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I gather SCO has noticed that the SCO v. IBM litigation won't be nearly so annoying to IBM unless it does something fast about Judge Dale Kimball's August 10th ruling, which pared that case, like all of SCO's cases, down to almost nothing but the counterclaims against SCO.
So it's asking the court to enter a final judgment on certain matters the ruling decided, so it can seek an immediate appeal on those issues, such as whether it owns the UNIX and Unixware copyrights after all and whether Novell has the authority to tell SCO to waive any purported breach of contract by licensees. Those are the two that shot arrows straight through SCO's heart. Well. The heart of its litigation. I believe the evidence before us demonstrates that SCO is a corporation, and hence it has no heart.
Otherwise, SCO has to wait until Novell goes through trial to a verdict and then appeal, and while it is in the appeal process, IBM would go forward in its now much smaller version, based on the August 10th ruling. SCO would rather appeal right away so it can try all its claims in IBM, should it successfully appeal the judge's order. The trial starts, though, in less than a month and it will last less than a week, so none of this makes any sense if you look at a calendar. I think, therefore, it must be about FUD, so it sounds like SCO is on the move again or something.
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Here, thanks to Steve Martin, we have SCO's Memorandum in Support of its Motion for Entry of Final Judgment Pursuant to Federal Rule of Civil Procedure 54(b) [PDF] as text. Note that this document is a request to the judge to let them appeal certain matters, but it's not an appeal and the judge is not required to say yes. It's unusual, I'm told, to be successful with a 54(b) motion. I mention it because I see a headline, "SCO appeals Unix ruling, seeks a second act" on MarketWatch, and that isn't accurate. The article mentions that the stock has risen:
On Wednesday, SCO filed an appeal challenging an Aug. 10 ruling by a federal judge in Utah that Novell Inc., McBride's former employer, owns the rights to Unix operating system software. SCO sued Novell in 2004 over Unix, which has been SCO's lifeblood.SCO's shares, now in the penny stock category, rose 44%, to 72 cents in Thursday trading.
If folks are buying based on the idea that an appeal was filed Wednesday, I hope they read the filing, so they have more accurate information. I trust SCO would have no desire to mislead the public.
The parties in SCO v. Novell have also filed their proposed jury instructions today, and Steve and I are busy transcribing them for you. You will recall that Judge Dale Kimball asked the parties in SCO v. Novell to give him a joint proposed set of jury instructions, and where they couldn't agree to provide them separately along with authority for their positions. Here it is, Joint Statement Regarding Jury Instructions [PDF] along with Exhibits 1 and 2 [PDF], the first being the instructions they were able to agree on and the latter the ones where they don't see eye-to-eye, at least not yet. They inform the judge that they continue to try to reach agreement. But they have until September 5th to tell him why they think the other side's instructions are improper. Final decision is his.
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