Another day, another set back in court for Novell

NETWORK WORLD NEWSLETTER: DAVE KEARNS ON NOVELL NETWARE TIPS
07/05/05
Today's focus: Another day, another set back in court for
Novell

Dear networking.world@gmail.com,

In this issue:

* Judge denies Novell's request to stop SCO suit
* Links related to Novell NetWare Tips
* Featured reader resource
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Today's focus: Another day, another set back in court for
Novell

By Dave Kearns

It's beginning to seem like at least one issue of the newsletter
every other week should be devoted to Novell's adventures in
court. It's unfortunate, but the only press the company seems to
get these days is when one judge or another throws out a Novell
motion.

Two weeks ago ( <http://www.networkworld.com/nlnovell2963> ), I
talked about U.S. District Judge Frederick Motz's ruling on
motions in the company's suit against Microsoft concerning
Novell's anti-trust claims related to its ownership of
WordPerfect (four of the six motions were dismissed).

This week, we'll look at U.S. District Judge Dale Kimball's
rulings in the case of SCO vs. Novell. You may remember that SCO
sued Novell for "Slander of Title." In its suit, SCO is suing
Novell because the Waltham, Mass., company claimed that it - not
SCO - owned the copyright to Unix System V, Release 4 (SVR4) so
therefore SCO had no standing to sue IBM. According to SCO, this
comment so inflamed the potential clients for SCO's Unix
offerings that the clients stopped buying them. Most observers,
though, feel there were other reasons why SCO's revenue
continues to drop.

Novell sought to head off this trial by filing documents
purporting to show the truth of Novell's claim along with a
motion to dismiss the suit. Judge Kimball, though, ruled that,
"Even though Novell argues that it has evidence to support its
alleged good faith basis for claiming ownership of the Unix
copyrights, the proper place to introduce that evidence and
argue its significance is not on a motion to dismiss." In other
words, according to the judge, you can't present a defense until
there's a trial.

The judge went on to say: "The court cannot rule as a matter of
law on Novell's intent at the motion to dismiss stage before any
discovery is considered in the case. Unlike the court's ability
to determine the ambiguities of a written contract, the court
cannot opine on a party's state of mind when it was advancing
certain legal positions. While it may be true that the
plausibility of Novell's legal arguments regarding ownership is
relevant to its state of mind, the court cannot draw inferences
in favor of Novell at the motion to dismiss stage." Heck, I've
followed Novell for almost 20 years and I can't claim to
understand its intent or state of mind.

I went onto the Novell Web site to get its reaction to the
ruling, but it insisted on showing me all of its press releases
in Italian. The rest of the site was presented in English, when
I tried to choose a language it told me I was already using
English, but still would only show me Italian press releases. I
don't read Italian, so I've no idea if the company had a
response.

What I do know, though, is that the company needs to be in the
technology section of your newspaper, not the legal notices.

RELATED EDITORIAL LINKS

Judge denies Novell's second request to stop SCO suit
IDG News Service, 06/28/05
http://www.networkworld.com/news/2005/062805-novell-sco.html?rl
_______________________________________________________________
To contact: Dave Kearns

Dave Kearns is a writer and consultant in Silicon Valley. He's
written a number of books including the (sadly) now out of print
"Peter Norton's Complete Guide to Networks." His musings can be
found at Virtual Quill <http://www.vquill.com/>.

Kearns is the author of three Network World Newsletters: Windows
Networking Tips, Novell NetWare Tips, and Identity Management.
Comments about these newsletters should be sent to him at these

respective addresses: <mailto:windows@vquill.com>,
<mailto:netware@vquill.com>, <mailto:identity@vquill.com>.

Kearns provides content services to network vendors: books,
manuals, white papers, lectures and seminars, marketing,
technical marketing and support documents. Virtual Quill
provides "words to sell by..." Find out more by e-mail at
<mailto:info@vquill.com>
_______________________________________________________________
This newsletter is sponsored by Nokia
Empower Your Mobile Enterprise

Nokia believes that business mobility will fundamentally change
the way work gets done-and for the better. To allow the entire
organization to get the most from this paradigm shift in
productivity, Nokia Enterprise Solutions focuses on delivering
increased efficiency through enhanced mobility. Learn more by
downloading this white paper today!
http://www.fattail.com/redir/redirect.asp?CID=107713
_______________________________________________________________
ARCHIVE LINKS

Archive of the Novell NetWare Tips newsletter:
http://www.networkworld.com/newsletters/netware/index.html

Novell news page:
http://www.networkworld.com/news/financial/novell.html
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