Judge denies Novell's attempt to dismiss SCO suit

By Matt Whipp

Posted on 1 Jul 2005 at 10:24

The case revolves around SCO's claims that it owns the Unix operating system, which previous owner Novell publicly disputed, resulting in SCO slapping a 'Slander of Title' lawsuit upon the company.

Novell argued that legal privileges allowed it to make such statements, in the interest of the Linux community that was being targeted by SCO, which is looking to charge royalty payments for use of what it considered its wrongfully included intellectual property.

It seems that there are only two conditions by which SCO can successfully argue that Novell doesn't have such privileges. These are if it can prove the malice it is alleging Novell showed in its actions is evident from facts or, secondly, that Novell was 'overly' public in its actions.

And if the dispute centres on factual evidence, then both parties will need the subsequent discovery period in which to compile them as evidence. But given that SCO has already found it difficult to specify and quantify damages caused by Novell in this respect, it will have its work cut out doing so.

Judge Kimball said that the case was only at the point of deciding whether SCO's suit merits a trial, and that Novell is not in the position of submitting evidence to support the view that it doesn't until discovery. And even if Kimball were to decide Novell had acted without malice at this stage, later factual evidence may prove it otherwise.

So although Novell has been successful in persuading the judge that it is debatable whether the contract to purchase Unix included all the necessary copyrights SCO needs to make its claims, Novell's intentions in publishing its views on the matter - malicious or otherwise - cannot yet be established.