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SCO Responds to Novell's Motion to Allow Evidence
Monday, March 15 2010 @ 12:58 PM EDT

On Friday, at the trial in SCO v. Novell, SCO told the judge that they'd file their response to Novell's Motion to Allow Evidence on Monday. And so they have:
Novell seeks to present evidence to the jury in the form of snippets of text selectively lifted from prior judicial opinions in this case. Novell claims these snippets would be used to rebut the factually correct assertion, made in SCO’s opening statement and the answer of one witness to a single question, that Novell’s claim of ownership of the UNIX and UnixWare copyrights continues to appear on Novell’s website “to this very day.” As with Novell’s previous attempts to introduce such evidence, the Court should reject this attempt to present the jury with judicial statements, not in context, that are not relevant to the claims and defenses presented here, but that would create jury confusion and be highly prejudicial to SCO.
Wait. That's not how we remember it. We remember SCO saying not just that the claim of *ownership* continued to this day; they said that the *slander* continued to this very day. From the transcript [PDF]:
So this is a campaign of slander, broadcast and repeated to the world that continues to this very day....

And to this day Novell, on their web site, continues to republish that slander.

You gotta watch the Boies Boyz, my friends, with a very close eye. They could talk a bird out of a tree before he realizes there is no worm.

That, of course, is why Novell attached the transcript, so the judge can see what they said for himself. And so can we.

Here is SCO's Memorandum in Opposition:

03/15/2010 - 798 - MEMORANDUM in Opposition re 790 MOTION to Allow Evidence Responding to SCO's Allegation that Novell's Slander Continues "To This Very Day" filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hatch, Brent) (Entered: 03/15/2010)

SCO makes the point that Novell should not be able to claim that it relied on Judge Dale Kimball's August 10, 2007 order in that when the appeals court reversed and remanded, Novell didn't remove the website. But the appeals court said Novell had strong arguments to support its claim of copyright ownership. It just said it was up to a jury to decide the matter. Anyway, that's SCO's argument. Another is that SCO has been saying the same thing for months, and Novell never raised an issue about it. The problem SCO has is all the English Stuart Singer put on the ball in front of the jury. It's one thing to say something mildly in a hearing before just the judge. It's entirely different to say it in an inflammatory way in front of the jury. So it will be interesting to see what happens next.

And finally SCO argues that Novell said and did things *prior* to any of the judicial rulings it now seeks to introduce. True. But that doesn't mean that they are not relevant in a room where SCO has now told the jury repeatedly that Novell's "slander" continues "to this very day". It could impact, if nothing else, damages, if in some weird universe Novell were found to have slandered SCO's title.

This is SCO, so of course there is one rather mean point it makes also about leaving the web site up:

Yet it is inconceivable that Novell would have made such decisions, based as they are on legal opinions, without the advice of counsel. If a party places advice of counsel at issue through a defense, then it waives the protection of the attorney-client privilege.... If Novell wished to rely on the legal significance of that opinion, it was incumbent upon Novell to assert a defense of advice of counsel in its subsequent answer. Novell declined to assert such a defense and waive privilege, which it would have to do to assert this defense.... It would clearly be improper to now allow Novell to claim reliance on a sentence in the 2004 court decision -- a decision that denied Novell's motion to dismiss -- while having asserted the attorney-client privilege throughout this litigation.
SCO argues that any probative value would be outweighed by the prejudicial effect on the jury. SCO doesn't seem to have much faith in juries, now that it has one. They seem to be arguing that the jury can't possibly do its job if it hears the whole story. "Finally," SCO writes, "to quote one sentence from the appellate decision otherwise in SCO's favor on these issues, would obviously be prejucial and unwarranted." OK. So let them see all of it. Problem solved.

Here's SCO's proposed alternative remedies, should the judge see the need for one:

Such remedies include ordering SCO to refrain from future references to the fact that Novell's website still has statements that Novell is the owner of the UNIX copyrights, or instructing the jury to focus on Novell's scienter at the times any and all statements were initially made.
The first doesn't remove what was *already said* to the jury from their calculations. And the second is cunning, without remedying the problem either. Scienter means their state of mind, why they did what they did, and if Novell can't tell the jury about the judicial rulings, on what basis can it even explain what it was relying upon? SCO says to just not let them, since some of the earlier actions and statements happened prior to the judicial rulings. Nice fix. All in SCO's favor, so its remedies actually endorse what SCO said to the jury and reward it. Like I say, you have to watch the Boyze.

SCO has also put out a press release about the Yarro loan:

The SCO Group, Inc., (Pink Sheets:SCOXQ.pk - News), www.sco.com, a leading provider of UNIX® software technology, today announced that it had secured Bankruptcy Court approval and funding for $2MM in postpetition financing in the form of a secured super-priority credit facility from a group of private lenders. Proceeds from the financing will be used to fund the company's operating and administrative expenses, as well as litigation-related expenses.

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