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Two orders have been issued in SCO Group's cases against IBM and Novell that could impact how the legal wrangling proceeds. U.S. District Judge Dale Kimball is hearing both cases, which involve contract and copyright infringement claims and counterclaims against IBM, and slander claims against Novell. In his new ruling, Judge Kimball has denied SCO's request, made in March, to split the patent counterclaims. The judge did agree to SCO's request for additional time to extend the discovery portion of the case.
Re: New Rulings Yield Mixed Results for SCO
Posted by: ThomasFrayne 2004-06-14 20:28:44 In reply to: Elizabeth Millard
"Judge Kimball ... quashed Novell's motion to dismiss".
That's not exactly true. What the court order said was: "Defendant's Motion to Dismiss is DENIED as to Plaintiff's pleading of falsity and GRANTED as to Plaintiff's pleading of special damages. Plaintiff is granted 30 days from the date of this Order to amend its Complaint to more specifically plead special damages." Note that SCOG's case was dismissed without prejudice, provided that SCO re-filed within 30 days to correct the problem in its pleading. The dismissal motion was not quashed; the judge just granted the motion on narrower grounds than Novell had hoped.
Further, the judge also remarked that the APA/Amendment 2, which SCO claimed transfered the copyrights at the heart of the case, did not clearly convey the copyrights. If Judge Kimball had made that remark part of his ruling, he would have been required to rule that the APA/Amendment 2 did not transfer the copyrights, since copyright law requires a written document that clearly purports to transfer clearly identified copyrights for a copyright transfer to be valid. There is no provision for witnesses to explain the intent of an unclear conveyance document. This is clearly a broad hint as to what his ruling would be on a fully pled motion for summary judgment on this issue.
If SCOG re-files, they face the prospect that the judge will rule that they don't own the copyrights. Otherwise, they face the same prospect, since Novell will surely file a new suit asking for a ruling on the same issue.
"One of the most critical aspects of Judge Kimball's decision was in granting SCO more time for the discovery portion of the [IBM] case. The trial was originally supposed to start in April 2005, and is now scheduled for November 2005. ... There is currently a motion for summary judgment pending from IBM, which asks the judge to issue a judgment without going through a trial. If the motion is granted, it could mean a speedy end to the complex case."
On August 4, the court will hear arguments about this motion, including arguments related to SCOG's defiance of two court orders compelling them to state precisely what lines of code SCOG claims was illegally copied from SysV into what lines of code of Linux, and later crowing about SCOG's "good faith" efforts. I think that SCOG will be asked to show why this was not contempt of court, and will fail to convince the judge that they showed good faith.
Failure to comply with a court order compelling the production of discovery answers carries sanctions that include barring the evidence that they might have produced. In this case, the judge can rule that no further evidence that Linux contains code illegally copied from SysV will be allowed, and that no jury would decide in SCOG's favor on the evidence they have produced so far. This is precisely what is needed to grant the summary judgment.
More time for discovery will be of no use to SCOG if, as I expect, a summary judgment against their central claim occurs in the next couple of months.
That's not exactly true. What the court order said was: "Defendant's Motion to Dismiss is DENIED as to Plaintiff's pleading of falsity and GRANTED as to Plaintiff's pleading of special damages. Plaintiff is granted 30 days from the date of this Order to amend its Complaint to more specifically plead special damages." Note that SCOG's case was dismissed without prejudice, provided that SCO re-filed within 30 days to correct the problem in its pleading. The dismissal motion was not quashed; the judge just granted the motion on narrower grounds than Novell had hoped.
Further, the judge also remarked that the APA/Amendment 2, which SCO claimed transfered the copyrights at the heart of the case, did not clearly convey the copyrights. If Judge Kimball had made that remark part of his ruling, he would have been required to rule that the APA/Amendment 2 did not transfer the copyrights, since copyright law requires a written document that clearly purports to transfer clearly identified copyrights for a copyright transfer to be valid. There is no provision for witnesses to explain the intent of an unclear conveyance document. This is clearly a broad hint as to what his ruling would be on a fully pled motion for summary judgment on this issue.
If SCOG re-files, they face the prospect that the judge will rule that they don't own the copyrights. Otherwise, they face the same prospect, since Novell will surely file a new suit asking for a ruling on the same issue.
"One of the most critical aspects of Judge Kimball's decision was in granting SCO more time for the discovery portion of the [IBM] case. The trial was originally supposed to start in April 2005, and is now scheduled for November 2005. ... There is currently a motion for summary judgment pending from IBM, which asks the judge to issue a judgment without going through a trial. If the motion is granted, it could mean a speedy end to the complex case."
On August 4, the court will hear arguments about this motion, including arguments related to SCOG's defiance of two court orders compelling them to state precisely what lines of code SCOG claims was illegally copied from SysV into what lines of code of Linux, and later crowing about SCOG's "good faith" efforts. I think that SCOG will be asked to show why this was not contempt of court, and will fail to convince the judge that they showed good faith.
Failure to comply with a court order compelling the production of discovery answers carries sanctions that include barring the evidence that they might have produced. In this case, the judge can rule that no further evidence that Linux contains code illegally copied from SysV will be allowed, and that no jury would decide in SCOG's favor on the evidence they have produced so far. This is precisely what is needed to grant the summary judgment.
More time for discovery will be of no use to SCOG if, as I expect, a summary judgment against their central claim occurs in the next couple of months.
