Sashi Bach Boruchow (admitted pro hac vice)
Telephone: (954) 356-0011 Facsimile: (954) 356-0022
David Boies (admitted pro hac vice) [email protected]
Robert Silver (admitted pro hac vice) [email protected]
Edward Normand (admitted pro hac vice) [email protected]
BOIES SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 Telephone: (914) 749-8200 Facsimile: (914) 749-8300
Attorneys for Plaintiff, The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SCO’S OPPOSITION TO “NOVELL’S
Chapter 11 Trustee in Bankruptcy, Edward N. MOTION IN LIMINE NO. 8 TO
PRECLUDE SCO FROM RELYING ON
NOVELL’S APPLICATIONS FOR
Novell’s “Motion in Limine No. 8” is an untimely motion for partial summary judgment
seeking to exclude Novell’s copyright registrations as evidence of its slander on SCO’s title.
Novell’s motion also fails for the reasons that follow.
1. SCO’s allegations about Novell’s copyright registrations include Novell’s public
announcements concerning those registrations. In addition to filing copyright applications in
September and October 2003, Novell issued a press release on December 22, 2003, stating that
Novell “owns the copyrights in UNIX, and has applied for and received copyright registrations
pertaining to UNIX consistent with that position.” Novell’s website continues to publish that
press release, and also lists and publishes the registrations themselves. Novell does not even
attempt to articulate grounds for excluding these public statements.
2. It is beyond argument that recordation filings give rise to claims for slander of title.
Indeed, the courts routinely cite such filings as an independent basis for slander of title claims.
See, e.g., First Sec. Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253, 1257 (Utah 1989)
(claim lies where defendant “wrongfully records or publishes” statement); Howarth v. Ostergaard,
30 Utah 2d 183, 185 (1973) (same); RJW Media, Inc. v. CIT Group/Consumer Fin., Inc., 202 P.3d
291, 296 (Utah Ct. App. 2008) (same). In addition, the courts have repeatedly found defendants
liable for slander of title based on the recording of instruments claiming a property interest. See
e.g., Olsen v. Kidman, 120 Utah 443, 451 (1951) (defendant liable for wrongful recording of
instrument); Dowse v. Doris Trust Co., 116 Utah 106 (1949) (same). Novell fails to confront, or
even acknowledge, this long-established precedent.
3. The Noerr-Pennington doctrine does not apply in this situation. Novell cites no case
that expands the doctrine beyond its use as a defense in antitrust cases to a slander of title case, let
alone to shield a defendant from liability for slanderous statements made in applications recording 1
alleged ownership of copyrights or any property. As explained, the case law consistently makes
clear that such statements are an independently sufficient basis for such liability.
4. Novell’s registration applications are not entitled to Noerr-Pennington protection
because they are not petitions for government action. Even in the antitrust context, the Noerr-
Pennington doctrine protects only persuasive requests for discretionary action by the government.
See, e.g., E. Railroad Presidents’ Conference v. Noerr Motor Fright, Inc., 365 U.S. 127, 138
(1988) (equating protected petitioning with “an effort to persuade an independent government
decision-maker through the presentation of facts and arguments”). Ministerial filings, such as the
Novell applications at issue, are not entitled to protection because they are not persuasive in nature
and are not requests for government action. See, e.g., Litton Sys. v. Am. Telephone & Telegraph
Co., 700 F.2d 785 (2d Cir. 1983) (tariff filing did not merit protection); In re Buspirone Patent
Litig./In re Buspirone Antitrust Litig., 185 F. Supp. 2d 363, 371 (S.D.N.Y. 2002) (patent listing
accepted and reviewed by the FDA did not merit protection); see also Organon, Inc. v. Mylan
Pharms., Inc., 293 F. Supp. 2d 453, 458-59 (D.N.J. 2003) (filing a patent for listing by FDA was
not “petitioning activity” because the FDA’s action was “purely ministerial”).
5. Novell’s arguments regarding the strength of its litigation position are irrelevant to the
analysis. Novell did not file the applications at issue in connection with any “petition” it brought
before this Court. In fact, Novell filed its copyright applications and certifications in September
and October 2003, and announced and published the registrations in December 2003. SCO filed
this lawsuit in January 2004, and Novell did not bring any counterclaims until it filed its Answer
to SCO’s Amended Complaint on July 29, 2005. Novell thus did not bring any “petition” before
this Court for nearly two years after filing its copyright applications. Novell does not cite any
support for the proposition that a “petition” can retroactively cure liability.
The alleged strength of Novell’s subsequent legal claims is inconsequential. The Noerr-
Pennington doctrine protects against liability for antitrust activity flowing from government action
– the “intended consequence” of petitioning activity – but not against liability for harms resulting
from the petitioning activity itself. See, e.g., Federal Trade Comm’n v. Superior Court Trial
Lawyers Ass’n, 493 U.S. 411, 424-25 (1990) (concluding that defendants’ lobbying efforts were
themselves restraints on trade); City of Columbus v. Omni Advertising, Inc., 499 U.S. 365, 381
(1991) (no protection where anticompetitive activity “is sought to be achieved only by the
lobbying process itself, and not by the government action that the lobbying seeks”). Apart from
the question of Novell’s bad faith, the applications thus are not entitled to any immunity.
SCO respectfully submits, for the reasons set forth above, that the Court should deny
Novell’s “Motion in Limine No. 8.”
By: /s/ Brent O. Hatch HATCH, JAMES & DODGE, P.C. Brent O. Hatch Mark F. James BOIES, SCHILLER & FLEXNER LLP David Boies Robert Silver Stuart H. Singer Edward Normand Sashi Bach Boruchow Counsel for The SCO Group, Inc.
CERTIFICATE OF SERVICE
I, Brent O. Hatch, hereby certify that on this 19,th day of February, 2010, a true and correct
copy of the foregoing SCO’S OPPOSITION TO “NOVELL’S MOTION IN LIMINE NO. 8”
was filed with the Court and served via electronic mail to the following recipients:
Sterling A. Brennan David R. Wright Kirk R. Harris Cara J. Baldwin WORKMAN | NYDEGGER 1000 Eagle Gate Tower 60 East South Temple Salt Lake City, UT 84111
Thomas R. Karrenberg Heather M. Sneddon ANDERSON & KARRENBERG 700 Bank One Tower 50 West Broadway Salt Lake City, UT 84101
Michael A. Jacobs Eric M. Aker Grant L. Kim MORRISON & FOERSTER 425 Market Street San Francisco, CA 94105-2482
Counsel for Defendant and Counterclaim-Plaintiff Novell, Inc.
By: /s/ Brent O. Hatch HATCH, JAMES & DODGE, P.C. Brent O. Hatch
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