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Kimball Takes It Under Advisement - SCO v Novell Hearing - Updated 2Xs
Thursday, May 31 2007 @ 08:49 PM EDT

Chris Brown just got home from the hearing in SCO v. Novell, and he says it went well. His longer report will come after he can type it up, but as expected the judge took it under advisement. No. Boies didn't argue for SCO. Chris:
I've just gotten home from today's hearings in the SCO v. Novell case. Long day, hot courtroom. Ok, only 3 hours but it felt longer. No surprise here, but Judge Kimball has taken it under advisement. No rulings from the bench.

Regarding the last minute expert declarations, at Judge Kimball's request they were neither used in argument nor rebutted. ... Today's hearing was a "good one" and well worth the read. Not that my report will be all that great. The good stuff is hard to capture. As always Novell's Michael Jacobs was fascinating to listen to. He's easygoing, good-humored, and sharp-as-a-tack.

Jacobs argued for Novell on the first two motions with Edward Normand arguing those for SCO. The last motion (Breach of Contract/Unfair Competition) was argued by Novell's Grant Kim and SCO's Brent Hatch.

So, as soon as he sends the rest, we'll find out the details. If you have questions for Chris, ask away.

Update: Chris' report is in and we have a second eyewitness account.

OK. Here we go, Chris's report, and I've put the Pacer listing of all the motions at the very end, so that if you wish to follow along or check something, you'll have them handy:

********************************

Kimball heard oral argument on three motions today, and in the following order:

  • Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title Based on Failure to Establish Special Damages
  • Novell's Motion for Partial Summary Judgment on SCO's Non-Compete Claim in its Second Claim for Breach of Contract and Fifth Claim for Unfair Competition
  • and SCO's Motion for Partial Summary Judgment on the Copyright Ownership Portions of SCO's Second Claim for Breach of Contract and Fifth Claim for Unfair Competition.

The hearing started at 2pm, ended at 5pm, and had a 10 minute break between the second and third motions.

1. Novell's Motion for Summary Judgment
on SCO's First Claim for Slander of Title
Based on Failure to Establish Special Damages

Novell goes first, Jacobs:

Michael Jacobs argued the first motion for Novell regarding failure to establish special damages. He said that both sides have only identified, or been able to find, two cases of slander of title over intellectual property. He discussed one case. He said that realized and liquidated losses must be shown, and to do this it would require a before and after analysis (before vs after the cloud over, or lien on, the title has been cleared). While most of the cases cited were in Texas, he said that he believes they are in accord with prevailing standards. He said that SCO has not demonstrated such losses, in fact SCO has stated that they will be back before HP, Intel, etc. after clearing the title.

Mr. Jacobs gave an example of a movie script. He might submit a movie script on a topic that is currently "hot", but perhaps Mr. Normand claims ownership of it. Perhaps after some period of time, Mr. Jacobs clears the ownership cloud over the script, but now time has gone by and the movie house passes on the script. Perhaps he sells it somewhere at a much lower value, or never does, thus perhaps he can show a realized or liquidated loss. However in this case, if anything, the value has increased. The Linux market has expanded over the last four years, therefore, the value of the Unix copyrights have increased.

Judge Kimball: At this point Judge Kimball interjected to clarify the value of the copyrights increased for SCO should they get them.

Jacobs: All SCO has offered is speculation on what will happen in the future, Jacobs said. Such speculation is what special damages are designed to weed out.

He referred to a SCO chart from his handout (I believe it to be Novell-285, Exhibit 46) and says that Novell is not listed as a reason for customers not taking a Linux License. SCO's "we are wounded" argument is speculative, but note that the special damages are specific to SCO, not direct and immediate. Regarding attorney fees the Bloomberg case explains that damages are not recoverable in a slander of title action. SCO did not bring an action to quiet title (which can claim attorney's fees). SCO chose the method of bringing action.

He cited next the Brooks Power case (1999... Lexis 11451) and says that the court goes through, with great granularity, what is required in a slander of title case.

SCO's turn, Normand:

Edward Normand, arguing for SCO, opened stating that SCO is entitled to prove damages before a jury.

He said that on May 28th, 2003 when Novell first claimed to own the Unix copyrights, SCO's stock price experienced the statistically largest single day loss, that SCO suffered an effect from Novell's claim of ownership.

After Novell made its claim, sales of SCOsource licenses faded away such that by mid-2004 SCO ended the program. SCO thus lost sales as a result of Novell's actions. The world of Linux users is in the millions. Novell's assertion that SCO contacted these users, or even a significant portion, is a losing argument.

He said that Novell has not presented any cases demonstrating causation is amenable to summary judgment. Utah has adopted the 'Substantial Factors' test. He cited SCO expert testimony that Novell's actions have caused SCO losses. He said that some customers (Merrill Lynch, etc.) cited lack of copyrights as a reason for not purchasing SCOsource licenses. SCOsource was part of SCO's business in 2003 and fell as a result of Novell's actions. There is less willingness in the market to purchase SCOsource licenses now than four years ago.

Slander of title for real property is not the same as intellectual property. It's not a one-time event like real property. One can enter into multiple licenses of IP whereas with real property, only once. Experts state that SCO may not be able to sell licenses at the same value as before Novell's claims. Even if it is proved that SCO has a right to pursue licensing, SCO may no longer have the resources to do so.

After Novell claimed rights to the copyrights, HP began offering indemnification. HP would not be able to enter into agreements to offer SCOsource licenses with sales of its computers.

Novell, Jacobs:

Michael Jacobs rebuts for Novell. He said that this is all about ownership of the copyrights. Does SCO own them or not? If they do, they are able to pursue users.

2. Novell's Motion for Partial Summary Judgment
on SCO's Non-Compete Claim in its
Second Claim for Breach of Contract
and Fifth Claim for Unfair Competition

Novell first, again Jacobs:

Michael Jacobs argued for Novell on the Non-Compete/Technology License Agreement (TLA) motion. He stated that the TLA IIa2 provisions only apply to 2. Composite offerings shall not be competitive to SCO... IIb The proviso shall cease to exist upon "Change of Control"... Look to the APA, page 41, 6.6c for the definition of "Change of Control". It lays out conditions. There is no 2-year limitation or list of companies. If you use logic, there can be no question of what the TLA means. The APA's 6.3c gives a list of companies. SCO "wins" on this provision. In this case the TLA "trumps" the APA 6.3c. When there is a conflict between contracts, the later shall apply. Also the TLA is the terms of the license. It is the license contemplated by the APA.

Judge Kimball: "So this is a legal issue and I get to decide it?"

Mr. Jacobs: Exactly. No extrinsic evidence is required. The contract has an integration clause. There is no ambiguity -- there is a contradiction. There is no clause stating that if there is a conflict, the APA shall rule.

If SCO believes Novell "slipped one past them", put a "gotcha" in the TLA, SCO could have asked to reform the contract. They did not do that, and it's too late now.

Regarding non-compete, Mr. Jacobs discussed breach of covenants versus "License Limitation" clauses, infringement vs contractual breach. I did not follow the details well. He said that the provisions should be treated as license limitations. The document states they are restrictions. He refers to California law regarding non-compete (and later in the day it was noted that the legality of non-compete clauses is now before the California Supreme Court); thus the terms can only be license limitations.

He said that SCO wants to keep their breach of covenants cake and eat their license limitations too. SCO cannot have it both ways.

SCO, Normand:

Edward Normand argued again for SCO and displayed reference charts angled such that we cannot view them from the public seating area. He related that Novell's former CEO, Mr. Frankenberg, stated that Novell had breached their non-compete.

He says the plain language reading, versus Novell's close reading, of the contracts supports SCO's interpretation.

He cites cases demonstrating that a plaintiff can bring claims for both breach of contract and infringement at the same time. He said that the claims are not amenable for summary judgment.

He said that SCO's claims for contract breach and copyright infringement have different elements, and yes (following questions from Judge Kimball), there is overlap.

Regarding change of ownership there is no contradiction. The TLA and APA are an integrated document and must be read together. The APA draws a distinction between change of control of Santa Cruz versus change of control of Novell. Referring to Section 1.6, he says they believe the term "Change of Control" is defined in the APA. SCO believe the plain language is clear. Novell's argument would have Judge Kimball ignore Section 1.6, Section 6.3, and the integration clause.

Regarding California's Section 16.600, the licensor is able to set geographic, temporal, and other means to not conflict with 16.600. Novell and Santa Cruz were in an agency relationship which avoids Section 16.600 because this is "In Term."

Novell, Jacobs:

Mr. Jacobs rebuts saying the arguments have been very well briefed. He asks Judge Kimball to carefully read SCO's cases, claiming SCO ignores the (missing) rescission element that would allow the two claims.

Regarding Novell's former CEO he says that asking what Mr. Frankenberg says 10 years later about a contract 10 years ago (and was not intimately involved in the drafting of) is not the same as asking a lawyer who drafted it. SCO's lawyer, Mr. Sabath, when asked if Section 6.6 applies answered, "Sure looks like it."

3. SCO's Motion for Partial Summary Judgment
on the Copyright Ownership Portions of
SCO's Second Claim for Breach of Contract
and Fifth Claim for Unfair Competition

Novell, Grant Kim:

The court took a 10-minute break after which Grant Kim argued for Novell on the breach of contract/unfair competition motion. He quoted the core elements of this motion from SCO's claim and stated that these must be denied for two reasons: Novell owns the copyrights (briefed and argued on Monday) and SCO doesn't state claims for breach of contract or unfair competition.

He said that in the process of a very public case, Novell made a statement of its interpretation of the contracts and that normally such a statement wouldn't make headlines, let alone be the basis of a claim.

SCO says they are basing their claim on unfair competition, common law, and statutory law. He cited the Proctor & Gamble case heard by Judge Winder.

According to SCO, Novell's statements were misappropriation of SCO's property. There was no seizure. In intellectual property this involves taking the IP and placing it in one's product and selling it (or "palming off" which SCO admits is not claimed).

He said that Judge Winder's Proctor & Gamble case is 90% on-point. In each case SCO cited, they misapplied it in that they don't stand for what SCO says they do.

Simply making statements about copyright ownership is not misappropriation or palming off.

SCO cites three pages of Novell statements, all made between May 2003 and March 2004. He says that statutes (Utah's Unfair Competition Act) cannot be applied retroactively. The only statements cited after March 2004 are Novell's pleadings in this case. Such pleadings are privileged.

SCO points to Novell's web page (containing links to correspondence claiming ownership of Unix) but it was published before March 2004. He cited a Denver case, Bloom v. Goodyear, that indicates that the "first publication" rule should apply, that it is not a "continuing publication."

Utah's Unfair Practices Act has four provisions, none of which apply.

He cited Foley (Cal. Supreme Court, 1988?) about implied covenant of good faith and fair dealing. He said that there are no clauses in the APA that prevent a party from making statements about it. There are no confidentiality terms (other than that each party may keep it's due diligence results confidential). The parties can make statements about the contract. The parties can make statements about the contract. He further claimed there is a strong public policy allowing parties to defend unfair claims by others. He cited a California case to that effect.

SCO, Hatch:

Brent Hatch then argued for SCO starting with: "I keep hearing people say that SCO is in the business of suing people. * I'm* in the business of suing people. SCO is in the business of producing its products and protecting its IP."

He recapped SCO's business timeline. And said that on the day SCO was announcing its most profitable quarter in history, Novell made a public statement that Novell owns the Unix copyrights. He related that Novell's Chris Stone told a journalist that he made the claim at that time to hurt SCO's stock price.

Judge Kimball asks Mr. Hatch about Novell's assertion that this is a duplicate claim. Mr. Hatch replies "That's an interesting question." Judge Kimball says "Yes, it is and I want you to answer it." Mr. Hatch said that each claim has different elements.

He played a video clip of Novell's (Chris Stone?) saying "Al Gore didn't invent the Internet, you (SCO) don't own Linux, and we still own Unix." Mr. Hatch highlighted the last statement "... we still own Unix" and read from Schedule 1.1(a) of the APA.

He said that an element of Utah's Unfair Competition law is misappropriation. We are claiming, he said, that Novell took from SCO its good will and its unfettered right to its IP. We are arguing "straight-up misappropriation." We have demonstrated that words alone can "willy-nilly" steal intellectual property. Novell used more than just words -- they went out and registered the copyrights to Unix. They made statements to the public and SCO's prospective customers. These are affirmative acts.

Regarding the Unfair Competition Act not being retroactive, we are alleging continuing misconduct, he said. If they had a billboard up, and the statute changes, and they left it up, it would be in violation of the statute. Novell's arguing some kind of "grandfather clause." Novell admits they still claim to own the copyrights on their web site.

We didn't say we're claiming (Utah's) Unfair Competition Act. We said "for unfair competition under applicable law." Before the UCA of 2004 went into effect we were under the UPA, the "Unfair Practices Act." We thought they know what laws applied.

On good faith and unfair dealing, Novell calls it a "gap filler."

Judge Kimball: "I think they called it a "Chasm Filler."

Hatch: Mr. Hatch continues, by saying that he thinks this is a classic argument for the need for a good faith and unfair dealing clause. He says that they didn't think that Novell would go out after the agreement and try to destroy SCO's good will and property.

Novell, Kim:

Grant Kim rebuts saying that Novell's actions were defensive. That's what it did with copyrights. Those registrations have no legal effect. If Novell hadn't registered, SCO would now be saying we'd conceded the point since we didn't register.

He requested that Judge Kimball compare the cases in SCO's handout to the court to SCO's filings. He said that the cases SCO has on their tabs 8, 9, and 10 are not in their briefs, so he's not prepared to talk about them.

He said that Utah's Unfair Practices Act's elements are nowhere near this one.

Judge Kimball: Judge Kimball said he will take it all under advisement and held court in recess until Monday.

Thus concluded the day.


Here's our second eyewitness account:

*********************************

Hearing Notes

First motion: Jacobs for Novell and Normand for SCO

JACOBS: Started out by talking about damages not specified. Cited Macia (sp?) and stated damages must be observable. Their claims are speculative. The Supreme Court follows the same hard line of having to have particular damages. This leads to double recovery. Mentioned Rio case.

JUDGE KIMBALL: What attention should be paid to Texas law?

JACOBS: Texas law should be considered. IP context difficult to show costs. Linux expanded during the past four years. There are evidentiary issues that should be addressed. The value of HP was one issue rebutted in that SCO can go back to HP if they prevail.

The cloud on the title is at fault for this situation. The title should be resolved first. Causation clause heightened for unknown users.

SCOSOURCE staff disbanded is unique to SCO. Damages for attorneys should not be recoverable.

Fees for quieting title are allowed. Dismiss on grounds of damages (Hatch attacks this later)

NORMAND: We have a right to present to a jury and have them decide the facts. Summary judgment is inappropriate. We satisfy evidence threshhold for special damages.

Novell claimed to own IP
25% drop in stock price
Stone statement that Novell wanted to hurt SCO

Attorney fees should be recoverable
Special damages

sale
price
prevention of sales
amount not necessary

All loss determination is impossible.

Identifying potential customers is impossible.

Costs asked for by Novell.

This is not defamation.

Was damage caused by Novell?

Publication of injurious falsehood
Substantial factor
Utah contexts adopted
evidence is admissible:
requires expert analysis
Botason says it does

Premature and out of context

no prejudice

Novell ownership claim basis of not purchasing SCOSOURCE

Hearsay? State of mind?

SCO executives testify against Novell

Value to be determined by experts

Loss was realized:

residual effect
IP not a one time event (not like real property)
experts claim it cannot be restored
McBride says it is too late & funds are gone

Right does not imply success
SCOSOURCE value was diminished
Stock price
HP indemnification trumps SCOSOURCE

McBride testifies based on personal knowledge.

JACOBS: Expert testimony must be more than just speculation. IP lawsuits based on ownership.

Damage claim applicable.
Licensing by FEAR has been diminished.
Hiding claims previously now exposed.
Speculative as to before/after condition.
Slander of Title suit not clearing ownership issue.

2nd Motion on Non-Compete -- Jacobs and Normand

JACOBS: (Handed copy of APA and TLA to judge. Referred to tabs throughout discussion.)

The amended APA was constructed and he argued that the plain language controls instead of the special interpretation of SCO.

TLA (technical license agreement) was after the APA.

If Novell is right then SCO has no right.

(refer to 2a2)

Shall not be directly competitive: change in control restrictions cease to exist after date of transfer.

(tab1 Pg 48 of APA)

6.6(c) Change of Control
No 2-year limit. Proviso no longer exists.

APA has different provision for change of control.

APA 6.3(c) -- 2 years from closing date

TLA later in time
APA not a license
All prior understandings of TLA mooted

SCO says TLA not following intent
Reformation of their claims is too late
This is a legal issue to be decided by the judge

THERE IS TO BE A DECEMBER TRIAL/HEARING IN THE SUSE LITIGATION

JUDGE: What year?

JACOBS: Provisions outside the TLA allow suit for copyright infringement claim.

Is this a covenant of the contract of limitation of license?

California law 16600 prohibits covenants of non-compete.

NORMAND: (very careful to place charts where only the judge and recorder can see them)

Frankenberg deposition says that Novell breached the APA on non-compete.

This is a breach of contract of an affirmative promise from Novell not to compete.

These documents apply only to Novell. The Sun v MS case does not cover one or other cases for copyright & breach.

Non-compete not the same as infringement of copyright.

TLA and APA are integrated documents.

APA 1.6 address Novell and Santa Cruz
6.3 and 6.6

Cal 16600 can have geometric and other restrictions on non-compete.

Mentioned unjust enrichment.

JACOBS: 9th District decision says agreement breach must precede infringement
Sun v MS

TLA is not dependent on APA, but is a standalone license.

Also mentioned unjust enrichment -- no context or argument

3rd motion: Breach and Unfair Competition, Kim and Hatch

KIM: The situation is simple and clear.

JUDGE: I like that.

KIM: This is superfluous and improper.

Talks about breach of good faith
Falsely claimed ownership

Both fail for two reasons:
SCO must prove statements are false
No claims for breach or unfair competition

This is extraordinary claim. This was a very public debate where Novell only stated their position.

Common law -- Proctor & Gamble -- misappropriation or palming off

There was not seizure of property.

Statements are not misappropriation.

Unfair competition law enacted May 2004 and alleged acts are later.

Brakebill declaration states web site published before law enacted.

Novell never admitted that it transferred the copyrights.

California law applies.

Good faith is intended to fill gaps in contract but not the chasm that SCO has created.

There are no confidentiality provisions in the APA.

Novell statements were alleged to have deprived SCO of value of the APA. The business at the time in 1995 did not include Linux. SCO's new way of suing people is not the intent of the APA.

HATCH: (in his pink bowtie) "SCO is not in the business of suing people; I am." Novell sues people too. Look at the court records.

Misappropriation is evident
1995 Santa Cruz gets APA
2003 SCOSOURCE
8 yr period before Novell claimed copyright ownership
IBM -->$50M ---> Novell
Novell now more aggressive
Deposition said Stone to hurt SCO

JUDGE: Is this claim duplicative?

HATCH: (I missed it)

JUDGE: Tell me about whether this is duplicative. I want to know.

HATCH: Slander does not require competition.
Unfair competition of Utah
Novell did not just make statements
They registered the copyrights after SCO

Novell modified the copyright statements to say "Santa Cruz Operation" in place of "Novell" in the copyright statements. They never tell you about that.

They showed a video clip (a 15-second extract from a video interview of Stone) where Stone said, "We own Unix" (definitely taken out of context, I thought).

They support IBM
Web site still up
registrations

They claim this is an improper attempt to amend the complaint. They submit a motion to dismiss when you should ask for summary judgment and visa versa.

(I was about to fall asleep here, as were others around me; it was hot too)

Bloom v Willards

We suffer daily damage from the ongoing acts

KIM: Unfair practice or unfair competition laws in Utah will not help them anyway. I saw some submissions today for the first time and object. In cursory overview they will not help anyway.

This is like a gag rule.
SCO started this whole thing with their public statements and Novell just responded. Copyright registrations were just a response.

Sometime previous, he also mentioned the 1st Amendment.


Here is, once again, the Pacer listing with links to the motions heard today and the ones that will be heard on the 4th of June:

05/24/2007 - 326 - NOTICE OF HEARING ON MOTION re:

Motion Hearing set for 5/31/2007 09:00 AM in Room 220 before Judge Dale A. Kimball. (kmj) (Entered: 05/24/2007)


  


Kimball Takes It Under Advisement - SCO v Novell Hearing - Updated 2Xs | 606 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Kimball Takes It Under Advisement - SCO v Novell Hearing
Authored by: Anonymous on Thursday, May 31 2007 @ 09:00 PM EDT
Thanks

[ Reply to This | # ]

Kimball Takes It Under Advisement
Authored by: Steve Martin on Thursday, May 31 2007 @ 09:00 PM EDT

Regarding the last minute expert declarations, at Judge Kimball's request they were neither used in argument nor rebutted.

Chris, did Kimball's demeanor in asking this give a hint as to how he felt about the last-minute filing?

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

How many motions are still under advisement?
Authored by: Anonymous on Thursday, May 31 2007 @ 09:02 PM EDT
Including both Novell and IBM?

[ Reply to This | # ]

Wha???
Authored by: Anonymous on Thursday, May 31 2007 @ 09:02 PM EDT
Why aren't there a million posts? I thought everyone was watching like an eagle
to see what happened. As I write this there are no posts yet. Of course, there
probably will be by the time I hit Submit. I type slow. ;-)

[ Reply to This | # ]

Presumably, no David Boies
Authored by: Anonymous on Thursday, May 31 2007 @ 09:05 PM EDT
I know there was speculation that David Boies might turn up. It would have been
fun.

[ Reply to This | # ]

Kimball Takes It Under Advisement - SCO v Novell Hearing
Authored by: Anonymous on Thursday, May 31 2007 @ 09:05 PM EDT
In anticipation of more good stuff from the hearing, THANK YOU!!! to everyone
who went and reported.

[ Reply to This | # ]

I hope that Novell is not claiming copyrights that are part of the BSD settlement (not Novell's)
Authored by: Anonymous on Thursday, May 31 2007 @ 09:05 PM EDT
I hope that Novell is not claiming copyrights that are part of the BSD
settlement (not Novell's in the first place either).

With who owns the copyrights being thrown around in such a "general"
way... one wonders where the evidence is being presented that the USL vs BSDI
settlement produced a body of work that was not "owned" by AT&T,
USL, Novell, or anyone other than the folks who created the code in the first
place.

Where in all this mess is BSD related ownership even being discussed or
presented to the judge in a way that says, "hey, others also own UNIX parts
that no way, no how, that SCO or Novell could even make a claim to own"...

I would hate to have a judge say that Novell owned a broad brush of copyrights,
when they don't.

[ Reply to This | # ]

Off Topic
Authored by: Anonymous on Thursday, May 31 2007 @ 09:30 PM EDT
As I type I am downloading Mandriva - 2007 Spring, 4.3Gb.

It would be very nice if Mandriva would go back to having
both a DVD and CD version. 18 hours to download if all goes
well.

Sad part is today Fedora 7 came out which is what I was
going to download but I found that Fedora & also only comes
in a DVD version.

Based on that I am downloading the Mandriva reason so that
I can test if the DVD burner works correct in this
computer.

If I could download CDs I would us a different computer
which does very well burning CD but does not have a DVD
burner.

What are people who are limited to less than 5 Gb download
per month or do not have access to a DVD burner going to
do?

[ Reply to This | # ]

Off Topic (non-anonymous)
Authored by: bbaston on Thursday, May 31 2007 @ 09:50 PM EDT
Extra points for including clickable links - or full URL so others can clicky it. Thanks.

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Corrections
Authored by: bbaston on Thursday, May 31 2007 @ 10:56 PM EDT
Eagerly anticipated updates may have a feww tyos inem. If so, list them here for ease of correction.

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Kimball Takes It Under Advisement - SCO v Novell Hearing
Authored by: Anonymous on Thursday, May 31 2007 @ 11:43 PM EDT
Michael Jacobs was much easier to listen to, in fact all that spoke on Novell's
behalf were much easier to understand and straightforward compared to SCO's
lawyers, which there were plenty of them there. I don't know for sure, but most
of the people on the right half of the courtroom were lawyers for SCO dare I say
30 laywers, where there were only 5 lawyers and probably a clerk for Novell.

IANAL, but it seemed as though SCO was really grasping at strawmen to get their
points across, while team Novell was performing pinpoint surgery.

[ Reply to This | # ]

There is to be a December trial in the SuSE Litigation
Authored by: SpaceLifeForm on Friday, June 01 2007 @ 01:22 AM EDT
What happened with the arbitration?

I'm not liking this.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Thanks to All Who Attended
Authored by: rsteinmetz70112 on Friday, June 01 2007 @ 01:35 AM EDT
Thank you to everyone who took the time to attend and report on the hearing.

I, for one, really appreciate it.

---
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 | # ]

Kimball Takes It Under Advisement - SCO v Novell Hearing
Authored by: KarlJorgensen on Friday, June 01 2007 @ 01:48 AM EDT

Strange - according to the report Brent Hatch says:

We didn't say we're claiming (Utah's) Unfair Competition Act. We said "for unfair competition under applicable law." Before the UCA of 2004 went into effect we were under the UPA, the "Unfair Practices Act." We thought they know what laws applied.

Assuming that the report is correct, is he being entirely truthful? Didn't they submit a motion where they (finally) identified Utah's unfair competition act? Or was that in SCO vs IBM? (I get easily confused...)

[ Reply to This | # ]

Cleverly Twisted Argument
Authored by: sproggit on Friday, June 01 2007 @ 02:55 AM EDT
You have to hand it to these BSF guys. They know how to wrap a lie inside a
misdirection, spray-paint it with a half-truth and then leave it in the corner
where they hope that noone will spot their deliberate omission.

Take for example the argument that they have put forward with respect to the
damages they allege that they have suffered relating to the SCOsource program.
This entire line of argument was put before Judge Kimball in a way that, had you
not been following the history surrounding the case, would lead you to believe
that prior to the suit being filed that SCOsource was an established and
thriving part of SCOs business model.

That's not the case. If Novell's assertions that relate to McBride's attempt to
secure the copyrights can be established as provable fact, then SCOsource moves
from being a line of business to an attempt to defraud. That is a country mile
away from being a legitimate revenue stream.

But the way that SCO have framed their argument they would like you to forget
all that. And never mind the fact that SCOsource as a concept did not come into
being until they were already embroiled in suing others. It might be picky of me
to observe as much, but how popular did SCO believe this product would be when
they were already in the middle of suing other people?




Another minor point just occured to me. We have seen from the recently released
materials covering the asset transfers that there was uncertainty about the
ability to prove the transfer of copyrights from Novell. This documentation came
from SCO. So they knew or should have known that this was still in dispute. We
also know that because SCO are a publicly listed company that they have to file
a 10K [or whatever it is] on an annual basis. So the obvious question - relating
to the SCOsource portion of their business - is: have they in any of their SEC
filings conceded, in their discussion of business risks, that they may not be
able to prove ownership of the copyrights?


A second question just arrived. What do the press announcements made by the
Santa Cruz Operation state after the transaction with Novell was concluded? I
have a hunch that copyrights won't be mentioned.


Thanks to Chris Martin and all the other "Court Reporters" for such an
excellent job in bringing us news from the Court.

[ Reply to This | # ]

Last Minute Reports - I think I feel a delay coming on
Authored by: jmc on Friday, June 01 2007 @ 02:56 AM EDT
It seems to me that the idea is that they get referred to Judge Wells, struck,
SCO waits 14 days or whatever it is and then makes its routine appeal to Kimball
with memos, sur-sur-sur-sur-replies etc flying about.

Kimball has to take time out to affirm Judge Wells and as a result everything is
delayed again.

All part of the SCO/BS&F strategy. The expert reports might as well be
sections of the phone book. They don't care, they only want to put back the evil
day.

[ Reply to This | # ]

So how long can this last?
Authored by: Bart van Deenen on Friday, June 01 2007 @ 03:47 AM EDT
Really. How long can these trials last? Is there any kind of deadline, or will
they
still be going at it in the 22nd century?

Maybe they can move the court setting to Myrtle Beach SC, so that the rising
Atlantic will some day finish the job in a couple of decades/centuries :-)

[ Reply to This | # ]

The Business of Suing People
Authored by: DaveJakeman on Friday, June 01 2007 @ 05:35 AM EDT
Hatch is perfectly correct. SCO is in the business of *NOT* suing people - for
a price. As in, nice business you have there Mr Successful Businessman, be a
shame if we were to sue you, wouldn't it?

Of course, another of SCO's business lines is paying their lawyers to sue
people. So SCO couldn't in any way be described as being in the business of
suing people, could they?

Another handy business line for SCO is paying their lawyers to sue SCO's
ex-customers. Remember, SCO are *NOT* in the business of suing people. Got
that?

With lawyers like these, SCO don't have to tell quite so many lies.

---
Only two things are infinite: the universe and human stupidity and I'm not
sure about the former. -- Einstein

[ Reply to This | # ]

SCO's Profitable Quarter
Authored by: DaveJakeman on Friday, June 01 2007 @ 05:45 AM EDT

Hatch:

He recapped SCO's business timeline. And said that on the day SCO was announcing its most profitable quarter in history, Novell made a public statement that Novell owns the Unix copyrights.
That "most profitable quarter" wouldn't by any chance be the same quarter SCO closed the Sun and Microsoft licensing deals would it? The deals SCO withheld from Novell? The selfsame deals SCO owes Novell 95% or 100% of the revenues for? Oh my gosh, I think it might!

---
Only two things are infinite: the universe and human stupidity and I'm not sure about the former. -- Einstein

[ Reply to This | # ]

The SCO Dirty Tricks Department...
Authored by: DaveJakeman on Friday, June 01 2007 @ 06:01 AM EDT

...is on form:

Kim:

He requested that Judge Kimball compare the cases in SCO's handout to the court to SCO's filings. He said that the cases SCO has on their tabs 8, 9, and 10 are not in their briefs, so he's not prepared to talk about them.
Let's see, filing a late brief on the eve of the hearing and slipping in citations not on the table. Hmm.

Is this what Boies brings to the case, or is it just signs of desperation?

---
Only two things are infinite: the universe and human stupidity and I'm not sure about the former. -- Einstein

[ Reply to This | # ]

Don't like where Novell is taking this
Authored by: Anonymous on Friday, June 01 2007 @ 06:17 AM EDT
Funny, but remember how the value of UNIX was dropping steadily, and presumably
the value of its copyrights as well. ATT, Novell, Santa Cruz, Caldera... each
time it changed hands the price dropped considerably. Why? Because UNIX was an
ancient expensive proprietary monster that was losing users rapidly.

Yet here we have Novell arguing that the copyrights are increasing in value. And
why? Not because UNIX is suddenly cool again, no, but because of Linux. Yes,
Jacobs said *BECAUSE OF LINUX*

The only way you can take value from the UNIX copyrights through Linux is the
way SCO has already tried here. If that is really Novell's take on this, think
about what they might be planning once SCO is ruled to not own the copyrights.
And how that might tie into a certain covenant with a certain monopoly...

[ Reply to This | # ]

What was the context?
Authored by: Anonymous on Friday, June 01 2007 @ 06:31 AM EDT
"Michael Jacobs rebuts for Novell. He said that this is all about ownership
of the copyrights. Does SCO own them or not? If they do, they are able to pursue
users."

Was he reffering to Linux users?

[ Reply to This | # ]

More "Stupid SCO Tricks"
Authored by: Anonymous on Friday, June 01 2007 @ 06:52 AM EDT
Apologizes to Letterman.

IANAL but it seems to me handing out documents and arguing citations that were
not in the briefs is a pretty low trick - just like last minute filings well
past the deadline and on the eve of oral arguments. Are they defining the
envelope for sanctions? Whoops, forgot the sarcasm tags. I can assume that
Novell was aware of the citations from their own research but would not grant
them legitimacy by arguing them. Almost seems that SCO is trying to show how
low they will stoop to make things difficult. Most of their tricks lately don't
even contain an explanation or excuse ("The dog ate the brief"). This
could backfire a bit as it also makes things more difficult for the Judge. If I
were a judge and I was on the fence with a decision, the though of having to
deal with more tricks would not be so appealing ;-)

Okham's Razor

[ Reply to This | # ]

Hatchling wants to replace his dad in the Senate
Authored by: Anonymous on Friday, June 01 2007 @ 07:49 AM EDT

Brent is already running for the U.S. Senate to replace his dad when he
retires.

[ Reply to This | # ]

SCOSource
Authored by: Anonymous on Friday, June 01 2007 @ 07:53 AM EDT
SCO claims damages because the cloud cast over its copyright claims kept
customers from buying its SCOSource licenses.

IIRC several people actually tried to buy SCOSource licenses but were unable to
do so. The conventional wisdom at the time was that if SCO actually sold those
licenses to people that they would be exposing themselves to criminal charges.

It is beyond disingenuous that SCO tries to claim damages for a product that
they were unwilling to sell. I am somewhat surprised that Novell didn't mention
that.

As always; what am I missing?

[ Reply to This | # ]

  • SCOSource - Authored by: Anonymous on Friday, June 01 2007 @ 08:58 AM EDT
  • SCOSource - Authored by: tangomike on Friday, June 01 2007 @ 11:34 AM EDT
    • SCOSource - Authored by: Anonymous on Friday, June 01 2007 @ 11:53 AM EDT
      • SCOSource - Authored by: Anonymous on Friday, June 01 2007 @ 03:37 PM EDT
  • I tried - Authored by: Anonymous on Saturday, June 02 2007 @ 11:54 AM EDT
Kimball Takes It Under Advisement - SCO v Novell Hearing - Updated 2Xs
Authored by: Ian Al on Friday, June 01 2007 @ 07:54 AM EDT
1. Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title Based on Failure to Establish Special Damages.

If I remember correctly, Novell got this one tossed the first time around and Judge Kimball gave SCOG a chance to do it over, correctly. The first time it was noted that attorney's fees are not special damages and that the actual instances and value of realized and liquidated losses had to be included for SCOG to win. How we cheered when SCOG's second go (this one) was just as faulty as the first.

I predict the judge will award this to Novell, not because of failure to specify realized and liquidated losses, but because he told them to go away and do it right and they failed (well, in my dreams)!

I notice that SCOG claim the right to establish special damages in front of a jury. It will be interesting to see if failure to do so for a Summary Judgement proves fatal.

2. Novell's Motion for Partial Summary Judgment on SCO's Non-Compete Claim in its Second Claim for Breach of Contract and Fifth Claim for Unfair Competition

Judge Kimball: "So this is a legal issue and I get to decide it?"

Mr. Jacobs: Exactly. No extrinsic evidence is required. The contract has an integration clause. There is no ambiguity -- there is a contradiction. There is no clause stating that if there is a conflict, the APA shall rule.

I notice that Normand says that the plain language supports SCOG, but does not say why Jacob's 'legal' point is wrong.

It will also be interesting to see what Judge Kimball makes of the admission by SCOG that the claims for contract breach and copyright infringement overlap. Does the areas where they do not overlap excuse the 'double-bubble' where they do overlap?

I make no predictions on this one because I don't really understand the law on this point, especially the 'recission' element. I'm tempted to think that the Judge will deny SCOG on this one because the Slander of Title covers the same ground as this one.

3. SCO's Motion for Partial Summary Judgment on the Copyright Ownership Portions of SCO's Second Claim for Breach of Contract and Fifth Claim for Unfair Competition

After seeing the Novell reply detailing the 'palming off' or lack of it, I came to the same conclusion that Grant Kim does, here.

There was no seizure. In intellectual property this involves taking the IP and placing it in one's product and selling it (or "palming off" which SCO admits is not claimed).
Noting that the title covers copyright ownership and remembering the Novell reply on that topic just yesterday this does seem like a no-brainer in favour of Novell. To quote one of my favourite authors,

Before I had read this document, I still wondered if either side could prevail on summary judgment. But now, I believe SCO has to be at least worrying that, based on this material, it could actually be the ball game.
Again, on the topic of claim duplication, I enjoyed,
Judge Kimball asks Mr. Hatch about Novell's assertion that this is a duplicate claim. Mr. Hatch replies "That's an interesting question." Judge Kimball says "Yes, it is and I want you to answer it." Mr. Hatch said that each claim has different elements.
To put it another way "That is a fine tapdance, now can we return to our sheep?" or "just put the three shells away and answer the question".

There's more!

On good faith and unfair dealing, Novell calls it a "gap filler."

Judge Kimball: "I think they called it a "Chasm Filler."

---
Regards
Ian Al

[ Reply to This | # ]

Chris Stone: "We own Unix"
Authored by: Anonymous on Friday, June 01 2007 @ 08:39 AM EDT
Perhaps he made this statement and someone has a right to complain about it, but
that someone would be the Open Group,
not SCO.

[ Reply to This | # ]

An analogy
Authored by: cricketjeff on Friday, June 01 2007 @ 09:28 AM EDT
Thusco Groope is a 6ft 2inch 15 stone (200lb or so) thirteen year old at Utah
City High School. Novy Elle is a prefect at the same school.
Thusco decided that he would ask for a dinner contribution from all the pupils
in the years below his, no threat of violence you understand just a little
reminder that unless 75% of dinner monies were remitted before the end of
morning break, standing up privileges would be terminated with prejudice. Novy
lets it be known that not only is this sort of activity frowned upon but that
Thusco only looks big and impressive, while in fact is known to break down in
tears if he hurts his fists with a very weedy punch on any victim, furthermore
he has a 100 metres time in excess of 4 minutes and collapses in a wheezing heap
if made to run for more than 3 seconds, therefore there is no need to succumb to
any bully boy tactics.
Thusco believes he should succeed in a court action to recover lost bullying
earnings from Novy on the grounds that he is in fact not a weedy mummy's boy.
Can anyone spot any parallels here?

---
There is nothing in life that doesn't look better after a good cup of tea.

[ Reply to This | # ]

Thanks to Chris Brown
Authored by: DaveJakeman on Friday, June 01 2007 @ 10:03 AM EDT
An excellent write-up. Just the right level of detail. Great reporting, as
before.

---
Only two things are infinite: the universe and human stupidity and I'm not
sure about the former. -- Einstein

[ Reply to This | # ]

Motions already heard
Authored by: elcorton on Friday, June 01 2007 @ 10:46 AM EDT

147 and 180 were heard on January 25.

[ Reply to This | # ]

is this perjury?
Authored by: sumzero on Friday, June 01 2007 @ 11:36 AM EDT
"We didn't say we're claiming (Utah's) Unfair Competition Act. We said
"for unfair competition under applicable law." Before the UCA of 2004
went into effect we were under the UPA, the "Unfair Practices Act." We
thought they know what laws applied."

didn't novell specifically request clarification on which law scog was relying
on as scog would not be explicit in their filings? did not scog concede that
they were relying on the yarro sponsored bill in utah? or did they just say the
utah one [still implies a single statute]?

sum.zero

---
48. The best book on programming for the layman is "alice in wonderland"; but
that's because it's the best book on anything for the layman.

alan j perlis

[ Reply to This | # ]

SCO is entitled to prove damages before a jury - Normand
Authored by: tangomike on Friday, June 01 2007 @ 11:53 AM EDT
IANAL, but that certainly isn't my understanding. I understand that juries
determine the amount of damages, but before that the plaintif has to actually
show there were damages.

If you sue me for damages from an auto accident, you first have to prove there
was an accident and that I was the other party, before you get to drag me in
front of that jury.

It is startling to me that Mr. Normand apparently believes a jury trial is a
right under civil law. It explains a lot about BS&F's performance thus far:-
they're just going through the motions (yes, that's a pun) til they get to the
trial.

---
Deja moo - I've heard that bull before.


[ Reply to This | # ]

Why did Kim go first?
Authored by: anesq on Friday, June 01 2007 @ 12:33 PM EDT
Usually, the moving party goes first, and the third motion heard was SCO's
motion. Was there some indication by the court why Novell went first?

The only times I've seen the non-movant go first it's been very bad for the
non-movant (because the judge is basically saying that he's already been
convinced by the motion and is just giving the non-movant a last chance to save
itself - no need for the movant to waste its breath).

[ Reply to This | # ]

HATCH: (in his pink bowtie)...
Authored by: DaveJakeman on Friday, June 01 2007 @ 01:32 PM EDT
..."SCO is not in the business of suing people; I am."

Why do I get this mental image of Hatch in his pink bowtie (equipped with LED's
and whirling around on a little motor) scrolling out the message: "Will sue
for food"?

Don't know where that came from :)

---
Only two things are infinite: the universe and human stupidity and I'm not
sure about the former. -- Einstein

[ Reply to This | # ]

Why no NOVELL motion to exclude the citations never presented in the filings?
Authored by: Anonymous on Friday, June 01 2007 @ 01:59 PM EDT
I'm finding that lack of motion curious

[ Reply to This | # ]

willy nilly
Authored by: Anonymous on Friday, June 01 2007 @ 02:07 PM EDT
He said that an element of Utah's Unfair Competition law is misappropriation. We are claiming, he said, that Novell took from SCO its good will and its unfettered right to its IP. We are arguing "straight-up misappropriation." We have demonstrated that words alone can "willy-nilly" steal intellectual property.

Wouldn't Darl's PR statements and Senate testimony fall neatly into this definitions? imo, this is another attempt for SCO to be 'too cute by half.'

Also, I enjoyed the 'plain language reading' vs. 'close reading' pseudo- argument--it sounds like they are trying to force a dumbed-down 'layman off the street' reading of the contract, as opposed to a lawyerly 'meeting of the minds'...which itself is a funny phrase in this context, given that none of SCO's witnesses were actually party to said meeting!

[ Reply to This | # ]

Who's on first?
Authored by: pem on Friday, June 01 2007 @ 02:12 PM EDT
If Kimball were to rule that SCO might have shown enough of a factual dispute
over Novell's alleged violation of a non-compete clause to need to go to a
jury...

The next thing you will see is Novell claiming that IBM absolutely has to go
first, because IBM will show conclusively that "Linux is not Unix" and
thus that Novell's distribution of Linux does not violate their non-compete
clause re Unix.

But the interesting thing is that if the copyrights are decided in Novell's
favor on summary judgement, then IBM could be decided without reaching the issue
of whether Linux really is Unix, and it will be Novell who need this issue
decided in their (and our) favor.

If that comes to pass, it would be a good thing that Novell is apparently
allowed to reuse discovery in IBM.

[ Reply to This | # ]

Kimball Takes It Under Advisement - SCO v Novell Hearing - Updated 2Xs
Authored by: sonicfrog on Friday, June 01 2007 @ 02:17 PM EDT
Judge Kimball said: "So this is a legal issue and I get to decide it?"... To which I reply: "Yes! And PLEASE HURRY!!!!!"

[ Reply to This | # ]

Here's the question that most interests me:
Authored by: Anonymous on Friday, June 01 2007 @ 02:20 PM EDT
For the attendees (or those who have experience pulling subtext from these
accounts), what is your gut feeling on the matter?

Will the judge finally gut this case? Will SCO survive a bit longer? Or was
the judge completely impartial and didn't give anything away to either side?

[ Reply to This | # ]

SCO admits agency
Authored by: Anonymous on Friday, June 01 2007 @ 02:37 PM EDT
I had to read that twice. Hatch admits an agency relationship between SCO and
Novell? That seems to weaken tSCOg's position that they had unilateral rights
to everything if there was an agency relationship. So now we're talking about
what was the *some* instead of *all* in terms of what transferred.

[ Reply to This | # ]

Kimball Takes It Under Advisement - SCO v Novell Hearing - Updated 2Xs
Authored by: Hop on Friday, June 01 2007 @ 02:59 PM EDT
This whole thing is completely wrong. Shouldn't former Caldera (please quit
calling them SCO) have to prove they first got copyrights from former SCO? By
pretending to be SCO, they're only worrying about one transfer of copyrights
when they should really need two and they shouldn't even bother Novell until
they can prove they got something from old SCO first.

[ Reply to This | # ]

"Should they get them"? Yahoo!!!!!
Authored by: Anonymous on Friday, June 01 2007 @ 03:51 PM EDT
At this point Judge Kimball interjected to clarify the value of the copyrights increased for SCO should they get them.

In other words, Kimball is pretty well convinced that SCO doesn't own the copyrights. And the PSJ hearing on that question is coming on Monday.

My personal opinion is that he will first rule on that PSJ, and will rule that SCO doesn't have the copyrights. After that, doesn't all of the Novell case go away (except for Novell's counterclaims)? And a big chunk of the IBM case goes away too.

MSS2

[ Reply to This | # ]

"There is to be a December Trial/Hearing in the SUSE litigation"
Authored by: Anonymous on Friday, June 01 2007 @ 03:54 PM EDT

JUDGE: What year?

No idea if this was a genuine query or if Kimball was joking.

But given the history of these cases, I found it hilarious!

[ Reply to This | # ]

DVD iso - Bull
Authored by: Anonymous on Friday, June 01 2007 @ 07:45 PM EDT
Yesterday while waiting or the results of the SCO /Novel
appearance I started downloading Mandriva and posted such
to this BB.

14 hours later the DVD iso downloaded.

Today I started to burn the DVD in OpenSuSE 10.2. Well of
course the burner does not burn. It goes into some sort of
checking loop and then dies.

Now to emphases what I was saying I am down loading the
same iso into Fedora 6 to see if I can make that work but
you guess it another 14 hours.

[ Reply to This | # ]

What order are motions decided?
Authored by: Anonymous on Friday, June 01 2007 @ 10:44 PM EDT
If I haven't gotten things confused, copyright ownership is at issue in Novell
vs SCO only as a defense by Novell against SCO's Slander of Title claim.

What are the rules governing the order motions are decided?

If the Slander of Title claim is dismissed for not stating specific damages,
then CAN Judge Kimball rule on the copyright ownership or is it automatically
moot?

Does Judge Kimball have discretion to rule on the copyright issue if he holds
the Slander of Title is deficient on its face, because it lacks the necessary
element of specific damages?

[ Reply to This | # ]

Hatchet job?
Authored by: softbear on Friday, June 01 2007 @ 10:54 PM EDT
HATCH: ... Novell modified the copyright statements to say "Santa Cruz Operation" in place of "Novell" in the copyright statements. They never tell you about that.

Taken with the statement I read in PJ's story yesterday:

The UNIX registrations simply stayed in the same office in New Jersey through the ownership changes from AT&T to USL to Novell to Santa Cruz. (Novell's Opposition Facts, 19.)

I'm beginning to think that these people are stark raving mad.

Why would Hatch continue to push this now? Do they really think they can win on a he-said-she-said when it is so clear that they don't have the transmittal paperwork that is required? And there is (to my mind) ample evidence that they knew it before they started all this.

If Novell didn't re-register the copyrights until 2003, then the registrations would still have been to AT&T: that makes this is yet another lie, wrapped in a lie.

Assuming Novell has been telling the truth. I have not seen a single fact in the public record that shows that Novell has lied about this. (Did I miss something?)

Curiouser and curiouser.


---
IANAL, etc.

[ Reply to This | # ]

Oh for crying out loud
Authored by: Anonymous on Saturday, June 02 2007 @ 01:57 AM EDT
Why is it that everything SCO and their mouthpieces say is like some kind of
vast conspiracy theory?


SCO was supposedly havning it's most profitable quarter in history (WHICH SCO?)
and Novell suddenly jumps out on that announcement day supposedly just to wreck
their stock price.

It's like listening to a paranoid schizophrenic.

[ Reply to This | # ]

Kimball Takes It Under Advisement - SCO v Novell Hearing - Updated 2Xs
Authored by: Anonymous on Saturday, June 02 2007 @ 06:13 AM EDT
in the first report there is a repeated line:
The parties can make statements about the contract. The parties can make
statements about the contract


[ Reply to This | # ]

Interesting the concept of share price damages
Authored by: globularity on Saturday, June 02 2007 @ 09:55 AM EDT
I don't know how a business can claim a fall in share price as damages, the
market may make that claim but once a business has issued shares to raise
capital they are no longer on its books. Even if the theory that publically
owned shares are business assets (the IRS would like to know for capital gains)
were entertained the drop in price may be a market correction for mistakenly
valued shares, such as if a mining company announces a new mineral deposit they
found and their share price skyrockets. Six months later the geologists reports
and core assays find the ore body is smaller and lower grade than expected, are
the geologists liable for this fall in share price? As usuual SCO is off with
the fairies.

Mark

---
Windows vista, a marriage between operating system and trojan horse.

[ Reply to This | # ]

How will Judge Kimball resolve conflicting statements?
Authored by: Bill The Cat on Saturday, June 02 2007 @ 01:32 PM EDT
Judge Kimball has heard SCOx make conflicting statements in the two cases he's
hearing -- IBM and Novell. In one case SCOx says one thing and in the other
case, they say just the opposite.

Because these are two separate cases with a lot of common facts, can the judge
ethically address these conflicting testimony and statements?

I don't even attempt to understand the laws anymore <grin>


---
Bill The Cat

[ Reply to This | # ]

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