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First Word from Day 1 of the Novell v. SCO Trial - Updated 2Xs
Tuesday, April 29 2008 @ 06:34 PM EDT

At last! First word arrives. I have quick notes from Chris Brown, one of our eyewitnesses, and there is the following court entry on PACER:
#530 Bench Trial - Begun
Minute Entry for proceedings held before Judge Dale A. Kimball: Bench Trial held on 4/29/2008. Trial opened at 8:30 AM with all parties present. Both parties invoked the witness exclusion rule. Opening statements were made by Mr. Jacobs and Mr. Singer. Testimony of witnesses was heard and evidence rec'd. Depositions of Joseph LaSala and Christopher Sontag were published. Court recessed at 2:08 PM. Attorneys for Plaintiff: Stuart Singer, Edward Normand, Brent Hatch, Jason Cyrulnik; Attorneys for Defendant: Michael Jacobs, Eric Acker, David Melaugh. Court Reporter: Becky Janke/Kelly Hicken. (kmj)

So, no David Boies.

From Chris Brown:

First reports...

Opening statements by both sides, a couple of witnesses, a couple of breaks, and a LONG day. I'm going to put some stuff together for you though. I took a LOT of notes, but if they're doing dailies you can get the details tomorrow.

Today's witnesses were Novell's Mr. Joseph LaSala and SCO's Chris Sontag. Poor Chris Sontag spent half the day on the stand. He was visibly worn out by the end of the day. And yet, he'll be back in the morning.

So, stay tuned. Lots more to come, first from our eyewitnesses, and then, if I've understood Chris correctly, then from daily transcripts. Yay!

Update: We have another first-hand report from an eyewitness for whom this was the first visit to this courtroom. This is what particularly stood out:

The courtroom is small compared to other courtrooms I have previously been in. There are only four small rows in the public area. One row was mostly filled with boxes and AV equipment. The public area had 20 to 25 people in it and was mostly filled. Court went from 8:30 AM to about 2:10 PM with two 15-minute breaks and no lunch. Michael Jacobs and Eric Acker argued for Novel, and Stuart Singer and Edward Normand argued for SCO.

The Novell legal team was very polished and clear. They knew what they wanted to say and had their exhibits well-organized. Their AV support person was very quick with the on-screen documents and video clips. He was very quick displaying documents when redirect was happening too. I enjoyed watching Michael Jacobs and Eric Acker lay out their case. They were a delight to watch. The Novell team was very focused on what was happening in court and did not talk much among themselves.

The SCO legal team were somewhat late in getting everyone in to the courtroom. One of the SCO team kept running out to the hall to get binders and documents from a large pile of boxes. On the first break they brought in 10 or so boxes. When leaving there was still a pile of boxes in the hall. All of them might not have been SCO's.

The SCO team was not as polished or as structured in their arguments. There was also a lot of talking/whispering among the SCO legal team. Stuart Singer and Edward Normand performed their duty fine, but both were impeded in their presentation while documents were hunted for and/or delayed in being displayed on the AV system.

Judge Kimball was mostly all business. He did not say much. There was some confusion about entering exhibits into evidence. There was an agreement to waive objections to the admission of exhibits listed on Attachment A in the First Amended Joint Pretrial Stipulation. Then there was one exhibit that Mr. Jacobs felt Mr. Singer might object to, which Mr. Singer then agreed to enter into evidence. This set up an exchange between Judge Kimball asking Mr. Jacobs on almost all other exhibits if he wanted to enter it into evidence. Mr. Jacobs did not let it interrupt his presentation.

Only two witnesses, Joseph LaSala and Chris Sontag, appeared. Mr. LaSala was very businesslike talking about various letters sent between SCO and Novell concerning SCOsource and auditing SCO's licensing. Chris Sontag was somewhat combative. He resisted answering yes or no questions. Mr. Acker had to repeat and/or restate most of his questions just to get a suitable answer so he could move on to the next question. Mr. Sontag looked to be worn down by the end of the day.

I was worn out myself and had to take a long break before writing this report.

Update 2: Here's Chris's longer report. He took 19 pages of notes for us, and here's the distillation:

I'd normally start by saying I'd just returned from the courthouse... but no, I left the courthouse about an hour an a half ago in possession of 19 pages of notes, and just a little "burned out". It was a long day, very few surprises, but some nice tidbits of information from witnesses.

First, what does Novell want? $19,979,561.00. Yeah, that precise, and they'll show us the numbers for it. SCO? They want to keep it, or only give Novell a "de minimis" amount.

In accordance with the agreement between the parties, and for the purposes of this trial, Novell is the plaintiff and SCO the defendant. Seating and order of arguments were in accord.

Michael Jacobs made the opening comments for Novell stating that they seek the recovery of $19,979,561 from SCO based on its licenses to Microsoft, Sun, and others. He focused on four points, that SCOsource is SVRX, SCOsource licenses convey substantial SVRX rights, Unix licensing practices do not help SCO, and that SCO, as Novell's fiduciary, has failed to apportion revenue to Novell. He said he will prove SVRX rights were substantial and that we can learn from history what incidental SVRX licensing looks like.

Unlike previous hearings, the AV media system was set up for both sides to use the same projection screen with multiple monitors for Novell, SCO, Judge Kimball, and witnesses. During the day it was used extensively to display charts, documents, and deposition video clips.

For the first point, Mr. Jacobs put up a slide depicting Unix variants in the form of a tree. Branches showed variously SGI, AIX, HPUX, Solaris, UnixWare, OpenServer, etc. The trunk was labeled (as if from SCO's perspective) as "SCO IP (Unix)" and made clear this was the legacy code base. He described how the SCOsource campaign is to "Mine the Trunk."

Displayed next was SCO's May 12th, 2003 letter to Fortune 1000 companies and it was described as having as its purpose to scare or frighten the Linux user base. However, (displaying the tree again) SCO now claims all the value is in the branches.

In reviewing the SCO's May 25th, 2007 final expert report, T. Cargill only identified SVR4 code as having been infringed.

Novell claims to own pre-APA SVRX copyrights. He covers some history of the case and tells how SCO sued Novell for slander of title and how SCO alleges Novell's claim to own the SVRX copyrights has caused $300 million in damages to SCO. However, SCO has told the SUSE Arbitral Panel that it's pointless to continue, because all copyrights relevant to SUSE's purported infringement have been held to be owned by Novell and that thus arbitration need not continue. Mr. Jacobs summarized this as demonstrating SCOsource was all about SVRX, not the branches.

On point 2 he claimed that SCOsource licenses would convey broad SVRX rights. He described sections 2 through 4 of the Microsoft Agreement. He expressed that Novell should be apportioned the Section 2 revenue as it releases Microsoft of existing general claims, releases any claims of SVRX infringement against Microsoft, and it provides intellectual property licensing to current Microsoft products and services. Section 3, which should be apportioned to SCO ($7 million), provides the option to purchase UnixWare licenses, but that it only grants licenses to SCO UnixWare 7.1.3. However Novell should be apportioned the $8.25 million revenue from Section 4 which provides Microsoft the option to purchase licenses to other SCO assets. Mr. Jacobs described this section as a "fire sale" to SVRX rights.

He showed the 2003 Sun Agreement and gave some background from the 1994 agreement. He said that in 1994 Sun bought out of their royalty remittance obligations for their Solaris branch. However Sun's confidentiality obligations were left intact. He said the agreement covers Unix through SVR4. The 2003 agreement modifies the 1994 agreement (something SCO cannot do without Novell's permission). It's about a buy out. It relaxed the licensing restrictions, imposing virtually no restrictions on Sun's rights. In its Section 8.1 it reads that Sun may release the software under "any licensing model now known or developed hereafter in Sun's sole discretion" and "shall mean such technology or derivative matter thereof is not confidential information." And so Solaris can now be licensed under open source licenses. Mr. Jacobs says this is "not a trivial license." OpenSolaris is derived from the SVR4 code base, and as a result of the agreement may now be downloaded over the Internet. He shows a slide of OpenSolaris code and says it is "littered" with "copyright 1984, 1986, 1989, etc AT&T." This is SVRX code.

In Mr. Jacobs' third point he states that the Unix licensing practices do not help SCO. SCO knows what incidental licensing of SVRX means. He shows a slide of Unix timeline and terms to describe the releases. He says that SVRX is up to SVR4.2MP/UnixWare 2.0, then the APA was executed, then after that SCO UnixWare 2.1 through 7.1.4.

He shows NCR's 1997 Agreement Supplement #112 for UnixWare 2.1 source. He says that each time there was a new release NCR would execute an additional supplement for the most recent release (with all previous releases enumerated which "they had already paid for on previous supplements". He says this is an example of incidental licensing of SVRX. He contrasted this to the Sun 2003 Agreement granting broad new rights.

In Mr. Jacobs' fourth point he says that SCO is Novell's fiduciary and that this places a heavy weight on Novell's side of the scale. He provides an example in real estate where perhaps Novell owns the land but SCO builds the house. When SCO sells the property the money is commingled (as it's sold for one price for the whole property). However in this case it's possible to determine each party's apportionment through appraisals for the land or homes. Here SCO claims the "trunk" of the tree is valueless.

Mr. Jacobs summarized his points and asks that judgment be entered in Novell's favor for $19,979,561.

Next Stuart Singer presented SCO's opening comments. He opined it's interesting that Novell now has an exact dollar value when just a few days ago Novell said it would not claim 80% of this license or such.

Mr. Singer presented a series of early SCO press releases and highlighted the wording in each saying "UnixWare", "Unix libraries", "shared libraries", & etc. Included were a December 2002 press release, a January 2003 announcement, and a February 2003 sales guide.

He said that UnixWare *IS* SVRX technology, it is SVR4.2 MP technology. It is an advanced SVR5 SMP OS. Novell's own documents demonstrate UnixWare has within it the critical SVRX technology. Technologies licensed by SCO for UnixWare include technology from SVRX. It is in UnixWare, but it may have originated in certain SVRX releases.

He briefly presented a slide saying there are three principal issues for the court. First is, which components of the Microsoft and Sun agreement are SVRX licenses and what value to attribute to them. He refers to the Microsoft Agreement section 2.1 where SCO released any claims *SCO* has, not Novell has. Therefore it cannot relate to Novell's rights. Section 3 is an option Novell does not make claims to. Mr. Singer presented section 4, but I failed to document the remaining part.

He refers to the Sun Agreement, Section 4, where it provides a license to UnixWare and previous SVRX as well as drivers for UnixWare and OpenServer. In Section 10, SCO provides indemnification for SUN from *SCO* (not Novell).

Mr. Singer presented a slide apparently showing per-release sales volume plotted against time. He demonstrated how previous release sales demand fell off with release of the next version. He stated that there is no demand for prior version products. He claimed Novell did not seek, or expect, any "royalties" for any System V prior products. He said that the minor "SVRX license" in the Microsoft agreement has no significant value.

He said that OpenServer sales represent 2/3 of SCO's revenue and that Novell has no rights to OpenServer as it was developed by Santa Cruz.

Mr. Singer claims in the Sun agreement the UnixWare license is very valuable. The licenses to OpenServer drivers are very valuable.

Mr. Singer continued with his second issue for the court to consider: that SCO owns, and may release, all claims it is entitled to bring relating to SCO's IP. SCO releases *only* those rights it had the right to release, not any claims of Novell. SCOsource agreements started with SCO's exclusive rights to UnixWare and OpenServer. He claimed the SCOsource licenses were not related to royalty-bearing SVRX licenses.

His third issue was that the APA's Amendment 2 did not prevent SCO from entering into the 2003 agreement with Sun. Novell's position conflicts with paragraph B.5 of Amendment 2.

Mr. Singer summarized that SVRX licenses were only incidental.

Next Mr. Jacobs called his first witness, Mr. Joseph LaSala, Novell's former General Counsel. Like SCO's Chris Sontag later, Mr. LaSala was outside the courtroom, in keeping with the witness exclusion rule previously invoked by the parties. Mr. LaSala stated that among other things he was responsible for Novell's communications with SCO regarding compliance with the APA.

Under Mr. Jacobs' interrogatories Mr. LaSala cited a June 2003 letter from him to Mr. McBride to request SCO provide copies of licenses with Microsoft and an unnamed party. This was in response to a public announcement by SCO and Novell's belief they may implicate certain rights Novell may have. He cited a July 11, 2003 letter from Mr. Brady to Michael Bench at SCO which said that it had been more than 6 months since there were any royalty payments or reports, and that in accordance with their rights under the APA they demanded an audit of SCO's activities.

Following this I have two pages of notes relating details of correspondence Mr. LaSala related of Novell's frustrated attempts to get an accounting of SCO's Unix activities and copies of the Microsoft and Sun agreements. By the time of a November 17, 2004 letter from LaSala to SCO counsel Ryan Tibbets, Novell had learned of Sun's plan to open source Solaris. He reminded SCO of Novell's rights and demanded again a copy of the Sun agreement by December 2004. In this letter, Novell cc'd Sun's general counsel, putting Sun on notice of potential issues that their UNIX license and open source plans may bring up.

Next, Mr. Singer cross-examined, asking if Mr. LaSala was aware of conversations in late 2002 between SCO and Novell to license UNIX rights, to which he said he was. In response to a question, Mr. LaSala replied that he did not state to SCO that Novell has rights to revenue from licensing. On further questioning Mr. LaSala replied that he did not use the term "Novell repudiates SCO's agreement" with Sun. Nor did he for another (Microsoft?) agreement.

Mr. LaSala agreed with his declaration in the IBM case that Novell has no rights to Sun's derivative works. Mr. LaSala agreed Solaris is a derivative of UNIX.

Next, Mr. Singer began questioning Mr. LaSala on points related to Novell's auditing of SCO. Mr. Jacobs objected that the questioning exceeds direct, where followed discussion, and Judge Kimball's overruling, saying that it's better to proceed now rather than call the witness back to the stand at another time.

Mr. Singer asked, regarding Novell's pursuit of the audit, if Novell was prejudiced in their ability to determine allocation of money by not having the agreements earlier. Mr. LaSala said, regarding allocation, that they were not.

Mr. Jacobs then questioned Mr. LaSala on redirect. He referred to SCO asking about Mr. LaSala's declaration in the IBM case, where Mr. LaSala confirmed it was Sun's derivative code he referred to (rather than the SVRX source). Mr. Jacobs asked what he knows of SCO's financial condition since the agreements were signed to which Mr. LaSala stated that he's aware SCO suffered a precipitous financial decline. Mr. Jacobs asked, in light of this decline, if Novell was prejudiced by SCOs delay regarding Novell's recovery of money from SCO, to which Mr. LaSala said they certainly were.

The court then had its first of two 15-minute breaks.

Next Erik Acker called Christopher S. Sontag as a witness. Mr. Sontag began his employment at SCO in 2002 and was responsible for the SCOsource program since its inception. Under questioning, Mr. Sontag said that SCO was not profitable the year he was hired, nor has it been at any other time he was there, with the exception of the time of the agreements. When he was hired, the SCOsource program had not yet started, but there were certainly discussions of evaluating the Unix assets, he testified. Mr. Sontag agreed with the characterization that the SCOsource revenue was envisioned as potentially worth billions of dollars.

Mr. Acker referred to a SCO (draft?) press release regarding SCOTech (an earlier name for SCOsource) which stated the program would monetize SVR4.

They reviewed the APA schedule 1.1A list of assets and what versions of SVRX income were to flow back to Novell. Mr. Sontag seemed to say items on this list were assets that transferred to SCO. Mr. Acker asked Mr. Sontag if he often used the name System V to refer to all Unix, which he did. Mr. Sontag claims SVR4 and UnixWare means the same thing to him.

Mr. Acker displayed a presentation slide from 2002 reading "SCO is concerned about violations of our software license copyrights. SVR4 Libraries. OSR5 Libraries". Mr. Acker pointed out that SCO's concern is SVR4, not UnixWare.

Mr. Acker cites a SCO press release, "SCO's patents, copyrights and core technology date back to 1969 when Bell Laboratories created the original Unix source code. SCOsource will manage this software technology to customers and vendors." Mr. Acker asked if *this* is the technology that SCOsource is licensing to which Mr. Sontag responded not just this, but the most recent versions. Mr. Sontag further clarified that these were the runtime libraries to allow Linux users to use SCO's libraries to run OpenServer or UnixWare applications on Linux.

Mr. Acker read from the May 12th, 2003 letter from Darl McBride to the Fortune 1000 companies. "SCO holds the rights to the Unix OS...", Paragraph 5: "Many Linux contributers were originally Unix developers who had access to Unix source code distributed by AT&T." Mr. Acker points out Darl cited software going back to AT&T as the software of interest. Chris Sontag characterized the letter to be about SCO's broad IP rights... The intent is SCO's entire portfolio not just the original SYSV code Darl identifies.

Mr. Acker asks, since the letter refers to the IBM suit, if the basis of the letter is the same as the IBM case. He cites Cargill's report where only SVR4 was listed as infringed. Chris Sontag said that he didn't read the expert report and that Novell would have to ask him.

Mr. Acker showed a presentation slide from the SCO Forum 2003 "SCOsource Update" presentation given by Chris Sontag (and Mark Heise). It contained a side-by-side comparison of a portion of the malloc code from SVR 4.2 and Linux. Mr. Acker asked about it only being 4.2. Chris says he's not aware of any examples from UnixWare. He stated that the malloc code is substantially the same (in 4.2 as it is in UnixWare).

Mr. Acker showed a letter dated December 19, 2003 to Lehman Brothers with a list of software (allegedly infringed). In the letter, Ryan Tibbits stated the code was also part of the UC Berkeley settlement (1994). Mr. Acker asks "isn't it right that no-one at SCO has stated that anyone has taken code from UnixWare and placed it in Linux?" Chris Sontag answered that when they refer to Unix IP, they mean UnixWare and OpenServer.

Mr. Acker played back deposition testimony where Mr. Sontag agreed with the statement. Mr. Sontag repeated that he includes UnixWare in all IP rights.

Acker then showed the 2003 Sun Agreement which Chris Sontag confirmed he signed for SCO. He further agreed that it is a SCOsource license. Eric cites language in the agreement which states that this new agreement amends and restates the original 1994 agreement. Chris wouldn't agree with whether the verbiage was accurate or not, but said that the agreement does more than that.

They spent some time discussing whether or not page 1 of attachment 1 of the two agreements contained the identical list of software (which it was settled that they were (barring letter-by-letter comparisons).

In the 2003 Sun license page 2 adds 7 items (3 versions of SVR 4.1, 2 of 4.2, SVR5 (UnixWare 7.0+), and OpenUnix). Mr. Acker drew a line above the last two and identified those items above (including all 30+ on page 1) as pre-APA. Mr. Acker referred back to the 1994 agreement, showing a page from it entitled "Deliberately Omitted Software" which called out SVR4.1 as being omitted (this item appearing as SCO licensing to them in 2003).

Mr. Acker pointed to language in the 1994 agreement which does not permit Sun to publicly display the source code and in fact requires Sun to protect the code as they would their own code.

He spent some time showing that Sun wanted a broader license to allow it to open source Solaris. Chris Sontag agreed that as a result of the 2003 agreement, Sun was able to open source Solaris.

Eric Acker confirmed that SCO received just under $9 million for this from Sun, of which not one penny went to Novell. Further Sontag confirmed that SCO neither notified Novell nor sought Novell's agreement. Sontag further stated that he didn't believe they needed to, that the agreement (with Sun) was primarily about UnixWare.

Sontag admitted that SCO was aware at the time of SCO's requirements under the APA for Novell's agreement, but disagreed that it applied to the Sun agreement.

Mr. Acker reviewed several letters between SCO and Novell in 1996 that restate the understanding that Novell's permission is required to change or amend any agreements *relating to* Unix System V.

He cited a proposed term sheet with Microsoft. On it were identified "Unix System V, UnixWare, and OpenServer" and pointed out that Unix System V was called out separately from UnixWare. Mr. Acker further played sections of deposition testimony where Chris Sontag stated/agreed with the assertion that Microsoft wanted an agreement not just to UnixWare, but also to older Unix core technology. He further confirmed not a penny of the license fees flowed to Novell, nor did SCO seek Novell's agreement.

Mr. Acker showed the Microsoft Agreement and demonstrated Microsoft did not have existing licenses for SVRX 4.1 or 4.2, that this license granted this to Microsoft .

He also discussed SCO's website page on the "SCO Intellectual Property License" which defines SCO IP as "Unix System V *or* UnixWare". Chris Sontag stated less than 20 or 30 licenses were purchased online. He confirmed that purchasers obtained rights to both System V *and* UnixWare.

The court then took its second 15-minute break, after which Eric Acker continued his questioning of Chris Sontag, reviewing the terms of various licenses and wording using "Unix System V *or* UnixWare" and "Unix System V *and/or* UnixWare."

Specific contracts called out were those for Questar Gas, Lane Furniture, OCE Printing Systems GmbH, CDM, Computer Associates, Cymphonix Corp, Everyone's Internet, and HEB Grocery Co LP as well as the amounts they paid.

An email was shown from Jeff Hunsaker (Sr. VP of Worldwide Sales in 2003) to Darl McBride, Chris Sontag, and others which read in part "There is no connection between UnixWare/OpenServer and the SCO Unix IP License whatsoever; they are independant. Simply put this license allows users of Linux to run legally."

Mr. Acker then concluded his examination of Chris Sontag whereupon Mr. Normand for SCO began his questioning.

Mr. Normand asked Sontag if he used UnixWare and System V interchangeably during his tenure, to which Mr. Sontag agreed and further explained it was because SCO was considering changing the name to System V.

They discussed various definitions including that libraries "are a part of an operating system to allow an application to talk to the OS."

In discussing SCOsource, Sontag seemed to be claiming that its point is *solely* as runtime libraries (rather than SVRX code in Linux kernel).

They quoted T. Cargil that "overall Linux is a substantial copy of the SVR4 OS" and one "could equally say Linux is a substantial copy of the UnixWare OS."

Mentioned malloc code from many releases and substantially similar to releases over 10 or 20 years.

Regarding the Lehman Brothers letter, they say it was only referring to what code SCO has rights to (rather than Novell).

Regarding the 2003 Sun Agreement and a fall 2002 meeting with SCO and Sun engineers, they said they discussed joint marketing possibilities; that at the time Solaris only ran on SPARC hardware, and they wanted to run on PC hardware; that Sun wanted licenses (from SCO) to develop a 386 version of the OS. He further says that drivers were an important part of the deal. Asked "UnixWare or older", Sontag replied UnixWare -- older wouldn't make sense.

Chris Sontag characterized Sun's agreement prior to 2003 as already having more rights than any other licensee, including source sublicense rights though they still had the 1994 confidentiality provisions. In 2003 Sun argued that most (of the confidentiality provisions) had been subverted over the years including by things like Lion's book. Sun wanted to loosen confidentiality restrictions. The 2003 agreement required a "for-value" license which would not allow GPL. SCO did not want a wholesale dump of Unix into Linux.

Mr. Normand highlighted lots of the latest versions of software licensed in various agreements, particularly OpenServer 8/UnixWare 7.x and noted they are not listed in APA Schedule 1.

He claimed that the 1994 Sun Agreement already gave Sun broad source code right-to-use permissions.

He discussed Sontag's understanding that SCO had the right to license SVRX when incidental to UnixWare sales.

He highlighted parts of a 1994 letter on Novell letterhead to Sun that uses language indicating Novell had transferred ownership of System V Unix to SCO (I did not hear the authorship).

Discussing the Microsoft agreement, SCO stated they did not release Novell claims. SCO did not claim rights that belong to Novell.

With regard to the Microsoft Term Sheet (where Unix System V was called out separately from UnixWare), Sontag explained it by saying it was just a list (in no particular order) of product talking points and that Microsoft might be more familiar with the term "Unix System V" than UnixWare.

OpenServer source code had never been licensed before. Microsoft was the first to license it. OpenServer represents 2/3rds of SCO's revenue. This gave Microsoft access to SCO's OpenServer customer base (also valuable).

Sontag stated that Microsoft had no interest in selling stand-alone versions of older Unix products, that in using the code for development, they would want the newest version.

Sontag continued with clarification of Sun's 2003 Agreement saying that Sun wanted to make sure they had all the UnixWare and OpenServer drivers. He claimed drivers were very important to them and further that they did not request drivers for older Unix versions.

Regarding SCOsource licenses, he explained they were basically a release of claims, not to sue, and a UnixWare license. SCO did not purport to license anyone else's rights, only SCO's rights.

He stated that in discussions with Novell in 2002, SCO sought clarification of the APA excluded assets. Novell was interested in SCO's involvement in United Linux. Sontag never asked Novell to partner with SCOsource, he claimed, and Novell never suggested that they could limit SCO or that money would have to be due Novell under SCOsource.

Regarding Sun's agreement, Sontag said that in 1994 Sun bought out of paying royalty payments; thus in 2003 the agreement did not modify that -- they had already bought out. They already had most rights and the 2003 agreement only gave them Intel ability.

Mr. Normand finished his examination. Judge Kimball opined that Novell would likely want to spend more than 15 minutes on redirect to which Mr. Acker replied that that is the case. Judge Kimball then said the court would continue the next morning.

LaSala is no longer with Novell and Sontag is no longer with SCO, by the way. To help you visualize what Novell's attorney was talking about, here's a graphic from a SCO talk at SCOForum 2004, showing the trunk as UNIX and UnixWare as one of the branches:

And I just happened across this article today in Heise Online, from back in 2003, November 11, 2003, when Darl McBride gave his speech about "There's No Free Lunch or Free Linux" at Jupitermedia's cdXpo. The article is in German, but all you have to do is look for System V. You'll find it, even if you can't read German:

SCO-Chef Darl McBride ist nach dem juristischen Vorgehen von SCO gegen IBM und die Linux-Community wegen angeblich geklauten Unix-System-V-Codes im Linux-Kernel Anfeindungen gewohnt.

Now search for "UnixWare". Nope. Not there. And note it doesn't just say UNIX. It says Unix System V code in the Linux kernel. That's not the only place:

Seine Kernaussagen fasste McBride in fünf kurzen Sätzen zusammen: SCO
* besitzt demnach sämtlichen Unix System-V-Code,
* besitzt alle dazu zugehörigen Urheberrechte,
* besitzt alle Lizenzvereinbarungen, die Lizenzen von Unix System V betreffen,
* kontrolliert alle abgeleiteten Entwicklungen aus Unix System V und
* besitzt sämtliche Ansprüche aus Urheberrechtsverletzungen.

I have a personal opinion about all this, which is buttressed by the testimony of Sontag saying that they were aware of the requirements under the APA, presumably meaning the need to pay Novell for SVRX and mostly not for UnixWare. I think they may have deliberately set it up so that when they offered the SCOsource licenses to EV1 types, they definitely mentioned System V code as being what was infringed, but cleverly called it SVRX code as found in UnixWare, so as to take the money and run. That gloss was the legal hop, skip and a jump away from having to pay Novell, I've come to believe. That's the only explanation that makes any sense to me. Certainly nothing SCO says makes any sense to me if I listen and take it at face value, because I know UnixWare and UNIX System V are not the same thing. UnixWare is a derivative, as you can see in the graphic, meaning you'll likely find System V code in it, along with NetWare, which SCO doesn't even own, and various other code pieces. The pretense, in other words, as I see it, is that by pointing to the SYS V code in UnixWare and pretending it didn't come from UNIX, that somehow it got divorced from System V once it was put in UnixWare, SCO can contend that it owes Novell nothing.


  


First Word from Day 1 of the Novell v. SCO Trial - Updated 2Xs | 514 comments | Create New Account
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First Word from Day 1 of the Novell v. SCO Trial
Authored by: Ninthwave on Tuesday, April 29 2008 @ 06:37 PM EDT
Thank you. Will wait more calmly knowing that information is coming from
capable hands.

---
I was, I am, I will be.

[ Reply to This | # ]

Corrections
Authored by: bugstomper on Tuesday, April 29 2008 @ 06:39 PM EDT
If such a short article needs any corrections. Make your title a one-line
summary of the correction, e.g., "s/wrong/right/" or
"wrong-->right"

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Thanks Chris.
Authored by: Anonymous on Tuesday, April 29 2008 @ 06:40 PM EDT
.

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OT threads
Authored by: alansz on Tuesday, April 29 2008 @ 06:41 PM EDT
Put 'em here.

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News Picks
Authored by: bugstomper on Tuesday, April 29 2008 @ 06:44 PM EDT
Put the title of the New Picks article in your comment title to make it easier
for everyone to read. Include a link to the article to make it even easier when
the article scrolls off the News Picks sidebar.

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First Word from Day 1 of the Novell v. SCO Trial
Authored by: webster on Tuesday, April 29 2008 @ 06:47 PM EDT
.
Certainly a long day. Anticlimactic, like watching grass grow. Nuts and bolts,
not sleek chrome. Note Sonntag is Novell's witness. That makes it doubly
exhausting for him to give evidence against himself.

~webster~

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Question??
Authored by: jbeadle on Tuesday, April 29 2008 @ 06:54 PM EDT
From the minute entry:
Attorneys for Plaintiff: Stuart Singer, Edward Normand, Brent Hatch, Jason Cyrulnik; Attorneys for Defendant: Michael Jacobs, Eric Acker, David Melaugh. Court Reporter: Becky Janke/Kelly Hicken. (kmj)

I thought that Novell was the plaintiff here because of the counterclaims, not tSCOG.

What am I missing?

Thanks -
-jb

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First Word from Day 1 of the Novell v. SCO Trial
Authored by: Anonymous on Tuesday, April 29 2008 @ 06:55 PM EDT
So - no appearance by David Boies. Interesting.

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Darl's proudest day of his life.
Authored by: Anonymous on Tuesday, April 29 2008 @ 07:04 PM EDT
At long last - SCO has it's day in court.

Darl must be a happy bunny.

I honestly never thought we'd get here, and looking back so far at some of the
heated reactions we all had at some of the SCO antics - it really has turned
into a bit of a whimper.

Where are the press releases, where is darl's blabbing mouth..

Is this the quiet before the storm.

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Summary Judgements
Authored by: imperial on Tuesday, April 29 2008 @ 07:41 PM EDT
I may be a little confused here, but I thought then first day of the trial was
going to be for submissions on PSJs or am I getting confused with SCO vs IBM.

If it is SCO vs IBM, when is that due to be heard?

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Mettler on the Trial
Authored by: Steve Martin on Tuesday, April 29 2008 @ 10:22 PM EDT

fr om Lamlaw

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

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Poor Chris Sontag spent half the day on the stand
Authored by: Dave Ivedorne on Tuesday, April 29 2008 @ 11:10 PM EDT

"Mine is a long and sad tail", said Sontag...



---
Would you like the combo?
IANAL

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First Word from Day 1 of the Novell v. SCO Trial - Updated
Authored by: Anonymous on Wednesday, April 30 2008 @ 12:25 AM EDT
"Chris was combative" Is this a recognizable behavior when you have
something to hide? I am sure the judge has seen all kinds of behavior. It
seems after many many times of seeing witnesses come and he would almost be able
to profile the witnesses knowing they aren't being truthful. ON the other hand
is there any connection with being cooperative and the witness being truthful.
Meaning that the cooperative witnesses side wins the case. I don't know if this
makes sense or not.

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Novell drops claim to $19.9 million
Authored by: rbrinkman on Wednesday, April 30 2008 @ 02:04 AM EDT
Hitting refresh on the internet long enough and some news was bound to run up somewhere. More here, for those that can't wait for the local report: Salt Lake tribune

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Perjury?
Authored by: GLJason on Wednesday, April 30 2008 @ 03:19 AM EDT

Chris's statements at trial seem to contradict the evidence and statements made back in 2003. I know their new re-branding of UnixWare as just the next version of Unix is confusing and hard to follow, but it is just a lie. SCO did claim to have bought Unix lock, stock and barrel from Novell (via Santa Cruz) and that was the basis for their claims in SCOSource licensing and in their claims against IBM and others.

He refers to the Microsoft Agreement section 2.1 where SCO released any claims *SCO* has, not Novell has. Therefore it cannot relate to Novell's rights.
I hope someone from Novell's legal team is reading this. This is ridiculous because after they lost the battle for Unix copyrights, they still claimed the rights to license violations in the IBM case. Their argument was that they didn't own the IP, but they owned the contracts, so IBM should pay SCO for violating the IP rights of Novell. Yeah, I know it doesn't make sense but that is what they claim.

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Change the name to protect the ignorant
Authored by: Anonymous on Wednesday, April 30 2008 @ 03:48 AM EDT
> Mr. Normand asked Sontag if he used UnixWare and
> System V interchangeably during his tenure, to which
> Mr. Sontag agreed and further explained it was because
> SCO was considering changing the name to System V.

Didn't they learn well from the Big M? Got some crapware
with declining sales? Just change its name to something
as traditional as apple pie, and hope nobody notices what
they really bought.

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First Word from Day 1 of the Novell v. SCO Trial - Updated 2Xs
Authored by: Anonymous on Wednesday, April 30 2008 @ 03:48 AM EDT
From what's written here it seems to me that Novell raised some very good points
about SRV & Unixware being distinct, and was able to back them up nicely.
SCO however seemed unable to counter Novell's points, apparently preferring a
defence of vague handwaving...

SCO seem to think that rewriting history is the only defence left to them, very
enjoyable to read. I'm picturing SCO these days as a little worm wriggling on
the end of a very big hook.

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Sun wanted whaaat?
Authored by: Anonymous on Wednesday, April 30 2008 @ 03:57 AM EDT
SCO talked with Sun engineers in the fall of 2002 because
"Sun wanted licenses ... to develop a 386 version of the OS"

386? 2002? Sorry, I've just had a credibility deficiency.

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Thank you (thread :-)
Authored by: Peter Baker on Wednesday, April 30 2008 @ 04:10 AM EDT
I'd like to thank PJ + everyone involved for the effort involved in following
the trial and reporting/analysing so quickly..

I'm sure I'm not the only one appreciating this hard work, so I hope this threat
grows as an indication :-)


---

= P =

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Update 2 is superb
Authored by: Anonymous on Wednesday, April 30 2008 @ 04:42 AM EDT

All I can say is "WOW." What a superb job of note taking and summarizing.

Thanks, Chris, for a really, really, really superb piece of work.

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Newsday: The Sale That Isn’t a Sale
Authored by: Anonymous on Wednesday, April 30 2008 @ 04:43 AM EDT
I read something in the New York Times yesterday that may be like what SCO has
been trying to do. Seems Newsday is being sold, but the sale is being
"massaged" so that for tax purposes it is not considered a sale.



http://dealbook.blogs.nytimes.com/2008/04/29/newsday-the-sale-that-isnt-a-sale/i
ndex.html?scp=1&sq=newsday&st=cse

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Thanks Chris!! /nt
Authored by: kjb on Wednesday, April 30 2008 @ 05:05 AM EDT
.

---
keithdotburt at gmail dot com
Copyright info in bio

"No! Try not. Do, or do not. There is no try."
- Yoda

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Valuable Customer Base???
Authored by: Anonymous on Wednesday, April 30 2008 @ 05:38 AM EDT
"This gave Microsoft access to SCO's OpenServer customer base (also
valuable)."

I'd love to see the list of SCO OpenServer customers who were up to this time
NOT Microsoft customers. I bet the list fills at most zero pages.

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Sun liable ?
Authored by: Anonymous on Wednesday, April 30 2008 @ 06:24 AM EDT
The report above mentions that :

Novell cc'd Sun's general counsel, putting Sun on notice
of potential issues that their UNIX license and open
source plans may bring up.

Thus Sun could and should have known that they where
breaching the rights of Novell. The question now is of due
to the large damage done to Novells intellectual rights by
open sourcing Solaris Novell now can sue Sun for
additional damages beyond trying to get the license fees.

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Solaris.
Authored by: Anonymous on Wednesday, April 30 2008 @ 06:50 AM EDT
The bit that jumped out at me is the bit about the license allowing Sun to open
source Solaris.

This makes sense. The timing is right. It also makes me feel rather ambivalent.
Buying a SCOSource license seriously damaged Sun's reputation as an open source
friendly company. We all saw it as Sun supporting SCO in its legal campaign. Yet
now it turns out that they did it in order to open source Solaris - something
that I generally approve of. Sun took a real beating over this. And they took it
in silence without mentioning anything about their reasons by way of
justification. I'm going to have to think about that.

The other thing that worries me is what impact the current trial will have on
Solaris. Novell may well end up with the power to try to unravel the deal. In
fact this I think is the likely outcome. This places a serious cloud over the
open source license for Solaris. We could lose a whole free operating system as
a consequence of this.

What will Novell do? Novell is another blemished company, once a shining light
in the open source firmament that has fallen from grace in the eyes of many
because of the Microsoft patent deal. Novell could jump either way here.

On the one hand cementing in the open source licensing for Solaris would go a
long way toward repairing their damaged reputation in the open source community.
On the other hand there is Microsoft, the very people that Novell cut a deal
with before, who would probably love to see a significant piece of open source
software in license difficulties, and who might be willing to offer all sorts of
sweet incentives to Novell to see that happen.

Will Novell be tempted to fall from grace yet again? Or have they learned a
lesson from what happened last time they dealt with MS. Interesting times lie
ahead, even after the trial, in this regard.

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What if, turned into public domain?!
Authored by: Anonymous on Wednesday, April 30 2008 @ 07:15 AM EDT
What if, the judged turned the entire code into public domain?!

But first, I have no idea if he could do it. Perhaps he could argue that no-one
involved in this business seemed to have any clue on how to handle or track
copyrights or guarding "their own code".

So, what if he decides that the entire code base would be turned into the public
domain?

Would that be good? In effect it would mean that all parties could start de
novo, including large (unnamed and monopolistic-like) companies.

What if?

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It actually made it to trial!
Authored by: SilverWave on Wednesday, April 30 2008 @ 07:25 AM EDT
Wow!

Very surprised - SCO are going to be very toasty before this is over.

Watching with interest.

---
Phorm is highly intrusive - it's like the P.O. opening all my letters to see
what I'm interested in, merely so that I can be sent a better class of junk
mail.

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First Word from Day 1 of the Novell v. SCO Trial - Updated 2Xs
Authored by: PolR on Wednesday, April 30 2008 @ 08:05 AM EDT
Chris Sontag characterized Sun's agreement prior to 2003 as already having more rights than any other licensee, including source sublicense rights though they still had the 1994 confidentiality provisions. In 2003 Sun argued that most (of the confidentiality provisions) had been subverted over the years including by things like Lyon's book. Sun wanted to loosen confidentiality restrictions. The 2003 agreement required a "for-value" license which would not allow GPL. SCO did not want a wholesale dump of Unix into Linux.
Remember Sun taking some flak for releasing Solaris under CDDL instead of the GPL? Remember those talks of releasing Solaris under the GPL that don't seem to materialize? If Sontag is right, it would appear that Sun has a serious legal hurdle to overcome before Solaris on GPL happens.

Now the copyrights are firmly in Novell's hands. I don't see why Novell would permit a GPL-based Solaris it they can stop it. It would undermine their Linux business.

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First Word from Day 1 of the Novell v. SCO Trial - Updated 2Xs
Authored by: Anonymous on Wednesday, April 30 2008 @ 08:56 AM EDT
So there is no more SUSE vs SCO arbitration. I must have missed that little
news article.

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per release sales volume ...
Authored by: nsomos on Wednesday, April 30 2008 @ 09:05 AM EDT
I am rankled by the following argument.
-----------
Mr. Singer presented a slide apparently showing per-release sales volume plotted
against time. He demonstrated how previous release sales demand fell off with
release of the next version. He stated that there is no demand for prior version
products. He claimed Novell did not seek, or expect, any "royalties"
for any System V prior products. He said that the minor "SVRX license"
in the Microsoft agreement has no significant value.
-----------

This is like bringing out a new model of a car which
includes a sound-system, where the old one did not,
and selling for exact same price.

Would you conclude when people only buy the newer one
with sound-system, that there is no value in the
car itself? Just try selling only the sound-system
for anywhere near the cars price.

While various add-ons and extras may be an important
differentiator from the older vesion, without the
solid base to build upon, the add-ons and extras have
little to no value in themselves.

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Did MS buy IP-insurance?
Authored by: Anonymous on Wednesday, April 30 2008 @ 09:26 AM EDT
Microsoft wanted an agreement not just to UnixWare, but also to older Unix core technology
Could it be that MS bought this license so as to claim they had a license to put UNIX code into Windows...?

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WOW big Suprise! - NOT
Authored by: Anonymous on Wednesday, April 30 2008 @ 09:27 AM EDT
>> SCO's Latest Monthly Operating Reports, for March - Where Did All the
Money Go? - Updated 2Xs

>> Tuesday, April 22 2008 @ 10:02 AM EDT

>> And on page 11, SCO operations lists its total assets at $13,016,547,
counting everything, office equipment, professional retainers, and the lot


> Update 2: Here's Chris's longer report.

> First, what does Novell want? $19,979,561.00. Yeah, that precise, and
they'll show us the numbers for it.


WOW!

Novel wants more than SCO is worth.

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  • WOW big Suprise! - NOT - Authored by: Anonymous on Wednesday, April 30 2008 @ 11:47 AM EDT
    • qpq - Authored by: Anonymous on Wednesday, April 30 2008 @ 12:12 PM EDT
It'll be very interesting to read Webster's take on the first day
Authored by: Anonymous on Wednesday, April 30 2008 @ 09:39 AM EDT

Well... it's very easy to see why SCOG doesn't want to call witnesses. SCOG is in it's "name confusion" game again. Any witness, whether MS (don't trust), Sun, EV1, etc. would be contradicting SCOG's "new understanding".

As P.J. pointed out some time ago, trying to re-paint the picture so that when they said Unix SysV they really meant Unixware.

At the same time, they're insisting that when they were threatening legal action, they were threating legal action against their own IP.

A point they seem to be absolutely refusing to even acknowledge: Prior to this they were insisting that Novell sold SCOG the rights to SysV as well as Unixware. So the IP in Unix SysV was their IP. Judge Kimball ruled that such a sale of assets did not occur. I believe SCOG is making a tactical blunder by not going over how the actual sales that occurred did not rely on their belief that the SysV asset sale occurred.

A point they seem to be very roughly glossing over: The only code ever identified as "infringing SCOG IP" is code that exists in SysV prior to the APA. So far, as Novell has been pointing out, all the code SCOG claims as infringing "Unixware" exists "substantially the same" as it does in SysV. But it's the SysV version that's claimed infringing. It seems like the game plan is to switch Unix into Unixware as P.J. indicated however they still use the evidence from Unix rather then from Unixware. I guess they're trapped in that aspect considering such evidence has already been entered into the court record and it's a little late to change that now. That could explain Sontag's witness testimony that Unix and Unixware were words used interchangeably. They don't want a complete name change, just enough confusion that it becomes "less clear" what SCOG is saying.

SCOG may very well be providing amo for IBM in the case there. Clearly identifying the fact that Lyons book has effectively subverted the SysV code base while at the same time arguing that because such base is old and known it's virtually worthless.

That's my take from Chris' observations and notes. Thanks for the update Chris, it's very much appreciated considering I would love to be sitting in on the case personally.

RAS

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Methods and Concepts
Authored by: Anonymous on Wednesday, April 30 2008 @ 11:40 AM EDT
From Mr. Singer's position, it seems that methods and concepts used in
derivative works only apply to those used in linux. SCO's use of SVR4.? methods
and concepts in Unixware eliminate all of Novell's rights, because it is
Unixware.

I may be missing some of the more subtle legal stuff, (IANAL) but I don't shave
that close.

-- Alma

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How long to rule?
Authored by: Anonymous on Wednesday, April 30 2008 @ 12:05 PM EDT
So, how long are we looking at before we can expect a ruling?

As I understand it, we're looking at a five or six day trial.

But, will the judge rule immediately at the end of the trial, or can he take
additional time before ruling?

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Release of Sco's claims....
Authored by: Anonymous on Wednesday, April 30 2008 @ 01:10 PM EDT
They can claim to have released only *their* claims, not Novell's but there is a
problem with that... Up until 08/10/07 they claimed to own the copyrights to
Sys-V. The court found that they didn't. Therefore they were releasing claims
on IP rights which they did not own. Unfortunately for them, they have to live
with the consequences of their belief. In short they licensed IP which they
claimed was theirs but actually turned out to be Novell's. Therefore for the
licenses to be valid they must turn the money over to the rightful owner of the
property. Novell can then determine whether or not to keep the money and
reaffirm the license or return the funds and disavow the license. Sco had the
intent (yeah, right, but for arguments sake we'll assume this) to license their
property. It just turned out they didn't own all the property they thought they
did. That doesn't retroactively change what they licensed, it just means they
have to disgorge funds that belong to the rightful owner.

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First Word from Day 1 of the Novell v. SCO Trial - Updated 2Xs
Authored by: Anonymous on Wednesday, April 30 2008 @ 01:46 PM EDT
Mr. Singer continued with his second issue for the court to consider: that SCO owns, and may release, all claims it is entitled to bring relating to SCO's IP. SCO releases *only* those rights it had the right to release, not any claims of Novell. SCOsource agreements started with SCO's exclusive rights to UnixWare and OpenServer. He claimed the SCOsource licenses were not related to royalty-bearing SVRX licenses.

This is an interesting change of tune for SCO. Weren't they claiming the exact opposite in the IBM case? That IBM did not have the right to contribute IBM-developed code to Linux, because it had been mingled with Unix?

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If only SCO had patented the use of the refresh button instead...
Authored by: Anonymous on Wednesday, April 30 2008 @ 05:33 PM EDT
... they would now possess their dreamed of Beeeelions!

Bob

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Interesting take on derived rights from SCO
Authored by: Anonymous on Wednesday, April 30 2008 @ 05:38 PM EDT
Weren't they telling IBM that any code that was near SCO's IP or anyone who'd
read a line of SCO code was contaminated and that the code so touched was a
derived property of SCO property and therefore was an infringement and dilution
of SCO's rights.

I guess when/if it gets round to SCO v IBM a lot of IBM talk will be a replay of
the depositions taken here.

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PACER docket entry for today
Authored by: Steve Martin on Wednesday, April 30 2008 @ 07:14 PM EDT

I'm sure PJ will do something with this soon, but here's the docket entry for today's hearing, hot off PACER (Docket number 531):

Minute Entry for proceedings held before Judge Dale A. Kimball: Bench Trial held on 4/30/2008. Court opened at 8:28 AM with all parties present. Testimony of witnesses was heard and evidence rec'd. Deposition of Greg Jones was published. Novell rested its case. Mr. Singer moved for involuntary dismissal; the Court took the motion under advisement without hearing argument at this time. SCO began presenting its case. Court recessed at 2:08 PM. Attorney for Plaintiff: Stuart Singer, Edward Normand, Jason Cyrulnik; Attorney for Defendant: Michael Jacobs, Eric Acker, David Melaugh. Court Reporter: Kelly Hicken/Becky Janke. (kmj) (Entered: 04/30/2008)

Nothing on the docket yet about the 3:00 PM (MDT) hearing on the SJ motions.

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

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SCO's dilemmas
Authored by: vortex on Wednesday, April 30 2008 @ 07:30 PM EDT

Mr. Sontag agreed with the characterization that the SCOsource revenue was envisioned as potentially worth billions of dollars.

Now, let's think this through. The SCO group (now) claim that SCOsource never was about SVRX; so it should make little difference to the value of SCOsource that a judge has now ruled that Novell owns SVRX. So why, exaclty, is SCO failing to realize the anticipated gigadollar revenues ? If only the worthless part of what they were trying to monetize has been taken from them, surely the rest remains: what keeps them from monetizing it ? I'd dearly love to hear Novell's lawyers get an answer to that out of SCO's board !

The SCO group claims SVRX was never more than an incidental part of the value of SCOsource. Corollary: Novell's claims of ownership, back in 2003, didn't have any material impact on the value of SCOsource; Novell only claimed to own SVRX, and to be able to waive lawsuits in so far as they related to SVRX. The SCO group's slander of title case against Novell should have claimed an amount of damages which surely would only have reflected the value of the part of SCO's business that was dependent on the title which Novell claimed, that the SCO group believed it owned. So look at the scale of the claims the SCO group made back in 2003 for an indication of how much it considered SVRX to be worth.

They muddy the water some more with their libraries that enable Linux to run applications built for OpenServer and UnixWare: if those were the basis of SCOsource, how do they justify their expectations of gigadollar revenues ? After all, realistically, how many businesses even have those libraries, let alone use them ? All those Linux-using Fortune 1000 companies who got a letter; did the SCO group think they all used OpenServer and UnixWare apps via these libraries ? In any case, how can this be worth gigadollars when, fundamentally, the applications in question are all replaceable by something free (and gratis to boot) ?

---
Finally – the SCO group saga's end game.
Break out the pop-corn, sit back and watch the fire-works.

[ Reply to This | # ]

libraries "are a part of an operating system to allow an application to talk to the OS."??
Authored by: Anonymous on Wednesday, April 30 2008 @ 09:29 PM EDT
Oh really? I thought that syscalls were what allowed applications to talk to
the OS. Have I not learned anything in the past 20-odd years about how UNIX
systems work?

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First Word from Day 1 of the Novell v. SCO Trial - Updated 2Xs
Authored by: Anonymous on Thursday, May 01 2008 @ 06:56 AM EDT
Well, here is the start of another 5 years of litigation...

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Why would David Boies show up?
Authored by: Anonymous on Thursday, May 01 2008 @ 03:33 PM EDT

He's first and foremost, a litigator--a guy who you bring in to hypnotize a
jury. This is a bench trial, so there is no jury to hypnotize.

If Boies were on the side of the "good guys"--as he was in US vs
Microsoft--he's also shown himself to be effective in bench trials.

But in this case, he's stuck on the wrong side. SCO has made an ass of itself
in Kimball's court; Boies knows it, and he's not likely to further sully his
reputation by making a personal appearance. Especially with the defendant in
bankruptcy.

If this case had turned out differently--had SCO manage to show that IBM or
someone had in fact engaged in serious misconduct like knowingly misrepresenting
SCO code as in-house code and "donating" it to Linux--then Boies would
likely show up to make sure IBM gets nailed to the wall. That's his gig.

But pleas for mercy--and SCO's case nowadays is like the guy who murders his
parents and then begs the court for mercy because he's an orphan--are not Boies'
gig. Nothing that Boies could say in court will make SCO the angel.

So there is really no point in a David Boies appearance.

[ Reply to This | # ]

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