More Pretrial Briefs in SCO v. Novell

“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.”

Complete
Story