04/07/2008 - 509 - MEMORANDUM in Opposition to SCO's Motion for Judgment on the Pleadings on Novell's Claims for Money or Claim for Declaratory Relief filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sneddon, Heather) (Entered: 04/07/2008)

04/07/2008 - 510 - DECLARATION of David E. Melaugh re 509 Memorandum in Opposition to Motion for Judgment on the Pleadings on Novell's Claims for Money or Claim for Declaratory Relief filed by Novell, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Sneddon, Heather) (Entered: 04/07/2008)

Just reading the Introduction tells you that SCO is, once again, asking for unusual relief, which Novell strongly argues it can find no case law to support. What SCO wants is to keep the SCOsource money; but unless either the facts or the law support its position, it is hard to see how it can. Novell uses an illustration, about a guy selling someone else's car without the owner's permission.

Update: This motion has been set for a hearing on April 30 at 3 PM in Room 220, after the trial begins on the 29th, as per the Judge's earlier order that all summary judgment motions will be heard that day. Novell's Motion for Summary Judgment on its 4th Claim for Relief is already scheduled for the same time slot.

Here's the illustration:

To illustrate: suppose Nathan owns a car. If Nathan's friend Scott sells that car to Marty without Nathan's permission, it is hard to see how Scott can argue he is entitled to keep any of that money. Once Nathan gets the money back from Scott, Nathan might decide to keep the monty and let Marty keep the car. Or Nathan might demand the car back from Marty and return Marty's money. But in none of those scenarios does Scott get to keep the money he pocketed by selling something he didn't own.

Moreover, because, here, there is a dispute as to whether "Scott" had permission to sell Nathan's car, and because Scott has stated his intent to go on "selling cars" owned by Nathan, declaratory relief is anything but moot. SCO has proclaimed its intent to continue in the "business" of suing Linux users for purportedly using Novell's SVRX code. In bankruptcy, SCO sought approval of a $100 million loan to allow it to do precisely that. In fact, the terms of that loan contractually committed SCO to aggressively pursue its claims against the Linux community.

Novell is therefore entitled to pursue both forms of relief at the upcoming bench trial and the Court should deny SCO's motion to the contrary.

It is a bit stunning to realize that SCO reportedly wants blood to flow and heads to roll because it can't continue to sell cars it doesn't own, in effect. How dare the car's owner and passing witnesses on the street tell on them and get in the way of the SCO "business"?