file cabinet
before long. They can't agree on what has been decided. They can't agree on
what has been stayed and whether that renders the rest "not final" and
appealable. Novell probably wants to label it "Proposed Stayed and
Suspended Interim Final Order." They can't even agree on the title.

How can SCO put together a plan with any "investors" with all of these
uncertainties in the air? The arbitration is stayed, but now that has to go
forward for true finality.

This is dangerous. SCO will need to flush out its appeal deal before they can
even get to the appeal. They don't want Chapter 7 so their sugar daddy will
have to support them soon. SCO can offer the rights to their appeal and throw
in the Brooklyn Bridge. They can have a press conference with Groucho masks.
Confidentiality, you know.

If they can't do it, the judge will have to.

[ Reply to This | # ]

Oh thats fun :)
Authored by: SilverWave on Thursday, July 31 2008 @ 04:22 AM EDT
The parties agree that the Court's Order establishes that Novell is entitled to
direct SCO to waive claims against IBM, Sequent, and other SVRX licensees; that
Novell is entitled to waive such claims on SCO's behalf; and that SCO is
obligated to recognize such a waiver.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

SCO and Novell Ask for More Time to Haggle About Final Judgment or Not, Interest Amount
Authored by: Anonymous on Thursday, July 31 2008 @ 09:25 AM EDT
And SCO wants to sell off thier Unix business and retain the litigation business
with IBM's counter claims hanging over them?

Maybe that's not what they want to do. Maybe that's all they could find someone
willing to do. Pay some money for the Unix business, but specifically not
taking on any of the litigation issues!

Were I to take on SCO's Unix business, that is something I would ABSOLUTELY want
to have no part of.

[ Reply to This | # ]

"off of the main trunk of the litigation, to coin a phrase"
Authored by: bigbert on Thursday, July 31 2008 @ 11:15 PM EDT
You kill me, PJ!

Just watch out that you don't breach some copyright on the methods and concepts
of trunks and branches... :-)


---
--------------------------
Surfo, ergo sum.

[ Reply to This | # ]

News Picks Microsoft's Mouse Patents
Authored by: Anonymous on Friday, August 01 2008 @ 06:21 AM EDT
I have no idea of the merits of Microsoft's case, but remember: a mouse is
(substantially) a mechanical device, not software. RMS himself has no problem
with patents on mechanical devices (there's a very funny speech somewhere
describing the differences).

[ Reply to This | # ]

Let's Make A Deal!
Authored by: Anonymous on Friday, August 01 2008 @ 10:36 AM EDT
Novell wants a constructive trust established by the BK court; Novell knows full
well that a constructive trust established VERY SOON is the only way they will
ever see even a single thin dime of the Utah Court's judgment.

SCO needs to file their appeal - SCO has to do this soon, as they are running
out of money.

I have no idea if this is practically or legally possible, but my guess is that
Novell is offering to submit an order that will include final judgment, in
exchange for SCO agreeing to support the establishment of a constructive trust
by the BK court.

just my guess.

[ Reply to This | # ]

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