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Transcripts!! Days 1 and 2 of Novell v. SCO
Thursday, May 01 2008 @ 07:56 PM EDT

Here we are, the transcripts!! These are for days 1 and 2. More on the way as the trial continues tomorrow, and we'll be getting the transcripts for today as well, and then we'll have a complete historical record of this part of the SCO saga. Chris has made them into PDFs, for our convenience broken up into three per day so you guys on dial up won't choke, and we'll have the text versions up as soon as we can. These are transcripts that you made possible, so I didn't want to wait a minute to share them with you. We can read them together.

Day 1, April 29:
Part 1
Part 2
Part 3

And day 2, April 30:

Part 1
Part 2

Darl is day 2. I know you guys are going to read that part first. Me too, actually. It's on page 24 of Part 1 on April 30, day 2.

: D

Here's what our eyewitnesses reported happened on Day 1. And here's their account of Day 2, so you can orient yourself.

The first thing I notice is the tree trunk stuff. Here's what was said exactly on direct, Novell's Eric Acker asking Darl the questions:

Q. And it's true, isn't it, that on several prior occasions, you have described SCO's UNIX assets using a tree analogy?

A. Yes.

Q. Why don't we bring up Exhibit 421, if we could. Let me give you a copy. And if you take a look at the third page of Exhibit 421, Mr. McBride, or fourth page, that's the tree; right?

A. Yes.

Q. And in the diagram, the trunk labeled as SCO IP UNIX, that's the core UNIX System V software code; correct? That's what that represents?

A. Yes.

Q. And the branches on this diagram are derivative works that are based on the core UNIX software code; correct?

A. Yes.

Q. And those branches include both SCO UnixWare; correct?

A. SCO -- that is correct. SCO UnixWare is a little bit unique in this diagram in that it serves both as the trunk of the tree and also as a branch.

And so if somebody came to the company and said, we want to get the core intellectual property to UNIX, and we want to take a license for that, for example, IBM did that with us in 1998, we said, okay, if you want to get core access to the UNIX intellectual property or the trunk code, the way you do that is through a UnixWare license.

So UnixWare is unique compared to any of these other branches in that the core trunk is where the UNIX intellectual property was held was inside of UnixWare.

So it's both trunk and branch. Hahahaha. Just like in nature. Here's the diagram again, so you can see how silly this argument is:

Do you see UnixWare depicted as both the trunk and the branch?? Oops. Is it my all-time favorite SCO story? Hard to say, with so many SCO stories to choose from, but it's got to be Top Ten.

Incidentally, so you can laugh along, here's IBM's original AT&T license for Unix, which doesn't mention UnixWare at all, which if you are a UNIX historian will not surprise you at all. Here's the 1996 amendment, and the famous Amendment X in that same year, which talk only about System V. What happened in 1998 was the Project Monterey agreement, which was not at all IBM approaching Santa Cruz and asking to license UNIX. It was a co-developement project, which involved UnixWare. Here's what they were going to produce, according to that contract:

1.9 "IA-32 Product" shall mean the UNIX operating system that is designed to run on Intel architecture and compatibles and which consists of SCO's UnixWare 7 with the addition of Licensed IBM Materials and any additional Project Work developed under this Agreement.

1.10 "IA-64 Product" shall mean the UNIX operating system that is designed to run on Intel architecture and compatibles and which consists of IBM's AIX operating system with the addition of Licensed SCO Materials and any additional Project Work developed under this Agreement.

So that is why UnixWare is the star of that one contract. You have to watch those SCOfolk like a hawk. And Groklaw's Contracts page can help you do exactly that.


Transcripts!! Days 1 and 2 of Novell v. SCO | 210 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: SpaceLifeForm on Thursday, May 01 2008 @ 08:01 PM EDT


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

[ Reply to This | # ]

OT here
Authored by: SpaceLifeForm on Thursday, May 01 2008 @ 08:02 PM EDT
Please make any links clickable.


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

[ Reply to This | # ]

Newspicks commentary here
Authored by: SpaceLifeForm on Thursday, May 01 2008 @ 08:04 PM EDT
Please note which article you are referencing
in the subject line, and possibly provide the
link to the article in case it rolls off the main page.


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

[ Reply to This | # ]

Am I the only one?
Authored by: Anonymous on Thursday, May 01 2008 @ 08:19 PM EDT
When I see something like the "Foundation of SCO", am I the only one
who immediately completes it with the words "built on shifting sand"?

[ Reply to This | # ]

Transcripts!! Days 1 and 2 of Novell v. SCO
Authored by: bsm2003 on Thursday, May 01 2008 @ 08:19 PM EDT
Sent text of all transcripts to PJ. just need to divide up and clean up.

[ Reply to This | # ]

Transcripts!! Days 1 and 2 of Novell v. SCO
Authored by: Anonymous on Thursday, May 01 2008 @ 08:40 PM EDT
Whoa there. Possibly a strawman under attack. The fact that this particular
statement from Darl does not match the artwork can be given a positive
interpretation: He could be trying to be forthcoming, "this artwork is just
a bit deceptive, because the way we licensed the core of Unix was via a Unixware
license." Of course, that statement about how it was licensed may be true
or false, but I don't think an attack merely on the artwork is called for.

[ Reply to This | # ]

Transcripts!! Days 1 and 2 of Novell v. SCO
Authored by: Anonymous on Thursday, May 01 2008 @ 08:51 PM EDT
Man, I wish they would get someone from Sun on the stand to answer on all of the
hearsay about "Sun needing UnixWare source to develop Solaris on
Intel". So they needed that magic stuff that 10 years after they had
already released Solaris x86? Yeah, right.

On top of that, in 2005 Sun released Solaris 10 that had both x86 AND x64
support. I don't think they got much of that 64-bit stuff from UnixWare do you?

[ Reply to This | # ]

Is this trial really going well from Novell?
Authored by: Anonymous on Thursday, May 01 2008 @ 09:09 PM EDT
I have nothing specific to point to, but I thought the trial is not going as
well as I expected it would for the Novell side.

Apart from SCO lawyers being described as disorganized, I'm not hearing of any
big losses in the court-room battle so far.

[ Reply to This | # ]

Transcripts!! Days 1 and 2 of Novell v. SCO
Authored by: Anonymous on Thursday, May 01 2008 @ 09:10 PM EDT
So it seems pretty obvious SCO concocted this story to try to reduce the amount
they must pay to Novell now, since it is their only out.

But it is obviously not true; that is not what they were pushing before, prior
to the court ruling Novell owned the copyrights.

Since they know this, is it allowable for them to say this in court, if they
know it is not true? If it is provable it is not true, can they not say this?
It seems like they are trying to trick the court which should be illegal..

Jamie Conlon.

[ Reply to This | # ]

Darl's testimony
Authored by: Anonymous on Thursday, May 01 2008 @ 09:11 PM EDT

I remember long ago reading an article, I believe it was here on Groklaw, about
how to give testimony in court. Probably from Mathfox or some such export.

One thing I remember was: never volunteer, or "expand" your answers.
Darl does that a lot.

I don't think Darl has been reading groklaw or he would know better.

[ Reply to This | # ]

Darl has a point - New code is added to trunk
Authored by: Anonymous on Thursday, May 01 2008 @ 09:25 PM EDT

UNIX has evolved over all these years but with one problem. Each vendor has their own forked copy. SCO happens to control the original "trunk" formally known as System V and re-branded as SCO UnixWare. Each vendor started with the "trunk" and forked off creating the "branches". Only the owner of the original code owns the "trunk" and they continue working on their version or "branch".

Since their "branch" is the original code - it is the new trunk.

I would agree with SCO's assessment that new licensees would want the latest and greatest code and not code from 1980.

Where I think SCO is wrong is saying that System V disappeared because they continued development with the original code and renamed it to something other than System V.

I guess they could have replaced all the original code - but I doubt it.


[ Reply to This | # ]

Re: IBM did that with us in 1998 (Darl was not Santa Cruz at all)
Authored by: Anonymous on Thursday, May 01 2008 @ 09:25 PM EDT
This guy is a dreamer. Been places at times that he never was. Maybe he could
travel thru a time portal? Hmmm, the Utah one right (SCO's secret weapon)?

[ Reply to This | # ]

P.J. knows us.... oh no... the horror.....
Authored by: Anonymous on Thursday, May 01 2008 @ 09:41 PM EDT

Darl is day 2. I know you guys are going to read that part first.
Ok, I have to admit, when I got to the part
...wait a minute to share them...
My mind flashed to finding Darl's testimony first.

Thanks for the page number P.J. ;)


[ Reply to This | # ]

Authored by: Anonymous on Thursday, May 01 2008 @ 09:43 PM EDT
Q. BY MR. ACKER: The way this works is I ask questions and you answer them. It’s
unfortunate that way.


[ Reply to This | # ]

  • zing - Authored by: Cheers on Thursday, May 01 2008 @ 10:53 PM EDT
Dining on the sweet nectar of Darl's tears
Authored by: karl on Thursday, May 01 2008 @ 09:52 PM EDT
We have been waiting years for this. No more delays, no more
postponements... Darl in court, wrestling with the English language and
losing, trying to say that what he's been saying for the better part of five
years isn't what he said. Take deep pleasure in it, folks. Especially you,
Pamela, and the cadre of folks who helped. It's been surreal to know it would
turn out this way all this time and have to wait for the world to catch up.

The judge can smell the BS a mile away. It is almost over. We can dream of
indictments, but that's not going to happen. Once SCO is dead, boiled in oil,
drawn, quartered, its fields sown with salt, we can get back to, well, getting
our geeks on.

So long SCO, we hardly knew ye.

[ Reply to This | # ]

No wonder he's confused...
Authored by: Anonymous on Thursday, May 01 2008 @ 10:13 PM EDT
Look at this:
[Darl]: And then we talk about three brands that they may have heard, which are UNIX, SVRX or System V. We use that interchangeably, UnixWare and SCOsource. I call these brands that are on top of the UNIX intellectual property.
They use the terms interchangeably? Well, no wonder they're confused, especially when they try to redefine them between their use in the 10-Q and the courtroom...

And it sure explains their theory of contracts. "The contracts mean whatever we want them to mean today!" That reminds me of that Lewis Carrol quote about words meaning whatever you want them to and nothing else...

[ Reply to This | # ]

BSD a derivative work of HP-UX?
Authored by: Anonymous on Thursday, May 01 2008 @ 10:25 PM EDT
Well, now, that is curious, considering BSD was branched off of the original Unix (Sixth Edition) in what, 1978 or so?

HP-UX itself didn't branch from *System III* until around 1982.

Chris Sontag: what are you smoking, and if you give me some, can I time travel too?

[ Reply to This | # ]

Darl's Words
Authored by: The Mad Hatter r on Thursday, May 01 2008 @ 10:27 PM EDT
Q. So what you’re telling these companies in May of 2003, is, look, our core intellectual property dating back to AT&T is in Linux; right?

A. Yes.

Q. And you’re using Linux; correct?

A. That’s correct.

Q. Therefore, you’re going to have to take a license from us.

A. I don’t see anything in here that says you have to take a license from us.

Q. You’re telling them you should consider whether or not you should take a license from us; right?

A. You have to show me where that is. I don’t see it.

Q. What was the intent for writing the letter other than to put these companies on notice that you believe that your core intellectual property was in Linux and they were using Linux and may be, in your words, legal liability for the end user?

A. I think "notice" is the right word you used there. That’s what we were trying to do is put them on notice. I had met with IBM several months prior to this. And IBM said to me directly that you cannot come after us because we do not do Linux distributions. That’s between you and an end user. And because we don’t do distributions, you can’t sue IBM. That’s one of the things they told us. And, you know, if you read the general public license, it does say that. It says, a caveat emptor phrase in the general public phrase that says you are getting this license for Linux for free, and be aware if somebody comes after you for intellectual property problems we’re absolved from that. I’m paraphrasing now, but that’s essentially what it says.

Q. But you not only told these 1,000 companies that our, SCO’s, technology is in Linux, and you’re using Linux and you may have liability, you also gave them a specific example where you initiated legal action in this letter; didn’t you?

A. Yes, we did.

Fascinating. IANAL, so I don't know what the judge will make of this, but I wouldn't buy a used car from this man.


[ Reply to This | # ]

Worthless Evidence
Authored by: Anonymous on Thursday, May 01 2008 @ 10:33 PM EDT
Day 1, Pt 3, p.206, Kimball J:

> If you want to leave stuff here, if you just push it aside a little,
> nobody is going steal it. I don’t think they would want it.
> We’ll see you at 8:30 in the morning.

[ Reply to This | # ]

Oh, Darl . . .
Authored by: achurch on Thursday, May 01 2008 @ 10:33 PM EDT
Q: Is it true when you told the investing public in 2003 and 2004 that the Sun and Microsoft revenue was not UnixWare licensing revenue?

A. We didn't say it was not UnixWare revenue.


Q. The products revenue in your Q includes UnixWare licensing revenue; correct?

A. Which means it was a product. It was a branch.

Q. And that did not include, that line item from products revenue did not include the Sun and Microsoft revenue; correct?

A. No, it did not.

Poor Darl keeps trying and trying, but sadly he just can't find anyone else who shares his selective cerebral obstruction . . .

[ Reply to This | # ]

A question on witness testimony and interpretation thereof
Authored by: Crocodile_Dundee on Thursday, May 01 2008 @ 10:56 PM EDT
My (probably wrong) understanding about witness testimony in criminal cases is
that juries are instructed that they may choose to place less weight on
testimony if they believe a witness was lying.

Does that apply similarly in civil cases too? I guess it's possible (very
probable, perhaps) that Novell will point to various inconsistencies in sworn
statements by various parties and gently suggest to the judge that they feel
less weight might be placed on their testimony?

My feeling is that like the previous "all or nothing" approach which
failed last time this may place them in the position of leaving the judge no
room to do anything else but accept Novell's argument. (Not that I think that's
a bad thing).

It would be very interesting for the remains of SCO if the judge (who has far
more liberty than a jury to make his opinions known) finds that SCO couldn't lie
straight in bed.

Could Darl save his bacon a little longer by suddenly "discovering"
that he had made a mistake in the 10Q's and reverse some of the statements and
accounting? Or would that be worse? I guess once the web is this tangled it
would be hard to make it look straight.

I'm struggling for analogies. Untangling a web and unscrambling an egg aren't
right because the suggestion there is that what was wrong would be put right.
It's far more like SCO is offering a scrambled egg and testifying that it came
out of the rooster that way.

That's not a law suit. *THIS* is a law suit!

[ Reply to This | # ]

Sun v Novell
Authored by: Anonymous on Thursday, May 01 2008 @ 11:01 PM EDT
Unix was almost "open source" for so long that it gave Linus a clear
model to work towards. All the basic ideas had been published and discussed for

The hand writing has been on the wall for some time. There is no monetary value
in the source code or binaries. The money is in the support. Which is why Sun
was prepared to make a deal to open source Solaris. While I find Solaris
preferable to Linux, others feel differently, so I don't think Novell's SUSE
business is seriously threatened or damaged. SUSE will live or die based on how
good the support is and how much revenue it produces.

Also I rather doubt that Sun can be held liable for the misdeeds of Novell's
agent. I would think they'd have to have known that SCO was not authorized to
make such an agreement which would be functionally impossible. And there's no
way to take back the source from the Internet :-)

The entertaining irony in all this is that SCO was responsible for making System
V effectively public domain while at the same time trying to stick up the Linux
world for use of Unix ideas. A truly bizarre business strategy.

But the most fun is watching Darl caught on the horns of a dilemma. Repudiate
the SEC filings and go to jail. Assert they're correct and lose the money.

Many thanks to all. It's been slow in coming, but it certainly makes up for the
delays in entertainment value. Can't wait to read the book

Some predictions:

Novell will get most, but not all the money from the Sun & Microsoft deals
based on the ratio of code in Unixware from before & after the APA. This
will be fatal to SCO as a "going concern".

Novel will ratify the Sun & Microsoft agreements. Sun because there's no
way to unpublish the source code and Microsoft because they have this other

When all is said and done we'll have 3 major Unix flavors, BSD, Linux &
Solaris, as open source with enough different distributions to keep everyone
arguing forever. With a little luck AIX will follow suit for competitive
reasons and the consequences of the SCO/Sun deal and we'll have 4. And that
might even make RMS smile ;-)


[ Reply to This | # ]

Well, I never thought I'd say it, but
Authored by: Anonymous on Thursday, May 01 2008 @ 11:09 PM EDT
After reading this, I am actually feeling a small twinge of sympathy for

Not for the grilling he is taking, or the fact that he is a complete pariah in
the industry, which he brought entirely upon himself.

But in reading, I realized that he has utterly no awareness of anything larger
than himself and his own intent du jour. In Lord of the Rings, Gandalf says of
hobbits, but talking of Bilbo specifically, something to the effect of he's not
the brightest but he can see through a brick wall in time.

In Darl we see just the opposite. In his mind he has the cleverest scheme to
neatly close down the opposition and deliver unto him his righteous billions.
But he can't see the brick wall at all, much less see the cliff on the other
side. Even as he runs into it, then backs up and runs into it again, and again
and yet again, he still thinks he is traipsing down the fluted path, needing
only one more iteration of his golden dream to win over the annoying
incompetents who are simply not bright enough to see his glorious truth.

So I feel sorry for him, it must be lonely in his bubble.

[ Reply to This | # ]

... The Tree Explains how SUN get to open Source Solaris!!..
Authored by: Zarkov on Thursday, May 01 2008 @ 11:10 PM EDT
<b><i><joke tag for the sarcasm impaired></i></b>
The Image explains how SUN get to damage Novell's copyrights by open sourcing

That branch is shown at the TOP of the Tree... therefore IT must be the true
inheritor of the Trunk, not SCO Unixware which is at the BOTTOM of the tree....
</joke tag....><p>
DOH! Darl should have seen it for himself!

[ Reply to This | # ]

Darl Says He Got the Linux Lawsuit Idea from IBM
Authored by: Anonymous on Thursday, May 01 2008 @ 11:43 PM EDT
Q. Well, when you wrote the letter, the user did not take a license, was it your intent to bring legal action?

A. Our intent when we started the SCOsource licensing program was very simple. We wanted very much to protect the property. In fact, I had a meeting with IBM weeks after I joined the company with Mr. Steve Solazzo, who was a senior executive over there. And I talked to him about the idea of going out and protecting our intellectual property, UNIX and asked his advice on it. And he said he thought that was a great idea. He said IBM does that, and we collect over a billion dollars a year from our licensing efforts. (...)

So the core idea here was to protect these rights through a licensing program as the IBM executive had given me the idea.

Q. And that licensing program was SCOsource; correct?

A. That’s correct.

Darl is saying that he got the idea for SCO Source from IBM. If you read the original text in full, you will see that he goes through great pains to try to draw a connection between the Linux lawsuits and IBM's own licensing practices (the lawyer wasn't asking about IBM). Notice that when he uses the work "protect", he really means "charge money for".

I can already see where this is leading. When SCO is bankrupt, when everything comes crashing down, Darl is going to be saying that none of it was his fault. It was IBM's idea. It was Novell's fault. His lawyers gave him bad advice. Not Darl though, no. He would never have thought of doing anything like this on his own. He was just doing his duty to protect SCO.

[ Reply to This | # ]

Viewing Transcripts in Linux
Authored by: Anonymous on Thursday, May 01 2008 @ 11:52 PM EDT
When I view the pdf using either Evince or Kpdf, the text appears italic, but not when using Adobe Reader for Linux.

This happens with Ubuntu 8.04. I have not yet checked it with other flavors of distros.

Any Ubuntu 8.04 users with the same experience?

It's not a problem for reading. Just strange.

[ Reply to This | # ]

Darl Not Playing with Words
Authored by: Anonymous on Friday, May 02 2008 @ 12:24 AM EDT
We were trying to -- we were not trying to play trick plays with legalisms here with where you’re trying to go with.
It's comforting to know that when Darl was dancing about with "it's a Unixware license", he wasn't just playing word games. I'm glad that he told us this, because I wouldn't have known otherwise.

[ Reply to This | # ]

IBM is drooling
Authored by: argee on Friday, May 02 2008 @ 12:27 AM EDT
I bet the Nazgul are drooling over all this. It seems to me
that if Darl's testimony is accepted as gospel; ie, res
judicata, that IBM is off the hook and ready to counterclaim.

And us Linux guys ... why ... its all about Unixware; we
are clean with regards to UNIX! And: It was even open
sourced with SCO's blessings!

And, its on record in the IBM case that no Unixware code
was even claimed by SCO as being infringed by Linux!

Its a fine day indeed.


[ Reply to This | # ]

Darl Snarles McBride on Direct
Authored by: webster on Friday, May 02 2008 @ 01:14 AM EDT

  1. The SCO Tree. A note on PJ's highlight. It is of course brilliant and irrefutable to use their own exhibits against them. It is incredibly vivid and understandable. It accentuates their contradictions. Wise choice by Acker.
  2. The start: Notice that Acker is asking leading questions. They can be answered by "yes." Technically this is not proper with one's own witness but it is ignored to save time, particularly for straightorward undisputed background and context. As it goes on the witness starts to answer in sentences though he could just say yes. He is taking time and trying to cast it in his terms. Then the witness starts dodging by answering in sentences that are explanatory but unresponsive. Acker jumps on him for that: "But my question is.." p. 237, l. 13, "That wasn't my question." p.. 237 l. 18. Finally the witness says he doesn't know and ask the engineers. p. 237 l. 23. It is inconceivable that he doesn't know. He certainly doesn't want to say or lie. He chooses a lesser lie and protests ignorance. So he goes from knowledge and certainty to ask the engineers, an inconsistency, a dodge, a retraction, and false ignorance. He knows exactly where Acker is coming from. He knows what is up Acker's sleeve. He is going to hang tough.
  3. The letter to the 1,000. Acker leads him through the letter, --yes, yes, yes, and then:
    Q. And you’re using Linux; correct?
    A. That’s correct.
    Q. Therefore, you’re going to have to take a license from us.
    A. I don’t see anything in here that says you have to take a license from us.
    p. 240, l. 10-14. An obvious lie/contradiction of the document. It is an irrational, unreasonable take on this letter. The witness has decided to just bully the facts to his liking. Reason be damned. He is going to hang tough and yield at nothing. Combative is too kind a word; bully is better. The witness takes off on his own, "I’m referring to things that are in the trunk and I’m referring to things in the branches and things that may have been in the leaves." p. 243 l. 3. He's fighting the documents that have already pinned him down. It's transparent, but for him it must be better than simply admitting to them and their plain meaning. Acker is right to dwell on it no matter what he says. Groklaw needs its artists to do the SCO tree logo with a noose or two, maybe occupied, hanging down. So after resisting the questions he runs on and essentially admits to that which he tried to dodge in his rantlets about protecting his property like IBM does. pp. 243-245. He expresses with bravado that which he just tried to deny. He's sizzling in the pan. He's Novell's witness helping them to prove exactly what they have to prove. The more he resists, the better their proof. [Closing Argument: The Court saw him, your Honor. He denied the obvious right here in front of your honor's own eyes. Do you think a little fact like not having the copyrights would stop his little plan?]
  4. Sun and Microsoft: There's nothing good here for SCO, a fact that the witness introduces immediately with some knowledgable ignorance:
    Q. And in June of 2003 −− excuse me −− in 2003, after SCO announced the SCOsource licensing deals with Sun and Microsoft and public filings, SEC filings, and press releases, Novell through its general counsel asked you for copies of those agreements; correct?
    A. Which agreements are you talking about?
  5. p. 245, ll. 20-25. What other possible agreements can he possibly mean? Some under-the-table, side agreements with these people? The witness' sensitivity belies the truth, here and everywhere. Then the witness plays some "name-dodge" with SCOsource, UnixWare. p. 246. Kimball let's him explain his UnixWare theory of the license contrary to the Court's previous finding and order. So he explains away knowing that the judge doesn't believe him. The way the witness has explained it, UnixWare is the trunk and the branches so it must have the core IP from Novell in it so SCO has to pay Novell. But the Witness will stand firm even in his own mud. He then tells the whole tale according to SCO from Messman to the lawyers. pp. 248-251. Then later when Acker asks him about Novell asking after the license money flow, the ONLY profit SCO has made in two decades, the Witness, Chief Executive Officer, says he does't know, ask Tibbets, the General Counsel. Who believes that? Not even the Witness. p. 253. He then fights off the questions to promote his UnixWare defense. pp. 254-256. He then makes an admission that he had no problem with SUN open-sourcing Solaris with SCO/Novell's SVRX in it. He wants to explain it, but Acker says to do it on his own time. pp. 257-258, ll. 19-6.

  6. SEC Reports: Acker leads the Witness through some SEC reports he has filed. Acker points to where the SUN and Microsoft licenses are excluded from UnixWare revenue. The witness struggles to explain it his way and asks for the tree exhibit. The Judge tells him to do it on his own time. "Your counsel can do it if he wants to when he asks you substance." p. 264, l. 13. The Judge knows what is going on and he is not curious to hear it at this time.

    Then the Witness introduces a discussion of his credibility! "So I’m a little bit troubled that you were trying to imply that I was not telling the truth in my 10Q here. I don’t understand what −−" p. 265 l. 19. LOL. Why would he raise the doubt? Acker plays along! "You always told the truth; correct?" p. 266, l.6. Its like the street witnesses who after their initial oath punctuate their testimony with "...and I wouldn't lie about that." Mr. Acker would follow up with "Pray tell, what would you lie about?" At this point it's all combative, comic and clear. The appellate law clerks are going to have fun with this truth issue, raised by the witness, sua sponte. Dat's from the Latin for "by his own self." The Witness is led through the SEC Q's for a while and than he does the monkey act in the tree again trying to emphasize his points that contradict what he has just admitted to. He acuses Acker of "trying to shift my words" but his words just the same. pp. 271-272, ll. 15-1. Acker really comes down on him but the Court comes to his rescue sort of, but indicating that the Court didn't think he had answered the question. "...You need to answer his question, but go ahead and finish your statement." p. 273, l. 6. He gets to make his statment and he and Acker wrestle on about the UnixWare revenue not including Sun and Microsoft License money on the SEC Q for the period. p. 275.

  7. Much to the Witness' relief Acker goes off the SEC Q's and goes into the lawsuit and copyrights. p. 274. Acker tries to pin him down that Novell only claimed copyrights before 1995. The witness begins riffing off this. It's been a long spell and the returns are diminishing. The witness is giving longer answers to yes or no questions. He gives a page and a half answer to this question: "And Novell has never claimed copyrights to SCO produced UnixWare created after the APA; correct?" pp. 277-279. Acker already has what he wants, finishes with the Witness' hundred of millions of dollars claim and rests.

And now so shall we all.


Tyrants live their delusions. Beware. Deal with the PIPE Fairy and you will sell your soul.

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Fanciful copyright theories, Darl not lying just tap dancing
Authored by: Anonymous on Friday, May 02 2008 @ 02:25 AM EDT

What I find most interesting, and hilarious, is just the overall tack that SCO
seems to be pursuing: essentially that derivative code ceases being derivative
once SCO sprinkles their magic fairy dust on it. SCO is basically arguing that
once all that old useless SVRX V code shows up in UnixWare, hey presto, it's
UnixWare code now, and isn't SVRX V code anymore! Whoosh, did you see that
slight of hand?

At it's root, they're arguing over two different things. Novell is arguing over
whether or SVRX V code was included in a license, and whether such inclusion was
incidental or not. Whereas SCO's arguing over what *product* got licensed,
suggesting that what's in it doesn't matter. So SCO is claiming that they can
hand out SVRX V licenses so long as they give out UnixWare with it, and
magically the SVRX V part disappears.

Basically, SCO had enough rights to sell UnixWare as a product, and their
customers got enough rights to SVRX V to use UnixWare as a product. And of
course, SCO can license the post-APA UnixWare-unique code however they want.
And now, SCO is saying, "Well, we licensed out broad source rights to
UnixWare, and just because SVRX V happens to be in UnixWare, don't mean
nuttin." They're trying to interpolate their rights or something.

The problem for them is that there's no jury to confuse. There's not a single
lawyer in the room that's going to be confused by this subterfuge. I posit
that's why Novell's lawyers don't even bring it up--it's so obvious it doesn't
even need to be said. Selling UnixWare like a shrink-wrap product versus
selling broad source and redistribution rights are very, very different things.
If you want to license Windows source code, you don't go buy a box that says
"Vista" from your local big box retailer.

This really shows in their financials. Some of Darl's tap dance is true, I
think. Darl is going round in circles trying to draw a distinction, fails
miserably, but it is a meaningful distinction. It's just not relevant. From
what I gather, there's two different divisions, broadly speaking, one dealing
with selling product, one with selling licenses. Darl's point, I think, is that
selling a UnixWare source code license is going to be filed under the licensing
division (SCOSource), and not the product division, which while using the
UnixWare name refers to a different type of sale. This makes sense, except for
the confusing naming, but as he says, the investors understand, and they
probably do. The problem is, he's arguing over the name of SVRX V vs the name
of UnixWare. But that's not really the argument--the issue at stake is whether
or not the SVRX V is incidental or not. By having the revenue go to the
licensing division (regardless of the naming) shows they weren't selling Sun and
MicroSoft 10,000 user licenses to install UnixWare on all their desktops. No,
they were selling source code and redistribution rights. So the financials are
correct, I think, and I don't think Darl perjured himself. But the financials
still bely the fact that the SVRX V part was *not* incidental, and destroys
SCO's whole crazy theory. So forcing him to admit that the revenue from these
agreements went to that division is still important, just for a slightly
different reason.

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Authored by: mattflaschen on Friday, May 02 2008 @ 04:50 AM EDT
I mentioned this earlier.

Essentially, SCO and Novell are telling different stories on OpenSolaris. I just noticed that in Novell's opening statement, they say, "And all that the 1994 agreement did was allow Sun to distribute Solaris, a non-Open source, proprietary operating system and not pay 10 ongoing per-unit royalties. They bought out the royalty" and later "And, in particular, and this is quite remarkable language, in Section 8.1 in which Sun is allowed, if it reproduced, distributes, etc., the technology, which is the licensed code, under any licensing model now known or developed hereafter in Sun’s sole discretion, pursuant to the license granted by SCO herein, then the technology is not confidential information."

This conflicts with SCO's proposed finding before that "In the 1994 agreement, for $82.5 million, Sun had purchased from Novell [...] the right to provide access to the Solaris source code to an unlimited number of Sun’s customers and sublicensees, whether or not they had a license to UNIX source code."

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  • OpenSolaris - Authored by: Anonymous on Friday, May 02 2008 @ 07:52 AM EDT
Ice Cream
Authored by: mattflaschen on Friday, May 02 2008 @ 06:22 AM EDT

Sontag's ice cream analogy is interesting. He compares the variants and derivatives of System V to ice cream flavors.

"It’s just like, I’ll give an analogy to ice cream. I may say ice cream to my kids. Would you like some ice cream? I don’t have to be specific every time and say, would you like chocolate ice cream or vanilla ice cream? I might just ask them first, would you like ice cream?"

But I think it's actually more like SCO saying, "Hey, we just bought all 31 ice cream flavors from Baskin and Robbins? Anyone who wants ice cream, get in line!"

So, someone duly purchases a double scoop of vanilla and French vanilla ice cream from SCO.

Then, after Baskin and Robbins says, "We only let you sell French vanilla; you have to ask to sell anything else!"

SCO replies, "We never told anyone they could buy anything but French vanilla. But remember, French vanilla is made from vanilla."

SCO's ice cream selling privileges need to be revoked.

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Closing Arguements - Armchair Litigators start your comments.
Authored by: ScoundrelLV on Friday, May 02 2008 @ 06:32 AM EDT
My take is as follows:
SCO is going to stress that UNIXware is "the trunk and the branch".
UNIX is merely incidental. Somehow they are going to have to tapdance the fact
that Darl ignored initial requests for license informtation only to be deemed by
a court
as wrong.

Novell will need to really show UNIX is not merely incidental.
I can see how Darl's testimony with regards to SCOSource revenue reporting (in
the 10Q) differs from from their tree analogy.

I liked how Acker kept tying back ("...since AT&T..") to which
Darl kept trying to claim SCO owns.

Basically I'm trying to go over what would each sides talking points need to be
in ordr to have a game winning close.


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If Darl is correct that SUN is about Unixware...
Authored by: kga on Friday, May 02 2008 @ 08:48 AM EDT
...then would SUN be in its right to open-source Unixware? Maybe Novell should
suggest that in order to make clear how far-fetched that notion is.

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When Darl said...
Authored by: Anonymous on Friday, May 02 2008 @ 08:35 PM EDT
A. "SCO -- that is correct. SCO UnixWare is a little bit unique in this
diagram in that it serves both as the trunk of the tree and also as a
branch." -- it sounds to me like he is actually admitting that UnixWare is
really -- at least in very large part -- SRVx!! Or, so it seems to me.

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Greg Jones testimony - finding SVrX code in Product xyz
Authored by: Anonymous on Monday, May 05 2008 @ 06:53 PM EDT
Reading the transcripts from day two (pages 313-314), I find that Greg Jones (of
Novell) demonstrates what the SCO Group *should* have if they suspected
Unixware/UNIX/SCO Group code in Linux.

If you replace 'Sun' with 'IBM and Linux programmers', and replace 'OpenSolaris'
with 'Linux', and follow the same procedure, you would see the proper method for
determining if Linux had any SVrX/Unixware/SCO Group proprietary code.

Unfortunately for the SCO Group, not only did they NOT present it this way, they
weren't able to find any code. (At least any that wasn't already shared between
SVrX and BSD).

And IBM also in their counterclaim against the SCO Goup, showed how to properly
submit a claim of copyright infringement (with documentation, etc.)



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