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Judge Stewart Denies Novell's Motion in Limine #1
Thursday, February 18 2010 @ 05:41 PM EST

What? You're surprised? Here's the order:
674 - Filed & Entered: 02/18/2010
Order on Motion in Limine
Docket Text: MEMORANDUM DECISION denying [627] Motion in Limine. Signed by Judge Ted Stewart on 02/18/2010. (asp)
If you are surprised, you may be new.

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

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
MOTION IN LIMINE NO. 1 TO
EXCLUDE EVIDENCE AND
ARGUMENTS CONCERNING
CLAIMS NOT INCLUDED IN SCO’S
APPEAL OR THE TENTH
CIRCUIT’S LIMITED MANDATE

This matter is before the Court on Defendant’s Motion in Limine No. 1. In that Motion, Defendant seeks to exclude evidence and argument concerning claims not included in Plaintiff’s appeal or the Tenth Circuit’s mandate. Specifically, Defendant seeks to preclude Plaintiff from presenting evidence and argument on its slander of title claim or the copyright ownership portions of its unfair competition and covenant of good faith claims. For the reasons discussed below, the Court will deny Defendant’s Motion.

I. BACKGROUND

In order to fully understand Defendant’s Motion, it is necessary to review this Court’s August 10, 2007 Memorandum Decision and Order,1 the Court’s Final Judgment,2 Plaintiff’s brief on appeal,3 and the Tenth Circuit’s decision.4

In the Court’s August 10, 2007 Memorandum Decision and Order, the Court recognized that a number of the parties’ claims were dependent on the issue of copyright ownership. The format of the order emphasizes the importance of this issue. The Court began its “Discussion” section by first addressing the parties’ “Cross Motions on Copyright Ownership.”5 The Court addressed the issue of copyright ownership with respect to the following motions:

(1) SCO’s motion for complete summary judgment on Novell’s First Claim for slander of title on the basis that SCO purportedly owns the copyrights at issue; (2) SCO’s motion for partial summary judgment on its slander of title claim, breach of contract claim, and unfair competition claim on the issue of whether SCO owns the UNIX and UnixWare copyrights; and (3) Novell’s motion for summary judgment on SCO’s slander of title and specific performance claims asserting that the plain language of the relevant contracts demonstrates that Novell owns the copyrights at issue.6
The Court concluded that Novell was the owner of the Unix and UnixWare copyrights.7 The Court then stated:

2

This court’s conclusion that Novell owns the UNIX and UnixWare copyrights impacts several of the claims asserted by both parties and several pending motions. Novell’s motion on the copyright issue is brought with respect to SCO’s First Claim for Relief for slander of title and Third Claim for Relief for specific performance. Novell is entitled to summary judgment on SCO’s First Claim for Relief for slander of title because SCO cannot demonstrate that Novell’s assertions of copyright ownership were false. In addition, Novell is entitled to summary judgment in its favor on SCO’s Third Claim for Relief seeking an order directing Novell to specifically perform its alleged obligations under the APA by executing all documents needed to transfer ownership of the UNIX and UnixWare copyrights to SCO. Neither the original APA nor Amendment No. 2 entitle SCO to obtain ownership of the UNIX and UnixWare copyrights.8

The Court’s Final Judgment stated, in pertinent part, as follows:

1. SCO’s claims for Slander of Title (Count I) and Specific Performance (Count III) are dismissed pursuant to the Court’s Memorandum Decision and Order dated August 10, 2007.

2. SCO’s claims for Breach of Contract (Count II), Copyright Infringement (Count IV), and Unfair Competition (Count V) are dismissed pursuant to the Court’s Memorandum Decision and Order dated August 10, 2007, insofar as these claims are based on ownership of pre-APA UNIX and UnixWare copyrights.9

In short, after finding that Defendant owned the copyrights, the Court entered judgment on a number of claims which turned on that issue. Upon entry of Final Judgment, Plaintiff then appealed this matter to the Tenth Circuit Court of Appeals. On appeal, Plaintiff discussed its slander of title claim and the Court’s summary judgment ruling thereon. Substantially tracking10 the format of the Court’s August 10, 2007 Memorandum Decision and Order, Plaintiff focused on the ownership determination and set out the following issues on appeal:

3

(1) Did the district court err in concluding, as a matter of law, that Santa Cruz did not obtain the copyrights to the UNIX and UnixWare source code under the APA, but only an implied license?

(2) Did the district court err in concluding, as a matter of law, that if the APA did not itself transfer the copyrights, then SCO is not entitled to specific performance, requiring the transfer of the copyrights now?

(3) Did the district court err in concluding, as a matter of law, that Novell has the right under the APA to force SCO to waive legal claims against IBM for its breach of Software and Sublicensing Agreements that Novell had sold to Santa Cruz under the APA?

(4) Did the district court err in concluding that if Novell has the right under the APA to waive SCO’s right against IBM, then Novell did not have to comply with the implied covenant of good faith and fair dealing in exercising that right?

(5) Did the district court err in concluding, as a matter of law, that Novell retained an interest in royalties from SCO’s 2003 agreement with Sun Microsystems (“Sun”) and other post-APA contracts related to SVRX technology.11

The Tenth Circuit similarly recognized this Court’s summary judgment decision on the slander of title issue.12 The Tenth Circuit summarized this Court’s ruling as follows:
Having found that SCO’s assertions of copyright ownership were false, the court granted summary judgment to Novell on SCO’s claims alleging slander of title and seeking specific performance of Novell’s alleged duty to transfer ownership of the UNIX and UnixWare copyrights to SCO. The court also rejected SCO’s claims against Novell for unfair competition under Utah common law or statutory law, or for breach of the implied covenant of good faith under California law.13
The Tenth Circuit set out the issues on appeal as follows:
On appeal, SCO challenges various aspects of the decision below. It argues that the district court erred by concluding, as a matter of law, that (1) Santa Cruz did not obtain the UNIX and UnixWare copyrights from Novell, but instead acquired only an implied license; (2) SCO was not now entitled to specific performance-the transfer of any copyrights not transferred by the APA; (3) Novell has the right under the APA to force SCO to waive legal claims against IBM for its alleged breach of software and sublicensing agreements; (4) Novell did not have to comply with the implied covenant of good faith and fair dealing in exercising any

4

waiver rights; (5) Novell retained an interest in royalties from SCO's 2003 agreement with Sun Microsystems and other post-APA contracts related to SVRX technology.14
In the same way that this Court’s August 10, 2007 Memorandum Decision and Order and Plaintiff’s brief on appeal did, the Tenth Circuit first addressed the copyright issue. The Tenth Circuit found that summary judgment on the issue of copyright ownership was inappropriate.15 The Tenth Circuit then went on to state that
[b]ecause we conclude summary judgment is inappropriate on the question of which party owns the UNIX and UnixWare copyrights, we must likewise reverse the district court's determination that Novell is entitled to summary judgment [on SCO’s claim] seeking an order directing Novell to specifically perform its alleged obligations under the APA by executing all documents needed to transfer ownership of the UNIX and UnixWare copyrights to SCO.16
The Tenth Circuit concluded as follows:
For the foregoing reasons, we AFFIRM the district court's judgment with regards to the royalties due Novell under the 2003 Sun-SCO Agreement, but REVERSE the district court’s entry of summary judgment on (1) the ownership of the UNIX and UnixWare copyrights; (2) SCO’s claim seeking specific performance; (3) the scope of Novell’s rights under Section 4.16 of the APA; (4) the application of the covenant of good faith and fair dealing to Novell’s rights under Section 4.16 of the APA. On these issues, we REMAND for trial.17

II. THE PARTIES’ ARGUMENTS

With this background in mind, the Court turns to Defendant’s Motion. The Court must emphasize the limited application of this Order. Defendant argues that Plaintiff did not appeal and, therefore, the Tenth Circuit did not reverse the judgment on Plaintiff’s slander of title claim

5

or the copyright ownership portions of its unfair competition and covenant of good faith claims. Plaintiff argues that Defendant’s Motion is not a proper motion in limine, incorrectly characterizes the Tenth Circuit’s decision, and is inconsistent with Defendant’s own statements regarding the Tenth Circuit’s decision. Plaintiff also represents that it will not pursue its unfair competition claim as it relates to copyright ownership because there were independent grounds for dismissal of that claim that were not appealed. 18 Further, Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing is the subject of a separate motion in limine.19 Thus, this Order relates only to Plaintiff’s claim for slander of title.

As indicated, Defendant asserts that the Tenth Circuit remanded the copyright ownership issue for trial in connection with Plaintiff’s claim for specific performance and not in connection with any other claim. Defendant argues that under the Tenth Circuit’s mandate and this Court’s Memorandum Decision and Order Denying Novell’s Rule 60(b) Motion for Relief from Final Judgment, Plaintiff should be precluded20 from presenting any evidence or argument on the 20 slander of title, unfair competition, and good faith claims that were not included in Plaintiff’s appeal or the mandate. The Court finds that Plaintiff’s slander of title claim, as a claim that was resolved on summary judgment on the sole issue of copyright ownership, was appealed and reversed and is now before this Court for trial.

6

III. DISCUSSION

The current Motion necessitates the Court revisit the mandate rule. The mandate rule is an “important corollary” to the law of the case doctrine.21 “The mandate rule is a ‘discretion-guiding rule’ that ‘generally requires trial court conformity with the articulated appellate remand,’ subject to certain recognized exceptions.”22 The mandate rule “provides that a district court must comply strictly with the mandate rendered by the reviewing court.” 23 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.’” 24 Further, the Court may decide issues that were necessarily implied by the mandate.25 However, the mandate rule prevents a court from considering an argument that could have been, but was not, made on appeal.26

As set forth above, this Court recognized that a number of claims in this case were dependent on the issue of copyright ownership. Because of this, in its August 10, 2007 Memorandum Decision and Order, the Court focused on that issue. Upon finding that Defendant

7

was the owner of the copyrights, the Court entered summary judgment on a number of claims. The Court’s determination on the copyright ownership issue was the sole basis for the Court’s ruling on some of these claims, including Plaintiff’s slander of title claim. Following this Court’s lead, on appeal Plaintiff and the Tenth Circuit addressed the key issue of copyright ownership. This Court’s decision on that issue was reversed. The Court finds that the decision of the Tenth Circuit necessarily reversed this Court’s decision on those claims whose resolution turned on the sole issue of copyright ownership. While both Plaintiff’s brief on appeal and the Tenth Circuit’s mandate could have been clearer on this issue, the Court can reach no other conclusion.

As indicated, Defendant asserts that the Tenth Circuit remanded the copyright ownership issue for trial in connection with Plaintiff’s claim for specific performance and not in connection with any other claim. This argument cannot be supported by the Tenth Circuit’s decision. As set forth above, the Tenth Circuit found that summary judgment was inappropriate on the issue of copyright ownership. The court went on to state that

[b]ecause we conclude summary judgment is inappropriate on the question of which party owns the UNIX and UnixWare copyrights, we must likewise reverse the district court's determination that Novell is entitled to summary judgment [on SCO’s claim] seeking an order directing Novell to specifically perform its alleged obligations under the APA by executing all documents needed to transfer ownership of the UNIX and UnixWare copyrights to SCO.27
Further, the Tenth Circuit reversed and remanded the district court’s entry of summary judgment on (1) the ownership of the UNIX and UnixWare copyrights; and (2) SCO’s claim seeking specific performance.28 Reading the mandate in the way espoused by Defendant would

8

essentially nullify part of the Tenth Circuit’s decision. The Court cannot accept such a reading.

Defendant also urges this Court to apply the same standard to these claims that it applied in its Memorandum Decision and Order Denying Novell’s Rule 60(b) Motion for Relief from Final Judgment. The Court declines to do so for one simple reason: Plaintiff appealed and prevailed, while Defendant did not.

IV. CONCLUSION

It is therefore that

ORDERED that Defendant’s Motion in Limine No. 1 to Exclude Evidence and Argument Concerning Claims not Included in SCO’s Appeal or the Tenth Circuit’s Limited Mandate (Docket No. 627) is DENIED.

DATED February 18, 2010.

BY THE COURT:

[signature]
TED STEWART
United States District Judge

____________

1Docket No. 377.

2Docket No. 565.

3 Docket No. 627, Ex. 3.

4 The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201 (10th Cir. 2001).

5Docket No. 377, at 42.

6 Id.

7 Id. at 62.

8 Id. at 62 (citation omitted).

9Docket No. 565, at 1.

10 Docket No. 627, Ex. 3, at 4-5, 11.

11 Id. at 2.

12 The SCO Group, Inc., 578 F.3d at 1207.

13 Id. (citations omitted).

14 Id. at 1208.

15Id. at 1219.

16 Id.

17 16 Id. at 1227.

18Docket No. 669, at 2 n.2.

19 Docket No. 631.

20 Docket No. 620.

21 Huffman v. Saul Holdings Ltd. P’ship, 262 F.3d 1128, 1132 (10th Cir. 2001).

22 United States v. Hicks, 146 F.3d 1198, 1200 (10th Cir. 1998) (quoting United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996)).

23 Huffman, 262 F.3d at 1132 (quotation marks and citation omitted).

24 Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1126 (10th Cir. 2003) (quoting Newball v. Offshore Logistics Int’l, 803 F.2d 821, 826 (5th Cir. 1986)).

25 Id. at 1132. 26 See, e.g., United States v. Webb, 98 F.3d 585, 589 (10th Cir. 1996) (noting that because an issue was not appealed the district court’s ruling became final and court did not err in declining to address it on remand).

27The SCO Group, Inc., 578 F.3d at 1219. 27

28 Id. at 1227.


  


Judge Stewart Denies Novell's Motion in Limine #1 | 215 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Hear
Authored by: DannyB on Thursday, February 18 2010 @ 05:53 PM EST
Please post corrections here.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Off topic here
Authored by: DannyB on Thursday, February 18 2010 @ 05:54 PM EST
Be sure to post clickable links.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Judge Stewart Denies Novell's Motion in Limine #1
Authored by: nattt on Thursday, February 18 2010 @ 06:01 PM EST
Hardly surprised but shocked at the appearance of bias. I can see a lot of
appeals flowing rapidly from Novell now.

[ Reply to This | # ]

Novell now Exposed to Tort Damages
Authored by: Anonymous on Thursday, February 18 2010 @ 06:04 PM EST
This changes the game for Novell from the perspective of potential damages they
are exposed to.

SCO has gotten what they wished, which was to get to the courthouse door with a
live tort claim, and a jury they can bamboozle.

[ Reply to This | # ]

Judge Stewart's excuses are nonsensical
Authored by: Anonymous on Thursday, February 18 2010 @ 06:09 PM EST
It should not matter who appealed. The net effect of the Appeals Court's
copyright ownership ruling should be the same for both Novell and SCO. This is
flagrant bias.

One consolation: If SCO does end up getting the copyrights, the USL vs. BSDI
settlement agreement kicks in against them. Then they can be tied up trying to
prove they have any legitimate copyrights.

[ Reply to This | # ]

Judge Stewart Denies Novell's Motion in Limine #1
Authored by: Anonymous on Thursday, February 18 2010 @ 06:11 PM EST
Wasn't there going to be a hearing?

[ Reply to This | # ]

But, but, but...
Authored by: jbeadle on Thursday, February 18 2010 @ 06:34 PM EST
On page 62 of Judge Kimball's Memorandum Decision and Order dated 8/10/2007, he clearly states that

"Novell is entitled to summary judgment on SCO's First Claim for Relief for Slander of Title because SCO cannot demonstrate that Novell's assertions of copyright ownership were false."

Following that statement is a citation supporting it.

I'm not sure if Judge Stewart missed this, or just ignored it. It seems to me that the basis for summary judgement on that point was not

"...resolved on summary judgment on the sole issue of copyright ownership..."
as he states on page 6 of his order, but rather that SCO couldn't demonstrate that they owned the copyrights.

Or am I missing something???

Thanks,
-jb

[ Reply to This | # ]

The Novell did not appeal argument.
Authored by: Anonymous on Thursday, February 18 2010 @ 06:37 PM EST
Defendant also urges this Court to apply the same standard to these claims that it applied in its Memorandum Decision and Order Denying Novell’s Rule 60(b) Motion for Relief from Final Judgment. The Court declines to do so for one simple reason: Plaintiff appealed and prevailed, while Defendant did not.
I did not understand this argument when SCO made it, and I don't understand it now. Can anyone explain?

[ Reply to This | # ]

Plaintiff appealed and *prevailed*
Authored by: Anonymous on Thursday, February 18 2010 @ 06:46 PM EST
From the order:

"""
Defendant also urges this Court to apply the same standard to these claims
that it applied in its Memorandum Decision and Order Denying Novell’s Rule
60(b) Motion for Relief from Final Judgment. The Court declines to do so for
one simple reason: Plaintiff appealed and prevailed, while Defendant did not.
"""

I wonder: why does it matter who prevailed in the appeal that resulted in a
remand? A higher court concluded that a lower court made a mistake. If a
number of decisions turn on that mistake, they should either be all
reconsidered or all allowed to stay. There is certain wisdom in either
outcome: the justice system is about resolving conflicts, not seeking the
ultimate truth.

Is there anything in the mandate rule that requires that it be construed in
favor of the party that prevailed on appeal?

[ Reply to This | # ]

One denial down, 18 to go
Authored by: Anonymous on Thursday, February 18 2010 @ 07:04 PM EST
I don't suppose it's any comfort to know that Webster predicted this one. But he
also predicted Novell would win some motions. Well, we'll see.

[ Reply to This | # ]

  • No comfort - Authored by: Anonymous on Thursday, February 18 2010 @ 07:17 PM EST
    • No comfort - Authored by: Anonymous on Friday, February 19 2010 @ 07:08 AM EST
      • No comfort - Authored by: Anonymous on Friday, February 19 2010 @ 12:25 PM EST
Flagrant bias
Authored by: digger53 on Thursday, February 18 2010 @ 08:01 PM EST
And why not? What are they going to do, take him out back and shoot him? Shameless.

[ Reply to This | # ]

  • Flagrant bias - Authored by: Anonymous on Thursday, February 18 2010 @ 09:01 PM EST
    • Flagrant bias - Authored by: Anonymous on Friday, February 19 2010 @ 07:10 AM EST
      • Flagrant bias - Authored by: Anonymous on Friday, February 19 2010 @ 11:09 AM EST
Talk me down, somebody, please
Authored by: Guil Rarey on Thursday, February 18 2010 @ 08:28 PM EST
Because I'm having a real hard time not believing, in a way I never did with
Kimball, that this guy is not crooked.

Why should I believe this is okay?

---
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 | # ]

on the balance
Authored by: nola on Thursday, February 18 2010 @ 09:19 PM EST
thumb: 1

justice: zero

[ Reply to This | # ]

Did Novell drop the ball?
Authored by: Anonymous on Thursday, February 18 2010 @ 11:39 PM EST
OK IANAL and I have trouble following the logic sometimes. So could I prevail
upon some legal minds to help understand what is happening?

So the appeals court remands this case in which slander of title was mooted. Did
that act reintroduce slander of title? Or did SCO need to reintroduce this
complaint? Would either of those present a new opportunity for Novell to ask
again for a summary judgement of slander of title? Did they miss this?

And why does Kimball bother to say that he would have decided against slander of
title if it has no weight? I guess he could have been trying to discourage an
appeal. Since this part of the opinion was not overruled can it be brought up in
trial?

[ Reply to This | # ]

And yet...
Authored by: Anonymous on Friday, February 19 2010 @ 12:05 AM EST
PJ still insists that the justice system works.

This is not an attack on PJ, who I highly respect for her work on this case, but
a statement of my incredulity at her being unable to see (or perhaps just
admit?) that the justice system works for those who game the system rather than
those that stick to the spirit & letter of the rules.

The theory of the justice system is not at fault from what I can tell, it is the
lack of rule enforcement that kills things. We've seen actions in the court room
that are reprehensible from both the lawyers representing SCO & two of the
supposedly impartial judges (while other judges held themselves to an admirable
standard). Yet there is no downside to these actions - the lawyers are not
punished in any fashion and the judges... well, nobody "drags them out back
and shoots them" so they don't care.

Ironically enough, there is enough evidence to prove the justice system is not
impartial to make a successful court case out of it... were it not something
that cannot be challenged in a court :)

[ Reply to This | # ]

Folks, you are too quick to conclude bias
Authored by: Anonymous on Friday, February 19 2010 @ 12:14 AM EST

Stewart is drawing a distinction between the treatment of issues implied by the appeal court's decision, and arguments presented to the appeal court. Whether or not this is valid in law I have no idea, but nor have the rest of you.

It seems to me that only a trial lawyer is competent to say whether there was or was not bias here.

[ Reply to This | # ]

Angling for McConnell's seat?
Authored by: Anonymous on Friday, February 19 2010 @ 01:08 AM EST
Well, let's get real down and dirty here. And then, just ask yourself, "you
think it can't happen?"

Sen. Hatch went to extraordinary lengths to get Stewart his judgeship. Hatch
could go to similarly extraordinary lengths to get him onto the 10th Circuit by
engineering a victory for his son, Brent.

Do I get the cynicism award?

[ Reply to This | # ]

Call me confused...
Authored by: Anonymous on Friday, February 19 2010 @ 02:09 AM EST
Novell is appealing the decision that sent this mess to a jury trial -- to the
Supreme Court. If they Supreme Court rules for Novell, there won't be a jury
trial -- right?

Yet, Stewart is railroading Novell into a (suddenly speedy) jury trial that he's
determined they won't win, based on the District Court's decision that is being
appealed to the Supreme Court.

Assuming for the time being that Stewart gets his kangaroo-court jury-trial,
with a 12, fine, Utah mouth-breathers on the jury, and "SIRPRISE, SIRPRISE,
SCO WINS!"

THEN Novell wins the appeal to the Supreme Court. What then?

It would seem "logical" that this jury trial would have to wait until
such a time that it became actually necessary. (AFTER an unsuccessful Novell
appeal to the Supreme Court.) At least it seems that way to me.

Am I missing something?

[ Reply to This | # ]

Newspicks thread
Authored by: attila_the_pun on Friday, February 19 2010 @ 05:47 AM EST
Discuss news picks here.

[ Reply to This | # ]

Possible SCO strategy, at trial
Authored by: jacks4u on Friday, February 19 2010 @ 06:48 AM EST
I was just re-reading Judge Kimball's 10-Aug-2007 decision, and I think I have a possible strategy I believe SCO will use to gain sympathy from a jury.

Throughout the entirety of this litigation, SCO has miss characterized anything not favorable to it, even if that miss characterization runs contrary to it's position in another aspect of the litigation.

What I believe will happen, is SCO will continue to miss characterize, to do otherwise would be to admit defeat. But there will be so many times that they will get trounced by Novell's team, that it will look like 'The big business is picking on us little guys'

They will try to empathize with the jury, try to make it look like SCO is one of 'them', and then frame Novell as 'big business running rough shod over the little guys'

Novell, on the other hand, has to refute every interpretation not contained in the four corners of it's agreements, but must be careful to not propel SCO into that position - where the Jury feels SCO is one of them, and being beat up.

On the other hand, If Novell can draw on the real life experiences of typical jurists, and paint SCO as an entity that is trying to skate on it's duties, by insisting on wrong headed thinking ie: "Just like when you bought your house, you didn't get right, title and interest in the whole subdivision..." or "when you bought light bulbs at Wal-mart, as SCO would have it, you also bought the light bulb factory..."


ps: I'm definitely NOT a lawyer. This is my $0.02 only. For things that matter, talk to a lawyer. If you are a lawyer, whatcha doin' listening to me?

[ Reply to This | # ]

Will Boies finally make his Appearance?
Authored by: Anonymous on Friday, February 19 2010 @ 09:06 AM EST
Now that SCO finally has a jury, and live tort claims that will require the jury
to decide how "mean" Novell was to SCO (sarcasm alert)...... will we
finally see the appearance of David Boies?

Remember Boies is the guy who preaches to practitioners that juries are really
too stupid to understand complex legal arguments, and really need to be
instructed by counsel that a trial is nothing more than a medieval morality
play.

SCO has managed to get the judge on board, now in both courtrooms (Utah and
Delaware). This judge appears to barely tolerate being in the same room with the
Novell lawyers. Maybe he'll be warmed by his former clerks at the Novell table,
but there's little evidence of that so far.

Bets?

[ Reply to This | # ]

All a big waste of time and money
Authored by: Anonymous on Friday, February 19 2010 @ 10:10 AM EST
IF SCO wins the ownership of the copyrights, it will mean that Novell
accidentally and inadvertently transferred all their Unix copyrights just by
writing on a contract some vague promise to transfer some un-described
copyrights at some time in the future.

This will turn the entire US copyright system into a complete farce, and
potentially set a dangerous precedent where a vague promise to give someone
something, will be turned into having to give that person everything you own...
the entire logic is a joke.

Further more, Novell owns very little of the Unix copyrights, and Novell CANNOT
give away copyrights that it does not own. In fact, Novell doesn't even own the
copyrights on the files that SCO is trying to sue IBM about... the files have
copyrights by BSD! My guess is, SCO doesn't even have a list of Novell
copyrighted file in Unix and all Novell really has to do to kill the case is ASK
what, specifically, copyrights SCO thinks they now own... They probably don't
even KNOW!

[ Reply to This | # ]

Very Annoying
Authored by: Anonymous on Friday, February 19 2010 @ 10:49 AM EST
In the bench trial, Novell PREVAILED. According to this ruling, the prevailing
party is required to appeal their own victory. In what twisted universe does
the party that lost the original trial get an automatic upper hand just because
the appellate court decided that errors were made? Is there precedent for this?

[ Reply to This | # ]

is Groklaw broken?
Authored by: Anonymous on Friday, February 19 2010 @ 11:31 AM EST
grok - to know and understand

Ok law explainers: Start explaining.

[ Reply to This | # ]

Chewbaca Defense?
Authored by: DMF on Friday, February 19 2010 @ 01:48 PM EST
If Judge Stewart has decided that the issues dependent on copyright ownership are now in back play, what's the proper procedure for adjudicating them?

I gather that they're not going before this jury, only the questions remanded by the CoA. So would that mean that the judge is to decides them after and based on the jury's decision on copyright ownership? Would there be a hearing before the judge? Or would there be another trial? (Remember that SCO asked for a jury trial.)

What I don't get is, even if the issues are back in play, why would Judge Stewart allow arguments in this trial about issues that won't be decided by this jury? That seems to violate the whole purpose of procedure. "Let's just throw everything into a pot and see how badly we can confuse the jury."

IOW, the Chewbaca Defense...

[ Reply to This | # ]

Judge Stewart Denies Novell's Motion in Limine #1
Authored by: Anonymous on Friday, February 19 2010 @ 02:11 PM EST
A thought just hit me. Perhaps Judge Stewart somehow thinks that the remand by
the appeals court is more than what was in the words of the remand. Perhaps he
thinks that there was an unspoken mandate in the remand for him to give SCO
every possible break in this case.

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Judge Stewart Denies Novell's Motion in Limine #1
Authored by: Anonymous on Friday, February 19 2010 @ 08:11 PM EST
If you stretch things far enough you can define up as down.

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