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Novell's Motion to Allow Evidence: SCO Opened the Door

By Pamela Jones et al.

Yesterday, at the end of the day at the trial of SCO v. Novell, there was a discussion of whether certain evidence could be let in after all, due to something SCO said. Judge Ted Stewart asked Novell to put it in the form of a motion, and they have.

SCO accused Novell in its opening argument four times of slander of title "to this very day". And in questioning Duff Thompson yesterday, the lawyer asked him if he saw evidence of slander of title to the present, and he said yes. It indicates a desire for damages covering the entire time period.

However, Novell points out that prior rulings by this court and the appeals court found that Novell was in fact the owner of the copyrights, among other things, and Novell thinks it is grossly unfair that it can't be allowed to mention those salient facts to the jury, if the judge is going to allow SCO to claim damages "to this day":

In view of the foregoing, the Court should permit Novell to introduce evidence that Novell's representatives acted with knowledge of the following three facts:

1. Judge Kimball ruled on August 9, 2004, that "the APA did not transfer any copyrights" and "the agreements raise substantial doubt as to whether the APA as amended by Amendment No. 2 qualifies as a [17 U.S.C.] Section 204(a) writing";

2. Judge Kimball ruled on August 7, 2007 that "Novell is the owner of the UNIX and UnixWare copyrights"; and

3. The Tenth Circuit recognized on August 24, 2009 that "Novell has powerful arguments to support its version of the transaction."

SCO's attorney Stuart Singer may have gotten carried away with his theatrical indignation. And when a party slips like this, what lawyers call opening the door, it can indeed have consequences. Novell was just waiting for a moment like this.

Full post as published by Groklaw on March 12, 2010 (boomark / email).