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Dancing at a Deposition with Kim Madsen
Thursday, April 12 2007 @ 12:53 AM EDT

If you'd like to see a truly great lawyer at work in a deposition, take a look at the snips from the deposition of Kim Madsen, Exhibit 22, with Novell lawyer Kenneth Brakebill asking the questions. It is one of the many exhibits attached to the Declaration of Edward Normand, 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 in SCO v. Novell.

The Declaration

The setting is that Madsen, who was the manager in the legal department at Santa Cruz under Steve Sabbath, had provided SCO a declaration some two or three months prior, in December of 2006, which you can read as Exhibit 21 in the same bundle with her deposition, stating that it was Madsen's belief that the UNIX copyrights did transfer from Novell to Santa Cruz. The deposition is happening in February of 2007. Here's what the declaration says in pertinent part:

3. In 1995, I was employed as a Manager in the Law and Corporate Affairs group at The Santa Cruz Operation, Inc. ("Santa Cruz"). I worked with substantially with Steve Sabbath, the General Counsel for Santa Cruz.

4. As I explained in my previous Declaration, I participated in the negotiation of Santa Cruz's acquisition of the UNIX and UnixWare business from Novell, Inc. ("Novell") as support Santa Cruz's legal team. I worked with and participated in several meetings and teleconferences with the lead negotiators and others on both sides of the transaction.

5. In this Declaration I explain Novell's retained interest in royalties paid under certain existing agreements under the Asset Purchase Agreement ("APA) dated September 19, 1995, and Amendment No. 1 thereto dated December 6, 1995. The negotiations and drafting of the APA occurred under a compressed time schedule. To avoid delay, the parties executed the APA with the intent to clarify it, as necessary, through an amendment to be executed on the closing date. That amendment was Amendment No. 1 to the APA.

6. Santa Cruz's intent and agreement under the APA and Amendment No. 1 was for Novell to transfer the entire UNIX business, including the UNIX source code and copyrights, to Santa Cruz except for binary royalties paid under the existing agreements pursuant to which UNIX System V (or "SVRX") licensees were paying such royalties, and which Novell conveyed to Santa Cruz under the APA as part of the UNIX business. Santa Cruz also intended and agreed that it would pay part of its revenues earned from the ongoing UnixWare business if Santa Cruz hit certain annual distribution or sales benchmarks through December 2002. Santa Cruz did not intend or agree to remit any other fees, royalties, or amounts under any other existing or prospective agreements.

7. This binary royalty interest that Novell retained was simply a means to lower the purchase price to SCO. My understanding was that Novell had no interest in continuing in the UNIX business at all, and if Santa Cruz could have paid the full purchase price originally proposed by Novell, Novell would not have retained the binary royalty stream or any rights to protect that royalty stream. That context makes it clear that it was the intent of the APA and Amendment No. 1 that Novell retained rights to protect that existing binary royalty stream, but there was no reason or interest for Novell to have broader rights relative the UNIX business and assets it sold Santa Cruz.

8. The language of the APA and Amendment No. 1 reflects the foregoing intent and agreement. Section 1.3(a)(i) of the APA states: "It is the intent of parties hereto that all of the Business and all of Seller's backlog, if any, relating to the Business be transferred to Buyer." Section 1.2(b) of the APA provides that Santa Cruz will pass through 100% of the "SVRX Royalties" as defined and described in Section 4.16(a), and Novell will pay Santa Cruz an administrative fee of 5%. Section 4.16(a), in turn, defines "SVRX Royalties" by reference to the SVRX Licenses listed in the Schedule to the APA listing the assets transferred, Schedule 1.1 (a).

Indeed, Section 1.2(b) specifies: "Seller and Buyer further acknowledge and agree that Seller is retaining all rights to the SVRX Royalties notwithstanding the transfer of SVRX Licenses to Buyer pursuant hereto, and that Buyer only has a legal title and not an equitable title in such royalties within the meaning of Section 541 (d) of the Bankruptcy Code.'' (Emphasis added.) These provisions reflect Santa Cruz's intent that it would remit only the Royalties paid under the licenses transferred, not Royalties from future licenses not yet in existence (and thus not transferred).

9. Section 4.16(a) includes this language: "Following the Closing, Buyer shall administer the collection of all royalties, fees and other amounts due under the SVRX Licenses (as listed in detail under Item VI of Schedule 1.1 (a) hereof and referred to herein as 'SVRX Royalties')." Schedule 1.1 (a) identifies the "SVRX Licenses" by product name and release, which reflected Santa Cruz's intent to refer to the specific product supplements that identified the licensed product and source code right-to-use fees, sublicensing fees, and per-copy distribution fees that applied to the licensed product, which fees were not identified in any other agreement signed by the licensee.

10. As to the reference in Section 4.16(a) to "all royalties, fees and other amounts due under the SVRX Licenses," the parties addressed that part of Section 4.16(a) in Amendment No. 1, which added Section 1.2(e) to the APA. Section 1.2(e) clarified the four categories of fees that Santa Cruz retained notwithstanding Novell's right to receive the binary royalties due under the transferred SVRX Licenses:

  • Sections 1.2(e)(i) and 1.2(e)(iv). Santa Cruz would not remit future revenues from contracts to provide support or maintenance to existing SVRX licensees, nor the binary royalties due under Santa Cruz's own SVRX licenses.
  • Section 1.2(e)(ii). Santa Cruz would not remit source code fees paid under any amendment to an SVRX License granting an additional copy of the SVRX product or the right to use it on an additional CPU.
  • Section 1.2(e)(iii). Santa Cruz would not remit source code fees paid under new SVRX licenses approved by Novell pursuant to Section 4.16(b) of the APA.

Novell had the right to approve new SVRX licenses solely to protect Novell's interest in the existing SVRX binary royalty stream, such as where Santa Cruz might have sold an SVRX licensee a new version of the product (not a UnixWare license) and thereby extinguished the binary royalties due to Novell. If there were any ambiguity on that meaning of Section 1.2(e)(iii), Amendment No. 2 made clear, referring to the APA, that "Novell may not prevent SCO from exercising its rights with respect to SVRX source code in accordance with the Agreement."

11. Amendment No. 1 made clear that Santa Cruz was not prohibited from amending or entering into new SVRX licenses as an incidental part of licensing UnixWare. UnixWare products are built on the prior versions of the UNIX technology. Accordingly, when Novell and its predecessors licensed a UnixWare product, they also licensed all prior products as an incidental part the license. Amendment No. 1 reflected the parties' intent and understanding that Santa Cruz would continue to license the prior UnixWare and SVRX products with its UnixWare licenses without additional approvals from Novell and without remitting any payments to Novell. This was simply consistent with the reality of licensing UnixWare.

12. The APA and Amendments thereto thus reflect Santa Cruz's intent in entering into the APA: Santa Cruz was obligated to remit to Novell only the binary royalties that were then being paid and that would continue to be paid under the existing agreements pursuant to which UNIX System V licensees were paying such royalties, and which Novell conveyed to Santa Cruz under the APA as part of the UNIX business.

13. Novell's rights under the APA and Amendment No. 1 either to approve SVRX licenses or to require SCO to waive or take other actions relative to those licenses related solely to the existing licensees who were paying binary royalties that Santa Cruz would pass through to Novell. Novell had no right to direct SCO to do anything regarding licenses or the UNIX business Novell sold to SCO except to protect the licensing stream that was in place in September 1 995.

14. I understand that Novell also takes the position that the interests it was granted in the APA and amendments thereto to protect the royalty stream it retained gave Novell protection from competition with respect to competitors such as Sun and Microsoft. The APA and its amendments were never intended to afford Novell any such prospective protections. There was never any discussion or agreement of any kind regarding any such competitive protections. In fact, the only non-compete provision in the APA imposed restrictions on Novell to the benefit of Santa Cruz.

15. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed: December 1 1,2006

[signature]
Kimberlee Madsen

The Deposition

So that is the starting point, and it sounds pretty strong and impressive, but by the end, as you'll see, Brakebill's gotten the witness to admit that in fact no one ever said a word about copyrights one way or another. It was just assumed, according to this witness, that they would transfer, and everyone on the Santa Cruz negotiation team just assumed it in unspoken ways. And the witness is simply unable to replicate what she said in the declaration in her deposition, leaving the impression, at least in my mind, that it was written for her by the SCO lawyers, and that she was used as a handy vessel to say what they needed someone to say.

Of course the witness seems to have no clue that saying there were no conversations at all about copyrights means the copyrights didn't transfer, or more accurately it means her testimony doesn't help show that they did. But Brakebill knows it, and I've little doubt that SCO's attorney in attendance, Edward Normand, was chewing on Tums for his tummy.

Joke. Joke. Assumes facts not in evidence.

But in the movie about this case, that's what I see him doing about midway through the deposition. You'll see him objecting quite a lot. The witness never seems to catch on, however. But when your lawyer is popping up and down, objecting like this, it might just mean you should take a little time to ponder before you answer and that maybe he thinks you are entering deep waters.

If you wish to compare with the APA itself, you'll find it and all the amendments on our permanent Contracts page. The entire deposition segment is well worth reading for the subtleties, but here are the pertinent bits, with my comments interspersed in colored text:

Brakebill: Why don't you turn to Exhibit 51, which is your declaration, and I'll ask you to look at whatever you feel comfortable to look at, but I believe that paragraphs 8 -- 8 through 12 related to your beliefs concerning UNIX ownership.

Madsen: Yes.

Normand: Objection to form.

Madsen: I don't know. I don't remember which specific provisions. And I'd be happy to take the time to review this document if you want me to do that.

Brakebill: I'll give you the opportunity in due course. I'm trying to test your memory aside from having the document in front of you right now. You gave the declaration on UNIX ownership two months ago, is that right?

Normand: Asked and answered.

PJ: Note that Normand already sees where Brakebill is going, and he's trying to send the deponent a clue that the question is setting up to demonstrate that she certainly can't retain info very long, not two months even, so how does she recall what happened in the mid-90s? Also, if she says something like, I think it was three months, or I can't remember exactly, that helps him too.

Madsen: November 4th.

PJ: The cluetrain didn't reach the station. And as you can see on the declaration, it was December 11.

Brakebill: In the last two to three months you gave a declaration in which it was your personal belief that UNIX copyrights did transfer from Novell to Santa Cruz as part of the asset purchase agreement, correct?

Madsen: Correct.

Brakebill: And what provisions, if any, were you relying upon for your personal belief that the UNIX copyrights did transfer?

PJ: Methinks he suspects that the complex legal language in her declaration didn't spring from her own thoughts and personal beliefs, but maybe from SCO's lawyers.

Madsen: Well, I relied on the description of the business in 1.1(a) and the recital A. I don't recall which other provisions I may have relied on, but I also relied on my recollection of the transaction and the negotiations surrounding the transaction, the conversations with Novell as to what they were conveying and the internal conversations as to what we believed we were buying.

PJ: First, read the declaration again very carefully. Do you see a description of the business in "1.1(a) and recital A" as the provisions the declaration was based on? Note also that this answer opens a door, one that Brakebill had not asked her about. The question was, what *provisions* in the document did you rely on. The answer is, I forget but I do remember *conversations*, so watch as he walks right through that volunteered open door.

Brakebill: So to make sure that I understand your testimony...

PJ: When you hear that, run for the hills. Any time a lawyer tries to get you to say the same thing a different way, he is hoping you goof and contradict yourself. Or he hopes to close the opportunity for you to say you mispoke, if you don't. It's a sign he thinks you've said something useful to him, not you.

Brakebill continued: ...the provisions that you right now can point to in support of your belief that UNIX copyrights did transfer from Novell to Santa Cruz are recital A in section 1.1(a) of the asset purchase agreement, is that correct?

PJ: First, he's making her state firmly that this is the provision, even though the declaration mentions others instead. He would naturally like her to stand firmly on this new dime. You didn't have any other provisions to base your testimony on, he's asking? The declaration, as you've seen, is quite a bit more elaborate and mentions other sections, but not 1.1(a), only Schedule 1.1(a). Note Normand steps in instantly.

Normand: Objection to form.

Madsen: The provisions that I can point to in the absence of reading the agreement afresh, yes.

PJ: So there's the first admission of weakness. She can't remember much, she definitely doesn't recall what she wrote and signed under penalty of perjury two months prior as being the basis for her belief the copyrights transferred, yet she is testifying as to what happened a decade ago and what all the clauses in the declaration meant. Further, it's now pretty clear she didn't come up with the thoughts in the declaration herself. It might have been wise to refresh her recollection by rereading the document; if in fact she did that, then for sure the lawyers came up with the contents.

Brakebill: And how, if at all, do you believe that recital A and section 1.1(a) of the asset purchase agreement...

PJ: You see a killer at work. He does not quote from the declaration, or tell her, "but in your declaration you mentioned the following sections instead" and not that one. He asks her to explain the current thin dime on which she has precariously perched herself.

Madsen: And schedule 1.1(a), which is referenced in section 1.1(a).

Brakebill: How do you believe that recital A, section 1.1(a), and section 1.1(a) influenced your personal belief that UNIX copyrights did transfer from Novell to Santa Cruz?

PJ: Having gotten one admission that this is her only basis, this one part of the agreement, and gotten her to repeat it as being the basis for her belief, and at least referencing one section she did in fact cite in the declaration, now he moves the pawn one square forward, asking for an explanation of the meaning of the language relied upon. Here is the language of the section I believe she now is claiming she is relying on, Recital A, then section 1.1(a), followed by the schedule section 1.1(a) referenced:

RECITALS

A. Seller is engaged in the business of developing a line of software products currently known as Unix and UnixWare, the sale of binary and source code licenses to various versions of Unix and UnixWare, the support of such products and the sale of other products which are directly related to Unix and UnixWare (collectively, the "Business").

Next Section 1.1(a):

1.1 Purchase of Assets

(a) Purchase and Sale of Assets. On the terms and subject to the conditions set forth in this Agreement, Seller will sell, convey, transfer, assign and deliver to Buyer and Buyer will purchase and acquire from Seller on the Closing Date (as defined in Section 1.7), all of Seller's right, title and interest in and to the assets and properties of Seller relating to the Business (collectively the "Assets") identified on Schedule 1.1 (a) hereto. Notwithstanding the foregoing, the Assets to be so purchased shall not include those assets (the "Excluded Assets") set forth on Schedule 1.1 (b):

And Schedule 1.1(a) reads like this:

Schedule 1.1(a) Assets (Page 1 of 4)

1. All rights and ownership of UNIX and UnixWare, including but not limited to all versions of UNIX and UnixWare and all copies of UNIX and UnixWare (including revisions and updates in process), and all technical, design, development, installation, operation and maintenance information concerning UNIX and UnixWare, including source code, source documentation, source listings and annotation, appropriate engineering, notebooks, test data and test results, as well as all reference manuals and support materials normally distributed by Seller to end-users and potential end-users in connection with the distribution of UNIX and UnixWare, such assets to include without limitation the following:...

V. Intellectual property - Trademarks UNIX and UnixWare as and to the extent held by Seller (excluding any compensation Seller receives with respect of the license granted to X/Open regarding the UNIX trademark).

The list includes licenses, claims, binaries, etc. but in the Intellectual Property category, no copyrights are listed as transferring.

Madsen: Because all right, title, and interest... let me get the language here, in and to the assets relating to the business, which is UNIX and UnixWare, were being conveyed to SCO. And included in that would have, of course, been the copyrights.

PJ: This is SCO's theory in a nutshell, that of course all assets means all assets, and that would have to include copyrights. There is no "of course" for Mr. Brakebill, however. So having pinned her to just this one portion of the agreement, and the *assumption* that it must mean copyrights, if it said "all assets", although it doesn't list copyrights, he is ready to advance another square.

Brakebill: And did you understand that in section 1.1(a) of the asset purchase agreement that ... I'll refer you to the last sentence, that notwithstanding schedule 1.1(a) the assets to be so purchased shall not include the assets set forth on the schedule 1.1(b)?

PJ: Uh oh. Iceberg ahead. The wording of Schedule 1.1(b) includes this language:

Schedule 1.1(b) Excluded Assets (Page 2 of 2)

V. Intellectual Property:

A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.

B. All Patents

The witness already said that only 1.1(a) formed the basis of her belief, and here is Mr. Brakebill pointing out 1.1(b), referenced in 1.1(a), which specifically says excluded assets were IP, both all copyrights and trademarks except for UNIX and UnixWare, the language we saw in the board meeting resolution, and all patents. And here, up stands Mr. Normand.

Normand: Objection to form.

Madsen: Yes.

Brakebill: And notwithstanding the excluded assets provision from section 1.1(a), is it still your personal belief that the UNIX copyrights did transfer?

Madsen: Yes.

Brakebill: From Novell to Santa Cruz?

Madsen: Yes.

PJ: This, of course, makes no sense, which is why he asked her to say it twice. Brakebill sees an opportunity.

Brakebill: And why is that?

PJ: Of course, there is no sensible way to explain why this plain language means the opposite of what it says. Here's Normand. He sees what the witness apparently does not. In any case, the witness appears to be like a deer in headlights.

Normand: Objection to form, asked and answered.

Madsen: Because it's clear ...

Brakebill: Let me put it this way. Aside from recital A...

Madsen: Yes.

Brakebill: ... aside from section 1.1(a) in schedule 1.1(a), is there any other reason for why you believe that the assets to be so purchased shall not include the assets set forth in schedule 1.1.(b)?

PJ: Here, I believe he's asking a trick question. If she goes along with his thought, she'll say the excluded assets were indeed excluded. And in any case, he is opening the door to get the witness to talk about what conversations there were by asking if there is any *other* basis, and he's also letting the witness reiterate her incomprehensible position, if she wishes, despite 1.1(b) being indeed clear and quite contradictory.

Madsen: I didn't understand the question.

PJ: Either that or the witness now realizes that she will step into quicksand no matter what she says and wishes to think a while. If you are not a lawyer, no matter how much you've been around lawyers, they will always think over your head. This is what you are watching in this deposition. The relentless Mr. Brakebill continues calmly forward.

Brakebill: Aside from recital A, aside from section 1.1(a), and aside from schedule 1.1(a), is there any other basis for your opinion that schedule 1.1(b) does not operate -- that schedule 1.1(b) does not exclude UNIX copyrights from the assets to be sold?

Normand: Objection to form, asked and answered.

Madsen: Yes. As I said before, I also recall the conversations and discussions with Novell as to what the intent of the transaction was, what they intended to convey, what SCO intended to purchase.

Brakebill: And what did Novell convey to you regarding what was going to be conveyed to Santa Cruz with regard specifically to UNIX copyrights?

Normand: Objection to form.

Madsen: I do not recall a specific conversation regarding copyrights, but Novell conveyed that they were clearly divesting themselves of the UNIX business. They had no interest in the UNIX business in retaining any interest in the UNIX business except to the extent that it related to Netware.

And they were very clear about what they were not conveying, which were the patents. And they were clear about a transaction that they had entered into with X/Open regarding the trademark so at no point did they say, "Oh, by the way, we're not giving you the copyrights."

PJ: The witness may think this is helpful. But the only parts that matter are the sections I marked in red. Not a word about copyrights was spoken, so that means SCO must have a writing to prove the transfer, since oral testimony from this witness is useless. And the witness just testified that all assets transferred, yet here the same witness says patents and some trademarks did not. So the hole just got deeper. If others now claim that there *were* conversations about copyrights to buttress SCO's claim, her testimony stands in their way. She says there weren't any. So Brakebill decides to dig a bit deeper.

Brakebill: At any point in time did Novell, anyone from Novell, say to you, "We're going to transfer the UNIX copyrights to Santa Cruz"?

Madsen: No, I don't recall that. It was assumed by everyone that, of course, the copyrights were accompanying.

Brakebill: There were no express words from anyone from Novell to you saying Novell is going to transfer the UNIX copyrights to Santa Cruz, correct?

Normand: Objection, asked and answered.

Madsen: That's correct.

PJ: Imagine how Brakebill is now feeling. This declaration is now truly undone, nay, SCO's entire theory on this point. No one ever even discussed copyrights, so how will SCO now prove intent, even if the judge thinks the agreement is so unclear he wants to listen to testimony about what they intended? (He'll go by the writings alone, unless they are not clear, in which case he will ask those who were there what they intended, and now she says they all just assumed but never actually discussed copyrights.) How do you know anyone's intent, if it was unspoken? You might have forgotten to write something down, but how can SCO explain not even talking about it?

Brakebill: Now, you mentioned patents. If you could turn to schedule 1.1(b) of Exhibit 1 and look at Roman V on Exhibit 2. Roman V(b) says "all patents." Do you see that? Is it your understanding that that relates to all UNIX patents?

Normand: Objection to form.

Madsen: I don't remember which patents there were. I remember a conversation with Ed Chatlos and I believe Burt Levine that they would not be transferring any patents....And some of the patents had been retained by AT&T, the original owner of the UNIX technology, so they weren't Novell's to transfer.

PJ: Holy Batcave, this is interesting. So, Novell didn't get all the assets from AT&T, then? Hmm. It makes a girl wonder if there is anything else that AT&T retained. And it clarifies that buying all the assets or the whole business, as Novell was described as having done, doesn't necessarily mean all of the IP, which tells us that it is possible to run a software business without owning all of the IP, which is one of the main arguments SCO has been trying to make in opposition to that idea. Do you see now why volunteering information to a lawyer deposing you isn't a good idea?

Brakebill: Do you believe that Novell had no rights in UNIX patents at the time it was entered into the Novell-Santa Cruz transaction?

Normand: Objection to form.

Madsen: I don't know. I know that some were retained by AT&T but I don't know that some may have been transferred to Novell. I don't recall that.

Brakebill: But it is your understanding that no UNIX patents were being transferred from Novell to Santa Cruz?

Normand: Objection to form, mischaracterizes her testimony.

PJ: Actually, I don't think it does, because the testimony was that Novell had no patents to transfer, but I guess he's referring to the later statement that maybe Novell got some from AT&T.

Madsen: I'm not sure what you mean by patents. No patents relating to specific areas of the UNIX technology. There is no, to my knowledge no broad patent over all of UNIX. It wouldn't be patentable, I don't believe, but there were no patents relating to the UNIX assets being transferred, being conveyed to SCO.

PJ: So, it's all set up nicely for him now, and Brakebill goes in for the closing piece.

Brakebill: If someone were to make a statement that Novell transferred all UNIX intellectual property to Santa Cruz, is it your understanding that that statement would be incorrect?

Madsen: I'm sorry?

PJ: The cluetrain just arrived at the station, and the witness realizes, apparently, that without patents, *all* UNIX intellectual property couldn't have transferred, which brings the witness back to the original basis for belief that copyrights must have been conveyed because they must have, since *all* assets were conveyed. But all assets were not transferred. Uh oh. Mommy, mommy! He asks her again.

Brakebill: If someone were to make the statement that Novell transferred all UNIX intellectual property to Santa Cruz, would that be an incorrect statement?

Normand: Objection to form, calls for speculation.

Madsen: I don't understand the question.

PJ: Heh heh. Right.

Brakebill: If someone were to say that Novell transferred all intellectual property relating to UNIX to Santa Cruz, do you have a view as to whether or not the statement would be correct?

PJ: This is a question you can't answer and win. If she says no, I have no view, then it contradicts what this witness already said was her view. If you say yes, I have a view, what in the world can the witness say now that won't contradict what she said before, and thus destroy all basis for the claim that the copyrights had to have been conveyed? Yes. Mr. Brakebill knows that. As does Mr. Normand.

Normand: Objection to form, calls for speculation.

Madsen: I don't think I can answer that question. I don't know which patents there may have been. So if you're including that in your definition of intellectual property, then that would have been excluded. But I believe Novell also, we licensed back to them certain rights. So I don't know if that fits into your definition of conveyance of intellectual property. So I'm sorry. I can't answer that.

PJ: I think a better answer would have been to stop after the first sentence, and let the lawyer ask why not. Here the witness has introduced another angle, the license back to the company that the witness claims had said had no further interest in UNIX or in having a UNIX business any more.

Brakebill: Is it your understanding that the business that was being sold was a UNIX business?

Madsen: Yes.

...[Brakebill shows the witness attachment D of Exhibit 1, "Seller's Patents and Patent Applications Affecting the Business?"]...

Brakebill: I take it you would agree that none of these patents were transferred to Santa Cruz as part of the deal?

Normand: Objection to form.

Madsen: I believe that's correct.

Brakebill: Now in your declaration which is on Exhibit 51...

Madsen: Uh huh.

Brakebill: ... in paragraph 8 you say, "It was never agreed or even discussed that Novell would be retaining any copyrights to UNIX." Do you see that?

Madsen: Yes.

Brakebill: Again, you didn't have any discussions with anyone at Novell where they told you that UNIX copyrights were being transferred, correct?

Normand: Objection to form and asked and answered.

PJ: Normand, of course, knows what the next line of question will be, namely if they ever had any conversations that said that they would be conveyed.

Madsen: I don't recall any conversations with Novell pertaining to copyrights.

PJ: Bingo! They can all go home now. A master at work. Of course, it continues, as Brakebill twists the knife.

Brakebill: Were you part of any conversation between Santa Cruz representatives and Novell representatives where Santa Cruz put the question to Novell, "Can you transfer the UNIX copyrights to us?"

Normand: Objection to form.

Madsen: No, I don't recall that.

Brakebill: Are you aware of any conversations that may have taken place between Santa Cruz representatives and Novell representatives where anyone from Santa Cruz asked Novell to give them the UNIX copyrights as part of this deal?

Normand: Objection to form.

Madsen: No, I do not recall any conversation regarding the copyrights. It was assumed that the copyrights came with the business, but I do not have any specific recollection about a conversation regarding copyrights.

Brakebill: So it's fair to say that you were assuming that the UNIX copyrights were being transferred?

Normand: Objection to form.

Madsen: I don't believe that was my assumption alone, but yes, I was assuming that.

PJ: Again, the witness says too much, volunteers a piece that can only hurt that side, that others too were merely assuming. Of course, Brakebill doesn't miss this new opportunity. The better answer would have been, "yes". Skip the flowers. Skip the helpful explanations. It doesn't matter what the attorney thinks of you, only what you say.

Brakebill: And I take it it's your view that other members of the Santa Cruz negotiating team were assuming that the UNIX copyrights were being transferred to Santa Cruz, is that correct?

Normand: Objection to form, calls for speculation.

Madsen: I believe it was the understanding of SCO and Novell that the copyrights would follow with the business.

Brakebill: I'm just asking about Santa Cruz right now, okay? Is it fair to say that it's your view that other members of the Santa Cruz negotiation team were assuming that the UNIX copyrights were being transferred to Santa Cruz?

Madsen: Yes, that's my understanding.

See what I mean? This witness has just stated on the record that nobody had a clue, nobody even talked about copyrights. That certainly doesn't help SCO, and I'm truly mystified why it attached this deposition to its summary judgment motion.

Brakebill asks more questions, and one of them includes the information that prior to the APA, Santa Cruz had no SVRX license with Novell, and hence had no rights relating to UNIX System V. The deposition cuts off at that point, so I can't figure out what that is about, but I highlight it because some of you may see the significance even if I don't.

My comments are not to make fun of the deponent. I would probably do no better. There really is no way to outthink a brilliant lawyer. It's what they do for a living: outthink the rest of us.


  


Dancing at a Deposition with Kim Madsen | 416 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topic!
Authored by: Just_Bri_Thanks on Thursday, April 12 2007 @ 01:15 AM EDT
Goes here!

---
Bri. Just Bri. Thank you.
(With a long i sound.)
Without qualification, certification,
exception, or (hopefully) bias.

[ Reply to This | # ]

Corrections here please ...
Authored by: jbb on Thursday, April 12 2007 @ 01:15 AM EDT
... so they are all in one place.

---
You just can't win with DRM.

[ Reply to This | # ]

Witness Coaching?
Authored by: Anonymous on Thursday, April 12 2007 @ 01:38 AM EDT
> But when your lawyer is popping up and down, objecting like this, it might
just mean you should take a little time to ponder before you answer and that
maybe he thinks you are entering deep waters.

Wouldn't that be witness coaching, if you cue your answers off of the lawyer's
objections? I thought that's how it worked--they give frivolous objections
meant to suggest answers to you, the deponent.

Of course, IANAL, so it's entirely possible I have no idea what I'm talking
about here. And whatever else I might say of SCO, it's pretty clear that their
witness was not coached, or they'd never have said all those things harmful to
SCO's case.

[ Reply to This | # ]

Dancing at a Deposition with Kim Madsen
Authored by: brian on Thursday, April 12 2007 @ 01:42 AM EDT
"Brakebill asks more questions, and one of them includes
the information that prior to the APA, Santa Cruz had no
SVRX license with Novell, and hence had no rights relating
to UNIX System V. The deposition cuts off at that point,
so I can't figure out what that is about, but I highlight
it because some of you may see the significance even if I
don't."

Pure speculation here (IANAL and all)....

If they had a SVRX license prior to the APA that may have
given them "extra" rights over their own modifications
above and beyond the APA much like IBM is claiming about
their code. This is just limiting this deposition to the
APA IMO.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

Dancing at a Deposition with Kim Madsen
Authored by: CraigV on Thursday, April 12 2007 @ 01:51 AM EDT
One hopes that the questioning tactics work to reveal the
truth, and not to obscure it by confusing the person being
questioned. I think the assumption here is that she has
been coerced into signing a deposition created by SCO and
that the questions are designed to reveal that.

I worry, however, that a completely honest person giving
truthful answers could be made to look foolish under
skillful questioning.

[ Reply to This | # ]

Dancing at a Deposition with Kim Madsen
Authored by: Anonymous on Thursday, April 12 2007 @ 02:00 AM EDT
PJ -- Brilliant!!!

[ Reply to This | # ]

Curling up with a great night's read
Authored by: AcousticZen on Thursday, April 12 2007 @ 02:00 AM EDT
This has to be one of the most entertaining articles in a while. The brilliant
dissection of the SCO argument, when the declaration seemed *so* air tight . .
.

What a great read!

AZ

[ Reply to This | # ]

Great analysis. Like a well commented chess game
Authored by: piskozub on Thursday, April 12 2007 @ 02:39 AM EDT
Great job, PJ. It really read (to a chess player) like a well commented master
level chess game. With one difference. here only one player was a master. The
other had a good coach but coaches do not move the pieces.

And the analysis is very helpful if one has to undergo this kind of experience.
And PJ gives good advice: Never volunteer any information (I'll add: unless you
want to lead the lawyer into asking you a specific question but that won't work
with a really good lawyer). Always think about what the guy may ask as the next
question (therefore do not answer too promptly giving yourself some time to
collect the thoughts) and assume he is better in the game then you are
(therefore avoid trying to outsmart him/her - the example above shows the sad
outcome of this).

I know a little of this game as I was deposed once. Luckily the guy was nowhere
near Normand's level and I always knew what he was leading to three questions in
advance. But do not expect this when a real professional deposes you.

[ Reply to This | # ]

Dancing at a Deposition with Kim Madsen
Authored by: belzecue on Thursday, April 12 2007 @ 02:39 AM EDT
Crikey. Goosebumps time. Anyone else picturing Tom Cruise in the final courtroom
scene from A Few Good Men?

[ Reply to This | # ]

My reading of this application:
Authored by: darkonc on Thursday, April 12 2007 @ 02:42 AM EDT
Rat runs into the middle of the road and yells (squeakily) at the oncomming steamroller:
STOP!
I mean, SCO is asking for a summary declaration and posts a deposition in which their star witness says that there were no conversations about Copyrights, and that any 'conclusions' about Novell passing the copyrights to Santa Cruz were purely assumed.
(as a boss of mine used to say 'assume makes an ass of U and Me.')

Is it possible for the judge to make a summary judgement that goes against the mover? (I can see no way that he could find for SCO.) ... Or is he limited to saying something like "Given that, with the information before me, I would be likely to find for Novell in a summary motion on this subject, I can see no way I could reasonably find for SCO."?

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Assume
Authored by: rsteinmetz70112 on Thursday, April 12 2007 @ 03:14 AM EDT
Any time I have to explain a decision or action by saying I made an assumption,
I usually have made an error, unless I had articulated that assumption
previously.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

  • Assume - Authored by: Winter on Thursday, April 12 2007 @ 03:51 AM EDT
    • Assume - Authored by: aha on Thursday, April 12 2007 @ 08:50 AM EDT
      • Assume - Authored by: Winter on Thursday, April 12 2007 @ 09:40 AM EDT
      • Assume - Authored by: Anonymous on Thursday, April 12 2007 @ 10:02 AM EDT
    • Assume - Authored by: rsteinmetz70112 on Friday, April 13 2007 @ 11:47 AM EDT
Stick close to the facts and never go to sea ...
Authored by: Anonymous on Thursday, April 12 2007 @ 03:45 AM EDT
Apologies to G&S.

A regular witness should stick very close to the observable facts. Only experts
are allowed to extrapolate from the facts.

A witness is safe if they can say something like: "I clearly remember a
conversation with Foo. They said bar and left no doubt in my mind that they
meant bar." Saying something like: "We all just kind of assumed
bar" is speculating about what the other parties were thinking.

PJ implies that the witness allowed SCO's lawyers supply some of the wording for
her deposition. Ouch. If you let yourself get into a position like that, you
end up having to defend someone else's words. You will end up looking like a
fool or worse, a liar.

I agree with PJ. You should say only what you know to be solid fact. You
should stick with that. Someone who asks you to change your evidence does not
have your interests in mind. They are interested in their own case and don't
mind if you perjure yourself. Don't do it. I have a particular case in mind
here. It was a murder case and a witness told police she remembered seeing the
accused arriving at home at four o'clock. The officer told her that her
evidence would let a murderer go free. She then agreed with the officer that
she must have been wrong. The result was a wrongful conviction.

[ Reply to This | # ]

Deposition experience
Authored by: jws on Thursday, April 12 2007 @ 03:52 AM EDT
My own experience in a trial as an expert gives me sympathy for Masden. I was
told at one point that I was not being questioned about war crimes, and could
answer at greater length, but I could tell my own counsel wanted me to limit
what I said.

I answered things not nearly as important as this person did, and I truely to
this day don't know why the questioning went how it did. We also deposed the
other sides expert, who was very heavy in technical credentials, but had never
seen either the product of the company, the product of the company I was
retained by, or the family that was fielded at the time by about 30 other vendor
competitors.

I had extensive source code in the product I was an expert for from working for
the equivalent to AT&T, and was very familiar with the company's current
offering. I also asked for and recieved a demonstration of the product and had
some things done for me, as well as requesting a backup of their systems on tape
to examine.

So it would have been interesting to see how the other shoe would have dropped,
as it did on Marsden in this case. I had the real product experience, so I
guess my word would have been worth something, but I could easily be outdone by
the credentials of the other parties expert.

It certainly is hard to think while being deposed. It probably takes about half
your IQ away, and you don't get to use notes. This seems to be silly, to go on
the turf of the lawyers, as lambs to slaughter, as I am sure Marsden would not
have said what was said given some better notes.

I guess they do that to try to block what SCO had obviously done, a lawyer just
using a deponent as a drone. But in technical cases I can't see how the
technical witness can keep things straight. I can't w/o notes in daily work and
would not want to try in a court case where the stakes are much higher.

[ Reply to This | # ]

Dancing at a Deposition with Kim Madsen
Authored by: phantomjinx on Thursday, April 12 2007 @ 04:18 AM EDT
Excellent article.

Would someone just clue me in please. What is the point of all the objections
please?

In court, the lawyer asks a question, an objection is made, sustained by the
judge (or overruled) and the witness doesn't have to answer (or answers if
overruled).

Seems the witness answered even though objections were made. IANAL so could
someone fill me in.

Oh and why did she not read her own declaration prior to the deposition? Based
on other comments, you are not allowed witness coaching but could she not have
done her own homework?

Regards

phantomjinx

[ Reply to This | # ]

Didn't old SCO want to GPL SysV ...
Authored by: Anonymous on Thursday, April 12 2007 @ 05:57 AM EDT
... and then paddle back?

I *think* i remember something like that: SCO (then eager to get on the
Linux-Train) announcing their intent to putting all the old UNIX-source under
Open Source Licenses so it could be mixed with Linux. Then quickly paddling back
because there was "some complication" with the contracts.

Maybe *that* was the first time someone there noticed that they didn't buy what
they *thought* to buy. But then that was forgotten, not least because of
management turnover. Aparently later someone dug up the old contracts, thought
he struck gold and set some things into motion before giving them a closer
look.

What i really wonder is: where were SCOs lawyers?

Where were they when the contract was drawn up. Even then copyrights were too
important to just *assume* they'd be transferred, anyone would want that in very
clear writing. The only clear statement about copyrights i see here is schedule
1.1(b) where their transfer is *excluded*.

And where were SCOs lawyers when SCO started all that ruckus and announced to
sue IBM for a quadrillion dollars? I mean: wouldn't you at least *try* to
quietly lay some groundwork? Maybe try to get a clear statement about the
UNIX-copyrights from Novell? Oh yes, they *did* ask Novell for that. Only
*after* they started their campaign and all the world knew their intentions.

SCOs case is already bad enough as it is, there being no SysV code in Linux. But
at least they should've tried to clarify what they own and what they don't.

But it all never really was about sueing IBM. It was about SCOs shares flying
high on some bold statements. They just should've given up as the bubble burst
instaed of spending all that money on BSF.

[ Reply to This | # ]

Dancing at a Deposition with Kim Madsen
Authored by: Anonymous on Thursday, April 12 2007 @ 06:16 AM EDT
It's a really good demonstration.

But isn't this all to no purpose in that R Duff Thomsompson in Exhibit 10 says
that Novell intendend to sell the business in total including copyrights? And
shouldn't he know, seeing as he was the person charged with disposing of the
Unix business? Isn't the intent to sell what's in question?

I understand that there's no deposition of him taken by Novell in that list, so
I guess that it could have all changed when he was asked specific questions
about copyright inclusion. But I'm not sure how.

Jeff





[ Reply to This | # ]

Another take on Madsen
Authored by: Anonymous on Thursday, April 12 2007 @ 07:30 AM EDT
It seems to me that as manager of the legal department she was probably the
logical person to focus on for a deposition. On the other hand I wonder how whe
feels about the deal. I wonder is she was put into a position where she needed
to supply the testimony but knowingly poisoned it.

[ Reply to This | # ]

Dancing at a Deposition with Kim Madsen
Authored by: Anonymous on Thursday, April 12 2007 @ 07:49 AM EDT
For some reason something just clicked as I read this.
<tin foil hat>
I think that SCO truly believed that they owned all the
UNIX ip, even though it was clear that Novell did not
transfer the copyrights and certain patents to Santa Cruz.
M$ wanted to get hold of those ip rights to use against
any competetor using UNIX-like software, e.g Linux. Hence
the SCO/M$ deal. However, as the SCO trials proceed, it
becomes clear that SCO really didn't own what they
represented themselves as owning. Now M$ has a problem.
M$ starts to put pressure on SCO to "get that ip or
else!" The last thing SCO wants is trouble from M$.
The last thing M$ wants is to sue SCO and expose their
deal with SCO. So, while SCO continues to perpetrate their
fraud, M$ decides to try another tact - get chummy with
Novell, who seems to be the real UNIX ip holder. M$ makes
a deal with Novell to be able to get hold of the UNIX ip.
But, there is still a slight problem - it is not clear what
that ip really is because even Novell is not absolutely
sure what they own. So, all M$ can do is make threats
until they actually become the UNIX ip lord. But, as is
hinted at in these depositions and by various other comments
here on Groklaw, there may not really be much there that
could be used as a hammer against any competition.
</tin foil hat>

The timing may be all off but that is my theory.





[ Reply to This | # ]

Isn't copyright a right - the one to copy?
Authored by: Anonymous on Thursday, April 12 2007 @ 08:21 AM EDT
Wouldn't "all rights" include the right to copy - the
"copyright"?

[ Reply to This | # ]

"Santa Cruz had no SVRX license with Novell"
Authored by: Anonymous on Thursday, April 12 2007 @ 08:38 AM EDT
That's a doozie.

Novell was of course "successor in interest" to the SCO AT&T-IS
SVR3.2 license SOFT-000302. Brakebill is eliciting an implication that the
licensor remains AT&T with Novell acting as agent through succession to USL.

[ Reply to This | # ]

Thinkers and Dancers
Authored by: Anonymous on Thursday, April 12 2007 @ 08:39 AM EDT
> There really is no way to outthink a brilliant lawyer.
> It's what they do for a living: outthink the rest of us.


- The deer in the headlights was herself a lawyer.

- She allowed others to set up a declaration for her. She
signed that declaration without paying much attention to
detail.

- Lawyer Norman, the one with deep insight and foresight,
has submitted the deer's declaration as supportive of
his motion. He was not thinking the way you think he was
thinking. Or does his outthinking include quick death for his own
client?

[ Reply to This | # ]

Connecting the dots
Authored by: Anonymous on Thursday, April 12 2007 @ 09:00 AM EDT
If I've learned anything from PJ, it's that in this kind of law you have to
connect the dots. You can't assume, presume or expect something to transfer
from company to company without a record which can be referred to. Ms. Madsen's
assumption, the assumptions of Santa Cruz negotiators and even, it would seem,
some of Novell's assumptions are valueless. I don't remember seeing such
records, only assumptions, regarding the transfer and division of assets when
Santa Cruz and Caldera interacted to eventually become SCOg (fka Caldera
something or other) and Tarantella.

Perhaps this has already been addressed, and the info exists elsewhere on
Groklaw, but shouldn't the whole "who owns what" question boil down to
the COURT seeing documentation for ALL transfers? I know that the topic here is
the Novell-to-Santa Cruz transfer, but questions have also arisen regarding the
ATT-to-Novell transfer. Have we seen the Santa Cruz-to-Caldera transfer
documents? Are there additional ones regarding
Caldera-transforming-to-SCOg-and-Tarantella?

msfisher@work so not logged in.

p.s. PJ, I know about enforced medical breaks. I had a two-month one last fall.

[ Reply to This | # ]

Dancing at a Deposition with Kim Madsen
Authored by: mac586 on Thursday, April 12 2007 @ 09:05 AM EDT
"The setting is that Madsen, who was the manager in the legal department at Santa Cruz under Steve Sabbath, had provided SCO a declaration some two or three months prior, in December of 2006,"

When I read this the first time I assumed Kim Madsen was an attorney. After digesting PJ's analysis of the desposition, I wonder if Kim Madsen has studied law. Or maybe she was simply not as clever as Novell's Mr. Brakebill?

[ Reply to This | # ]

Why SCO Continues At All...
Authored by: OmniGeek on Thursday, April 12 2007 @ 09:22 AM EDT
"That certainly doesn't help SCO, and I'm truly mystified why it attached
this deposition to its summary judgment motion."

I think I've arrived at an understanding of this. Put yourself, for the moment,
in the place of the German General Staff very late in the Second World War, as
the Allies rolled in from all sides, crushing the increasingly desperate and
decreasingly effective resistance. Defeat was clearly inevitable, the position
utterly untenable, but the top leadership still refused to deal with reality. So
they fought on.

Disclaimer to those irate idiots who won't pay any attention anyway: I am *NOT*
comparing the misdeeds of SCO's top management to those of the Nazi leadership;
there is clearly no comparison. I *AM* suggesting the possibility of an
analogous loss of contact with reality. Other parallels come to mind, notably
involving folks like George Armstrong Custer and James Thomas Brudenell.

IMHO, this entire situation can only be understood by inferring the presence of
a major reality disconnect within the SCO team; mere malfeasance and fronting
for Microsoft don't adequately explain their wackiness.

---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.

[ Reply to This | # ]

The Missing Declarations of Sabbath and Tolonen
Authored by: sk43 on Thursday, April 12 2007 @ 09:46 AM EDT
The APA was signed by Frankenberg for Novell and Mohan for Santa Cruz. SCO includes declarations and/or depositions from both. Amendment 1 and the Technology License Agreement were signed by Duff Thompson for Novell and Alok Mohan for Santa Cruz. SCO includes declarations and/or depositions from both.

Amendment 2 - with the crucial language about copyrights not to be excluded - was signed by James Tolonen for Novell and Steven Sabbath for Santa Cruz. (Both also signed off on Amendement X). Where are their declarations and/or depositions? Why is Kim Madsen being asked to speak for the both of them?

Steven Sabbath has submitted two declarations so far in SCO/IBM: here and here. He was also deposed in SCO/IBM (sealed). Apparently they do not tell SCO what SCO wants to hear. Will these documents appear in Novell's response?

[ Reply to This | # ]

Dancing at a Deposition with Kim Madsen
Authored by: joef on Thursday, April 12 2007 @ 10:30 AM EDT
I noted the difference between the date the declaration was executed. Dec 11, 2006, and the date Kim so clearly recalled during the deposition, "November 4." I suspect she clearly recalled the November date because that was when she spent a lot of time with the NewSCO lawyer who was fishing for something that could be put in the declaration. She was not terribly impressed with what happened on December 11: That was just another piece of paper to sign.

One wonders if she had any intermediate input, in the way of review and editing, as the declaration was being prepared. Or if she bothered to read in carefully before she signed it. She certainly reviewed it shortly before the deposition session, based on the specificity [good word!] of her answers when citing sections of the APA.

[ Reply to This | # ]

PJ - Fantastic analysis
Authored by: vb on Thursday, April 12 2007 @ 10:48 AM EDT

I love it when you do that!

This is why I really read Groklaw. Out of all the exhibits, I would have never
zeroed in on this one as being critical and realized what was truly being said.

Thank you so much for walking us through the Q&A and giving us the
commentary of what is really happening.

[ Reply to This | # ]

Why didn't Brakebill ask ...
Authored by: Anonymous on Thursday, April 12 2007 @ 10:57 AM EDT
if the witness had in fact written her declaration completely by herself?

Is that just completely out of bounds? Or are they waiting for the trial to ask
that?

Thad Beier

[ Reply to This | # ]

SCO hoping Intent will win the day.
Authored by: Anonymous on Thursday, April 12 2007 @ 11:44 AM EDT
Isn't that why Novell wanted this to be a copyright case? SCO seems to think
that intent = transfer. This is the only hope they have. But I think this
deposition puts a lot of doubt on intent if their weren't any discussions at all
on copyright. How could it be intended if it wasn't even discussed. I would
have imagined SCO must of mentioned the copyrights at least verbally. It is
amazing that someone could assume and of course it must be intent. On a side
note, I noticed that the lawyer didn't object to every question like in other
depositions. It must be a strategy that only some lawyers use to mess up the
deponent.

[ Reply to This | # ]

Kim Madsen "A Manager"
Authored by: Anonymous on Thursday, April 12 2007 @ 11:49 AM EDT
It kinda reminds me of people who try to stretch their resumes to sound more
than they really are. If she was an "office manger", it really could
just be like a secretary. Here at my company an Office manager is just a
glorified secretary for a director.

[ Reply to This | # ]

A question on objections...
Authored by: Anonymous on Thursday, April 12 2007 @ 12:15 PM EDT
Throughout the deposition, the laywer for SCO kept objecting but the deponent
answered the question anyway. Is this just a method of marking disagreement for
use when the deposition is used in other proceedings??

Thanks.

[ Reply to This | # ]

  • See other comment - Authored by: Anonymous on Thursday, April 12 2007 @ 12:27 PM EDT
Wow
Authored by: Anonymous on Thursday, April 12 2007 @ 12:22 PM EDT
I can sincerely say I don't want to be deposed for anything
anytime soon!

It still looks to me, and makes sense to me, that Novell and Santa Cruse really
did want the copyrights to transfer. But the agreement surely doesn't convey
that in a straightforward manner.

And now we have a different set of players involved different management at
Novell and a whole 'nother bunch at the faux-SCO.

If I were an SCO lawyer... (and believe me, I'm not a friend of Darl, so this
is his one and only pity-freebie)
I would lean hard on the list of conveyed assets, particularly the specific
words "source code". They bought more than a license to the source
code, they bought ownership of it. I think an argument could be sustained that
ownership of the source code implied copy-rights.

[ Reply to This | # ]

Dancing at a Deposition with Kim Madsen
Authored by: Anonymous on Thursday, April 12 2007 @ 12:38 PM EDT
Even under Masden's 'theory' of the contract as set forth in "her**"
declaration, she essentially admits that the rights she believed were reserved
by Novell would support a finding that Novell retained the right to waive an
SCO-purported breach by an existing UNIX licensee -- because her declaration
admits that Novell's retained rights were focused on protecting their revenue
stream from licensees.

Even though IBM had bought out the license, IBM would have been in a position to
sue Novell for the return of the buy-out fee, in the event that SCO acted
capriciously and tried to restrict IBM's rights.

So --Masden's declaration appears to be a statement against SCO's interest, as
it can apply to SCO v. IBM.

[ Reply to This | # ]

chain of ownership
Authored by: stites on Thursday, April 12 2007 @ 01:25 PM EDT

"And some of the patents had been retained by AT&T, the original owner of the UNIX technology, so they weren't Novell's to transfer."

This statement should bring two more agreements into play, the agreement between AT&T and USL and then the agreement between USL and Novell. According to SCO, Novell sold all of their UNIX business to Caldera. However Novell did not own anything UNIX related which was excluded in the transfers from AT&T to USL and from USL to Novell.

Have the two prior agreements been included in the evidence?

------------------
Steve Stites

[ Reply to This | # ]

Now I understand SCO's consternation
Authored by: Anonymous on Thursday, April 12 2007 @ 01:25 PM EDT
1.1(a) and 1.1(b) contradict each other. 1.1(a) says "all rights".
No "except". Then 1.1(b) says "except".

It's not exactly unclear. One paragraph clearly says A, and then the next
clearly says not-A. It's not unclear or ambiguous; it's clearly and
unambiguously illogical.

Whoever signed that should give his employers their money back.

[ Reply to This | # ]

Puzzle me this Batgirl
Authored by: rsteinmetz70112 on Thursday, April 12 2007 @ 01:54 PM EDT
If as Kimberlee says everyone just assumed that the copyrights were included,

Who wrote the schedule of excluded assets? and why?

Why didn't that just jump off the page at nearly everyone involved (including
her)?

Who wrote the strange language in Amendment 2? and why?

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Dancing at a Deposition with Kim Madsen
Authored by: Anonymous on Thursday, April 12 2007 @ 02:08 PM EDT

Just a thought... nobody's going to make, much less watch, the movie about this case because it would be way too long and nothing ever happens.

Paint dries faster than this case.

[ Reply to This | # ]

Dancing at a Deposition with Kim Madsen
Authored by: timkb4cq on Thursday, April 12 2007 @ 03:34 PM EDT
Not to diminish the fine performance of Kenneth Brakebill, but it appears to me that SCOGs problem in this deposition is primarily that Ms. Madsen seems to have no dog in this fight.

She seems determined to tell The Whole Truth, not just the truths that help SCOG. She was asked to submit a declaration for SCOG saying that she understood the copyrights transferred and was willing to do so as that was what she believed.

But when asked about the details by Mr. Brakebill, she doesn't appear to even listen to Mr. Normand. I think that's because she understands Mr. Normand is not her attorney - he's SCOG's. And she's going to just be open & honest because it's not her fight and civil trials are supposed to be about getting at the truth, right?

Such a witness is a loose cannon for whatever attorney needs their testimony. Too bad for SCOG that she was among the best support they had for their position.

[ Reply to This | # ]

Respect for the US legal system.
Authored by: JJ on Thursday, April 12 2007 @ 03:47 PM EDT
Do you see now why volunteering information to a lawyer deposing you isn't a good idea?

My respect for the US legal system waxes and wanes. I've been greatly encouraged by the faith you've expressed in juries, and their ability to come to correct conclusions under our adversarial system. That faith had been damaged by the knowledge that one jury found OJ Simpson not guilty of the murder of Nicole Simpson, while an independent jury found him guilty of her wrongful death for the self-same act. My faith has been encouraged by the faith you've expressed in judges and in the decisions that the judges in SCO v. IBM have written. My faith has also been encouraged by my own encounters as a prospective juror and the experience I had at that time. My faith has also been encouraged by my own religious faith and what I've found in the Bible regarding courts of law.

Despite all that I have to cringe when I read things like the passage of yours I quoted above. Of course, you and I both believe that SCO is falsly claiming rights to code that they don't rightfully have, and the passage you are referring to tends to affirm that SCO don't have those rights. The net result is that the deponent offered testimony that we both believe helps the court get to the truth of the matter. My claim, then, is that it's a Good Thing that the deponent volunteered information to a lawyer deposing her. (Or him. I misremember the sex of the deponent.)

If I were a witness for my current employer and they were claiming rights that they did not rightfully have, I would want my testimony to accurately reflect that fact. In fact, I can only think of two cases in which I would not want to volunteer information. The first case is if I were desirous of deceiving the court to the benefit of my employer (or whomever.) The second case is if a lawyer were attempting to deceive the court.

The former case appears to be ruled out by our faith in juries and the legal system in the US. The latter case appears to be ruled out similarly.

Like Kim, I don't have perfect recall of a date two months in the past. Like almost everyone, I recall the gist of events happening last decade. If courts and juries cannot tell the difference then our faith is misplaced.

JJ

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Plausable theory for SCO having included this...
Authored by: veatnik on Thursday, April 12 2007 @ 03:57 PM EDT
Picture the Harried SCO lawyer preparing 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 in SCO v. Novell.

He says to a couple of the new paralegal's (hired to help prepare the mountain
of overlength briefs that keep this case on track), "Find me all existing
documents that talk about the transfer of copyrights from Novell to SCO. We need
to have them available to attach to this Motion."

He leaves them to do the dirty work while he heads out to his afternoon lacross
game.

By the time he gets back to the office there is only enough time to scan the
results of the search quickly before finalizing the Motion. "Whew, done
just in the nick of time", he says as he gives it to the office courier.

The rest, as they say, is history.

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Kim Madsen's boss speaks
Authored by: PTrenholme on Thursday, April 12 2007 @ 04:27 PM EDT

As reference above by sk43, there is a deposition by Mr. Sabbath at IBM-835-Ex_254 . On page 13 he states:

26. As discussed above, the fundamental business deal reflected in the Asset Purchase Agreement was that Santa Cruz would acquire Novell’s Unix Ware business and Novell would effectively retain the legacy UNIX System V licensing business. My understanding was that the language in Amendment No.2 quoted above was intended to implement this business deal with respect to copyrights or trademarks. So far as I know, neither Santa Cruz nor Novell ever identified the specific copyrights or trademarks for which a transfer of ownership was “required” for Santa Cruz to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. I do not know whether Novell ever executed an instrument of assignment to transfer ownership of specific copyrights or trademarks to Santa Cruz, nor do I know whether such an instrument was required in order to effect the transfer.

27. Furthermore, I do not know what copyrights, if any, Novell owned with respect to UNIX source code or object code. I do not have any specific recollection of performing due diligence to determine what source code or object code copyrights Novel1 owned, or whether Novell had acquired copyrights with respect to the source code or object code in connection with its acquisition of UNIX System Laboratories, Inc, (“USL”) in 1993. Although we managed certain UNIX related trademarks following the acquisition, so far as I know Santa Cruz never registered any copyrights with respect to UNIX System V source code or object code following the acquisition.

(My underlining.)

So, no “due diligence,” no transfer of copyrights, etc. So we can believe Ms. Madsen’s comment that there were no specific discussions about copyright transfer, nor much interest in the topic.

Interesting, eh?

---
IANAL, just a retired statistician

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Kim Madsen's allegiance?
Authored by: funkyj on Thursday, April 12 2007 @ 04:34 PM EDT
While we know that Ms Madsen signed a declaration in support of TSCOG's claims,
is there any reason to believe she is biased in favor of TSCOG or has any vested
interest in them winning their case?

I'm guessing she does not have a vested interest and this fact is what is behind
her overly candid testimony. It seems hard to imagine that, if she was a shill
for TSCOG, she would not have followed advice to answer all questions with the
minimum possible response.

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Dancing at a Deposition with Kim Madsen
Authored by: Anonymous on Thursday, April 12 2007 @ 05:29 PM EDT
Witness coaching is a two edged sword. The witness is under oath in a deposition
and in a courtroom. If one coaches a witness to answer specific questions a
specific way, the opposing lawyers can perfectly well ask whether the witness
was told to say what they said by their lawyer. The witness may or may not have
an inducement to lie at that point, but if they answer "yes" to that
question their credibility is called into question, especially in front of a
jury.

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The words that never appeared, yet keep reappearing...
Authored by: Anonymous on Thursday, April 12 2007 @ 05:30 PM EDT
Speaking of statements supplied by the lawyers, there's a specific phrase that
keeps repeating through all of these SCO declarations that I find highly
suspicious. Particularly since its a phrase that never appears in the APA or
amendments that the declarations are all talking about.

All of SCO's declarents refer to the "binary royalties" when talking
about what Novell retained. Now the APA doesn't say that, and the first anyone
ever heard about it was when SCO tried to avoid Novell's waiving of the IBM
license termination by arguing that under the APA Novell only had very narrow
binary only rights and that their SCOsource license was outside of that.

So we have language that is not in the actual agreement and that only appears in
SCO arguments well after the events in question, being conveniently used in
these declarations to describe those events and the intentions behind those
events.

One has to wonder why, if that was what everyone was thinking and intending, the
actual agreement says something entirely different. Just like the list of
excluded assets...

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Maybe I am just dense
Authored by: Anonymous on Thursday, April 12 2007 @ 05:35 PM EDT
Doesn't the following specifically say that the copyrights were not included in
the transfer of assets:

Schedule 1.1(b) Excluded Assets (Page 2 of 2)

V. Intellectual Property:

A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.

Schedule 1.1(a) says that all assets except those excluded in schedule 1.1(b)
would be transferred to SCO from Novell. Since Schedule 1.1(b) says "All
copyrights and trademarks, except for the trademarks UNIX and UnixWare."

Doesn't this mean that the copyrights were excluded from the sale?

Tom S.

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Schedules 1.1a and 1.1b
Authored by: GLJason on Thursday, April 12 2007 @ 05:38 PM EDT

Wow, this was enlightening. Someone had to have some conversation about copyrights though. What I never got was that if copyrights were transferred, why are they missing from schedule 1.1a. It makes no sense. They are specifically mentioned in the excluded assets, but they aren't mentioned in included assets at all.

That goes back to my theory about exclusive copyrights. If all copyrights were denied to Santa Cruz, Santa Cruz would no longer have the right to conduct their business. In responding to requests from Unix Licensees, they would be required to make additional copies of Unix to ship to them. They also need the right to prepare derivative works in order to merge OpenServer and UnixWare. I believe this is why they executed Amendment #2. As the APA stood prior to Amendment 2, Santa Cruz would have had to obtained an additional license from Novell in order to administrate the SVRX licenses and in order to create the merged product.

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Unix vs Unix
Authored by: Anonymous on Thursday, April 12 2007 @ 05:43 PM EDT

I like the fact that SCOG is still trying to keep the fact that Unix is not actually Unix from coming clearly out in the open.

For those that just suddenly got confused with the above, the "Unix" and "Unixware" sold to Santa Cruz were specific products, such as Unix Sys V.

The Unix that is NOT a product is referenced via the "single unix specification" that is under ownership and control of the Open Group. Anyone with a product that conforms to the specification and is willing to get the certification can easily claim that their product is Unix Compliant (or along those lines).

I'm sure SCOG would like to keep the distinction between the two as confused as possible rather then seperating them as:

Your Honor, I object. That is detrimental to my case!

RAS

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Calling the shots in a red dress
Authored by: Anonymous on Thursday, April 12 2007 @ 07:42 PM EDT
A blast from Groklaw's past: PJ is commenting about a new lawyer Novell has hired (emph. mine):
Thursday, June 09 2005 @ 09:40 PM EDT
Now this is interesting. Novell has added a new lawyer to the team handling SCO v. Novell. [...]

I don't know why Novell has hired him. But I know one thing. You don't hire a litigator to write your corporate bylaws.

Litigators are not like other people. They're not even like other lawyers. It's a breed apart. Litigators live and breathe to fight, and they like to win. It's like chess players. They have to love the moment they say, "check" to be willing to spend so much time plotting and planning and strategizing.

So, Novell has hired a litigator.

Check mate!

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No way to out-think a lawyer? Objection your honor!
Authored by: FreeChief on Thursday, April 12 2007 @ 09:06 PM EDT
There really is no way to outthink a brilliant lawyer.
I might go along with that if you added what you no doubt meant: when you are a deponent on a legal matter. I'll bet if the brilliant Mr. Brakebill ever got into a conversation about parsing algorithms with Don Knuth, about Roman history with Edward Gibbon, or about the interpretation of Confucius with Zhu Xi, he would come out of at least two out of three of those encounters looking pretty stupid. Everybody has a different bag of tricks, but nobody has every trick in the book. I wonder if he can even solder a steam pipe without making a ugly, leaky, mess?

--Programmer in Chief

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LAMLAW adds more interest to this issue
Authored by: dmarker on Thursday, April 12 2007 @ 10:13 PM EDT
Link ...

Lamlaw on the Novell tSCOg copyrights

I couldn't see any other link to this so here it is.

He writes about this issue of what did & didn't get transferred. It helps again to create perspectve.

DSM

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Quick summary
Authored by: Anonymous on Friday, April 13 2007 @ 12:41 AM EDT
Not only do they not have copyright transfer in writing, they don't even
remember discussing it with Novell. Love it!

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The exception that proves the rule
Authored by: DES on Friday, April 13 2007 @ 02:51 PM EDT

There is an old saying from the Roman legal system that is often quoted but seldom properly understood: "This is the exception that proves the rule".

The original sense of the expression is not the mostly facetious one one in which it is used today. Rather, the idea was that if the text of a law mentioned any exceptions, it was understood that no other exceptions than those mentioned could apply. If, on the other hand, a law did not mention any exceptions, it would be a matter of interpretation whether an exception could be made in each particular case.

I leave it to you to figure out how this applies to this particular deposition and Recital A...

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Just a reminder to the over enthusiastic among us ...
Authored by: dmarker on Saturday, April 14 2007 @ 03:05 AM EDT
http://www.groklaw.net/article.php?story=20040509170125719#c133010

There are several issues we need to keep in perspective.

The Sale to Santa Cruz.

The APA Amendment 1

The APA Amendment 2

That Darl McBride worked for Novel when the sale was made to Santa Cruz.

That McBride *DIDN'T* work at Novel when the APA amendment 2 was done.

The whole of McBride's case rests on his interpretation of APA amendment 2. He
still believes if he can get a jury to accept his interpretation then he has
won.

The issue of this testimony (the theme of this thread) is somewhat moot as it is
quite clear that the original agreement clearly excluded copyrights - the issue
is what did amendment 2 mean & then there is the strange matter that Novell
couldn't find their copy. That of course raised the spectre of it being bogus
but then Novel issued their famous statement that APA amendment 2 did possibly
transfer copyrights.

We need to address that issue far more urgently.

DSM

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