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Novell Poised To Strike On Slander Of Title Claim
Xenographic writes "As seen in this Groklaw article, Novell is moving to dismiss SCO's slander of title claim with prejudice. They key to it is that SCO needs Novell's claims to be "knowingly false" to establish malice. Since the judge's own order on the motion to remand (see also part 2) questions whether there really was ever actually a copyright transfer, Novell's assertion that there was no transfer cannot be knowingly false, so SCO's case falls apart. Unfortunately, as Novell points out, the judge would be doing this without actually deciding the underlying issue of who owns what copyrights, and SCO could file a completely different suit for breach of contract or something, even though SCO would be unable to refile this slander of title suit. As an aside, I should mention that this isn't the first or only controversy over defamation we've seen in this fiasco by any means."
SCOX has a market cap of 65 million dollars. Why can't IBM (or Novell with their newfound 500 million) just buy these clowns?
"Would you, could you, with a goat?" Dr Seuss
[Melaugh] tells the judge that he did a LexisNexis news search for the words IBM and SCO and got 2,845 results, starting with the month and year that SCO filed the lawsuit. Next, he narrowed it down by choosing as cutoff date the first Novell public statement, and he still got 317 articles. They present the judge with beginning chunks of the first 50 of each search, asking that he take judicial note of the huge media frenzy around SCO.
This is a public dispute, and it was SCO who made it so not only by suing IBM, but by sending the 1500 threatening letters and sounding off in the media. "SCO has done everything it can to stoke that firestorm." Additionally, it has started or is defending against "at least six lawsuits before five judges in four states and two countries."Under those circumstances, Novell has the legal right to speak without being threatened with litigation for doing so.
So, if Novell didn't sell SCO the copywrights, exactly what did Novell sell them? If SCO thought they were buying the copywrights and Novell says they didn't, but some sort of transaction did indeed take place, what did SCO end up with?
The Unix business. Selling Unix licenses and providing support for existing licensees.
Novell doesn't feel they need the Unix copyrights to be able to do that. SCO thinks otherwise.
Don't reward hostage-taking, basically. I am probably getting close to invoking some current-events version of Godwin's law, but the analogy really seems fitting. If IBM or Novell buys out SCO it will only encourage other companies to try similar shakedowns in the future.
Here in the UK (well England and Wales at least), as you may know, the loser in litigation generally has to pick up the winner's legal fees. Where the claim was, e.g. an abuse of process, the fees can be payable on a punitive ("indemnity") basis. If either side is on a shaky financial footing, they can be forced to pay money into court to cover their opponent's litigation risk.
So, for example, almost any software manufacturer
other than Microsoft could be deemed to be on
a 'shaky financial footing', and have to come up with the cash to cover their opponent's litigation
risk. Who do you think would be their opponent in
99.9% of the cases? (Hint: Starts with Micro and
ends with soft) How many companies would survive
long enough to even get to the trial?
I'd vote to support this.
If a case is dismissed with prejudice, I would be all for the looser paying the winner's legal fees. Plus wages of those on the winning side who were working on the case.
Seems fair to me, and it would cut down on this absolute bullshit we have to deal with right now.
Mod me down with all of your hatred and your journey towards the dark side will be complete!
The theory behind the US system is that it allows the individual with limited means to sue (hopefully rightly) a much superior (financially) opponent without fear of retribution. If the British system were to be imposed it would have a chilling effect on these types of cases such as malpractice, employee being illegally fired, and class action such as health damage due to materials, such as the asbetos or silicon implants,etc.
However like anything else, it is subject to abuse.
--laz
"Just remember, it takes a village idiot." -- The Motley Fool.
Why? What possible advantage would there be in this to them? Are they just trying to avoid costs of ongoing litigation (understandable)? Because I can't otherwise see any use in a decision along these lines - I would have thought it's just setting the stage for another ownership row later on.
Cheers,
Ian
Perhaps I'm missing something, but I thought that the reason SCO bought the slander of title case against Novell was because Novell didn't just publicly state that they owned the copyrights, but they filed the copyrights in with the copyright office with the intent to use the filings to undermine SCO's case(s).
If this slander case does get dismissed, does this mean that the copyright filing stands unchallenged? Or is there another route SCO can go down in order to have the filing retracted?
I'm not sure how copyright filings work in the US, as we don't have a similar system in the UK! (or not that I know of anyway)
The ways of gods are mysteriously indistinguishable from chance.
Interest move - sounds like Novell are interested in dodging the case without having the issue of copyrights decided.
Why?
Simple, because Novell have been sued for slander of title, not for copyright infringement. They have to defend against the case brought against them in court, not the case brought against them in the press.
I find it helps a lot to stop listening to what SCO say, and pay exclusive attention to what they do.
Liberal (adj.): Free from bigotry; open to progress; tolerant of others.
The suit that SCO should have filed was a breach of contract suit against Novell. Then they would make the arguments that they're making now -- e.g., that they paid so much money, that they need the copyrights, etc. -- and the relief they would seek would be a judicially recognized transfer of UNIX copyrights. I don't think they'd win, but they'd have a better shot than in any of the other litigation they're involved in. Honestly, this whole transaction was poorly drafted.
So the question now becomes why we've got this suit rather than the proper one. The reason is that filing that breach of contract suit eviscerates all of their other lawsuits. Remember IBM? AutoZone? Well, it'll be hard for SCO to be in one court arguing that they should be given copyrights and in others claiming violation of the copyrights that they will have Real Soon Now. (SCO's lawyers would argue this regardless.) Not to mention all those forms filed with the SEC and so forth. So the short answer is that if Novell can defeat the wrong lawsuit they probably won't ever have to face a proper one.
By having this case dismissed, Novell shuts down SCO's preferred line of attack. First of all, SCO will need to start over with a new suit, meaning more cash burn from SCO's rapidly depleting coffers. Second, it buys time for SCO's position on other fronts (like IBM's tenth counterclaim) to weaken. If IBM can prove there's no UNIX in Linux, the issue of who owns the UNIX copyrights becomes moot. Finally, it means that SCO will have to open a suit explicitly stating that they want to prove they own the copyrights, a very difficult position since the documentation doesn't seem to support that claim.
Remember, the job of Novell's lawyers is not to defend Linux. It is to defend Novell. It's only in the current circumstances that the two interests happen to coincide.
===== Murphy's Law is recursive. =====
"it allows the individual with limited means to sue (hopefully rightly) a much superior (financially) opponent without fear of retribution."
As someone on the receiving end of a lawsuit from an "individual with limited means", I assure you this process is being flagrantly abused every day (I am a physician in the middle of a malpractice suit that I am very confident any impartial, knowledgable expert would conclude is B.S., but may stand a chance of receiving an award from a lay jury). The contingency basis of U.S. trial lawyers encourages anyone who hasn't done well (or their family) to pursue litigation, because they have nothing to lose. Trial lawyers in Florida advertise extensively and try to impart the message that if you have suffered any injury that could conceivably be blamed on someone else, you are throwing away a potentially winning lottery ticket if you do not sue.
It is true that the litigating attourney can lose a lot of money in lost resources by pursuing cases that are unlikely to result in payoffs, but it is a purely financial analysis. Trial lawyers say "of course we don't pursue frivolous lawsuits - it costs a huge amount of money to go to trial, we would go broke if we sued frivolously". The problem is that lawyers have a different definition of "frivolous". Doctors, and hopefully the general public, believe a suit is frivolous if the claims lack scientific data. Lawyers believe a suit is frivolous if there is little chance that a lay jury can be pursuaded to award damages, keeping in mind that anyone with education beyond high school is almost invariably thrown out as a juror by the plaintiff's attourney (not making this up, believe it or not). Plus, since the lawyer generally keeps 40% of any award, they are not really acting in the interests of their client as much as their own self-interest. It is just a matter of "If you tell who we can potentially blame for something, I'll f*** them over through the legal system, and we can split the money". Of course, there are lawsuits that do indeed have merit, but many certainly do not (except perhaps in the above-mentioned fiscal sense).
Trial law in the U.S. is a shakedown scam where anyone with any resources seemingly goes through life wearing a bullseye.
Actually, if you look at each of the cases where SCOX is the plaintiff, there is no copyright issue raised at all, in any of them. But SCOX has labored to give the impression that there is, and has duped investors into believing there is to pump up the stock price.
So, although the admission that they don't have the copyrights would have no effect on the court cases, it would cause a huge stockholder suit, in which McBride and company would be the targets.
IAMAL:
No case, civil or criminal in our system goes to jury without a judge approving it first. A judge must first approve 100% of all cases. That's why you'll see references to the judge throwing out the case. In essence, the case has no merit and the plaintiff cannot sue or an accused cannot be tried.
It's a several step process and the one SCO and IBM are in is discovery. This is where a judge (discovers) and decides if there's enough evidence to send a case to trial.
Has IBM been sued? Well, yes and kind of no. A judge still hasn't decided if it will go to trial. Novell is right now asking the judge to not approve the case and to throw it out with prejudice.
Normally a judge will just rule the case has no merit. A ruling with prejudice means not only has it no merit, you knew it didn't and there will be penalties for brining the suit. A ruling with extreme prejudice is even worse than that. My impression is that lawyers can loose licenses and people can go to jail in extreme prejudice rulings.
Beyond that, access to the legal system is a constitutional protected thing and cannot be denied to anyone.