SCO v. Novell is Final – For Now

Way back in July, the word rang out that SCO — the arch-villains bent on squeezing every dime they can out of Linux — had been vanquished by the valiant legal team at Novell to the tune of $2.5+ million. Now comes word that the victory is final — or at least, as final as can be expected.

The SCO v. Novell saga has been ongoing since 2002 — though we suspect most of the long-time Linux crowd would swear it's been forever — and was due to be wrapped up last year. Of course, that came screeching to a halt when SCO filed for bankruptcy — just days before trial — and all outstanding litigation was automatically stayed by the Bankruptcy Court. One cannot stay forever, though, and the bar was eventually lifted, allowing for the April/May showdown in Utah from which Judge Dale Kimball's July smackdown was to come.

The law is a funny thing, though, and courts are even funnier, particularly when there are this many jokers involved. SCO say they want to appeal, but you can't appeal judgment until you have a final order — and that's just what Judge Kimball handed down yesterday. It's an interesting read to be sure — as expected, the ruling handed down last August is incorporated, as is the decision from July, pre/post-judgment interest has been determined and the constructive trust settled. Also included, though, are voluntary dismissals by both sides: Novell agreed to drop certain claims for Slander of Title, Breach of Contract, and a request for Declaratory Relief, while SCO passed on Breach of Contract, Copyright Infringement, and Unfair Competition.

What's even more interesting, however, is the language used in the dismissal. In Novell's case, the court orders that the claims are voluntarily dismissed with the right to resurrect them if there is any further activity in the case. SCO's claims, however, are dismissed with prejudice, legalese — roughly equivalent to Monty Python's Dead Parrot sketch — meaning they're prevented from bringing the matter back up. Indeed, the judge even went so far as to spell it out for them: "are voluntarily dismissed with prejudice, without the possibility of renewal following appeal."

What does it all mean? If SCO appeals, they may get the whole thing sent back to Utah for another trial. If so, they can re-try whatever the Appeals Court says should be retried, but they won't be able to tack on the claims they agreed to dismiss this go-round. However, if Novell finds itself back in the courtroom — and it's important to note, only if it's part of this specific case — they can bring back all the claims they agreed to dismiss, something for SCO to think about when they're deciding where to go.

Of course, like everything in this case, it's all subject to change — the Appeals Court could, should they find a reason to, vacate the dismissal conditions, allowing SCO to bring them back anyway. They could, with cause, remand specific parts of the case for a new trial with the stipulation that no other aspects be heard, preventing Novell from resurrecting their claims. Once the appeals have been heard — don't forget, there's still another court above the Tenth Circuit, and any new trial would mean fresh fodder for a whole new round of appeals — there is still the Bankruptcy Court, which holds all the cards, and could spawn its own set of appeals to the District Court, the Third Circuit, and — heaven forbid — even the Supremes.

Final order? Yes. Final chapter? Not even close.


Justin Ryan is a Contributing Editor for Linux Journal.

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