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Declaration of Edward Normand, with exhibits (O'Gara Deposition and McBride Declaration)
Wednesday, April 11 2007 @ 08:35 AM EDT

I told you that the story about Chris Stone made no sense. Now we get the rest of the story. There is now a Declaration of Edward Normand [PDF], with tons of exhibits and declarations and snips of depositions listed and attached, including a snip of Maureen O'Gara's deposition and Darl McBride's Declaration. This is all in support of SCO's Motion for Partial Summary Judgment on its First, Second and Fifth Causes of Action and for summary judgment on Novell's First Counterclaim.

McBride's Declaration certainly gives us a window into his soul, as they say. I think he didn't learn the lesson from Thumper in Bambi and needs to see the movie again, because he has something bad to say about everyone he talks about. Slur, slur, and more slur, as you will see.

Here are all the exhibits, and you will see some are grouped together into one:

Exhibit 1
Exhibit 1, part 2
Exhibit 1, part 3
Exhibit 1, part 4
Exhibit 2-9
Exhibit 10-20
Exhibit 21-27
Exhibit 28-31
Exhibit 32-34
Exhibit 35
Exhibit 35 part 2
Exhibit 36-41

I will put a list of what they all are at the end.

As for Ms. O'Gara's testimony, Exhibit 29, it turns out that she reported on what she *thought* Stone meant by the little he said. Oh, brother. She says he said Novell was going to assert its ownership of copyrights the same day SCO announced its earnings, and all the rest is her interpretation of what she thought that might mean. He never said, according to her testimony, that it was motivated by a desire to harm SCO or effect the stock. She decided that "logically" that must be what he meant. "Logically, there wouldn't be any other reason," she tells the lawyers. Well, how about Novell wanted to make sure the press noticed the story and so figured that would be a good day? That is just one conceivable and perfectly logical reason I gather she was unable to imagine.

Here's how SCO used this testimony in its motion:

SCO has now brought to light evidence of Novell's motives for suddenly claming ownership of the copyrights starting in late May 2003. Maureen O'Gara, a journalist covering the computer industry since 1972, recently testified that then Novell Vice Chairman Chris Stone conveyed to her, with "laughter," that Novell was timing its ownership claims to coincide with SCO's earnings report in order to "confound SCO's stock position" and "upset the stock price."

Get it? "Conveyed to her" is not the same thing as "said to her." The lawyers thus show that they know the difference, but they hope we don't. They are speaking like used car salesmen. It's literally sort of true, if you carefully notice the wording and parse it all out carefully to find the truth, but it's certainly misleading to the average listener. Here are the exact words from the deposition:

Q: What did Mr. Stone tell you about Novell's public announcement in which it was going to assert its purported ownership of the UNIX copyrights?

O'Gara: Well, he informed me of the substance of what this story is about, that they were going to, what's the right word, assert their ownership.

Q: Did he say anything about the reasons why they were issuing that announcement on that date?

O'Gara: Yes, he did.

Q: And what did he say?

O'Gara: He said they were doing it because SCO's earnings were that day.

Q: And did he say anything about the effect, the intended effect of the announcement on that date?

O'Gara: The reason they were doing it, as I understood it, was to confound SCO's stock position.

Q: When you say confound SCO's stock position, can you be a little more specific or can you clarify it in any way?

O'Gara: Well, I think the object of the game was to throw a monkey wrench into the works....They were trying to upset the stock price....

Q: Did Mr. Stone say anything about harming SCO?...

O'Gara: Logically, there wouldn't be any other reason.

In short, she divined it, concluded it, without him ever saying it at all. And do you see anything about him laughing in this snip? I don't either. Just smarmy stuff. Why am I not surprised?

Now to Exhibit 37, the Declaration of Darl McBride. Here are the relevant snips I found fascinating:

17. In the midst of these communications with Novell regarding our respective rights to enforce and terminate the licensing agreement, SCO was attempting to negotiate with IBM rgarding their disclosures of protected UNIX technology to the Linux community. In early 2003, SCO began to discover IBM had disclosed proprietary UNIX technology to Linux. Through a series of calls, letters, and meetings, I and other SCO representatives tried in good faith to reach an agreement with IBM to protect the integrity of our intellectual property.

18. In early March 2003, I received a call from Tony Befi.... He asked me if it was true, and if SCO was planning to sue IBM.... Mr. Befi ... sought a meeting....

20. On June 2, 2003, I attended a meeting with counsel for SCO and representatives and counsel for IBM. SCO had a presentation prepared which identified specific examples of AIX and Dynix technology that we had discovered in Linux....I recall that the AIX Journaling File System and the AIX enterprise volume management system were identified as two technologies that had been disclosed to the Linux community. I also remember the emphasis in the presentation on the disclosure of methods and concepts derived from the Unix System V to the Linux community.

21. During the meeting, IBM representatives showed very little interest in what we were saying.

That should have been his clue. He goes on to stick it to Sam Palmisano, claiming he offered to pay SCO off secretly, and BayStar, which he calls a "difficult partner". He says Larry Goldfarb made "constant complaints regarding SCO's business and litigation strategies... " He then says ... You know what? Read that slur for yourself. I don't want it on my keyboard. He attacks the reputations of some others, and then this nugget: SCO, he says, never intended to "wage legal warfare" on Linux. That line alone ought to put you on guard as to the truthfulness of the rest of the contents. Here's how he ends:

36. Finally, I understand that IBM accuses SCO of intentionally obfuscating evidence in this litigation for strategic purposes. It was never SCO's purpose or strategy, intent or desire to obfuscate evidence in this case in any way.

Mwahahahah. They didn't obfuscate it. They just withheld it until it was too late for IBM and its experts to do discovery. And I believe it was Judge Wells who accused them of hiding what they had so as to have an unfair advantage. The last sentence:

38. SCO did not publicly disclose that code it had identified in 2003 because the company believed that code had to be kept confidential and could not be disclosed without a nondisclosure agreement.

How about in 2005, in court? No? Too soon?

And this is all declared under penalty of perjury. How do these folks sleep at night?

Here's the complete list of exhibits by number:

1 Asset Purchase Agreement between The Santa Cruz Operation, Inc. and Novell, Inc., dated September 19, 1995

2 Amendment No. 1 to Asset Purchase Agreement, dated December 6, 1995

3 Asset Purchase Agreement Bill of Sale, dated December 6, 1995

4 Technology License Agreement, dated December 6, 1995

5 Amendment No. 2 to the Asset Purchase Agreement, dated October 16, 1996

6 Alok Mohan Deposition Transcript, dated February 7, 2007

7 Robert Frankenberg Deposition Transcript, dated February 10, 2007

8 Joint Press Release, dated September 20, 1995

9 Ty Mattingly Deposition Transcript, dated January 19, 2007

10 Declaration of Duff Thompson, dated November 9, 2006

11 Duff Thompson Deposition Transcript, dated February 9, 2007

12 Declaration of Ed Chatlos, dated October 1, 2004

13 Ed Chatlos Deposition Transcript, dated March 22, 2007

14 Burt Levine Deposition Transcript, dated March 23, 2007

15 Declaration of William Broderick, dated December 11, 2006

16 William Broderick Deposition Transcript, dated February 1, 2007

17 Declaration of Doug Michels, dated November 9, 2006

18 Doug Michels Deposition Transcript, dated March 28, 2007

19 Declaration of Jim Wilt, dated November 23, 2004

20 Jim Wilt Deposition Transcript, dated January 26, 2007

21 Declaration of Kim Madsen, dated December 11, 2006

22 Kim Madsen Deposition Transcript, dated February 13, 2007

23 Copyright Registration Number TXU 510 028

24 Copyright Registration Number TXU 516 704

25 Copyright Registration Number TXU 516 705

26 Declaration of Jay Petersen (Copyright Notices), dated November 10, 2006

27 SCO UnixWare 2.1 CD Case

28 SCO UnixWare 2.1.3 Update CD Case

29 Maureen O’Gara Deposition Transcript, dated March 23, 2007

30 Vertical Solution Agreement between The Santa Cruz Operation, Inc. and Integration Design

31 SCO UnixWare OEM Reseller Source for Support Agreement, dated May 20, 1997

32 The Santa Cruz Operation, Inc., and Samsung Electronics Co. Ltd., Software Agreement F-SOFT-347

33 Declaration of William Broderick, dated November 7, 2006

34 Declaration of John Maciaszek, dated November 9, 2006

35 Second Amended Complaint, SCO v. IBM, Case No. 03-0294

36 Letter from J. Messman to D. McBride re: SCO’s “Letter to Linux Customers”, dated May 28, 2003

37 Declaration of Darl McBride, dated November 10, 2006

38 Novell Press Release: “Novell Statement on SCO Contract Amendment,” dated June 6, 2003

39 Gregory Jones Deposition Transcript, dated January 26, 2007

40 Joseph LaSala Deposition Transcript, dated February 8, 2007

41 Jack Messman Deposition Transcript, dated February 7, 2007


  


Declaration of Edward Normand, with exhibits (O'Gara Deposition and McBride Declaration) | 452 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: hardmath on Wednesday, April 11 2007 @ 08:52 AM EDT

Should any be necessary.

--hm


---
"It's time to get it on!" -- Darl McBride (March 1, 2007),
arguing that SCO's investment in litigation means
their stock is undervalued in the market

[ Reply to This | # ]

Off-topic Thread
Authored by: hardmath on Wednesday, April 11 2007 @ 08:54 AM EDT

Use HTML-mode if you wish to link clickably.

--hm


---
"It's time to get it on!" -- Darl McBride (March 1, 2007),
arguing that SCO's investment in litigation means
their stock is undervalued in the market

[ Reply to This | # ]

Errors, mistakes, other problems...
Authored by: eggplant37 on Wednesday, April 11 2007 @ 08:59 AM EDT
Should follow this article.

I'll start by pointing out that the link for the pdf for Exhibits 28-31 does not
work.

[ Reply to This | # ]

With laughter
Authored by: hardmath on Wednesday, April 11 2007 @ 09:10 AM EDT

As PJ points out the M O'G deposition doesn't mention laughter. Moreover SCO does not say that the laughter was that of Chris Stone:

Maureen O'Gara, a journalist covering the computer industry since 1972, recently testified that then Novell Vice Chairman Chris Stone conveyed to her, with "laughter," that Novell was timing its ownership claims to coincide with SCO's earnings report in order to "confound SCO's stock position" and "upset the stock price."

Perhaps their slight-of-hand meaning was that the Zen-like conveyance of Novell's motives to M O'G produced laughter in her.

regards, hm

---
"It's time to get it on!" -- Darl McBride (March 1, 2007),
arguing that SCO's investment in litigation means
their stock is undervalued in the market

[ Reply to This | # ]

Declaration of Edward Normand, with exhibits (O'Gara Deposition and McBride Declaration)
Authored by: sk43 on Wednesday, April 11 2007 @ 09:11 AM EDT
From the McBride declaration, Exhibit 37, describing a June 2, 2003 meeting between SCO and IBM, where SCO was to explain the nature of the contract breaches:
"20. ... I also remember the emphasis in the presentation on the disclosure of methods and concepts derived from Unix System V to the Linux community."
which is to be contrasted with SCO, Objections to Judge Wells' order [724]:
"SCO does not and need not assert that it "owned" the methods and concepts; the non-disclosure restrictions on IBM were independent of any question of ownership."
and SCO, Reply Memo in Support of Motion for Reconsideration [955]:
"SCO is not claiming that the methods and concepts at issue are located in System V ..."

[ Reply to This | # ]

"How Do These People Sleep At Night?"
Authored by: Anonymous on Wednesday, April 11 2007 @ 09:13 AM EDT
Hey, PJ!

I have very few immutable rules to the universe. But one of them is, all the
positive qualities of humanity, love, compassion, mercy, only have meaning to
those who appreciate them. If they value power and wealth and don't
"get" love or integrity, they are never going to anilyze (sic? I know
I got that wrong) their own behavior because they think they are doing great.
You can't graft your values onto others. On the bright side, they can't graft
their values onto you.

Another rule: you do not judge a person by their friends, you judge them by
their enemies. THERE'S a double-edge sword for you.

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Copyright registrations assigned to AT&T
Authored by: Anonymous on Wednesday, April 11 2007 @ 09:22 AM EDT
So AT&T reegistered the copyrights to some UNIX manuals, and then gave the
registration documents to Novell when they purchased USL from AT&T. Then
Novell gave the registration documents to Santa Cruz when they bought whatever
it was they bought from Novell. The photocopies of these registration documents,
that SCO "still possesses to this day" still say that the copyrights
are assigned to AT&T. Merely possessing a peice of paper that says that
someone else owns some copyrights does not transfer the copyrights to you.

[ Reply to This | # ]

Darl and SCO lawyers seem to be thinking they were gods of UNIX (above it all, looking down)...
Authored by: Anonymous on Wednesday, April 11 2007 @ 09:24 AM EDT
Darls seems to have thought (with little understanding of the history of UNIX)
that he was in effect, a Pharaoh-like human who was to be understood to be the
one and only true god of UNIX. In control. To be respected. Not doubted.

Back to earth now, he is human of course, and made a big mistake, and might have
advised his lawyers, or been misadvised by lawyers, or whatever, that is between
him and his lawyers (of which his brother, a lawyer, was his first line of
advise if you remember the old days).

Darl seems as well to think that the UNIX god Pharaoh-like powers, meant that
all AGENTS were to respect this power, and that the court should respect this
power as well, and so disregard all the AGENTS of Santa Cruz Operation, Caldera,
etc... who acted in ways... such as developing code for Linux and distributing
under the GPL (if there is a god of software it is the GPL... and with GPLv3
this god is about to get stronger)! With god-like Pharaoh powers, Darl and the
newSCO lawyers wish to do away with the laws of agency completely. Pharaoh and
Gods can do things like that you know...!


[ Reply to This | # ]

Casting call for the movie?
Authored by: chissg on Wednesday, April 11 2007 @ 09:30 AM EDT
I would be surprised if this hasn't been discussed before, but why do I get the
feeling that in the movie of this sorry fracas, MO'G might be usefully played by
Meryl Streep?

[ Reply to This | # ]

"Conveyed to her" / "said to her."
Authored by: Anonymous on Wednesday, April 11 2007 @ 09:36 AM EDT
No I did not hit my sister I just pushed her down.

This is where liers, in mean lawyers, get their bad name. They think they are
being so clever and the rest of the legal proffesion will applaud them if they
get away with it for being able to get their clients wishes across instend of
representing them before the law as officers of the court.

[ Reply to This | # ]

SCOX's alternate reality
Authored by: fudisbad on Wednesday, April 11 2007 @ 09:41 AM EDT
From the SCOX board: SCOX's alternate reality now comes with time dilation included (free of charge). Perhaps they're heading towards "utter destruction" at speeds close to the speed of light...

For those with the original document, compare paragraphs 17, 18 and 19 of the McBride deposition.

---
"SCO’s failure to provide code for the methods and concepts it claims were misappropriated is [...] a violation of this court’s orders." - Judge Brooke Wells

[ Reply to This | # ]

Selective editing
Authored by: Anonymous on Wednesday, April 11 2007 @ 09:46 AM EDT
Exhibits 2-9 sure don't seem to help SCO in my mind. Huge gaps in the
depositions make the contents look pretty selective, since we don't see the
context. I'd read Frankenberg's statements as Novell always intended to sell
everything, including copyrights, to SCO. He never says they *did* sell them
everything. If SCO had come up with the money, they *would* sell the
copyrights. I bet store owners would also say they have the intent of selling
all of their stock to customers.

[ Reply to This | # ]

Mwahahah -- Declaration of Edward Normand, with exhibits (O'Gara Deposition and Mc....
Authored by: Anonymous on Wednesday, April 11 2007 @ 09:50 AM EDT
My instinct exactly when I read the statement.

[ Reply to This | # ]

Asset Purchase Agreement (APA)...
Authored by: walth on Wednesday, April 11 2007 @ 09:54 AM EDT
This has probably already been done, but doesn't Page 13 of the agreement, under
CLOSING: have a section dealing with delivery?

Doesn't this section, in subsection iii, say that "Seller shall deliver to
Buyer all bills of sale, endorsements, assignments, consents to assignments to
the extent obtained, and other instruments and documents as Buyer may reasonably
request to sell, convey, assign, transfer and deliver to Buyer Seller's title to
all the Assets; and"

Subsection iv: "Seller and Buyer shall deliver or cause to be delivered to
one another such instruments and documents necessary or appropriate to evidence
the due execution, delivery, and performance of this Agreement"

In my mind, this means that the APA did not convey anything, it merely was an
AGREEMENT to convey some things. Even if, as TSCOG claims, the copyrights WERE
intended to be among those things transfered, the APA is not, on the face of it,
sufficient to convey those rights. To now claim that the copyrights were
transfered by the APA is not supported by the APA.

[ Reply to This | # ]

Lawyers, according to Wiley:
Authored by: joef on Wednesday, April 11 2007 @ 09:57 AM EDT
Non Sequitur If you check this link after April 11, 2007, you'll have to search on the date.

[ Reply to This | # ]

$125,000,000?
Authored by: Anonymous on Wednesday, April 11 2007 @ 10:04 AM EDT
Novell Set To Sell Sco And Corel Shares
Computergram International, July 1, 1998


"In its latest SEC filing Novell Inc says it intends to sell the 6.1
million shares of Santa Cruz Operation Inc stock it holds, and the 9.95 million
Corel Corp shares it holds. In 1995 Novell Inc wanted to get rid of its Unix
properties just as fast as it could, and in a virtual firesale let the
technology go to Santa Cruz Operation Inc for the equivalent of $84m in
royalties to be paid until 2002 plus 16.9% of SCO stock thought to have been
worth some $60m at the time. This for an entity valued at $360m when Novell took
Unix over from AT&T Co's Unix System Labs a couple of years earlier. The 6.1
million SCO shares Novell got were in the $5 doghouse for months before the deal
and only jumped to $11-$12 on rumors that SCO was making the deal. They opened
yesterday at just $3.87, valuing Novell's holding at a lowly $23.6m. No wonder
Novell says it will take a year or more to off-load its holding. It may take
longer than that though. Even SCO doesn't seem to think its stock will see
significant movement until Intel Corp's 64-bit Merced processor comes on stream
and it can ships the 64-bit version of UnixWare designed to run on it. In 1996
Novell sold WordPerfect to Corel for the equivalent of $197m instock (around 20%
of Corel) and license fees at a huge loss compared to the $855m it paid for the
business in June 1994. Novell's Corel shares were worth some $21.98m at
Tuesday's opening price of $2.21."

[ Reply to This | # ]

Hush, the big man is entering the Circus Ring ..
Authored by: Laomedon on Wednesday, April 11 2007 @ 10:09 AM EDT
Sco has filed a motion for pro hac vice admission of David Boies.

[Excuse me, while I get a bowl of popcorn ready]

Now, when is that next hearing?

IBM-1024

[ Reply to This | # ]

Chatlos & Thompson and why SCO?
Authored by: Anonymous on Wednesday, April 11 2007 @ 10:35 AM EDT

It sure looks to me like the plain intent of Novell at the time was to sell the
whole Unix product line to SCO. That makes sense to me too since Novell was
really out of their element when they branched off into Unix in the first
place.
SCO had a longstanding Unix product line.

The only real fog on the scenery is the "binary royalty stream"
thing.

But the issue that Chatlos and Thompson don't talk about is the agreement
amendment. If everything was so clear why was any amendment needed? Maybe that
is what Novell will tell us when they reply.

Another thing I wonder about: SCO had a Unix product before this agreement,
right? Did they already have source code licenses... it seems like they must
have. Were they actually buying new technology with this deal or just the right
to say they "Owned Unix"? I can see why Novell wanted to sell... the
part I don't understand is why SCO wanted to buy.



[ Reply to This | # ]

The minutes of Novell Board Meeting...
Authored by: mram on Wednesday, April 11 2007 @ 11:25 AM EDT
I would appreciate if someone can point me to this exhibit. Or at least when
and along with which motion this exhibit was filed...

Thanks

[ Reply to This | # ]

Darl McBride - paragraph 38
Authored by: Anonymous on Wednesday, April 11 2007 @ 12:15 PM EDT

Good old Darl says that SCO didn't disclose offending code because of
non-disclosure.

The problem with that argument is that IBM was party to the source code already!
They were under nondisclosure, so SCO could have disclosed the offending code
to them, no problem.

[ Reply to This | # ]

Blurring the Old-SCO (Tarantella) - New-SCO (Caldera) Distinction
Authored by: Anonymous on Wednesday, April 11 2007 @ 12:15 PM EDT
It seems to me the focus on the APA and the copyright transfer (or lack thereof) between Novell and Old-SCO is blurring the fact that New-SCO (Caldera) did not acquire its interest in Unix (whatever that might be) from Novell. Rather it (New-SCO/Caldera) acquired its interest in Unix from Old-SCO (Tarantella). New-SCO (Caldera) is NOT a successor to Old-SCO (Tarantella). It merely "acquired significant assets and operations from Tarantella, Inc." according to the 10Q it filed in 2001. See below.

In order for New-SCO (Caldera) to establish that it holds any Unix copyrights at issue, it has to establish that there were two transfers, the first from Novell to Old-SCO and the second from Old-SCO (Tarantella) to New-SCO (Caldera).

I'm certainly not familiar with all of the filings in these cases, but the 10Q filed by New-SCO (Caldera) with the SEC for the Quarter ending July 31, 2001 seems fairly dispositive as to what New-SCO (Caldera) acquired from Old-SCO (Tarantella). (See pages 7 and 9-10 in the 10Q).

Caldera 10Q for July 31, 2001

Since it claims in the 10Q that what it acquired was "all of the assets and operations of the server and professional services groups of Tarantella, Inc. ("Tarantella"), formerly The Santa Cruz Operation, Inc.", it is rather obvious that New-SCO (Caldera), recognized that Old-SCO (Tarantella) did not have any substantial Unix copyrights to transfer.

Below is what New-SCO (Caldera) acquired from Old-SCO (Tarantella). The 10Q acknowledges that the table set forth in it "summarizes the allocation of the consideration to the tangible and intangible assets acquired". No mention of copyright is made. Recall that these assets, according to the 10Q, constitute "all of the assets and operations of the server and professional services groups of Tarantella".

Purchase price allocation:

Liabilities assumed net of tangible assets acquired $(5,482)

Accrual for severance payments, non-essential facilities and related costs $(3,011)

Intangible assets acquired:

Distribution/reseller channel $26,700

Existing technology (consisting primarily of UnixWare and OpenServer) $5,800

Acquired in-process research and development $1,500

Trade name and trademarks $800

Distribution agreement $1,400

Goodwill $66,080

Total $93,787

New-SCO (Caldera) states that it paid 800k for trade name and trademarks but lists nothing for copyrights acquired from Old-SCO (Tarantella). With respect to "existing technology" acquired, that consisted of, primarily, "UnixWare and OpenServer", and was valued at only $5.8 million. What New-SCO (Caldera) valued in the transaction was Old-SCO (Tarantella)'s distribution/reseller channel and good name ("Goodwill").

As this 10Q makes clear, New-SCO (Caldera) did not pay for, nor did it acquire, any Unix copyrights of significant value from Old-SCO (Tarantella). Irrespective of the APA and amendments between Novell and Old-SCO (Tarantella), New-SCO (Caldera) did not acquire any substantial copyrights in Unix.

[ Reply to This | # ]

Why IBM "showed very little interest"
Authored by: Anonymous on Wednesday, April 11 2007 @ 01:14 PM EDT
Once they realized that SCO was talking about JFS and "methods and
concepts", they knew SCO had nothing real. So they responded with
indifference, of the form of "you guys are off your rocker, go away".

MSS2

[ Reply to This | # ]

Why is M'OG 's testimony relevant?
Authored by: Anonymous on Wednesday, April 11 2007 @ 01:21 PM EDT
I don't understand why Kimball should care about what MOG has to say. MOG may
have been leaked some inside information here and there, but she is still just a
reporter. I would think that Kimball would be more concerned with primary
sources.

M'OG seems to have no facts, or technical expertise; just hersay and opinions.

[ Reply to This | # ]

Selling software and copyrights
Authored by: ausage on Wednesday, April 11 2007 @ 01:32 PM EDT

A good reason why selling "code" does not mean "assigning the copyright.

I am a software developer. Under my business model, I normal transfer ownership of the code I develop to my clients so that they may do what they wish with it after I am long gone. However, I NEVER, NEVER assign the copyrights on the code.

I keep the copyrights for myself, because the next time a client comes along and I need "process A", it is sitting there in my code library. It I had assigned the copyright then I would have lost the ability to reuse my own work.

Duh....

[ Reply to This | # ]

Darl's way with words
Authored by: Focus on Wednesday, April 11 2007 @ 02:37 PM EDT
Just delurking here, but I find the wordplay Darl [can I call you Darl, Darl? I get the feeling I am really beginning to get to know you] uses something to smile about.
Of course IANAL and not totally familiar with all ins and outs but there we a few things I noted:
Part 17: In early 2003, SCO begon to discover IBM had disclosed proprietary UNIX technology to Linux. Through a series of calls, ... to protect the integrity of our intelectual property.
As I understand it, the code dislosed was indeed proprietary, although it was IDM's property and not tSCOG's. Also Darl does not state the property was tSCOG's, but rather that they wanted to have their IP protected [unrelated to the IP IBM disclosed].
Item 19 where he is surprised by letters that IBM state they did not disclose tSCOG IP, after bragging they disclosed IBM IP [just filling in some missing (IMHO) adjectives in his statements].
Item 23 where Darl talks about Mr. Palmisano initially telling him that tSCOG's claims would not affect IBM's stock price "or words to that effect". The words were probably something like: "You have absolutely nothing of value in your claims and tSCOF's actions have no merit, and will have no negative effect on IBM" [of course I wasn't there and my "words to that effect" or just a best-guess].
Item 37 is somewhat of a low point however:
In each of the Complaints that SCO has filed, to the best of my knowledge, SCO and its counsel set forth in detail the nature of our claims based on what we knew at that time.
This appears to indicate either: - a) That Darl's knowledge is not very good or - b) That they did not have much detail when filing all of the complaints, that they needed discovery to pinpoint the indecent disclosures. [IOW they sued on a hunch]
Was Darl coached in this testimony or did he miss his calling and should have become a lawyer?
Just my 2 euro-cents ;-)

[ Reply to This | # ]

Copyright certificates
Authored by: Anonymous on Wednesday, April 11 2007 @ 02:58 PM EDT
One of the most interesting exhibits is the copyrights which are in SCO's
possession. The certificates identify various works authored by AT&T and
with their copyrights assigned to USL.

SCO makes much of having physical possession of the certificates. I fail to see
why that is relevant. My lawyer has the ibiblio.orgle deeds to my house in his
custody, but it doesn't mean that actually he owns my house.

What is perhaps a more interesting question is if Santa Cruz had physical
possession of the certificates showing USL as owner, why didn't they get a clear
written assignment of copyrights from Novell, and why didn't them get new
certificates - at the time of the APA? Likewise, why didn't Caldera (SCO) get
clear written assignments and new certificates at the time they bought 2
divisions of Santa Cruz.

In any case, I'm at loss to figure out how copyright certificates saying that
USL owns the copyright are supposed to help prove that SCO is the undisputed
owner.

Quatermass
IANAL IMHO etc.

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Why doesn't Novell pull the plug on SCO?
Authored by: Anonymous on Wednesday, April 11 2007 @ 03:19 PM EDT
I was reading through Exhibit 1 which states that SCO is supposed to pay Novell
100% of SVRX revenue with SCO keeping 5% for themselves. That money has been
sitting "on the table"...well, yes, in their lawyer's bank accounts,
for some time.

IANAL, It would seem to me that a quick solution would be to demand payment and
force SCO into bankruptcy, thus ending the whole farce immediately leaving a
court-appointed trustee doing a "fire sale" on the remaining assets.

This has probably been discussed here many times, and I'm probably just dredging
up old business, but I keep wondering why Novell keeps allowing them to avoid
their payments. That would seem to be a suit in itself beyond the whole Linux,
IBM, Open Souce, etc. thing.

I know if I don't make my car payments, then I will lose my car. Seems the same
applies to SCO. Don't make your payments to Novell and you lose your money, and
any rights to market UNIX forever.

-dh

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Nonresponsive answers?
Authored by: Anonymous on Wednesday, April 11 2007 @ 03:25 PM EDT
Q: Did Mr. Stone say anything about harming SCO?...

O'Gara: Logically, there wouldn't be any other reason.

I wonder why the lawyer taking the deposition allows her to make statements about her assumptions of others' reasons and effectively put her words in others' mouths, rather then directing her to just answer yes or no? Was she deposed by a lawyer for SCO, who wouldn't have a problem with that?

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Declaration of Edward Normand, with exhibits (O'Gara Deposition and McBride Declaration)
Authored by: Anonymous on Wednesday, April 11 2007 @ 03:37 PM EDT
It is interesting how SCO uses "laughingly" to support the position
that Novell's action was meant to harm SCO financially, but that aspect of MOG's
testimony is not part of the exhibit.

And in any event, what is the motive behind Novell's purported action? At that
time Novell and SCO were not in a legal fight, it was simply a public dispute
about the APA. What possible motivation could Novell have had for harming SCO
financially by tanking their stock price? SCO is just peeved because Novell made
the announcement at a time calculated to give them publicity and the market
reacted to the announcement by trashing SCOs stock.

If you have a contract with someone and the other party starts publicly stating
they have rights not conveyed in the contract, would you not need to protect
your interests by publicly responding to the other party's statements? SCO
flaunting the terms of the APA suggests that Novell's revenue stream from the
agreement is in jeopardy doesn't it?

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    Last two PJ articles.
    Authored by: AcousticZen on Wednesday, April 11 2007 @ 04:08 PM EDT
    I wanted to thank PJ for the previous two articles she has written. I only
    recently started following this case so closely (before I knew about Groklaw,
    there was a dearth of in depth information about the case.) Because of my recent
    joining, I was rather naive about some of the reporters' stupidities that had
    happened in the past. I had read many a back issue, but that really did not give
    me a good overview of what really happened.

    The past two articles has made me feel much better informed on the history of
    Groklaw, and other reporting. I much better understand the wariness of Lyons
    (although I already had formed an opinion of O'Gara). Forgive me if some of my
    past posts exposed my extreme naivitiy.

    Thanks PJ for the overviews. It may behoove newcomers, if there was a "the
    story thus far" section someone could turn to for an abriged version.

    Just a suggestion,

    AZ

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    Declaration of Edward Normand, with exhibits (O'Gara Deposition and McBride Declaration)
    Authored by: Dark on Wednesday, April 11 2007 @ 04:15 PM EDT
    "How do these folks sleep at night?"

    They sleep on piles of money. A mattress stuffed with
    $1000 bills is an excellent soporific.

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    Didn't O'Gara just commit professional suicide ?
    Authored by: Anonymous on Wednesday, April 11 2007 @ 04:21 PM EDT
    Maureen O'Gara describes herself as a professional journalist.

    I do not know a lot about law, let alone american law, but I was under the
    impression that basic work ethic would make any journalist try his best not to
    link any information he is given "off the record" or informally
    ("nod, wink") to any particular source.

    This is not because I consider journalism the most ethical of professions, but
    because a journalist that does not protect his sources would find it much harder
    to stay in his profession.

    While it may be that a journalist must answer all questions asked at a
    deposition, he is certainly not obliged to speculate on the intentions of his
    source.

    Therefore, it seems to me that Maureen O'Gara does not see much of a future in
    what I would consider journalism.


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    Timing of Novell announcement w/ SCO financials is a red herring
    Authored by: Anonymous on Wednesday, April 11 2007 @ 05:00 PM EDT
    SCO waves around the timing as being suspicious, but Novell had no real choice
    in the timing of their announcement, since it was driven by SCO's (very) public
    pronouncements which directly affected Novell.

    When someone is making negative public statements about your company, you
    respond ASAP. SCO chose to not only make public statements about Novell less
    than a week before their quarterly financial statement, they also promised to
    make even more announcements in their quarterly financial teleconference.

    One of the announcements SCO made was to specifically attribute statements to
    Novell that contradicted what Novell's counsel had already informed SCO in
    writing. At that point Novell had no choice but to counter those statements
    forcefully and publicly.

    So it doesn't matter a whit what Stone told MOG, the fact remains that Novell
    really could not have taken any other course of action. Speculation as to
    ulterior motives with the timing are meaningless when the timing is dictated by
    circumstances. And the circumstances, timing and motives here are entirely
    driven by SCO, not Novell.

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    McBride Declaration, paragraph 28
    Authored by: noli on Wednesday, April 11 2007 @ 05:12 PM EDT
    I suspected that Mr. Goldfarb was trying to manipulate the stock of this company [Baystar] to his own advantage.

    Shocking behavior! - who would do such a thing?

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    Protected "UNIX" technologies?
    Authored by: GLJason on Wednesday, April 11 2007 @ 06:19 PM EDT

    It's amazing to me that SCO's officers are still confusing UNIX technologies and IBM technologies.

    17. ... SCO was attempting to negotiate with IBM regarding their disclosures of protected UNIX technology to the Linux community. In early 2003, SCO began to discover IBM had disclosed proprietary UNIX technology to Linux. Through a series of calls, letters, and meetings, I and other SCO representatives tried in good faith to reach an agreement with IBM to protect the integrity of our intellectual property.

    20. On June 2, 2003, I attended a meeting with counsel for SCO and representatives and counsel for IBM. SCO had a presentation prepared which identified specific examples of AIX and Dynix technology that we had discovered in Linux....I recall that the AIX Journaling File System and the AIX enterprise volume management system were identified as two technologies that had been disclosed to the Linux community. I also remember the emphasis in the presentation on the disclosure of methods and concepts derived from the Unix System V to the Linux community.

    21. During the meeting, IBM representatives showed very little interest in what we were saying.

    Gee, I wonder why... Probably because you start out accusing them of disclosing protected UNIX technology, then it turns out they only disclosed technology they developed themselves and that they own. That's the reason that Caldera only paid $5.8 million for the entirety of UnixWare and OpenServer technologies. It had already all been done by others in BSD and Linux. There wasn't anything left to protect in UNIX. If JFS includes any UNIX technology that IBM licensed from AT&T that had not already been disclosed, or if it violated AT&T's copyrights, SCO may have a case. You can't just lay a blanket claim over anything that has ever touched your code. SCO has utterly failed to show that JFS is a derivative work of UNIX SVRX or that it contains protected AT&T methods and concepts (trade secrets).

    A license is basically a contract that gives one person rights in exchange for compensation. IBM paid AT&T for the rights to use AT&T's UNIX code, including methods and concepts. Nowhere does it grant AT&T ownership of the code that IBM writes. It just restricts what IBM can do with the licensed code. It's not about restrictions at all, it's about granting only certain rights. They're basically saying "You can do X, Y, and Z with the code you are paying to license, and that's it." Contrary to Darl's thinking, contracts are not "something you use against parties you have a relationship with", they are mutually beneficial agreements between parties.

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    More Exhibits.
    Authored by: Anonymous on Wednesday, April 11 2007 @ 06:20 PM EDT
    I have been reading all those exhibits.
    And I am left wondering if most readers commenting here have been reading other
    exhibits that I am not aware of.

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    • More Exhibits. - Authored by: Anonymous on Wednesday, April 11 2007 @ 08:57 PM EDT
      • More Exhibits. - Authored by: Anonymous on Thursday, April 12 2007 @ 03:22 AM EDT
    MOG if it really happended she would have written an article
    Authored by: Anonymous on Wednesday, April 11 2007 @ 06:26 PM EDT
    If it is as MOG says, I would have imagined she would have wrote something about
    it. That is the type of material she is looking for. Anything on the
    borderline. My bet is that if Stone really said that, she would have written
    some conspiracy thing about Novell.

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    Included/Excluded
    Authored by: GLJason on Wednesday, April 11 2007 @ 06:43 PM EDT

    Why hasn't Novell talked about this yet? They talk about copyrights being specifically mentioned in the excluded assets. SCO retorts with Amendment #2 to the APA which says "except those necessary for buyer to exercise their rights under the agreement". Now SCO is claiming ALL the copyrights were transferred. How on Earth does this make sense? If all the copyrights were transferred, why exclude copyrights at all? Not only that, but people seem to forget that there is an "Included Assets" section, which tellingly doesn't list a single copyright to be transferred. If all copyrights were to be transferred, they should be listed in the "Included" assets and not in the "Excluded" assets at all.

    I think that Novell wanted to retain copyrights since Santa Cruz didn't have enough money to purchase them and the royalty stream from UNIX licensees. UNIX sublicensing was nearing its end. Licensees were buying out royalty obligations and no one wanted to pay that much money when they could grab BSD code and do just as well (as Dynix did until they paid a small sum to license some code from SVRX). Basically UNIX licensing was at the end of its lifespan. Santa Cruz wanted the advances from the new version of SVRX and in UnixWare. That's what they were buying. The APA specifically forbids the buyer from entering into new SVRX licenses without the seller's approval. The problem is that copyrights were excluded. Someone noticed this and said "Hey, if I don't have the right to copy and create derivative works, that basically means I can't merge OpenServer and UnixWare, the whole purpose of the APA." I think Amendment #2 is just saying "We aren't transferring the exclusive copyrights, but you can create derivative works and sell them by merging UnixWare and OpenServer."

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    McBride's declaration
    Authored by: rsmith on Wednesday, April 11 2007 @ 07:16 PM EDT

    From the Novell website;

    We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights. Apparently, you share this view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has rejected.

    Darl's declaration:

    At no point did I or anyone on SCO's behalf request that Novell transfer UNIX copyrights to SCO.

    So that's a "liar, liar, pants on fire" to one of them.

    Since SCO has a rather casual attitude concerning "facts" and "truth", I'd be inclined to believe Novell's version of the events, especially having read the APA plus amendments.

    ---
    Intellectual Property is an oxymoron.

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    Exhibit 31
    Authored by: dmomara on Wednesday, April 11 2007 @ 07:52 PM EDT
    Section 2.4 Ownership

    "As between SCO and LICENSEE, ownership of SCO UNIXWARE SOURCE PRODUCT
    including all UPDATES and MODIFICATIONS made by licensee (and any intellectual
    property rights embodied in any such software) is and shall remain in
    SCO."

    Seems to run rather afoul of copyright law. If an update or modification made by
    LICENSEE (not even a specific individual or entity since this is a boilerplate
    apparently issued to many licensees) results in intellectual property then it's
    rather likely to be copyright material. Since licensee doesn't work for hire for
    SCO, the way for ownership of intellectual property in the form of copyright
    material to be transferred from licensee to SCO is either by "action of
    law" or the now familiar USC 11 section 204

    "204. Execution of transfers of copyright ownership

    (a) A transfer of copyright ownership, other than by operation of law, is not
    valid unless an instrument of conveyance, or a note or memorandum of the
    transfer, is in writing and signed by the owner of the rights conveyed or such
    owner's duly authorized agent."

    In the absense of a specific conveyance to SCO of copyright in modifications
    made Section 201 seems to prevail.

    "(c) Contributions to Collective Works. — Copyright in each separate
    contribution to a collective work is distinct from copyright in the collective
    work as a whole, and vests initially in the author of the contribution. In the
    absence of an express transfer of the copyright or of any rights under it, the
    owner of copyright in the collective work is presumed to have acquired only the
    privilege of reproducing and distributing the contribution as part of that
    particular collective work, any revision of that collective work, and any later
    collective work in the same series."

    The GPL operates in the latter fashion, it is "non viral". The UNIX
    licensed try to be viral but probably only achieve being "non-legal".



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    • Exhibit 31 - Authored by: Anonymous on Wednesday, April 11 2007 @ 09:53 PM EDT
    • Exhibit 31 - Authored by: TomWiles on Thursday, April 12 2007 @ 12:36 AM EDT
    • Exhibit 31 - Authored by: Anonymous on Saturday, April 14 2007 @ 04:56 PM EDT
    The PDF's and hidden code?
    Authored by: Starlite528 on Wednesday, April 11 2007 @ 07:53 PM EDT
    Is it just me, or is that some kind of code along the right edge of the pdf's?
    I only looked at the McBride declaration, so I don't know if it's on any of the
    others.

    ---
    "Death continues to be our nations number one killer."
    Henry Gibson

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    The McBride Declaration
    Authored by: mram on Wednesday, April 11 2007 @ 10:47 PM EDT
    McBride starts off by saying that in 2002 and early 2003 they realized that
    their customers were using proprietary UNIX libs with Linux, and so he goes to
    IBM with a licensing plan.

    My question is WHY IBM?

    I mean, logically, they should have approached a customer (like Autozone, or
    whoever else SCO claims was doing this) to discuss this. Why IBM?

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    • Deep Pockets - Authored by: Anonymous on Wednesday, April 11 2007 @ 11:19 PM EDT
    I think I get it.
    Authored by: Ian Al on Thursday, April 12 2007 @ 04:28 AM EDT
    It's becoming clearer. I see now from the Robert Frankenberg deposition that the
    APA excluded assets list only excluded Netware copyrights. So all the SysV
    copyrights obviously transferred with the business as was Novell's intent.

    So, what was the purpose of Amendment No.2? If the APA clearly transferred all
    the SysV copyrights, why does Amendment No.2 ask for the transfer of those SysV
    copyrights needed to run the business? And, why were there no copies of
    Amendment No.2 with both company signatures on it? I thought it was usual to
    jointly sign two copies, one for each party. Is a contract signed by only one
    party legally binding? What if each party only signed their own copy?

    And, why did the CEO, Robert Frankenberg, and the chief negotiator, Ty
    Mattingly, make a contract agreeing the transfer of the SysV copyrights after
    the CEO, Robert Frankenberg, and the board members unanimously, and in the
    presence of Ty Mattingly, agreed not to at the September 18, 1995 board meeting?
    Why, when Ty Mattingly is about to be deposed over the facts of the board
    meeting is there a break in the proceedings after which Ty forgets entirely the
    main purpose and agreement of the meeting? Was it a brainwashing break?

    And, why does Judge Kimball say that the APA means that the SysV copyrights did
    not transfer (as was the Novell board's, formally minuted intention)? He says
    that the APA together with the amendments say the same thing.

    I think I don't get it.

    Still, it is clear that all SCOG have to do now is to show the writings
    transferring the copyrights from Santa Cruz to Caldera. What's that, you say?
    The dog ate them. I could see that being a problem. Still, if SCOG managed to
    magic up partially signed Santa Cruz Amendment No.2 documentation, I'm sure the
    copyright transfer papers will be no problem.

    ---
    Regards
    Ian Al

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    How do these folks sleep at night?
    Authored by: Anonymous on Thursday, April 12 2007 @ 09:08 AM EDT
    > And this is all declared under penalty of perjury. How do these folks sleep
    at night?

    Apparently the same way as my ex-girlfriend :-) hanging from the ceiling, their
    wings wrapped aroung them like a cocoon.

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    Declaration of Edward Normand, with exhibits (O'Gara Deposition and McBride Declaration)
    Authored by: Anonymous on Friday, April 13 2007 @ 03:17 PM EDT
    It's not unfair to bankrupt them now, their own filings admit they will be
    bankrupt in august of this year, long before they reach trial in either case.
    Although I imagine BSF will be obligated to continue to the court cases.

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