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To read comments to this article, go here
Novell Files Motion to Stay, Answer with Counterclaims etc.
Tuesday, April 11 2006 @ 03:14 PM EDT

Novell has filed a Motion to Stay Claims Raising Issues Subject to Arbitration (here's the Redacted Memorandum in Support [PDF]), telling the court that SCO's copyright infringement claims and in fact four of its five claims have to be brought to arbitration, as per the UnitedLinux agreement, under the Federal Arbitration Act, which requires a stay of any claim raising issues subject to arbitration. Therefore, it asks the court to stay all proceedings on SCO's claims until that matter can be cared for. Novell has already filed a request for arbitration.

You see, under the UL agreement, the parties agreed, Novell explains, that they could all use each other's intellectual property under broad license, including the right to sublicense, and some more things that are redacted because the UL agreement requires confidentiality. What we can read is that Novell asserts that any SCO IP put into UL divested SCO of ownership as per the UL contract. Further the agreement stipulated that any Open Source code contributed to UL would remain under its Open Source license, and so I gather Novell is saying the GPL stands in SCO's way blocking it from being able to assert proprietary rights to modified versions of the Linux kernel.

SCO could have saved us all a lot of trouble, don't you think, if it had read and understood the GPL before it started all this?

It has also filed a motion asking for a more definite statement [PDF] from SCO regarding what law SCO thinks is applicable to the unfair competition claims they have lodged.

Novell has also filed a killer Answer to SCO's 2d Amended Complaint and Counterclaims [PDF], with the following affirmative defenses:

  • Privilege
  • Estoppel
  • Unclean hands
  • Laches
  • Comparative fault
  • Failure to mitigate
  • No causation
  • U.S. Const. Amend. I
  • Misuse of copyright
  • Fraud on the Copyright Office
  • Independent creation
  • Fair use
  • License (the UnitedLinux agreements, the TLA, and ye olde GPL)
  • Implied License
  • Waiver
  • Abandonment and forfeiture
  • Obligation to Arbitrate
  • I haven't read it all myself yet, so we'll do it together and I'll write more after I have a chance to read it carefully, but my initial reaction on a quick read-through is that SCO is probably wishing it never added some of the claims it did to their 2d Amended Complaint, because now they are faced with a number of issues that they didn't face before, like being accused of fraud on the Copyright Office and copyright misuse. If SCO had not added the copyright infringement claim to their original slander of title action, none of that would be on the table. Well, they're in hot soup now.

    Man, do not mess with Novell. I never worked for lawyers as good as these guys, and it's a plumb pleasin' pleasure to watch them work.


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