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Novell Moves to Dismiss With Prejudice
Tuesday, August 10 2004 @ 03:37 PM EDT

Here is Novell's Motion to Dismiss, the Memorandum in Support of the Motion to Dismiss, the Declaration of Bruce Lowry and the Declaration of David E. Melaugh, plus their Motion for Leave to File an Overlength Memorandum and the Order granting them leave. Lots to read, but the first two may take a few more minutes to show up on the server.

I suggest you start with the declarations and then the ExParte Motion to File an Overlength Memorandum, and then the Motion to Dismiss and then the Memorandum. And I wrote that before I knew that the Motion and Memorandum would turn out to be the last to show up.

What I see is that they are telling the judge several things:

  • SCO didn't tell the judge the whole story, they say, but rather they quoted "selectively and misleadingly", to "drum up any basis for these specious allegations." Hence Novell takes on the task of showing the complete documents, exhibits galore, to show the judge the context and the complete articles and press releases and letters that they say SCO cherry picked a few quotes and then used misleadingly. That's why they needed to get permission to file an overlength memorandum, so as to detail each item SCO misrepresents.

    Take a look at the Melaugh declaration, for example. He tells the judge that he did a LexisNexis news search for the words IBM and SCO and got 2,845 results, starting with the month and year that SCO filed the lawsuit. Next, he narrowed it down by choosing as cutoff date the first Novell public statement, and he still got 317 articles. They present the judge with beginning chunks of the first 50 of each search, asking that he take judicial note of the huge media frenzy around SCO. Even the court itself lists it as a "high profile" case on the Court's website. This is the backdrop to Novell's statements. They also attach SCO's complaint in the Red Hat case and its opening brief in support of its motion to dismiss the Red Hat case, and both the original complaint and the amended complaint in the IBM case, as well as their Answer to IBM's Counterclaims. They throw in letters we have read on Novell's site, and some press releases for good measure, but in each case they cross reference them with SCO's Amended Complaint. See, Your Honor, they are saying, how they didn't tell you the straight, complete story?

  • The circumstances under which Novell spoke out form the backdrop to their Motion to Dismiss, and the Court itself said that the case presents a significant copyright issue, yet SCO continues to assert it and only it has undisputed copyright rights as if it were an unassailable fact. Are they not giving what you wrote full weight, Your Honor? is the implication. You said in your ruling that for a statement to be malicious, it has to be knowingly false. Obviously, SCO can't "surmount these hurdles."

  • This is a public dispute, and it was SCO who made it so not only by suing IBM, but by sending the 1500 threatening letters and sounding off in the media. "SCO has done everything it can to stoke that firestorm." Additionally, it has started or is defending against "at least six lawsuits before five judges in four states and two countries."Under those circumstances, Novell has the legal right to speak without being threatened with litigation for doing so. It's not malice if both parties sincerely believe they have valid rights and each asserts a claim. Without Novell making such a claim while knowing it was false, which obviously isn't the case in light of the judge's own order, SCO is a dead duck. As a matter of law, its Amended Complaint should be dismissed. (That means there is no issue of fact for a jury to ponder. Matters of law are the judge's job.)

  • SCO didn't request declaratory judgment that it owns the UNIX copyrights, only pressing a slander to title claim. That's a hint to the judge that SCO may not be so sure itself who owns the copyrights. Novell then wisely quotes from the Judge himself. Could there ever be better authority? This judge said there are "substantial Section 204(a) issues" with the APA and the Amendment 2, and that "the agreements raise substantial doubt" as to whether the APA as amended qualifies as a copyright transfer writing and doubt as to "whether there was any intent to transfer copyrights".

  • On damages, the only thing SCO added was that other parties in other lawsuits with SCO have relied on Novell's assertions regarding copyrights belonging to them, to SCO's alleged detriment.

The Motion to Dismiss is short and sweet: SCO's complaint, they say, should be denied for failure to state a claim upon which relief may be granted. That's legalese for: "This case is ridiculous." SCO claims Novell slandered them, but they can't prevail because:

  • Novell has a privilege to publicly assert a rival claim to the UNIX copyrights (meaning, it's not slander if it's true or you have a good faith belief that you own the UNIX copyrights, not SCO);
  • Novell has a privilege to publish its rival claim to parties with a common interest in the UNIX copyrights (like all Linux users, but especially all those companies being sued by SCO or suing or maybe worried about getting sued someday); and
  • SCO can't allege malice, a necessary element, given the Court's earlier Order. Remember, Your Honor, how you said it wasn't a bit clear, but we made some convincing arguments? If *you* are not sure SCO has the copyrights, and you are the judge here, how can Novell be called malicious for saying so too?

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