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Final Judgment in SCO v. Novell: SCO Loses Again

By Pamela Jones et al.

The final judgment from Utah is here at last. It recites what the August 10, 2007 and July 16, 2008 orders said, but it also resolves the recent dispute over SCO's desire to voluntarily waive some claims and then bring them back to the table after an appeal, should it prove successful. SCO caved on its voluntarily dismissed claims, and Novell did not. So, another loss for SCO. No matter what happens on appeal, then, SCO can't resurrect those claims. It can appeal the rest of the matters it lost in August 2007 and July of 2008.

Novell, however, in an identical circumstance, can pull its voluntarily dismissed claims out of its back pocket and go after SCO. And I'm sure it would. In the wording of the judgment, Novell has "the right to pursue these claims only in this action, should there be a subsequent adjudication or trial in this action." So if there were an appeal and SCO got the case sent back to Utah for a jury trial, for example, SCO's favorite daydream, then Novell could bring back to the courtroom all its voluntarily dismissed claims.

Here, in contrast, is the wording on the SCO claims from the judgment:

3. The remaining portions of SCO's claims for Breach of Contract (Count II), Copyright Infringement(Count IV), and Unfair Competition (Count V) are voluntarily dismissed with prejudice, without the possibility of renewal following appeal.

So, all the tricky language SCO suggested to the judge was for naught. Whew.

Full post as published by Groklaw on November 20, 2008 (boomark / email).