LinuxGram

SCO filed a notice of appeal with the United States Court of Appeals for the 10th Circuit in Denver Tuesday.

Yes, miracle of miracles it finally got a final judgment out of Utah District Court Judge Dale Kimball.

That’s the hall pass it needs to challenge his devastating summary judgment of August 10, 2007 in which he basically decided that Novell owns Unix – having supposedly only licensed it to SCO in 1995 – and that Novell was perfectly within its rights to order SCO to drop its claims against IBM and Sequent for allegedly poaching Unix code and sticking it in Linux.

SCO of course contends that Kimball utterly ignored the basic rules of civil procedure in issuing that summary judgment against it – and truth to tell Judge Kimball has an impressive string of overturned summary judgments to his name.

A summary judgment’s not supposed to weight evidence, champion one side’s interpretation of facts over the other’s, or decide that one set of witnesses is more credible than another.

As any first-year law student ought to know, when there are two sides to a story, as in SCO v Novell, a judge isn’t supposed to pick one and issue a summary judgment.

That’s the business of juries.

And that’s especially true when a case is governed by California law, which bends over backwards to give the plaintiff – in this case SCO – the edge in extrinsic evidence and especially when all of Novell’s old management – who did the original deal – testified for SCO.

But Judge Kimball denied SCO a jury.

He preferred the testimony of a couple of old Novell lawyers from back when Unix supposedly transferred from Novell to the Santa Cruz Operation about what the Santa Cruz Operation, SCO’s predecessor company, and Novell’s intentions were rather than what the guys in charge said.

The lawyers claimed SCO only licensed Unix, a word that appears nowhere in the 1995 transfer documents – or anywhere in fact before 2004 when SCO sued Novell for claiming to still own Unix.

Novell’s old management – who testified they never heard of any license – thought they sold all of Unix to SCO – old Unix, new Unix, UnixWare, all versions, all releases – and wrote letters to Novell’s customers in 1996 saying exactly that.

So, if the 10th Circuit overturns the SCO summary judgment, SCO’s slander-of-title/breech-of-contract/copyright infringement case against Novell will go to a jury back in Utah and, if SCO wins there – and moot courts suggest it will – well, then, the question of whether Linux stole Unix code will again be troubling Linux users, particularly IBM’s Linux users.

If SCO loses the appeal, it’ll probably be turning its assets over to Novell.

Now, to get the final judgment out of Kimball, SCO had to do some horse trading with Novell, which was doing what it could to delay SCO’s drive to Denver according to what SCO says in other court filings.

For instance, it had to agree to forsake forever some of its breach of contract, copyright infringement and unfair competition claims against Novell and it had to agree to put $625,486.90 into a constructive trust.

The claims SCO is giving up relate to post-1995 Unix code, which only represents a small part of SCO’s case against Novell, but – since it was obviously important to Novell – it also suggests there’s probably some real stinker in there that SCO never found. If such a thing exists and SCO ever does find it, well, only Novell is safe.

And since SCO is still protected by the cloak of the bankruptcy court in Delaware where it sought sanctuary from Judge Kimball – and the chance that Novell would be empowered to seize all of its assets – it doesn’t have to immediately write Novell a check for the $2,547,817 plus interest that Judge Kimball decided this July (and probably rightly too) that SCO owes Novell for some rights it sold Sun back in 2003.

The interest, Judge Kimball now says, works out to $918,122 in “pre-judgment interest through August 29, 2008, plus $489 per diem thereafter until the date of this judgment,” which would be November 20.

Sun’s lawyers may be interested in the Novell-written final judgment that Judge Kimball signed.

Looks like Novell put one over on the old boy, who was evidently asleep on the bench.

Judge Kimball now says that “SCO was not authorized…to amend, in the 2003 Sun agreement, Sun’s 1994 SVRX buyout agreement with Novell, and SCO needed to obtain Novell’s approval before entering into the amendment.”

In English that means (or might mean given this confusing string of judicial fiats) that, contrary to what Judge Kimball decided in July – and despite a warning brief filed by SCO – he has now signed a piece of paper saying that SCO’s whole deal with Sun wasn’t legit.

In July he said only part of the SCO-Sun deal, which brought SCO a total of $9,143,451, exceeded its rights.

Heck, that’s why he awarded Novell only $2.5 million from that deal that Sun negotiated with SCO, then the industry-recognized owner of Unix, to get the confidentially provisions governing its 1994 Unix buy-out agreements with Novell lifted so it could open source Solaris.

Novell has reportedly been looking for some leverage against OpenSolaris, which competes with Linux – and in which Novell has a serious vested interest – and may have just gotten it – if the decision ultimately stands.

Judge Kimball’s apparently wavering position on Sun – he left untouched his ruling that Novell isn’t entitled to any of the revenue that SCO got from licensing UnixWare and incidental SVRX code to Sun – looks like another head scratcher for the appeals court to sort out.

It generally takes 10-12 months to get a decision out of an appeals court counting from the time a notice of appeal is filed. SCO’s concessions to Novell may have shaved six months off of the clock starting.

Novell, by the way, could also appeal.

Despite published obituaries to the contrary – and a lot of gleeful humming of “Ding, Dong, The Witch is Dead” – SCO’s legal bills for appeal are already paid and it claims it will have the money to pursue its case.

It currently has until the end of the year to file a reorganization plan with the bankruptcy court in Delaware.