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Novell Files Motion to Dismiss SCO's Claims
Wednesday, February 11 2004 @ 03:55 PM EST

News.com is reporting that Novell has filed a motion to dismiss, on the grounds that SCO hasn't proven that Novell doesn't own the copyrights and thus SCO can't establish that it owns Unix and UnixWare copyrights. The motion also seeks dismissal on the grounds that the allegations don't establish specific grounds for damages. "They are precisely the type of general allegations of some speculative injury that the special damages pleading requirements for a slander of title action are meant to avoid." SCO released a statement from whatever cave they have been hiding in all week.

Here is a snip from the article:

"'It is SCO's strongly held legal position that Novell has no rights to step in and change or alter the source code license agreements that SCO owns and holds with its Unix licensees,' SCO said in a statement. 'SCO has no intention of waiving any of its rights against Sequent or IBM. We will deal with Novell on all of these issues in court.'

"Novell also filed a motion Monday to dismiss SCO's slander suit, saying the company hasn't proven that Novell's claims are false. 'Without conclusively establishing that it owns the Unix and UnixWare copyrights, SCO cannot show that Novell's statements to the contrary are false, and cannot prevail,' according the filing.

"The motion also claims SCO's suit fails to establish specific grounds for damages. 'SCO's allegations are plainly insufficient,' according to the filing. 'They are precisely the type of general allegations of some speculative injury that the special damages pleading requirements for a slander of title action are meant to avoid.'"

That's legalese for: they haven't got a case. They missed an important step. To bring a slander of title action, you must be the owner of the property. They can't prove that they own the copyrights to Unix and UnixWare, because Novell claims they do. Thus, they are hinting, they brought the wrong kind of case. They didn't prove the precise amount of money damages they have suffered, and they can't, under the circumstances, so they can't win. Damages must be precise, not just speculative, and all they presented to the court was vague "We've been damaged in some way" allegations, and since they have no clear title to the copyright, they can't prove the damages element until they prove they actually own the copyrights.

In a slander of title action, there are necessary elements you have to prove to win. It's like when you hit the ball in baseball, you don't get a home run unless you actually run around and touch all the bases. You can't just stand there and say, It's out of the ballpark, so I don't need to bother running around. In slander of title, one of the elements you must "touch" to get your "home run" is "that special damages were sustained thereby", and special here means specific, that you can show to the penny exactly what you lost. I'll explain more about slander of title elements in the next article.

Lamlaw's Lewis Mettler said they'd goofed by choosing a slander of title action instead of breach of contract and that it would prove fatal to their claims, and it looks like he just might be right.


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