Novell Inc has filed a new motion to dismiss the slander of title lawsuit brought against it by SCO Group Inc., and is using the judge’s own words to back up its claims.
According to Waltham, Massachusetts-based Novell, US District Judge Dale Kimball’s previous statement that it had raised persuasive arguments in favor of its claim to have retained the copyrights for Unix means the Lindon, Utah-based SCO is unable to claim malice as a cause of action for its slander of title suit.
In an order delivered in June, Judge Kimball agreed with Novell’s position that SCO had failed to show that Novell’s statements had caused it actual damages and gave SCO 30 days to amend its complaint, but denied Novell’s motion to dismiss the case entirely.
SCO duly filed its amended complaint in July asking for a preliminary and permanent injunction requiring Novell to assign to SCO any Unix copyrights and retract or withdraw any claims over the copyright. SCO claims to have inherited the Unix copyright from Santa Cruz Operation when it acquired the company’s Unix server business in 2001.
Novell’s response uses Judge Kimball’s own words from the June order to argue that SCO’s complaint should be dismissed, stating that Novell has a privilege to publicly assert a rival claim to the Unix copyrights and to publish its rival claims to third parties, and that SCO cannot allege malice sufficient to ground a claim for slander of title given the Courts’ June Order.
Novell quotes Judge Kimball’s own comments on the Asset Purchase Agreement and Amendment No. 2, the key documents concerning the sale of Novell’s Unix business to Santa Cruz Operation, to argue that there is enough doubt about whether copyright was transferred that Novell’s claims could not be considered malicious.
In one of five comments quoted by Novell, Kimball wrote: There is enough ambiguity in the language of Amendment No 2 that… it is questionable whether [it] was meant to convey the required copyrights or whether the parties contemplated a separate writing to actually transfer the copyrights after the ‘required’ copyrights were identified.
According to Novell, this is enough to preclude a finding of malice sufficient to state a cause of action for slander or to overcome Novell’s privileges.
It remains to be seen what Judge Kimball makes of Novell’s argument. His comments were originally made in the context of denying Novell’s initial attempt to dismiss the case. At the time, Judge Kimball agreed with SCO that the arguments about the agreements at the heart of the case would be more properly heard on potential later motions for summary judgment or trial.
