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Judge Kimball Strikes SCO's Jury Trial Demand 149

Posted by CowboyNeal
from the down-on-their-luck dept.
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."
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Judge Kimball Strikes SCO's Jury Trial Demand

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  • Interpretation (Score:3, Insightful)

    by inode_buddha (576844) on Saturday September 08, 2007 @08:52AM (#20519959) Journal
    Interpretation: SCO screwed themselves. If one has been following the case all along, this should be no surprise.
    • Re: (Score:3, Funny)

      by Anonymous Coward
      Shorter interpretation: M-M-M-M-Monster Kill!!
    • Conjecture: SCO was denied the ability to appeal part of the ruling because they'll get to appeal the whole thing soon.
      Fact: The meatbags deserve it.
  • by Scottoest (1081663) <scott AT bampage DOT com> on Saturday September 08, 2007 @08:56AM (#20519983) Homepage
    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
    • It gets even better. The best outcome they can hope for is not to owe Novell $$$. Ah, being on the defensive must suck.
    • No! (Score:4, Funny)

      by Skapare (16644) on Saturday September 08, 2007 @09:42AM (#20520241) Homepage

      Hang em out to dry, Your Honor.

      Isn't there some EPA regulation against this?

  • "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!"

  • by C0vardeAn0nim0 (232451) on Saturday September 08, 2007 @08:57AM (#20519993) Journal
    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 ?
    • by rah1420 (234198)
      since english is not my primary language

      Heh. I don't think that even most people whose primary language is English could understand that. Especially since most legalese is Latin.

      I believe this is several nails, however.
      • by morgan_greywolf (835522) on Saturday September 08, 2007 @09:17AM (#20520101) Homepage Journal
        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.
        • by advocate_one (662832) on Saturday September 08, 2007 @09:27AM (#20520175)

          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: (Score:3, Informative)

            by JPriest (547211)
            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: (Score:3, Informative)

          by Orange Crush (934731)

          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.)

          • That's what the contract SAID. In-fact, to make things simpler, SCO would just pay themselves the money on behalf of Novell, which Novell did not have a problem with, as long as the money was properly accounted for. Actually saved Novell money that way, cause the job of apportionment was left to SCO.
        • by jbengt (874751)
          "Now if SCO doesn't own the UNIX copyrights, then how can they sue IBM?"

          Actually they can, and might, still sue IBM over breach of contract. They have waffled back and forth in the IBM case over whether they were suing about copyright or contract issues. Lately they've been saying that the IBM suit is about contracts. Unfortunately most of the breach of contract they're alleging have to do with copyrights and trade secrets, which will be much harder to sue over if Novell owns the copyrights.

          Don't be supr
          • http://www.novell.com/licensing/indemnity/pdf/6_1 2 _03_n-scoandibm.pdf [novell.com]

            http://www.novell.com/licensing/indemnity/pdf/10_1 0_03_n-sco_ibm.pdf [novell.com]

            Judge Kimball has ruled these waivers were valid. In-fact, SCO's contract claims were hurt MORE by the ruling than the copyright ones, cause SCO can still claim infringement over code they own (although they haven't presented any).
            • by jbengt (874751)
              I don't believe that either of those are about the project montery contract. (please correct me if I'm wrong)
              Well, it probably doesn't matter, anyway, since SCOX may soon be bamkrupt, and in bankrupcy, SCOX will probably be quickly forced to settle.
              • SCO's hand-waving about having the right to sue over monteray is meaningless. SCO is not a party to the monteray contract, and Santa Cruz never assigned it to them. The contract had a specific provision that Santa Cruz had to seek IBM's approval before assigning the contract to a third party, so they went behind IBM's back, assigned the contract, and then notified IBM afterwards. IBM sent a letter a couple of days later terminating the contract (and neither Santa Cruz nor Caldera/SCO ever disputed IBM's rig
        • 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.

          Right. That issue was examined during discovery. SCO wanted the copyrights transferred when they bought the UNIX business, but Novell insisted on full payment before transferring the copyrights. SCO couldn't come up with the up-front cash,

    • Re: (Score:1, Funny)

      by Anonymous Coward
      The summary read like the judge had crossed an AK-47 with a common nailgun and was shooting at SCO's coffin.

      Talk about pwned.
    • by Crypto Gnome (651401) on Saturday September 08, 2007 @09:09AM (#20520057) Homepage Journal
      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.
      • You're joking, I hope?

        SCO has been allowed to cause uncountable damage to Linux and an equivalent benefit to Microsoft for the past three years.

        That's thirty billion dollars of income for Microsoft, protected from competition in part by FUD generated by SCO. They have NEVER had a credible case, but they have been allowed to slander the closest competition Microsoft has for three years. Only now does it look like they'll be forced to stop the slander.

        And their punishment? We don't know yet, but it looks

        • Oh give me a break. Customers stopped caring about SCO years ago, and Microsoft's sales have gone up since. Saying that all of Microsoft's revenue is attributable to SCO, every last dime, is downright ridiculous. I know this is Slashdot, but quit being a fanboy idiot. IBM and Novell are big boys, they can defend themselves. SCO's case against Linux itself imploded long ago.
    • by Aim Here (765712) on Saturday September 08, 2007 @09:28AM (#20520179)
      "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...
      • 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.

        Worse than that; remember that Judge Kimball is presiding over both the SCO/Novell and SCO/IBM cases. So SCO can't even try to pull a, "This is what the Novell judge really meant," bamboozle on the IBM judge, as they've tried to do with the Autozone and Red Hat cases i

    • by Quila (201335)
      It means they're just about ready to lower the coffin into the grave. SCO was hoping to have a jury they can confuse, but now the case will be tried in front of a judge who knows their tricks and can't be fooled.
    • by AJWM (19027)
      I think the coffin is already nailed shut. This is throwing dirt on it.
    • Let's put it this way. Novell and SCO collectively filed 8 pre-trial motions. Novell won 7, SCO won 1. These are for a trial that has already largely been decided against SCO at the summary judgment stage. SCO's only hope was to dazzle a jury into believing their claims, and that is gone now. In other words, they are downright fucked.

      IBM is still pushing Kimball for rulings on their summary judgment motions. I expect those before the start of trial, so that IBM can be vindicated and Novell can finish SCO of
    • This is more like a coffin lid made of lead :)
  • Does this epitomize the drag lawyers and the legal system place on the US? This and the overly complex tax system have no redeeming value in the US economy or am I missing something?
    • A momentary image of a cross-dressed Judge Kimball flashed through my right brain before my left brain could finish parsing the sentence.
    • For better or worse, the US judiciary is often the last defender of

      (a) the constitution (just think of the PATRIOT act and other legal shenennigans by the current administration)

      (b) individual freedom (versus the government)

      (c) individual rights (versus the government and any other body that wields large amounts of power such as large corporations).

      And yes, a large amount of time, care, money and attention is needed to adjudicate the conflicting claims and counterclaims. However I personally believe th

  • by Anonymous Coward on Saturday September 08, 2007 @09:27AM (#20520171)
    SCO should have blamed everything on a one-armed man; Kimball would have been much more sympathetic.
    • Re: (Score:3, Insightful)

      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.
  • by Anonymous Coward on Saturday September 08, 2007 @09:54AM (#20520307)
    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.
    • by keraneuology (760918) on Saturday September 08, 2007 @10:18AM (#20520453) Journal

      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?

    • by legirons (809082)
      "It is likely that Novell will get more than 50% of the money."

      Is the number allowed to be some percentage? I thought that SCO had claimed it was "100% theirs or nothing", hence Novell being rather happy they could prove it wasn't 100% (and asking for "no new theories of apportionment to be conjured-up at the last minute, please")
      • Well yes, but you see, a quick read of TFA would show you that this is the sole Novell motion denied. Oh wait, it's in the summary too. Don't you look like a fool now.
        • by legirons (809082)
          "Don't you look like a fool now."

          Just a slow reader -- finally got to that part of the court's PDF.
  • justice (Score:4, Funny)

    by SolusSD (680489) on Saturday September 08, 2007 @10:31AM (#20520535) Homepage
    well the system works.. but in O(2^n) time with O(n!) cost. ugh.. DIE ALREADY.
  • You know you hired a dumb or fraudulent lawyer when you are only left to defend how much you owe the other party. And you brought the law suits. Or, worse yet, you paid your lawyers a huge fee to get you into serious liabilities.

    End of story.
    LamLaw [lamlaw.com]
  • by merc (115854) <slashdot@upt.org> on Saturday September 08, 2007 @02:21PM (#20522169) Homepage
    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 [computerworld.com]

    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.
    • by schon (31600)
      What he said:

      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.

      What he really meant:

      We absolutely and fundamentally believe we could get them to sellt, and we believe in the justice system because we know that things don't always happen the way they're supposed to, and we're realistic about that point.

  • Or have they finished with the nails and just started welding the lid shut?
    • by Mspangler (770054)
      Lid is on, (Aug 10) check

      coffin in grave (Sep 7) check

      cement truck starts pouring (due Sept 17)

      Nazgul pee on grave (time to be decided)

      I think we are pretty much done.

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