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Transcripts of the Novell Hearings, May 31 and June 4
Tuesday, June 12 2007 @ 05:08 PM EDT

Here they are, thanks to the wonderfully efficient Chris Brown, the transcripts from the hearings on the summary judgment motions in SCO v. Novell:

I'll put them up separately as text, but I didn't want you to have to wait, so here they are as PDFs, and we can enjoy them together.


  


Transcripts of the Novell Hearings, May 31 and June 4 | 141 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: lordshipmayhem on Tuesday, June 12 2007 @ 05:20 PM EDT
Please put the nature of the error in the Title

[ Reply to This | # ]

Off topic here
Authored by: lordshipmayhem on Tuesday, June 12 2007 @ 05:22 PM EDT
Please remember to make links clickable using Post Mode "HTML
Formatted" and following the instructions in red

[ Reply to This | # ]

Legal Term: bootstrapping
Authored by: Anonymous on Tuesday, June 12 2007 @ 06:56 PM EDT

20070531 PDF, page 15, line 16. Hmm... specificity, guess I don't work for SCOG.

Anyways.... I understand the term bootstrapping as it relates to compiling code. I know it originates from a Baron who has a couple stories:

  1. He pulls himself out of a swamp by his own hair.
  2. He pulls himself out of the Ocean by his bootstraps.
Question: does the term have a specific meaning in the legal world or is it along the same conceptual lines of "illogically supporting ones own logic"?

If that's what it means, SCOG has been bootstrapping for quite some time:

    Your honor, see this article by Maureen O'Gara? It proves what we're saying against Groklaw. Oh... that.... never mind that we were the ones that told O'Gara.

RAS

[ Reply to This | # ]

HTML finished
Authored by: Steve Martin on Tuesday, June 12 2007 @ 11:50 PM EDT
HTML of both is cooked and on the way to PJ.


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

[ Reply to This | # ]

June 4 transcript page 37
Authored by: Anonymous on Wednesday, June 13 2007 @ 12:12 AM EDT
PJ,

I think it is clear from page 37 of the June 4th, transcript, where Mr. Jacobs
is
talking about the IBM buyout, and the fact the Santa Cruz threatened to sue
and their was a settlement agreement.

It seems that BS&F attorney's are trying to use the settlement agreement as

evidence of the meaning of the APA.

I would be interested in whether this even a valid strategy.

[ Reply to This | # ]

Did the TLA license back Unix or not?
Authored by: Anonymous on Wednesday, June 13 2007 @ 12:24 AM EDT
Both Novell lawyers claim something differently. Although in different motions
on May 31.

[ Reply to This | # ]

What SCO paid.
Authored by: rsteinmetz70112 on Wednesday, June 13 2007 @ 12:41 AM EDT
In the transcript, SCO admitted the Santa Cruz paid 6.7 million shares of SCO
stock worth $50,000,000.00, on paper.

SCO then adds to the purchase price the $200,000,00.00 paid by licensees in
royalties which were due to Novell. If SCO had been able to come up with more
cash they could have kept the money.

How the royalties of third parties is part of the price Santa Cruz paid baffles
me, in fact SCO collected $10,000,000.00 in fees for processing these royalty
payments.

It seems to me $50,000,000 is in the range of what IBM, SUN, HP and others paid
for their buyouts without any copyrights. SCO also got the 5% fee and they got
real estate and employees.

---
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 | # ]

Hey, "any" now means "some"!
Authored by: Anonymous on Wednesday, June 13 2007 @ 01:17 AM EDT

SCO on section 4.16(b):

there is nothing in here which says, when it says SVRX license, that any contract relating to an SVRX license is within the scope of what Novell could waive.

The APA at 4.16(b):

at Seller's sole discretion and direction, Buyer shall amend, supplement, modify or waive any rights under, or shall assign any rights to, any SVRX License to the extent so directed in any manner or respect by Seller.

That's funny.

[ Reply to This | # ]

Transcripts of the Novell Hearings, May 31 and June 4
Authored by: analyzer on Wednesday, June 13 2007 @ 05:07 AM EDT
I found this part particularly interesting because it can become easy to forget
that they are people too. Ordinary life continues and nothing that has happened
in these courts can change that.

MR. SINGER: Your Honor, first of all, Iíd like to thank the Court and also
thank Novell for the consideration paid in rescheduling this argument for me due
to the loss of my mother last week. I appreciate that.

THE COURT: Sorry about your mother. And thatís no problem.

MR. SINGER: Thank you, Your Honor. Thank you for your cooperation.

I extend my sympathies for his loss.

Be good peeps :)

[ Reply to This | # ]

Novell is all confused
Authored by: DaveJakeman on Wednesday, June 13 2007 @ 05:19 AM EDT
Singer:
Their misunderstanding is that they are reading Section 6 wrong.
Those poor Novell lawyers, why can't they understand?

And Judge Wells doesn't understand her own Court orders either.

It's such a shame.

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

[ Reply to This | # ]

Incompetent lawyers
Authored by: elderlycynic on Wednesday, June 13 2007 @ 05:21 AM EDT
Am I completely misunderstanding, or were the lawyers who
negotiated those contracts on behalf of Santa Cruz, Caldera
or whoever COMPLETELY incompetent?

SCO seems to be in the unenviable position of arguing that,
because the contract is so clearly one-sided, it must be
invalid. That isn't a position that any lawyer wants to have
to defend, and I don't think that SCO's lawyers are doing a
bad job of that aspect, given the hopelessness of their case.

[ Reply to This | # ]

Why didn't Novell's lawyers bring up Santa Cruz's lack of money?
Authored by: Anonymous on Wednesday, June 13 2007 @ 09:33 AM EDT
When SCO brought up how much they had paid for "(capital t)The (capital
e)Entire (capital u-n-i-x)UNIX (capital b)Business", why didn't Novell's
lawyers bring up the fact that the original asking price was (capital m)Much
(capital m)More, and that SCO didn't have enough (capital m)Money, and that was
why Novell retained the revenue stream from the existing licensees, and that was
why they felt that they had to protect their interests by retaining the (capital
c)Copyrights as well?

[ Reply to This | # ]

Concept of Double Recovery is new to me
Authored by: rocky on Wednesday, June 13 2007 @ 10:42 AM EDT
I just started in on the May 31 transcipt, and I found this line of discussion
very interesting about double recovery. Jacobs, for Novell, brings it up that
if SCO is trying to claim any current damages from Novell to be awarded in this
litigation, it must show before and after how the UNIX copyrights that SCO would
supposedly own have lost all of their value and can't be used in the future. In
other words, if they are to get paid in the case now, it is because they will
not be able to get paid again later. Jacobs points out how that is obviously
not their aim, since SCO constantly says that if they can get things squared
away in their favor here, they will immediately be coming after everyone again
for their extortion money for Linux. That's an interesting concept I hadn't
thought of, and I'm pleased to see that states have laws to prevent this kind of
double dipping.

---
"I just *know* there's more to this than even Novell knows about. They didn't
buy what they thought they bought." -cybervegan

[ Reply to This | # ]

A snippet I like...
Authored by: DaveJakeman on Wednesday, June 13 2007 @ 11:22 AM EDT

...is Jacob's opening remarks in the copyright ownership argument:

THE COURT: Thank you, Mr. Singer. Mr. Jacobs, I suppose you have a different view.
MR. JACOBS: I do, Your Honor, and, ultimately, I hope you will, too. Let me start with just a review of the bidding on this issue.
THE COURT: A review of the what?
MR. JACOBS: Of the bidding because, of course, weíre back again on ownership, and you parsed the agreements in your ruling on the motion to dismiss. In that ruling, you noted that the Asset Purchase Agreement, pre−Amendment 2, specifically excluded the UNIX and UnixWare copyrights from the transfer, and as to Amendment Number 2, you noted that it doesnít identify which copyrights are required for SCO to exercise its rights. You noted that itís not retroactive to the date of the APA. You noted that it does not state that a transfer of copyrights is to occur as of the date of the amendment, and it suggested that perhaps a separate writing was contemplated in order effectuate a transfer.

You noted that the use of the word "required" was troublesome, given the number of copyrighted works involved in the transaction. Amendment Number 2, the Courtís decision notes, doesnít state which works are being transferred or what rights within each copyrighted work are being transferred.

And then, citing the Apex Associate case, the Courtís ruling noted the policy behind Section 204(a) of the Copyright Act, to force a negotiation to determine precisely what rights are being transferred.

One thing that trumps using SCO's own words to defeat a SCO argument is using the Court's own words to defeat a SCO argument.

Nothing but the best from Novell :)

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

[ Reply to This | # ]

I'm so enjoying this
Authored by: DaveJakeman on Wednesday, June 13 2007 @ 12:08 PM EDT

Jacobs:

So, as we come before the [sic] today, the only significant issue is: What is or was required for Santa Cruz or SCO to exercise its rights with respect to the acquisition of UNIX or UnixWare technologies? The natural reading of "required" is that it imposes a pretty substantial burden on SCO to make a sufficient showing that some right within copyright is essential −− not just nice to have, not just desirable, but essential for SCO to carry out the particular business activities that were contemplated by the Asset Purchase Agreement and the Operating Agreement. To exercise its rights with respect to the acquisition, what SCO was supposed to do with respect to the acquisition was set forth in the APA and associated documents.

Now, here we come to a huge fundamental problem with SCOís argument. It is a bolder [sic] in their road to victory. The industry is replete with companies that are in the UNIX business that didnít own the underlying UNIX copyrights. The biggest example in front of Your Honor is IBM.

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

[ Reply to This | # ]

Red herring fishing
Authored by: Anonymous on Wednesday, June 13 2007 @ 12:50 PM EDT
So my summary of the two transcripts is:
1) on the first day tSCOg argues about the stock price impact after having
dropped it from their claims. What a red herring.
2) on the 2nd day, they ask for a reinterpretation of the contract on the basis,
"No one could be as stupid as we were." Hmm..

[ Reply to This | # ]

  • Correction - Authored by: Anonymous on Wednesday, June 13 2007 @ 02:59 PM EDT
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