Judge Kimball Strikes SCO's Jury Trial Demand

watchingeyes writes "In a ruling on various pre-trial motions in limine and other, similar motions in the SCO vs Novell case, Judge Kimball today issued a ruling striking SCO's demand for a jury trial, ruling that Novell's claims seek equitable, and not legal relief. In addition, he denied SCO's request for entry of judgment that would allow them to appeal his ruling on the UNIX copyrights and Novell's waiver rights, ruling that if SCO wants to appeal any of his rulings, it can do them all at once after trial. He also granted Novell's request to voluntarily dismiss its own breach of contract claim, denied SCO's motion to exclude press coverage and evidence from the IBM case, granted Novell's motion in limine preventing SCO from contesting his summary judgment ruling at trial, granted Novell's second motion in limine preventing SCO from arguing that SCOsource licenses that license SVRx only incidentally aren't SVRx licenses, denied another SCO motion in limine which improperly asked the Judge to issue rulings on contractual issues and denied Novell's final motion in limine which sought to prevent SCO from contesting Novell's apportionment of royalties analysis. Looks like SCO will be facing a trial in-front of a judge which has already ruled against them numerous times."

Comments

Interpretation

[inode_buddha]

Interpretation: SCO screwed themselves. If one has been following the case all along, this should be no surprise.

Re:Interpretation

[Anonymous Coward]

Shorter interpretation: M-M-M-M-Monster Kill!!

Re:Interpretation

[Anonymous Coward]

I remember back when SCO provided a decent PC-based version of UNIX
It was DIFFERENT SCO.
It was a company from Santa Cruz, California called "The Santa Cruz Operation". When their Unix business started to go downhill they sold it to Caldera - a company from Utah. The same Caldera that purchased DR-DOS and won Millions in a lawsuit from Microsoft.

After selling Unix business to Caldera The Santa Cruz Operation renamed itself to Tarantella and later on Caldera renamed itself to The SCO Group, Inc. and started suing its customers, former customers, business partners and former business partners.

... and now The SCO Group, Inc. is just about to become caldera again. By the time Novel and IBM lawyers are finished with them ... they will become a caldera. This time without capital C. Just a big smoking caldera at the place where SCO has its headquarters.

Re:Interpretation

[AJWM]

I remember back when SCO provided a decent PC-based version of UNIX..

You're probably thinking of the Santa Cruz Operation, not these bozos at Caldera doing business as The SCO Group, after they bought Santa Cruz's Unix business and Santa Cruz changed its name to Tarantella.

SCOG (The SCO Group aka Caldera) has deliberately blurred this distinction all along.

Re:Interpretation

[hawk]

>I remember back when SCO provided a decent PC-based version of UNIX.

I remember further back than that :)

They dropped off a unit for us to play with at Olivetti--an XT. After waiting for minutes at the login, we all wandered off . . .

hawk

Poor, Poor SCO

[Scottoest]

SCO is an exceptional software company, and I personally feel their legal claims are on solid... ...hahahahahahaha...

Damnit, I can never get through that sentence without laughing.

Hang em out to dry, Your Honor.

- Scott

Re:Poor, Poor SCO

[Orange Crush]

Don't they have a right to a jury trial?

Sure they do. They just need a case first.

Re:Poor, Poor SCO

[qcomp]

IANAL, but as explained in Novell's motion (and in the ruling, I suppose), the right to jury trial exists only for certain types of legal proceedings, in particular, it does not apply if it's about contracts (presumably, because it would be too difficult for laypersons to understand the intricacies involved) and if the damages asked for are equitable only (not, e.g. punitive). And Novell did drop one of its claims (and SCO moved unsuccessfully not to allow it to) to make the damages at issue fit the bill.
So I do think SCO are treated fairly here.

Re:Poor, Poor SCO

[Pad-Lok]

Why, did they murder someone?

Yea, themselves.

Re:Poor, Poor SCO

[jobsagoodun]

Depends

From what I can work out, they only need a jury to decide if there is a dispute about the "facts" or if Novell were asking for punative damages. It seems that for the claims made, no facts are disputed, and Novell dropped their claim for special damages. All that left are decisions about the Law, and Judge Kimball gets to do that without a jury.

The facts of the case are the contracts etc. Both sides agree on the text of those, but the interpretation is a legal one and thats down to JK.

Re:Poor, Poor SCO

[dmartin]

This is something that has confused me before, so I will ask it again in this context. The seventh amendment states

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. I am also aware that corporations are treated much like persons, and the amount in question certainly comes to more than $20, so why are they not guaranteed the right to trial by jury if they request it?

The answers I got when I asked about this last time (it was about people) was that someone could request a jury trial for civil matters, but they would have to pay huge court expenses. One argument may by that a corporation does not have the same rights as a person. After all, the USSC has ruled that "free speechquot; and commerical speech are quite different, and commercial speech is the only type of speech a corporation is likely to be involved in. Or is it that the costs to SCO would be too high? Or is it a technical definition of the words common law that I am missing?

Any insight would be appreciated!

Re:Poor, Poor SCO

[innocent_white_lamb]

the interpretation is a legal one and thats down to JK.
 
Rowling?
 
SCO Wizard School: Ok children, watch closely as I wave my magic wand and *poof* watch all of that free cash roll in!
 
  Oops.Misfire...

Re:Poor, Poor SCO

[jbengt]

"hey only need a jury to decide if there is a dispute about the "facts" or if Novell were asking for punative damages"
Almost,
They could insist on a jury if it were a matter of law, like punitive damages, but it is only matter of equity, that is, make me whole by payin what you owe. Novell dropped the punitive damages so they could avoid a jury. There still is a matter of fact in dispute, that is, how much of the Sun and MS licenses were SysV, for which SCOX must remit to Novell in full in return for a 5% fee, and how much were for other things, for which SCOX should not owe anything to Novell.

Re:Poor, Poor SCO

[Anonymous Coward]

> If you don't want to help people understand, and they are not propogating misinformation, why the need to be so rude?

Because they're insecure, and have to put on superior nasty attitudes to feel good about themselves. They don't deserve your attention, and they're not worth stressing out over.

Anyway, the disconnect with the seventh amendment is that it only applies to matters of equity in federal courts. This, as most civil suits are, is a state case, and few states have the same guarantees of civil juries for equity disputes.

SCO - the Monty Python Black Knight

[tjstork]

"Aye, you chopped my legal arm off! No big deal! Have at you!"

"Aye, you chopped my legal legs off! No big deal! I can still hop! Have at you!"

english not good enough

[C0vardeAn0nim0]

since english is not my primary language, can someone help me with all the legalese ?

is this another nail on SCO's coffin, or several of them at the same time ?

Re:english not good enough

[Crypto Gnome]

America may have many things wrong with it, but in this case (pun intended) it's very nice to see a sitting judge wield a powered nail-gun with such accuracy.

Re:english not good enough

[morgan_greywolf]

In limine means 'at the threshold'. It's a type of motion that's filed right before a trial is set to start, usually to have the judge rule on which evidence to include or exclude.

For those not understanding what's going on: Kimball ruled that the copyrights on UNIX System V don't belong to SCO, they belong to Novell, because the Asset Purchase Agreement, signed between Novell and Santa Cruz never transferred the copyrights, just the business. Santa Cruz was to collect UNIX royalties for SVR5 for Novell and keep a portion for themselves in exchange. The SCO Group stopped paying Novell for UNIX sometime ago, and Novell wants its money.

Now if SCO doesn't own the UNIX copyrights, then how can they sue IBM? The answer is, they can't, especially since Novell told them they can't. Now SCO wants to appeal this decision before the Novell trial is over so they can still sue IBM. And they want any evidence from the IBM trial to not be used in the Novell trial (they filed a similar motion in the IBM trial). And Kimball said "No, and no."

In short: SCO is screwed. After Novell is through with them, if anything is left, IBM will launch its Lanham Act claims against SCO and there will be a smokin' hole in Linden, Utah, where SCO HQ used to be.

Re:english not good enough

[advocate_one]

In short: SCO is screwed. After Novell is through with them, if anything is left, IBM will launch its Lanham Act claims against SCO and there will be a smokin' hole in Linden, Utah, where SCO HQ used to be.

I want to see them go and pierce the "corporate veil" and go after the source of the money SCO used to bankroll the lawsui^H^H^H^H^H^Hscam... I want to know who the real "PIPE Fairy" is... we all suspect Microsoft, but I want to see hard evidence that can be used against Microsoft.

Re:english not good enough

[Aim Here]

"motion in limine" == a motion before a trial regarding what evidence is allowed to be shown to a jury

"equitable relief" == court-ordered restitution of property, as opposed to fines and punishments. Suing someone to enforce a contract they signed or pay back money they owe you is equitable relief, as opposed to suing them for punitive damages, which is a legal matter. The relevancy here is that equitable matters don't warrant a jury trial, whereas legal ones do.

"waiver" == A formal way of stating that you, or someone acting on your behalf, will not enforce one of your (or their) rights. In this case, Novell issued a waiver on behalf of SCO over whatever it was that SCO was suing IBM over (Normally you can't waive someone else's rights like this, but SCO signed a contract that allowed Novell to do just that)

"dismiss" == to throw a court claim out and not hear it.

"summary judgment" == A judgement on a claim instead of an actual trial, because there was no disputed evidence to hear, so the Judge could rule on it immediately.

It's bad for SCO, this ruling; it doesn't get to bamboozle a fresh naïve jury but instead gets one of the two judges they've been irritating for the past 4 years, so that's it's next-to-last hope for a favourable ruling out the window. The only ray of hope is that it might be able to use some new evidence out to show that whatever Microsoft and Sun paid for wasn't the stuff that Novell was recently ruled to have owned. But it'll be fighting against it's own public statements and anything it's said in other courtrooms, so it's chances are slimmer than slim...

Re:english not good enough

[Orange Crush]

Santa Cruz was to collect UNIX royalties for SVR5 for Novell and keep a portion for themselves

My understanding as that they were to collect UNIX royalties for Novell and hand them all to Novell *then* Novell would pay them their cut. (Which of course they never did, so Novell is demanding *all* royalties ever collected by SCO.)

Re:english not good enough

[JPriest]

Even if not the "off books" shenanigans it could be said that MSFT gave SCO a great deal of money for their own UNIX license (UNIX services for windows etc.). Now it may be ruled that Novell is entitled to all of that money, not that collecting it from a bankrupt company (SCO) will be easy.

Re:Will Novell free the SVRx source code?

[Anonymous Coward]

Yes, Solaris was derived from SVR4. But that was between 1988 and 1990! There was a lot of development to both the Solaris and UnixWare branches during the past 18 years. So it's quite likely that what Sun released as OpenSolaris is radically different than what Novell could potentially release.

One-armed man

[Anonymous Coward]

SCO should have blamed everything on a one-armed man; Kimball would have been much more sympathetic.

Re:One-armed man

[Eponymous Bastard]

I doubt it. He's probably been hearing that joke all his life. Bringin it up again is not going to get you on his good side.

No!

[Skapare]

Hang em out to dry, Your Honor.

Isn't there some EPA regulation against this?

Maybe the most important remaining issue

[Anonymous Coward]

One question that will be settled at trial is apportionment. That is, how much of the money paid by Microsoft and Sun belongs to Novell. The judge has clearly said that some of the money belongs to Novell. The best SCO can do is argue that it is a very small amount.

SCO's problem is that they basically told the SEC that all the money belongs to Novell. SCO tried to have that evidence excluded but failed.

It is likely that Novell will get more than 50% of the money. The judge will grant a constructive trust. SCO will be immediately bankrupt. The trustee will march in and kick the current SCO management out. The trustee will agree to anything the creditors (IBM, Novell mainly) tell him. The cases will end immediately.

AllParadox, a retired lawyer who has been following the case closely, predicts that Judge K. will issue an order sanctioning SCO's lawyers. Some of them could end up being disbarred. It will serve them right. This case has been an incredible misuse of the courts.

Re:Maybe the most important remaining issue

[keraneuology]

AllParadox, a retired lawyer who has been following the case closely, predicts that Judge K. will issue an order sanctioning SCO's lawyers. Some of them could end up being disbarred . It will serve them right. This case has been an incredible misuse of the courts.

One can only hope, but this is very unlikely. The legal system is loathe to expel their own - when judge Susan Chrzanowski was caught having an affair with a defense attorney who was a) pleading cases before her b) given a virtual monopoly on court-appointed indigent cases, c) murdered his wife the day after having yet another sexual rendezvous with the judge and the judge was caught in several lies regarding her involvement her only punishment was 17 months paid "vacation" (they called it a suspension, but she collected around $200,000 and full benefits), six months unpaid leave, and instead of being disbarred was allowed to return to the bench. Retired state justice Charles Levin who oversaw Susan's review originally ruled that she had done nothing whatsoever that merited punishment.

If cases like this don't merit any punishment from the ranks of the legal system, why would a couple of lawyers playing hardball in a case that most americans don't understand or care about be prohibited from paying more dues to the various lawyer associations?

justice

[SolusSD]

well the system works.. but in O(2^n) time with O(n!) cost. ugh.. DIE ALREADY.

Re:Will Novell free the SVRx source code?

[tomhudson]

I wanted the heathkit with the 4004.

Instead, ended up years a few later with some CoCos.

Re:Here's an example

[keraneuology]

Yes, Nifong was disbarred, but this is a rarity and involved a case that was front-page news across the country for months. What % of the national population knew about the Duke lacrosse incident? What % have ever heard of SCO? What % know that SCO, IBM and Novell are all in the same industry? If Nifong hadn't been disbarred then the profession would have taken a major black eye. If the attorneys involved in this case aren't disbarred, who - outside of /. readers - would know or even care?

I have my own personal feelings here - not only should the lawyers be kicked out but their masters should be personally punished. If your dog bites somebody on your command then you'd better believe that you'll face the music. If you are a corporate exec who issues the sic 'em command to your lawyer then you had better be ready to face the music. Personally.

But my personal thoughts are irrelevant, and these lawyers are likely to get nothing more than a slap on the wrist. In fact, in Michigan (and probably many other states) a lawyer is held responsible if he doesn't pursue a case to the utmost, and bringing about frivolous charges are just part of the game. How many cases are filed alleging racial discrimination where there is clearly zero evidence, let alone plausibility that it ever happened? Those lawyers are never punished for making false allegations, if the charges don't stick then all of the lawyers and judges say "oh well, no harm in trying".

The Darl McBride response

[merc]

Darl just can't keep from flapping his festering pie-hole. Up until now SCO attorneys have been fairly good at keeping him quiet and from making public statements. However it looks as though he couldn't resist doing a computerworld interview. I'm not sure what he thinks he has to gain by attempting to try his case in the courts of public opinion:

We absolutely and fundamentally believe we are right in this case, and we believe in the justice system. But we also know that things don't always happen the way they're supposed to, and we're realistic about that point.

And this gem is fascinating as well:

Let's call a spade a spade: We just took a literal pounding. We got knocked down -- there is no doubt about it. This is not a good ruling for us. But it's not the end of the line of the legal battle. In fact, there's some very encouraging things that came out of even this ruling. And we will continue to fight on those fronts.

Original article here

I can only guess that the "encouraging thing" he is speaking about has to be that Kimball ruled that they own their own derivitive works of UnixWare. However these are facts were never in question. At this point we can expect SCO to argue that the M$ and Sun licenses were SCOsource licenses and not SVR4 UNIX. Good luck with that since I believe they have made conflicting public statements about that in the past as well.