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More Pretrial Briefs in SCO v. Novell

Mar 04, 2010, 09:03 (0 Talkback[s])

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"What does SCO want?

"For one thing, it doesn't want to be accused of unclean hands. I don't know. I thought they earned that one, personally. More seriously and more accurately, it doesn't want Novell to be able to assert unclean hands as as defense. SCO says it will argue the issue more fully, unless directed otherwise by the court, in a brief it plans to file on March 4th, SCO writes, and then it will be argued orally on March 5th, I gather, in its objections to Novell's proposed jury instructions.

"SCO wants the court to decide, not the jury, three claims, its claim for specific performance regarding the copyrights, Novell's claim for declaratory relief regarding its waiver of SCO's claims against IBM, and SCO's claim that the waiver, even if authorized, violates the implied duty of good faith and fair dealing. That last, believe it or not, is asking that the contract be deemed unfair, even if it said Novell could waive. SCO wants the judge to rewrite the contract if SCO loses the waiver claim. Can you guarantee he won't?

"What does Novell want?

"Novell's brief is the one the judge asked for in its February 25th order, supporting its request for judicial notice of seven factual findings by Judge Dale Kimball, five of them affirmed by the appeals court and two not appealed by SCO. Novell provides the legal basis for its request, essentially relying on the law of the case, issue preclusion, and the mandate rule."

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