Yesterday, SCO made an oral motion after Novell rested, asking for judgment as a matter of law on Novell's slander of title counterclaim, and Stewart has ruled that Novell did not carry the burden of proof with respect to special damages, except for copyright registration costs, which he doesn't think can be viewed as specials, so Novell's slander of title claim fails as a matter of law:
As a result, Defendant has failed to present any evidence concerning any special damages that it has suffered as a result of Plaintiff's alleged slanderous statements. Without such evidence, Defendant may not prevail on its slander of title action against Plaintiff. Therefore, the Court will grant Plaintiff's Motion for Judgment as a Matter of Law on Defendant's slander of title claim.
I agree, from the reports we've seen anyway, that they didn't present evidence, and that would be deliberate on their part, a choice not to bother, I would assume. Given that SCO hasn't paid Novell the millions they already owe, fighting for the costs of copyright registrations or whatever probably didn't seem worth going after. Special damages
have to be proven as actual money or real deals provably lost, not just coulda woulda shoulda imaginings, and Novell would have had to take time from other things to go after that.
SCO also filed a Rule 50(a) motion regarding copyright ownership, but for some reason, that motion has been mooted. I don't understand why yet, actually, since the order doesn't explain, so we'll have to wait for more information. I have zero doubt that there will be more on this in due time. I think it means SCO's copyright issue has to go to trial. And the judge denied Novell's similar motion for judgment as a matter of law on SCO's slander of title claim, saying that he won't consider it since it would require him to weigh credibility, and that's not his job. It's up to the jury. Interestingly, he did say that Novell had demonstrated evidence of SCO's malice, constitutional malice, but proving special damages is a required element to sustain a slander of title claim. It's like a home run. It doesn't count unless you touch all the bases and home plate. Three out of four necessary elements of a claim also isn't enough.
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