* Judge denies Novell's request to stop SCO suit
It’s beginning to seem like at least one issue of the newsletter every other week should be devoted to Novell’s adventures in court. It’s unfortunate, but the only press the company seems to get these days is when one judge or another throws out a Novell motion.
Two weeks ago (http://www.networkworld.com/newsletters/netware/2005/0620nw1.html), I talked about U.S. District Judge Frederick Motz’s ruling on motions in the company’s suit against Microsoft concerning Novell’s anti-trust claims related to its ownership of WordPerfect (four of the six motions were dismissed).
This week, we’ll look at U.S. District Judge Dale Kimball’s rulings in the case of SCO vs. Novell. You may remember that SCO sued Novell for “Slander of Title.” In its suit, SCO is suing Novell because the Waltham, Mass., company claimed that it – not SCO – owned the copyright to Unix System V, Release 4 (SVR4) so therefore SCO had no standing to sue IBM. According to SCO, this comment so inflamed the potential clients for SCO’s Unix offerings that the clients stopped buying them. Most observers, though, feel there were other reasons why SCO’s revenue continues to drop.
Novell sought to head off this trial by filing documents purporting to show the truth of Novell’s claim along with a motion to dismiss the suit. Judge Kimball, though, ruled that, “Even though Novell argues that it has evidence to support its alleged good faith basis for claiming ownership of the Unix copyrights, the proper place to introduce that evidence and argue its significance is not on a motion to dismiss.” In other words, according to the judge, you can’t present a defense until there’s a trial.
The judge went on to say: “The court cannot rule as a matter of law on Novell’s intent at the motion to dismiss stage before any discovery is considered in the case. Unlike the court’s ability to determine the ambiguities of a written contract, the court cannot opine on a party’s state of mind when it was advancing certain legal positions. While it may be true that the plausibility of Novell’s legal arguments regarding ownership is relevant to its state of mind, the court cannot draw inferences in favor of Novell at the motion to dismiss stage.” Heck, I’ve followed Novell for almost 20 years and I can’t claim to understand its intent or state of mind.
I went onto the Novell Web site to get its reaction to the ruling, but it insisted on showing me all of its press releases in Italian. The rest of the site was presented in English, when I tried to choose a language it told me I was already using English, but still would only show me Italian press releases. I don’t read Italian, so I’ve no idea if the company had a response.
What I do know, though, is that the company needs to be in the technology section of your newspaper, not the legal notices.
