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SCO files motion in limine re apportionment of MS/Sun $$ and to exclude Novell's expert
Tuesday, August 28 2007 @ 12:05 AM EDT

SCO has, of course, now filed a sealed motion in limine, titled "Amended Motion in Limine Regarding Apportionment of 2003 Microsoft and Sun Agreements" -- yes, SCO's new theory of apportionment, the very subject Novell says SCO should be precluded from talking about. A heavily redacted version [PDF] is available, with the two agreements attached but sealed. SCO would most urgently like the court to have a breakdown now of what the agreements were for so it can agree with SCO that almost none of the money should go to Novell.

SCO claimed for all these years of discovery that 100 per cent of that revenue was theirs, all theirs, so they wouldn't give Novell a breakdown, Novell has told the court. Now Novell says it is 100% theirs, because SCO provided no itemization in discovery. All the information that SCO wouldn't turn over to Novell since 2003 is positively gushing out now, albeit in redacted form. Too late, Novell argues. They can't prepare for a new theory of apportionment on the very eve of trial. We'll see what the judge says.

And SCO wants Novell's expert excluded. According to SCO, Terry L. Musika intends to offer his opinion at trial that 100 per cent of all SCOsource license revenues belong to Novell, including every penny from the Microsoft and Sun agreements. SCO says he isn't qualified to be an expert anyway, and he didn't come to the right conclusion having failed to analyze matters properly.

So, we have quite a comical turnaround. It's probably not too funny to SCO at the moment. But to those of us merely watching, who witnessed SCO's earlier position and found it unsupportable, as did the judge recently, there is a certain droll sense of justice or karma, if you prefer, that I confess I find not altogether unpleasant. It's like the feeling you have when you see a bully who has been terrorizing all the littler kids in the playground suddenly get punched in the nose by a kid bigger than he is. You'd have to be a saint not to enjoy it a little bit.

The apportionment motion asks that the judge order Novell not to say to the jury that Novell is entitled to all the revenues from Sun and Microsoft. It wants them restricted to Section 4 of each agreement, which we haven't seen, so I can't tell you what that is about. It's all so heavily redacted, especially the section about Sun, it's hard to know for sure what they were for. Here are the docket entries:

401 - Filed & Entered: 08/27/2007
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of SCOS AMENDED MOTION IN LIMINE REGARDING APPORTIONMENT OF 2003 MICROSOFT AND SUN AGREEMENTS filed by Plaintiff SCO Group (Amending Exhibit 2: Plaintiff inadvertently filed with the Court the incorrect version) (Normand, Edward)

402 - Filed & Entered: 08/27/2007
Redacted Document
Docket Text: REDACTION to [384] Notice of Conventional Filing SCO's Motion to Exclude Testimony of Terry L. Musika by Plaintiff SCO Group. (Attachments: # (1) Exhibit 1: Filed Under Seal# (2) Exhibit 2: Filed Under Seal)(Normand, Edward)

403 - Filed & Entered: 08/27/2007
Redacted Document
Docket Text: REDACTION to [384] Notice of Conventional Filing SCO's Motion in Limine Regarding Apportionment of 2003 Microsoft and Sun Agreements by Plaintiff SCO Group. (Attachments: # (1) Exhibit 1: Filed Under Seal# (2) Exhibit 2: Filed Under Seal)(Normand, Edward)

408 - Filed & Entered: 08/27/2007
Sealed Motion
Docket Text: **SEALED DOCUMENT** SEALED AMENDED MOTION in Limine Regarding Apportionment of 2003 Microsoft and Sun Agreements filed by Plaintiff SCO Group. Amends Motion #[406]. Motions referred to Brooke C. Wells.(blk)


  


SCO files motion in limine re apportionment of MS/Sun $$ and to exclude Novell's expert | 264 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: analyzer on Tuesday, August 28 2007 @ 01:15 AM EDT
Not that we expect any of course :)

Be good peeps :)

[ Reply to This | # ]

Off topic
Authored by: mattw on Tuesday, August 28 2007 @ 01:18 AM EDT
All off topic stuff here thanks.

[ Reply to This | # ]

SCO files motion in limine re apportionment of MS/Sun $$ and to exclude Novell's expert
Authored by: analyzer on Tuesday, August 28 2007 @ 01:22 AM EDT
That's so heavily redacted there's nothing left of it apart from the "see
we didn't cheat you out of millions" bit.
About as much use as a chocolate teapot :(

Be good peeps :)

[ Reply to This | # ]

News Picks Discussion
Authored by: Just_Bri_Thanks on Tuesday, August 28 2007 @ 01:25 AM EDT
As much as I love bucking the Status Quo, this is actually a good idea.

Make with the discussion in reply to this thread.

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

[ Reply to This | # ]

403: Wacky use of citations
Authored by: Anonymous on Tuesday, August 28 2007 @ 01:31 AM EDT
Over time, I've noted that SCO has a tendency to cite cases that don't
necessarily support their arguments. In 403 (p.4 - 5), SCO submits:

"6. Accordingly, any evidence or argument suggesting that Novell is
entitled to the revenue from sections of the agreement other than from Section
4, or any amount greater than [REDACTED], would confuse the issues and be
misleading to the jury, and should be excluded.
Fed. R. Civ. P. 403; Telum Inc. v. E. F. Hutton Credit Corp., 859 F.2d 835 (10th
Cir. 1988)"

A bit of random searching seems to suggest that the lesson learned in Telum is
that agreements that include a jury trial waiver aren't contrary to public
policy. I see no discussion that could possibly extend the meaning of Telum to
where SCO is going with it here.

Their misuse of citations in the past has been soooooo much more creative. I
can't help but think that SCO legal have run out of ammunition for the footgun,
and have resorted to merely stomping on each other's feet.

[ Reply to This | # ]

SCO files motion in limine re apportionment of MS/Sun $$ and to exclude Novell's expert
Authored by: mattw on Tuesday, August 28 2007 @ 01:31 AM EDT
Basically SCO is trying to convince the judge that Sun and Microsoft just spent
a lot of money on Unixware and OpenServer licenses.

Good luck with that.

[ Reply to This | # ]

Now we might owe some money?
Authored by: chasingsol on Tuesday, August 28 2007 @ 01:35 AM EDT
What I find even more telling here is that throughout this entire farce, SCO
claimed that all of the license money from the Sun/Microsoft deal was theirs.
But even in the heavily redacted form, they've acknowledged that maybe some of
the SRVX money is potentially Novell's! Surely the court isn't going to look
upon them kindly now changing their tune and having lied to the court
previously. At best, Judge Kimball will slap them down hard, they'd better hope
he's in a good mood because this seems like some sanctions should be in order.

[ Reply to This | # ]

Status Quo for SCO
Authored by: Anonymous on Tuesday, August 28 2007 @ 01:42 AM EDT
I think it is fair to say that no one expects SCO to act any different now than
they ever have. Not Novell, IBM, or any of their other victims; not the judge;
and not observers.

SCO loves to turn over piles of horse manure for others to sift through and they
think it is funny.

[ Reply to This | # ]

SCO files motion in limine re apportionment of MS/Sun $$ and to exclude Novell's expert
Authored by: Anonymous on Tuesday, August 28 2007 @ 01:45 AM EDT
I find these filings by The SCO Group to be oddly almost childlike. It's just
No No No! Few arguments are offered, and those are weak.

One would have to think that the SVRx code is the bulk of what is UnixWare, too.
Where The SCO Group has futily tried to argue that Linux is based on their
precious (but actually, owned by somebody else) Unix, there is no question that
UnixWare owes a critical debt to Unix SVRx -- and Novell is surely ready to
argue that and will have a winning argument when it does.

Thad Beier

[ Reply to This | # ]

Let's be fair
Authored by: Anonymous on Tuesday, August 28 2007 @ 02:11 AM EDT

SCO's position was that none of the money from Microsoft was for SVRX code. And, to be fair, that's absolutely correct. Microsoft did not want any SVRX code. The money from Microsoft was for SCO's bogus lawsuit smearing Linux. Of course, they couldn't put those words in a contract, but that was what it was really all about. They had to make up some verbiage to make the deal sound legal (planning a bogus lawsuit presumably violates some law) and they picked, unfortunately for them as it turns out, SVRX copyrights. Can they agree with Microsoft to amend the contract retroactively?

[ Reply to This | # ]

"the transaction did not require Novell's prior"
Authored by: Night Flyer on Tuesday, August 28 2007 @ 02:40 AM EDT
Many times in the redacted limine pdf file SCO said (variations of) "is not
attibutable to SVRX and did not require Novell's prior approval."

I interpret this to mean that SCO is admitting that it needed Novell's prior
approval for transactions including SVRX.

Isn't this an admission that SCO was, in fact aware of the conditions of the APA
and (at least since 2003) was in violation of the agreement?

---
Veritas Vincit - Truth Conquers

[ Reply to This | # ]

SCO has responded to Novell's old discovery demands!
Authored by: bbaston on Tuesday, August 28 2007 @ 04:20 AM EDT
Of course, responding three years ago would have been better. If they had done so when asked as part of discovery, their information might have been considered by the Judge.

Now, tSCOg are in a nose dive spinning through the cloud of Novell, headed into the thunderstorm of IBM, on a broken wing and a prayer.

But write it down: SCO responded to Novell's discovery requests -- after ALL horses left the barn and the barn burned down.

Wow. Gaul isn't the word for this.

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

[ Reply to This | # ]

SCO has gotten its theory into consideration with this motion
Authored by: Anonymous on Tuesday, August 28 2007 @ 04:45 AM EDT
SCO got its new theory into the trial process with this motion.

Since Novell has already interpreted the documents differently and SCO's
credibility in interpreting contracts has been trashed, I think that this motion
will be denied.

The question to be answered, however, has been moved to an interpretation of the
applicability of the different sections of these documents. This, I think was
SCO's purpose.

[ Reply to This | # ]

Surely the most reasonable outcome
Authored by: cricketjeff on Tuesday, August 28 2007 @ 04:54 AM EDT
Though without some knowledge of the rules I have no idea if it is likely or
possible is for the judge to amend his earlier ruling.
Something to the effect "Since the earlier ruling was made on the erroneous
assumption that the courts earlier orders (with regard to discovery in these
matters) had been complied with. An immediate and rapid audit is ordered. If
such audit is not completed within 5 business days from the date of this amended
ruling the full amount of the license payments shall be placed in a constructive
trust."
Or possibly even more briefly "I ask the DA to bring charges for contempt
of court..."

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

[ Reply to This | # ]

Microsoft's option.
Authored by: Anonymous on Tuesday, August 28 2007 @ 07:47 AM EDT
""From Novell-403:

"Section 3 of the Microsoft Agreement provides Microsoft with an option to
purchase a UnixWare license. As set forth in Section 1(b), Microsoft purchased
that option for REDACTED.""

I must not link here to the person who worked it out from EDGAR filings, but it
seems that sum turns out to be $3,496,000.

[ Reply to This | # ]

Not schadenfreude, but justice, OOXML as nonmetric measure
Authored by: tz on Tuesday, August 28 2007 @ 08:22 AM EDT
Feel free to enjoy this without guilt. It isn't the bully being beaten up by
someone bigger, but some blustering pipsqueak in the shadows that demands your
lunch money, and when they are dragged into the sunlight they turn out to be
smaller than the kinder gardener they were trying to intimidate. Even less than
the wizard of Oz behind the curtain.

SCO played every game out to the end, and now they are losing by their own
device. At any time they could have stopped and tried being reasonable.
Sometimes dirty tricks work. But without the trick, it's just dirty.

SCO isn't even at this point trying to be the least bit contrite. That they
made any mistake. They haven't (directly) insulted the judges or the court -
yet, but I would listen closely.

You would think with everything crashing and burning around them that they would
at least repent before the end, but they seem to be shaking their fist insisting
that they are completely right.

And realize that Microsoft suffers from the same defect. $8 Billion for Vista?
Which causes people to clamor for XP. Wither the Zune. Maybe they can push
through OOXML as a standard, but at best there will then be two competing
standards. Competing as in free market. So you have the world standard, and
the local one. This can go on, but I wouldn't worry. We still use gallons and
miles, while everyone else uses liters and kilometers.

But this is not a simply converted measurement. Innovation will occur where
things are open and flexible and integrate well with the rest of the standards
world. Linux goes onward and upward, albeit slowly. Windows has peaked and is
in decline technically and it is taking more billions just to get trivial
innovations. Firefox is just breaking out, IE has been stagnant for years. ODF
and the MANY office suites which support it is just getting started, while
Office2007 is looking to be like Vista.

SCO is blinded by their hubris, but so is the beast from Redmond. Large beasts,
even blind ones are still dangerous though.

And it looks like we might go into a recession. Can Microsoft convince
businesses to pay Billions for something they will need to retrain, convert,
audit, just to keep up support when money is very tight? The problem with an
attempt at "lock-in" is there can be no alternative if it fails. With
the DRM deeply integrated (and the WGA servers going down it exposed more
problems with it), the choice will be lock-in to a loan-shark or to become free.
Like SCO's 100% theory, if it works, they win, but if it doesn't, they've lost
it all.

[ Reply to This | # ]

SCO files motion in limine re apportionment of MS/Sun $$ and to exclude Novell's expert
Authored by: Anonymous on Tuesday, August 28 2007 @ 10:03 AM EDT

It wants them restricted to Section 4 of each agreement...

Oh yeah, right. The judge is going to restrict Novell to only talking about an agreement to which they were not and are not a party. Because of course their own theories as to how those agreements relate to the ones to which they were a party, those theories could not possibly be relevant!

[ Reply to This | # ]

TSG vs IBM already decided?
Authored by: Anonymous on Tuesday, August 28 2007 @ 10:06 AM EDT

TSG say The things IBM added to SVRX to make AIX belong to TSG because TSG owns SVRX. But Novell owns SVRX so by TSG's insane troll logic The things TSG added to SVRX to make Unixware belong to Novell because Novell owns SVRX. I think Novell should be allowed to use insane troll logic to show that the Microsoft of Sun licenses must be 100% SVRX because TSG admit they are Unixware licenses ;-).

In the real world we already have a ruling that TSG own the things they added to SVRX to make Unixware, so by extension IBM own the things that they added to SVRX to make AIX, and so IBM have every right to add the same things to Linux.

Is there anything left of TSG's complaints against IBM?

[ Reply to This | # ]

SCO files motion in limine re apportionment of MS/Sun $$ and to exclude Novell's expert
Authored by: Anonymous on Tuesday, August 28 2007 @ 10:08 AM EDT
"And SCO wants Novell's expert excluded. According to SCO, Terry L. Musika
intends to offer his opinion at trial that 100 per cent of all SCOsource license
revenues belong to Novell, including every penny from the Microsoft and Sun
agreements. SCO says he isn't qualified to be an expert anyway, and he didn't
come to the right conclusion having failed to analyze matters properly. "

So he isn't qualified to be an expert because he didn't reach a conclusion that
SCO agrees with? LMAO!!!!!!!

[ Reply to This | # ]

SCO files motion in limine re apportionment of MS/Sun $$ and to exclude Novell's expert
Authored by: Bill The Cat on Tuesday, August 28 2007 @ 10:10 AM EDT
Novell should bring in the SEC filings. It was in those that the SCOSource
revenue and the UnixWare revenues were stated separately. So, if the only
SCOSource revenue is SVRX revenue, and the only "customers" were M$
and Sun, then you have a pretty solid case that the money belongs to Novell.

What, SCOx will claim that they lied to the SEC? I doubt that they want to go
there either.

I think SCOx' fine management aided by their expensive lawyers walked their
client right into a trap. Remind me that if I ever need a lawyer, never to call
on Boies & Co.

---
Bill The Cat

[ Reply to This | # ]

SCO files ... Derivative Theory???
Authored by: Anonymous on Tuesday, August 28 2007 @ 10:14 AM EDT
What ever happened to the 'derivative' theory? If SCO can claim that Linux is
theirs because it is a derivative of SysV, then couldn't Novell claim that all
of UnixWare etc are theirs because it is a derivative of SysV? Wouldn't it be
sweet justice if the Judge agreed?

[ Reply to This | # ]

Confuse the Jury
Authored by: The Mad Hatter r on Tuesday, August 28 2007 @ 10:40 AM EDT


Note that the reason for filing this is TSCOG is afraid that any mention by
Novell that it thinks all of the money is owed to it may confuse the jury. Of
course if the judge decides that there are no facts in dispute and there isn't a
jury, this motion is mooted.

So they are still hoping it will get to a jury. I wonder if it will.



---
Wayne

http://sourceforge.net/projects/twgs-toolkit/

[ Reply to This | # ]

SCO Talk
Authored by: Anonymous on Tuesday, August 28 2007 @ 10:46 AM EDT
So, let me understand this:

1) Novell files updated exhibit list after judge's ruling, per the agreement to
update exhibits. Novell adds documents that they "may" use, "in
the event SCO advances any new theory of SCOsource revenue apportionment."

2) SCO objects to the new documentation for two reasons.

a) Because it was past the original deadline (okay, we all know they agreed to
the updates, but this is another story)

b) Because Novell did not,"move for leave to supplement its list...based
on the hypothetical possibility that a new theory is advanced."
Effectively, SCO is implying that they have no interest in advancing a new
theory.

3) Novell files a motion in limine against this "hypothetical
possibility". SCO has not responded to this yet - key word, yet.

4) SCO files a motion in limine in regards to apportionment - based on their
new theory of apportionment - which THE SAME DAY (both were signed on the 24th
of August) they simply called a "hypothetical possibility".

Exactly how much closer to lying can you get without crossing over the edge?

[ Reply to This | # ]

SCO files motion in limine re apportionment of MS/Sun $$ and to exclude Novell's expert
Authored by: Anonymous on Tuesday, August 28 2007 @ 11:19 AM EDT
Well ISO is being played like a fiddle. Basically Microsoft makes them look like
idiots.

Now if only the media would display them to the world as such they would take
some action to ensure that standards actually mean more than 'a document
submitted by a part with deep pockets'.

I'm just afraid that any fixing of the voting process will be too late to
prevent a redundant standard from being approved.

[ Reply to This | # ]

A Killer Argument for Novell
Authored by: Anonymous on Tuesday, August 28 2007 @ 11:24 AM EDT
Reading Document 403, all of a sudden I understood the business logic behind
Novell insisting, in its contract with Santa Cruz, that Novell would retain the
right to approve any new SVRX licenses. It's time for Novell to employ the logic
of that argument now.

Here’s the logic.

SCO's theory of apportionment in Document 403 is based on the actual express
terms of the Microsoft and SUN licenses. SCO is claiming that, since SCO and
Microsoft agreed to allocate x% of revenue to purpose (a), and y% revenue to
purpose (b), and so forth, and that only z% revenue was expressly allocated to
SVRX licenses, then the MAXIMUM that Novell could claim is z% revenue.

Okay.

But!!! -- Novell was smart enough, in the original contract with Santa Cruz, to
realize that since (then) Santa Cruz would have the power to act unilaterally as
Novell's agent and to seek out and then draft and negotiate new SVRX licenses,
then exactly how would Novell stop an unscrupulous Santa Cruz from conspiring
with it's “new friend” licensee and creating joint/mixed licenses where the
terms wildly UNDERVALUED the SVRX portion in allocating the total contract $$,
and INFLATED the non-SVRX considerations, thereby depriving Novell of its
reasonably expected future consideration?

So -- Novell said – aha!! we can cover this by retaining approval rights. If
Santa Cruz plays games with us and undervalues the SVRX portion in a false
allocation, we (Novell) will withhold our approval of the license. Then Santa
Cruz, in order to get SOME revenue, will be forced to negotiate with us (Novell)
fairly, to fairly apportion the revenue.

THAT’S why Novell retained approval rights.

So -- what did SCO do with Microsoft? And with SUN? SCO cooked their own deal,
belittling the SVRX code in the allocation as much as they reasonably could and
valuing it as nominal to non-existent. Now, does that actually MEAN anything
with respect to binding and limiting Novell’s rights? Of course not. Novell
ANTICIPATED that Santa Cruz- now -SCO might have tried to pull that stunt, and
wrote in the "Novell has to approve" protection.

Since Novell didn't approve the MS or SUN licenses, the agreements in those
licenses as to the allocations cooked up between MS and SCO, and cooked up
between SUN and SCO, have absolutely no validity. None. In fact, they represent
the mischievous behavior that Novell expressly anticipated, and built in a
mechanism to protect against. And by SCO ignoring the mechanism (Novell's
approval), the licenses have NO PROBATIVE VALUE as to a true apportionment of
Novell's interest.

There. That should do it.

LEXLAW

[ Reply to This | # ]

Well, I'm certainly no saint
Authored by: Anonymous on Tuesday, August 28 2007 @ 11:44 AM EDT
So, we have quite a comical turnaround. It's probably not too funny to SCO at the moment...You'd have to be a saint not to enjoy it a little bit.

What would I have to be not to enjoy it a LOT?

-Wang-Lo.

[ Reply to This | # ]

What were they thinking?
Authored by: Yossarian on Tuesday, August 28 2007 @ 01:46 PM EDT
>All the information that SCO wouldn't turn over to Novell since 2003

I understand the risks of not turning relevant material in
discovery, SCO gives us quite a demonstration.

What I don't get is "why take such a risk?"
What had SCO to hide so desperately that it decided to take
the risk of not just mailing Novel a Xerox of the contracts?

Does any legal mind want to explain that?

[ Reply to This | # ]

Scox's nose has not been bloodied
Authored by: Anonymous on Tuesday, August 28 2007 @ 03:27 PM EDT
I can not imagine where people get this odd idea that scox is losing, and that
justice if prevailing.



The entire point of this lawsuit was to put a legal cloud over Linux. In that,
the lawsuit is 100% successfully.



Scox and BSF has profited handsomely from the scam lawsuit. If you think BSF has
spent anywhere near $30 million defending scox, I'd advise you to stay away from
the hard stuff.



Cheer-leading may feel good, but it distracts from reality.

[ Reply to This | # ]

SCO files motion in limine re apportionment of MS/Sun $$ and to exclude Novell's expert
Authored by: Anonymous on Tuesday, August 28 2007 @ 10:16 PM EDT
You'd have to be a saint not to enjoy it a little bit.
The Germans have a word for it: "Schadenfreude", defined thusly: to take pleasure from the misfortune of another. According to the Wikipedia entry, the English equivalent is "epicaricacy", derived from a Greek root. Regardless of which word you prefer, I think that in this particular case a perfectly justified sensation given that the SCOundrels have brought it all on themselves.

[ Reply to This | # ]

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