On the other hand, refusal of the Utah Court to dismiss the SCO v Novell lawsuit could mean that SCO does indeed have a claim to the Unix copyrights. A decision in this lawsuit could come anytime after SCO files its reply to Novell's Motion to Dismiss. Or, the trial court judge could ask the parties to file additional documents and/or schedule the matter for oral argument -- thus delaying disposal of Novell's Motion to Dismiss.
Ripple effects if Novell (NOVL) wins
A decision to dismiss the SCO v Novell lawsuit also could have ripple effects against SCO in its lawsuits with IBM and Red Hat. Inter alia, that's because an order dismissing the SCO v Novell lawsuit could determine that Novell and not SCO is the manager of IBM's Unix license, thus SCO has no justiciable interest in whether IBM gave Unix source code to the Linux kernel developers -- which is the thrust of SCO's lawsuit against IBM.
In part, that is because the SCO v Novell lawsuit will focus on interpretation and enforcement of the Novell to SCO Unix sale contracts -- the 1995 Asset Purchase Agreement (APA) plus all the various side-letters and amendments that collectively have become part of that APA. The respective authorities of Novell and SCO to manage the IBM Unix license are set forth in the 1995 APA.
Underlying SCO's lawsuits with both IBM and Red Hat are SCO's claims to ownership of the Unix copyrights. Should it dismiss the SCO v Novell lawsuit, the Utah Federal District Court could find that SCO does not own the Unix copyrights in dispute. That too could be just the right agitation to drive a rippling, destructive, force through the heart of SCO's claims that it has copyright rights to the GNU-Linux operating system.
However, SCO's legal claims against the GNU-Linux operating system could fall for another important reason. It could be there just isn't SCO-owned Unix code in the Linux kernel.
In April 2003, SCO-Caldera Senior Vice President Chris Sontag told MozillaQuest Magazine that the allegedly SCO-owned code in Linux is not in the Linux kernel that Linus [Torvalds] and others have helped develop. We're talking about what's on the periphery of the Linux kernel. (SCO Clears Linux Kernel but Implicates Red Hat and SuSE, MozillaQuest Magazine, 28 April 2003. Please see also, Is SCO Trying to Renege on Clearing Linux Kernel ?)
There is some really choice, SCO-FUD debunking in the SCO Clears Linux Kernel but Implicates Red Hat and SuSE article. Read it.
In our 17 June 2003 article, SCO-Caldera Shows No Proof Linux Was Derived from Unix, which includes an interview with Linux industry analyst Bill Claybrook, he told MozillaQuest Magazine that he did not find SCO-owned Unix code in the Linux kernel:
In our 25 July 2003 article, SCO Agrees IBM Owns AIX, JFS, NUMA, RCU Copyrights, SCO's Blake Stowell admitted to MozillaQuest Magazine that SCO does not own the JFS (Journaling File System), RCU (Read, Copy, and Update), NUMA (Non-uniform Memory Access) and many other software copyrights. You really should read this article, too. It also contains some really choice SCO-FUD debunking.
A word of caution here, however. Since those articles were written, SCO has filed documents with the SCO v IBM Court involving Linux source code that SCO alleges was copied from SCO-owned Unix code and derived Unix code. (The Declaration of Ryan Tibbits) We have not yet looked into that filing to see if it does indeed point to GNU-Linux code that might infringe upon any SCO-owned Unix code.
Novell's Motion to Dismiss
The Motion to Dismiss the Novell v SCO lawsuit was filed 9 February 2004. It's based on Federal Rule of Civil Procedure 12(b)(6), which allows a United States District Court to dismiss a lawsuit when the Plaintiff (instantly SCO) does not stand a snowball's chance in Hawaii of winning the lawsuit.
As stated in the Motion to Dismiss, the meat of the dismissal motion is in the legal brief (Memorandum in Support of Motion to Dismiss), which was filed along with the dismissal motion on 9 February 2004. We have prepared compact RTF (text) files of SCO's Complaint, Novell's Motion to Dismiss and Novell's Memorandum in Support of Motion to Dismiss) for you to download should you care to read them in their entireties. Links are in the Resources section at the end of this article.
Novell's argument in support of its dismissal motion
The Preliminary Statement in Novell's Memorandum in Support of Motion to Dismiss sums up what SCO's Complaint is about and Novell's grounds for dismissing that Complaint.
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