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Novell Moves for Judgment on Slander; SCO Moves to Limit Closing Argument
Friday, March 26 2010 @ 10:38 AM EDT

Novell moves for judgment on slander of title and damages:
Defendant Novell, Inc. (“Novell”) respectfully moves the Court to grant judgment as a matter of law in favor of Novell because plaintiff The SCO Group, Inc. (“SCO”) has failed to introduce legally sufficient evidence upon which a reasonable jury could find for SCO on its claim for slander of title. Specifically, SCO has not shown that: (1) Novell acted with constitutional malice, (2) Novell’s statements were disparaging, (3) Novell’s statements were unprivileged, (4) Novell’s statements were false, or (5) Novell’s statements caused special damages. Moreover, SCO has failed to introduce sufficient evidence supporting an award of punitive damages.
Meanwhile, The SCO Group wants to limit Novell's closing arguments:
Plaintiff, the SCO Group, Inc., respectfully submits this memorandum of points and authorities concerning the proper scope of closing arguments. Specifically, documents and testimony that have not been admitted into evidence at trial should not be shown or read to the jury, such as the demonstratives used by Novell during the testimony of Novell’s expert, Mr. Terry Musika. SCO also objects to any attempt by Novell to argue to the jury that Novell’s assertion to ownership applied only to UNIX, and not to UnixWare copyrights, extant at the time of the APA. SCO further objects to any attempt to argue to the jury points contrary to questions of law that have been decided by the Tenth Circuit opinion in this case.


Here are the filings:

03/25/2010 - 832 - Memorandum of Points and Authorities Concerning the Proper Scope of Closing Arguments filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 03/25/2010)

03/26/2010 - 833 - MOTION for Judgment as a Matter of Law NOVELL, INC.'S RULE 50(a) MOTION AT THE CLOSE OF ALL EVIDENCE filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/26/2010)

03/26/2010 - 834 - MEMORANDUM in Support re 833 MOTION for Judgment as a Matter of Law NOVELL, INC.'S RULE 50(a) MOTION AT THE CLOSE OF ALL EVIDENCE filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/26/2010)


  


Novell Moves for Judgment on Slander; SCO Moves to Limit Closing Argument | 246 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here.
Authored by: Erwan on Friday, March 26 2010 @ 10:42 AM EDT
If any.

---
Erwan

[ Reply to This | # ]

  • pdf name? - Authored by: Gringo on Friday, March 26 2010 @ 11:13 AM EDT
    • pdf name? - Authored by: Anonymous on Friday, March 26 2010 @ 11:18 AM EDT
    • pdf name? - Authored by: Steve Martin on Friday, March 26 2010 @ 11:59 AM EDT
Off Topic
Authored by: jsoulejr on Friday, March 26 2010 @ 10:45 AM EDT
off topic

[ Reply to This | # ]

Why does SCO object to Novell NOT claiming ownership of UnixWare?
Authored by: Cassandra on Friday, March 26 2010 @ 10:46 AM EDT
That would be the truth, wouldn't it? Novell owns the original UNIX copyrights and SCO owns whatever OldSCO/SCO wrote on top of them. Is SCO demanding that Novell lie, or something?

[ Reply to This | # ]

News Picks
Authored by: jsoulejr on Friday, March 26 2010 @ 10:46 AM EDT
Sorry, I got greedy.

[ Reply to This | # ]

Novell Moves for Judgment on Slander; SCO Moves to Limit Closing Argument
Authored by: GriffMG on Friday, March 26 2010 @ 10:57 AM EDT
Novell respectfully submits to this court that SCO has got nowt, nada, nothing,
in plain english (like the APA) there is no case to answer!

---
Keep B-) ing

[ Reply to This | # ]

The official thanks thread
Authored by: SilverWave on Friday, March 26 2010 @ 11:00 AM EDT
Because it wouldn't have been the same with out our reporters.

---
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 | # ]

Novell Moves for Judgment on Slander; SCO Moves to Limit Closing Argument
Authored by: bastiaan on Friday, March 26 2010 @ 11:04 AM EDT
I'm a bit puzzled as to why Novell is trying another rule 50 motion. The judge
just denied one, saying that in order to find for Novell he would have to weigh
the evidence, and that's the jury's turf. It seems that the judge could simply
deny this new motion with the exact same argument.

[ Reply to This | # ]

Difference to the last motion?
Authored by: Anonymous on Friday, March 26 2010 @ 11:07 AM EDT
Beg your pardon, but what is the difference between this motion and 829, which has just been denied? Thanks, Jochen

[ Reply to This | # ]

Novell Moves for Judgment on Slander - Should be a shoo-in but with this Judge?
Authored by: SilverWave on Friday, March 26 2010 @ 11:11 AM EDT
We will see.

---
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 | # ]

Is SCO's Characterization ot the Appeals Deciscion Correct?
Authored by: tuxi on Friday, March 26 2010 @ 11:21 AM EDT

In 832, SCOX states

For example, that Court expressly found that the “APA, as revised by Amendment No. 2, satisfied the Copyright Act’s writing requirement.” The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1214 (10th Cir. 2009). The Court also held that the “Copyright Act does not require its writing requirement be fulfilled concurrently with the production of a Bill of Sale,” expressly rejecting Novell’s claim that the temporal difference between the Bill of Sale, the APA and Amendment No. 2 was of any legal significance. Id. at 1214 & n.2.
I thought the Appeals Court said there were ambiguities in Ammendment 2 which might be read to transfer the copyrights.

---
tuxi

[ Reply to This | # ]

Grant to Novell would leave copyrights up in the air
Authored by: Anonymous on Friday, March 26 2010 @ 11:21 AM EDT

I don't expect the Novell motion to gain any traction.

If this motion were approved there would be no need to visit the copyrights
question.

The 10th Circuit seemed to be interested in having the copyrights question go
before a jury. Even supposing Novell is right that a reasonable jury could not
be expected to take the question all the way to slander of title, to meet the
10th Circuit expectations this motion has to be denied.

[ Reply to This | # ]

Judge Stewart
Authored by: lsmft on Friday, March 26 2010 @ 11:29 AM EDT
I kinda feel bad for Judge Stewart. Novell has a large staff working on this
case and churning out "stuff", and so does SCO. I got the feeling
Judge Stewart has to dig through and understand all of it himself. And unlike
Judge Kimball there is no time to think here it all has to be done in real
time.

And yes I know part of the problem is probably self inflected.

[ Reply to This | # ]

SCO Moves for Judgment on Slander - granted by Stewart #839
Authored by: Laomedon on Friday, March 26 2010 @ 11:31 AM EDT
At the close of Defendant’s evidence, Plaintiff made an oral Motion For Judgment as a Matter of Law pursuant to Fed.R.Civ.P. 50. The Court took that Motion under advisement and later orally granted that Motion. This Order memorializes that ruling.
Plaintiff argues that Defendant has failed to show constitutional malice and has failed to produce evidence of special damages. The Court agrees that Defendant has failed to produce evidence of special damages and will, therefore, grant Plaintiff’s Motion.

[ Reply to This | # ]

Novell Moves for Judgment on Slander - denied #838
Authored by: Laomedon on Friday, March 26 2010 @ 11:34 AM EDT
Defendant’s Motion asks the Court to make credibility determinations, weigh the evidence, and draw all inferences in light of Defendant. Such considerations are not appropriate in a Rule 50 Motion. Defendant’s Motion also essentially requests that the Court revisit a number of its prior rulings. The Court declines to do so.

Turning to the merits of the Motion, the Court finds that Plaintiff has presented sufficient evidence on each of the elements required for its slander of title claim. Therefore, this matter may proceed to the jury and Defendant’s Motion will be denied.

III. CONCLUSION

It is therefore ORDERED that Defendant’s Rule 50(a) Motion at the Close of all Evidence (Docket No. 833) is DENIED.

[ Reply to This | # ]

Amazing. They haven't been denied yet! (nt)
Authored by: Anonymous on Friday, March 26 2010 @ 11:42 AM EDT
.

[ Reply to This | # ]

  • Ooops - Authored by: Anonymous on Friday, March 26 2010 @ 11:47 AM EDT
Novell Moves for Judgment on Slander; SCO Moves to Limit Closing Argument
Authored by: Anonymous on Friday, March 26 2010 @ 11:50 AM EDT
Confused...

Are the previous posts numbers correct?

[ Reply to This | # ]

To the Limit on closing...a joint argument
Authored by: webster on Friday, March 26 2010 @ 12:23 PM EDT
.

"Ladies and Gentlemen of the jury. You have to decide two sides of one
thing, Slander of Title. Did Novell slander SCO's title? Or did SCO slander
Novell's title?

It would help you to decide that question if we could tell you who had the
title. Both sides claim the title. They tell their partners, clients and
businesses that they own the title.

As you have heard, even courts have made rulings in this dispute.

Unfortunately, the Judge here ...even he can't tell you who has the title. It
hasn't been determined yet who has the title.

Title has to be finally determined before you can even begin to think about
whether any dispute over the title amounts to slander. Both sides here have
been telling you for three weeks now how they have a well-founded belief that
they have title.

Now this little talk right now is the closest we can get to going back there in
the little room and discussing the question with you. You see how much trouble
the parties have had these last three weeks. Would you call that slander? You
see how much trouble the parties have been having in court since 2004 at least.
The parties can't figure it out. The lawyers can't figure it out, the courts
over time and this judge can't help you or the parties out.

If you go back there and on the first ballot and vote overwhelmingly on one side
or the other that so and so owns the title and they were slandered by their
unworthy opponent, then God bless you and thank you for putting everyone out of
this long misery.

It is easy to recognize that may be too much of a hope for either party. The
Judge is going to tell you to use your common sense. You bring the real world
to this courtroom. One suspects you are going to take your job seriously and
deliberate on what the parties have had to say for themselves. If you are like
other juries, there may be disagreement, indeed disagreements about the title
itself. You will argue with each other and try and explain and reason with each
other. It could even get heated. But you are doing your job. No one would
call anything you say in trying to inform others and resolve differences
malicious or slander.

So ladies and gentlemen, if you find yourselves doing that, that is all the
parties have been doing as far as they have shown here. It is a business
dispute that became a court dispute. They are allowed to make their positions
known just as you in the jury room are allowed to make your position known.

Please help us to put an end to it. If you too have differing positions on the
copyrights, then you are like the parties and just as privileged from being
accused of malicious slander of title.

So if the title is obvious to you, come back with the obvious decision and give
relief to the owning party.

If the title is not obvious to you, then that too will lead you to an obvious
decision that since the owner of title is not obvious, then it is obvious that
the discussion in the dispute between the parties could not be malicious and
slanderous. Novell did not slander a title, SCO did not slander a title.

...

[ Reply to This | # ]

Clearly, Stewart wants this to go before the Supreme Court
Authored by: Anonymous on Friday, March 26 2010 @ 01:02 PM EDT
Hmm.

If Novell won would there have been any chance of cert by the Supreme Court? Is Stewart denying them exactly what they need denying in order to get there?

It's really the only thing that makes sense to me. He's taking the 10c ruling to it's (il)logical extreme, giving Novell no outs.

While it's frustrating for us to watch everything go *against* Novell, and I'm sure they are annoyed at the expense of defending this, it sure makes for better fodder in their Supreme case. Not sure if they can amend their petition, but I'm sure it would look much better after all this.

In fact, Stewart's actions are exactly what I'd expect from a judge who knows one party has already gone to his boss's boss. You do not get *any* breaks in that case. Ts must be crossed and Is dotted perfectly, and you'll get punished if you step out of line. The other side, not so much.

And I'm sure he's pleased as punch about it, too, since it can look like he's giving Hatch's son all the breaks, which won't hurt him in the local politics scene. But set the case up perfectly to be battered by the Supreme Court.

[ Reply to This | # ]

The GPL
Authored by: eric76 on Friday, March 26 2010 @ 01:04 PM EDT
There is a very brief mention of the GPL in 834 and not much discussion of it at
all in trial that I recollect.

It seems to me that one of the points that would have been in Novell's interest
to solidly make was that SCO/Caldera distributed Linux under its GPL and
continued to do so well into the 2000s. Thus, it seems to me that anyone using
Linux would be protected by the GPL and would not owe SCO any payments even if
everything else went their way.

[ Reply to This | # ]

It's after noon in Utah, any verdict yet?
Authored by: Anonymous on Friday, March 26 2010 @ 02:51 PM EDT
n/t

[ Reply to This | # ]

833 - JS can't deny this one
Authored by: DMF on Friday, March 26 2010 @ 04:18 PM EDT
In order to deny it, Judge Stewart would have to find against Novell on every point. I expect that he can, and will, on more than half of the points, but not all.

[ Reply to This | # ]

New Salt Lake Tribune Article
Authored by: RFD on Friday, March 26 2010 @ 04:19 PM EDT
According to a new Salt Lake Tribune article:
After a three-week trial and closing arguments from each side, the jury retired to deliberate at 12:15 p.m.

---
Eschew obfuscation assiduously.

[ Reply to This | # ]

834/p.18 has October 16th, 2006 instead of 1996
Authored by: Anonymous on Friday, March 26 2010 @ 04:24 PM EDT
...which saddens me.

Notwithstanding, I think it's an extremely powerful document.
It wouldn't surprise me if it was granted.

bjd

[ Reply to This | # ]

Ice cream better than trees - The UNIX saga retold.
Authored by: Anonymous on Friday, March 26 2010 @ 04:31 PM EDT
The ice cream model seems to fit the situation better than the tree/trunk/branch
analogy.

Once upon a time...

AT&T/USL developed vanilla ice cream. It sold tubs of it to places like
IBM, Sun, SGI, HP, and others with rights to make and sell other things from
it.

-- IBM made and sold milkshakes (AIX)
-- Sun made and sold ice cream cones (Solaris)
-- SGI made and sold multi-colored ice cream cakes with sprinkles (IRIX)
-- HP made and sold ice cream sandwiches (HPUX)

and there were others...who added their own flourishes.

By and large, the world was a happier place. Everyone knew AT&T owned the
vanilla ice cream formula (copyrights), but others were happy to make and sell
the ice cream treats they developed, since they owned the recipes (copyrights)
for their additions to vanilla.

However: AT&T/USL let the formula to make vanilla slip out to places like
schools and cookbook writers that published a lot of it far and wide. AT&T
did this to help improve its market for vanilla. This worked wonders, and soon
many were craving it. But AT&T sort of forgot that once everybody knew how
it was made, keeping it secret would be difficult if not impossible. OOPS!

The BSD folks used at least a bit of the formula to create Peach ice cream!
The world wis somewhat happier, but AT&T wasn't, and went after BSD. Courts
ruled that most of the formula isn't copyrightable because it was too widely
distributed, and who wrote various parts of the formula what wasn't clear
anyway. The horse had escaped the barn because it had too many holes, and
there'd be no bringing it back. That simplifies life a bit, since by now, other
people were making other flavors as well, some of which were free. Again, most
everyone was happy.

AT&T decided they were in the telecom business, not the ice cream business,
and sold the whole USL works, the formula, and tubs of vanilla to Novell.
Nobody questions Novell got everything in that deal. Everyone was still happy.

Novell gleefully starts to make...banana splits! (UnixWare) but finds they don't
have enough internal resources to finish up and do a proper job of it, as it
still needs whipped cream, toppings, and cherries. They also wanted vanilla and
banana splits to compete with an evil chain, MicroSlush, which was selling a
mushy and barely palatable product but had a monopoly on it at least in the
cheap seats, so Novell hoped to get a quality product the masses could afford.

So Novell decides to sell the ice cream tubs, the formula and the bananas they'd
added...everything...to Santa Cruz. This seemed like a good deal all around.
BUT...Santa Cruz doesn't have enough money to buy it all. Also, Santa Cruz
might go bankrupt, and all might be lost. What to do?

Somebody comes up with the brilliant idea that Novell could keep the vanilla ice
cream formula, and also keep collecting the royalties from others like IBM, HP,
and others who were still selling and making their own unique treats. That
makes the selling price cheaper, AND, gives Novell the chance to keep everything
going (and thus everyone happy) in case Santa Cruz evaporates in a puff of
liquidation.

So Novell bundles up the tubs, the bananas, and what dishes they'd accumulated,
and shuffled it all off to Santa Cruz who hopefully would make a really good
banana split someday.

But Santa Cruz decides they're not up to the task themselves, so they sell it
all, or at least most of it, to Caldera. Not a big deal so far, and it probably
made sense at the time.

In the meantime, there's this guy named Linus in Finland who's invented SHERBET!
(Linux) He started the work himself, but later lots of neighbors pitched in.
He wasn't a big company, just lots of volunteers working in spare time, and his
creation had been done without using any of the original vanilla ice cream
ingredients. It's still creamy and sweet, a lot like ice cream, but it's free
for anyone to make and incorporate into still more kinds of new treats or
variations on old ones.

Caldera looks at all this and thinks: We could maybe combine everything
somehow, but there's this pesky licensing stuff lurking around vanilla. So
we'll sell sherbet, too! They started, and made lots of friends at first, but
not a lot of money. Not so good for them.

Along comes a guy named Darl who gets his hands on Caldera and a gleam comes
into his eyes: We'll change our name to SCO Group... That way, everyone will
think we're the ones who got stuff from Novell and brand recognition is a Good
Thing.

Then Darl's dark side asserts itself. Hey! This sherbet stuff *MUST* be using
at least parts of the vanilla ice cream formula, and we can force all the
sherbet people into paying for licenses! Money is a Good Thing, too! especially
if you don't have to really do any work to get it beyond threatening. The fact
that most rational people would describe this as theft, or at least extortion or
a protection racket, seems to escape him.

So off he goes on his windmill-tilting escapade, waving his arms and yelling to
any who would listen, and lots who didn't. We own vanilla! We own banana
splits! We own sherbet, too! EVERYBODY owes us Big Bucks!

Darl manages to convince a couple of less insightful folks into paying him. He
does this by making a big deal of having millions of gallons of proof, and that
his buddy Blepp has the sherbet recipe right in his brief case! Blepp, who bore
an uncanny resemblance to the Iraq Information Minister, or maybe Sgt Schultz,
seemed to suddenly go missing, along with his heavily stained and sticky
briefcase.

Darl also got some rocket scientists from MIT to go deep diving into the recipes
to prove they had lots in common. Unfortunately, he neglected to realize that
rockets go UP, and don't dive well. So the rocket powered submariner scientists
also just sank away into the oblivion of a vast ocean of creamy melted goo,
never to resurface.

Well, all this didn't set well with either the sherbet industry at all, and not
with a lot of vanilla ice cream lovers either. Massive outcry ensues.

Novell is being hounded by everyone, wanting to know what all the screaming and
threats are about. They wake up from their peaceful nap, and look around.
"Wait a minute! Who is this twit? WE still own the vanilla formula, and
we get money from the treat makers using vanilla. And besides that, there's no
vanilla in sherbet! We even sell sherbet ourselves! Not only is this jerk
gonna mess with our legacy royalty revenues, but they're gonna wreck our sherbet
business by demanding money from our customers!" Novell is not happy AT
ALL!

Darl calls Novell and says, "Give me the vanilla formula! I bought it
along with the tubs and bananas." The obvious problem is, by just asking
Novel for it, he's admitting he didn't own it in the first place. OOPS!
Novell, understanbly says, "Take a hike, Darl. The Asset Purchase
Agreement says you didn't get it, and we're not gonna give it to you! Go
away!"

Soon after, a buried and lost bit of the documentation of the original sale to
Santa Cruz surfaces, and clouds the picture. Lawyers suddenly appear, and
lawsuits begin to fly all around. Dust rises, and begins settle on vanilla,
sherbet, and generally make distant vision difficult.

Darl & Co. tell IBM and SGI to quit using or selling anything vanilla.
Novell says "You have no right to mess with OUR older contracts. Quit
it!" Darl keeps on. Novell tells IBM and SGI to ignore Darl (because by
contract, Novell could do that).

Much yelling from all sides takes over the Internet, and soon Novell posts its
side of the story for everyone to read, along with rants from Darl & Co.
Everyone's unhappy! SCOg soon becomes Evil Incarnate in the eyes of vanilla
people, sherbet people, and just about anyone who had been watching the turmoil.
Nobody would touch SCOg's scheme...or scam...with a 10 foot spoon, and SCOg's
stock begins to head south for a very long winter.

SCOg bellows, "We must own the formula, because we got tubs and tubs of
vanilla from Novell and use it in our banana splits!" They seem to ignore
the fact that many others were happily selling vanilla as an ingredient of their
treats without needing the formula to do so.

They also ignore the fact the APA said the vanilla formula was excluded from
what they got. "BUT!, they say, "There's this little amendment bit
here about us getting any part of the formula we might need to make banana
splits!"

For a brief time, Novell seems to acknowledge SCO might have gotten *something*
more, but quickly point out that SCOg never *asked* for anything specific...at
least not before Darl's scheme to pry money away from sherbet people, so they
clearly didn't *need* anything more than what they already had to make banana
splits anyway. Novell also points out that using the vanilla formula to demand
money from others wasn't part of the original premise of the sale in the first
place. SCO was to produce and sell banana splits!

So while no one questions that SCOg got some tubs of vanilla, and some
ingredients to make banana splits, the fate of the formula underlying everything
is still up in the air...TO THIS VERY DAY!

Copyright: ME! But released under Creative Commons License.
Embellish at will.

[ Reply to This | # ]

When will the jury return?
Authored by: Anonymous on Friday, March 26 2010 @ 04:31 PM EDT
Anyone want to start a pool?


[ Reply to This | # ]

Novell and SCOG Moves for Judgment on Slander; SCO Moves to Limit Closing Argument
Authored by: Ian Al on Friday, March 26 2010 @ 04:42 PM EDT
Although SCOG have prevailed and Novell not with these motions, I note that the
jury still have to decide whether the copyrights transferred.

I still expect the jury to decide that Novell has them. Novell have money in
escro waiting for them and a larger debt owed to them. They will not get any
more money whatever happens. If they are found to have the copyrights, the court
of public opinion will decide that SCOG did the slandering. Companies will know
that there is no need for SCOSource licences, whoever is selling them.

---
Regards
Ian Al

I sentence you to seven years, or more with good behaviour.

[ Reply to This | # ]

Do we know what happened to 832 (SCO's motion to limit Novell's closing arguments)? [n/t]
Authored by: argel on Friday, March 26 2010 @ 06:00 PM EDT
n/t

[ Reply to This | # ]

The SCO-Novell baseball game
Authored by: wvhillbilly on Friday, March 26 2010 @ 11:01 PM EDT
SCO pitches. The ball bounces off the ground six inches in front of home plate
as the Novell batter holds his swing. Umpire: STEERIKE!

SCO pitches. Novell knocks one over the pitcher's head and into the stands. A
spectator catches the ball. Umpire: Fly ball! OUT!

Novell pitches. The ball crosses home plate dead center level with the SCO
batter's belt, while he holds his swing. Umpire: Ball!

Novell pitches. SCO batter swings, pops one up into the stands well to the left
of the first base line, runs the bases. Umpire: Home run!

SCO runner grounds one down the first base line, the Novell first baseman tags
him out. SCO manager protests, Novell manager gets thrown out of the park.


I could probably come up with a few more, but this should be enough to give you
an idea of what I think of the way this trial has been run.

---
"It is written." always trumps, "Um, ah, well, I thought..."

[ Reply to This | # ]

No matter the verdict, Novell should appeal
Authored by: Anonymous on Monday, March 29 2010 @ 01:28 PM EDT
Novell should take every motion that was been filed in this case to the Tenth
Circuit and ask that they be review. Judge Stewart said as much when he ruled
against them regarding a summary judgment by Judge Kimball they failed to
appeal. It defies logic, but it is the law of this case now.

[ Reply to This | # ]

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