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Reports on the Last Day of the Trial in Novell v. SCO - Updated 3Xs
Friday, May 02 2008 @ 04:38 PM EDT

Well, friends, the trial in Novell v. SCO is done. The judge will render a decision as soon as possible. Here's Chris Brown's first quick note. And we have a report from a new eyewitness. Today's last witness for SCO was Andrew Nagle.

I asked Chris to tell me more:
SCO's last witness was Andrew Nagle, SCO Group Senior Director of Product Development. He's an engineer. He has been with the Unix group since 1984. His testimony on the stand was to about how SVR4.0, SVR4.2MP, and UnixWare fit together.

He also testified to how Sun contributed to SVR4.0 (Sun contributed to it) and how SVR4.0 relates to Solaris (Solaris is based on SVR4.0 MP source code). He described the several hundred engineers who at one time worked to develop UnixWare. He provided definitions of Streams, ELF, Memory Allocation (malloc), and filesystems. He said that each of those is present in both SVR4 (or 4.2) and in UnixWare 1.

I don't know SCO's point of using UnixWare 1 for the comparison as that is still pre-APA. A UnixWare 7 comparison would have worked better for them (unless they couldn't make the comparison).

On cross-examination by Novell (Melaugh?), there was a significant amount of time spent discussing various parts of the demonstrative Venn diagram charts SCO had used, and especially portions of the chart indicating code claimed to be of no commercial value. On those parts there were questions as to what amount of work would be required to remove them and if/how it would affect the remaining OS (the Venn diagram implies that this code is not part of UnixWare, but is in the SVR4.0 code Solaris was based upon).

They discussed whe market value of OpenSolaris' code being openly viewable. On this point he said that having the ability to view the code could have market value and that Sun probably thought it would have market value to them by showing they are good community members, but that it doesn't provide any direct value (e.g., money). He said others say protected code has more value. His opinion is on the side that open software has less value. Novell read a quote from his deposition that he agreed that Sun's Right to Release has market value. On redirect Mr. Normand quoted the statements following that, where he'd characterized open sourcing as having no direct value as it's not paid for.

I will provide you with more information and a recreation of the Venn diagram later. I believe it will be of use in discussions.

So, after he gets home and can work from his notes, we'll have more info.

Meanwhile the SCOfolk are already spinning to the media. McBride is all about appealing the August 10 ruling, according to the Salt Lake Tribune's, to me, funny account:

SCO President and CEO Darl McBride, who was in court for the final day of testimony and arguments, said afterward that SCO plans to appeal Kimball's Aug. 10 ruling that Novell, and not SCO, owned versions of Unix prior to the 1995 sale.

"We're looking forward to our day in court," said McBride. "All we're looking for is a hearing on the facts."

I don't want to burst any bubbles, but that is exactly what he just had. The appeals court will be looking at the law, not the facts. SCO lost, fair and square.

Update: And here's another eyewitness account from Paul Hepworth, who hasn't been to court for us before, but who decided to drop by today:

First, the courtroom is lovely: nice woodwork floor-to-ceiling on the walls; ornate plaster ceiling in off-white with blue trim and (if I remember right) gold accents. Not a bad place for Judge Kimball to spend his time.

On to the trial... my comments are paraphrases of the testimony. I used quotation marks when my text is verbatim quotation of what was said (or near verbatim subject to my memory and/or legibility of my notes).

SCO called their last witness, Mr. Nagle, Senior Director of the Product Group (OS and mobility). He has an engineering background going back to '84. Mr. Normand, I think, was doing the direct.

Q: relationship between UnixWare vs previous Sys V?
A: UnixWare consists of SVR4, is in Unixware "lock, stock, and barrel" plus some NetWare enhancements and user interface additions. Largely the same as SVR4.2

Q: (showed diagram with two circles, mostly overlapping; both of them mostly contained within a larger rectangle, part of the circles descending outside the rectangle at the bottom)

In the diagram, UnixWare 2 is shown as the rectangle. The circles represent SVR4.0 and SVR4.2MP. The part of the circles outside the rectangle is labeled as having no commercial value. I don't recall the exact question posed in conjunction with the showing of the diagram.
A: 4.2MP is in UW2 "lock, stock, and barrel"
Q: Would UW operate without SVR4?
A: No.
Q: Asking about UW 2.1 and later
A: 100 engineers spent several years to develop 2.1. There was industry cooperation, too, what we call "data center acceleration." UW 7 combined Open Server features.
In general we "improved it, increase value in the marketplace."

Q: Do you know what is meant by the term syscalls?
A: Gave the usual description, background on user-level vs kernel-level, "trap" instruction to request kernel services from user mode, syscall being the mechanism for passing information between user and kernel.
Q: Compare syscalls between SVR4 and UW
A: "one and the same"

Q: Streams?
A: Usual description: input/output, communication with hardware devices
Q: SVR4 Streams in UW?
A: Yes

Q: ELF?
A: Description about elf executable format and dynamic linking support going together.
Q: ELF in SVR4 and UW?
A: Yes

Q: Memory allocation?
A: Typical description
Q: Compare memory allocation in SVR4 and UW
A: Same

Q: File System?
A: Described variety of filesystems
Q: Compare SVR4 and UW filesystems
A: Same

Q: Familiar with Sun Solaris? How was it developed?
A: At time of SVR4, Suan announced (intent to) support, made agreement with AT&T; some features came from Sun; latest Solaris is based on SVR4.
Q: How do you know these things?
A: Familiar with the affinity between the two systems, e.g., both use ELF. Moving applications between the two OSes is straightforward.

Q: Was knowledge of Solaris part of your employment?
A: I tracked the cooperation between the systems. ... It was widely known that Solaris used SVR4.

Q: Another diagram, similar to the first but with an arrow leading from the SVR4 circle inside the UW rectangle and over to a new circle labeled Solaris. (Showing that Solaris is based on SVR4.)
A: Solaris is based on SVR4 and on BSD, Sun OS (previous Sun UNIX version), and other sources.
Q: Is SVR4 in Solaris?
A: Yes to the best of my knowledge
Q: Does it have Streams?
A: Yes to the best of my knowledge

At this point Mr. Normand ended direct.

Cross: (I didn't catch the name of the Novell attorney doing cross.)

Q: (Referring back to the first diagram shown during direct) went through his understanding of what the diagram represents. (If I remember right, it was at this time that it was pointed out that the SCO-developed IP is the part of the rectangle that's outside the circles.)
A: Agreement

Q: (Showing the second diagram, which includes a circle for Solaris)
A: Agreement

Q: There is no arrow from UW to Solaris (only from the SVR4 circle to Solaris). There is no code unique to UW in Solaris?
A: Not that I'm aware of
Q: Do you agree the graphic suggests this?
A: Yes

Q: How many lines of code (LOC) in the top/bottom parts of the circles? (In the diagram, the top parts in included in UW while the bottom parts are not (and are marked "no commercial value").)
A: I don't know
Q: Haven't you gone through it?
A: I have not.
Q: (along the lines of) So you are just assuming it has no value?
A: Not just an assumption. (Though I didn't catch anything in his response that explained the basis)
Q: You can't answer line by line.
A: Correct.

Q: How many total LOC (in SVR4)?
A: I don't know
Q: Greater than 1 million?
A: Almost certainly
Q: Greater than 2 million?
A: Probably
Q: 5 million?
A: I don't know.
Q: So it's probably between 2 and 5 million? Agree?
A: No. It might be more than 5 million.

Q: What proportion / Does the diagram show proportionality of the part of the circle inside UW rectangle vs below it?
A: Diagram doesn't reflect proportion.
Q: Was it intending to convey that a "small percentage was left out"?
A: It was intended to convey that a "small percentage" was left out.
Q: (I didn't catch it exactly, something about) you don't know; it could be greater
A: Correct, it could be.
Q: Estimate? 10%?
A: I would be surprised if it were greater than 5%

Q: What about code that was changed from SVR4 to UW? Would that be counted as above or below the line (of the bottom of the UW rectangle)?
A: If changed, it would be considered part of the OS

Q: (something about ELF)
A: I don't know. Speculate might be some additions. (Sorry, I don't understand my own notes here.)

Q: SVR4.2 in UW2? (proportion?) You don't know here either?
A: Correct

Q: Would it be fair to say the lower portion might be hundreds of thousands of LOC?
A: It's possible.

Q: Open Solaris. Do you know about it?
A: Yes
Q: Given Solaris 4.0, would Open Solaris be expected to contain significant SVR4 code?
A: Yes, could be

Q: Is there commercial value to this code?
A: Not if it doesn't contribute to the customer choosing it.
Q: Assume 1 million LOC: 900K owned by you, 100K owned by someone else. The owner of the 100K says you need to remove it. I would think it would then have substantial value!
A: Not if it's not essential.
Q: You have 20 years of experience in this area. Your testimony is that it would be trivial to remove 100K LOC?
A: Not what I'm saying. We might be able to remove those lines of code.
Q: We can agrre it's not trivial to remove 100s K LOC?
A: Depends on the subsystem. "Some is easier to remove than other. Others would be difficult."

Q: Are you familiar with the OpenSolaris license, that the public can see the code?
A: Yes
Q: It's the 2003 SCOsource license that gave Sun this right to expose SVR4 to the public?
A: The right to expose UW code also.
Q: It gave the right to expose SVR4 code?
A: Correct.
Q: The right to open code has value?
A: That's a debatable point. There are "those who would say ... [it] ... does have market value" such as Sun. Others argue there's no market value, that protected code has more value than open code. I concede it might have market value.
Q: Referring to deposition p 26 lines 24-27 - Right to release code is something that has market value?
A: Yes
Q: Is that your testimony?
A: Yes
Q: You agree it has value?
A: Yes

Redirect:

Referring to deposition, bottom of p24, top of p25
Q: agree it has market value?
A: lots of debate: "you don't pay to be able to read it"; marketing value to a company to be perceived as "open"

Q: Is every line of SVR4.0 in UW?
A: Most likely not
Q: What about 4.2MP?
A: Highly probable yes
Q: Vast majority of 4.0/4.2 in UW?
A: Yes absolutely
Q: Was the graphic (referring to the diagram discussed above) meant to depict that?
A: Yes

No re-cross.

SCO Rests.

Novell said they had some evidentiary matters/submissions to clear up, should we do that before or after closing?
Court: after

There was some confusion as to who would close first. Novell expected to but docket said SCO would be first. Attorney for SCO (Singer?) said he was ready if he needed to go first. Novell proceeded first.

More to come, after he reviews more notes.

Update 2: And here's the rest of Paul's report, about the closing statements:

Okay, picking back up where I left off...

Closing arguments:
Mr. A speaking for Novell (I didn't catch the actual name. It looks like there is an Acker, that could be it.) The closing seemed to go on for quite a while, a far cry from what you see in movies/TV and what I've seen in traffic court. :) Fortunately, they give a binder to the Judge with all they information they presented. Judge Kimball listened attentively, of course. My notes on the closings are not as detailed as the testimony (I was paying more attention to Judge Kimball's face as the closing arguments were delivered. He really didn't give away anything through his reactions, though.), but here's what I have on what was covered in his closing statement. Novell's closing:

Let's get back to the basics of the case.
APA Schedule 6, 1.1A, Exhibit 1: SCOT has to remit royalties to Novell.
3 Questions:

1. How much of MS/Sun money goes to Novell? The court already determined that SCO breached its fiduciary duty. The question is how much must they pay to Novell.
2. Sorry, I missed this one.
3. Was SVRX licensing "merely incidental"?

Going back to 2002, Mr. McBride and Mr. Sontag told us SCO's financial situation was horrible. (Cites deposition: losing millions; in bad shape.) McBride was asked what he would do. He said he believed there was UNIX IP in Linux. Most of SCO's revenue was from UNIX. The key strategy identified: Market the UNIX assets. Revenue from UNIX sales was "marching South."

They intended to "maximize the value of the trunk" (referring to the diagram of the tree with SVRX as trunk, UW as branches.)

What is it Mr. McBride decides to do?
Sontag (from deposition): Asked if SCOsource was to generate billions, A: potentially significant. Q: Billions? A: "potentially yes"

Again Sontag talked about the "trunk": Q: "entire body of IP?" "That was the plan."

This is the tree. Instead of "branches," "Mine the trunk!" Mr. McBride's words on "the trunk" in a deposition p265 lines 6-13: Q: Sun/MS: referred to [trunk], correct: A: "that's the way I'd" look at it.

Next thing we need is lawyers. Not a sale; licensing! Need litigators! "You have to pay us so you can run Linux" and be OK with SCO. From depositions: SCO license to "make Linux users 'clean' with SCO" (in case of inadvertent use of SCO IP). From deposition of Mr. Petersen, cited documentation of litigation. If it's about selling, why the need for litigators? It's about a licensing scheme.

Mr. Hunsaker made this clear in his email (2003?): "There is no connection between Linux and OpenServer"
Dec. 2004: Let end users know if they want to use Linux safely they must pay. "1500 payments" expected.
SCO stated it "holds the rights to UNIX" (UNIX emphasized) not "to UnixWare." "Get in line, get your license, or you're gonna get sued."

It's in this context that Sun and MS deals were executed. They were SCOsource licenses.
It can't be disputed that the Sun license is a "restatement" of the SVRX license. Sontag was upfront about this. (In deposition, which is cited.)

There's no question they (SCO) allowed Sun to open-source Solaris.
Is there market value in that (the right to open source Solaris)? SCO would have you believe "no." Their own engineers testify "yes." Solaris was 'frozen in time'" -- older code: the trunk of the tree. Cites the "it would not be favorably received" line from earlier in the trial and the humor in that notion.

Also, SCO was concerned that (citing Pattersen deposition) Sun could use its expanded rights to protect its Linux users.
That would have commercial value! Extremely valuable, it could seriously undermine SCOsource. Under the 2003 license, Sun could now indemnify its Linux customers: substantial commercial value!

Testimony in response to the question "is all prior code in UnixWare", the answer is they don't know!
There was no evidence that open sourcing Solaris via SCOsource license to UnixWare covers all Solaris code. Nobody did the analysis.
Solaris was based on SVRX.
"For SCO to argue there's no commercial value simply defies logic and ignores the testimony of their own current and former employees."

(I missed some stuff here. I'm not certain the following reasons relate directly to the above or to a point brought up in between -- perhaps the idea of the licensing being merely "incidental.")
Reason 1. There is no question that this is not a routine license. It's SCOsource.
2. Practice here is inconsistent with standard SCO licensing procedure. (Refers to license listing only current versions and not past versions.) (Comment on suggestion that it was just a "sales technique" to only use the term UnixWare (rather than listing SVRX.)
They list 30 other prior pieces of software!
3. Standard SVRX license terms: no derivatives, no open source (their own witness told us that)
4. UnixWare revenue is booked as Unixware. (Deposition or testimony of SCO accountant) But this wasn't! Per SEC filings, this was SCOsource. "Mr. McBride said he would never make a mistake in an SEC filing." (BTW, that particular part of the testimony was one of my favorite parts of the reports from earlier in the trial. Too bad I wasn't there that day to see it live. As I read it, I saw the trap being set and Mr. McBride taking the bait.)
5. Sun already had a license for the legacy software. The only reason to list prior pieces of software was to expand the confidentiality provision.
6. SCO says they've lost hundreds of millions of dollars [due to Novell contesting ownership of the SVRX IP]; now they say it had no value. "Oh no, no, no, no, no, no! No value. ... Incidental."
7. SCO's position now is inconsistent with 2007 counsel response when Novell requested to see the license. And to audit. Did they (SCO) argue these weren't SVRX licenses? No.
(My notes are little unclear here. Maybe someone who better knows the context and citations can make sense of it.)(Cites Mr. McBride testimony/deposition "I would look to Tibbitts letter." Tibbitts letter: "we haven't finished the audit. By citing the APA, it appears you are concerned about royalties." License at time of APA does not extend to 2003 Sun or to new(!) MS license. From deposition/testimony: Q: In 2003 was the reason that it was after APA? McBride: Yes.

"That was then. New defense now."

The Microsoft deal:
Sections 2 and 4, royalties to Novell.
Section 2: states all of SCO's IP
Now: they were only concerned about the new stuff.
Previously: Mr. McBride: yes they were concerned about SCO IP including SVRX. "That was the license..." UnixWare and older UNIX technology. 1.5 million. None was proided to Novell.
Section 4: 8 million. Exhibit C: UnixWare plus a long list of prior IP. New rights included sublicensing.
"It's the trunk of the tree."
"Incidental" should be rejected for the same reasons as with the Sun agreement.
Then: "100s of millions of dollars"
Now: "worthless"

Other SCOsource licenses, including Everyone's Internet: "license for SCO IP": "UNIX System 4 or UnixWare." (I suspect "System 4" actually means "System V Release 4.")
"Mining the trunk of the tree."
This, too, is revenue that should have been passed to Novell.

Wrapping up:
Concede 7 million of MS license is just UnixWare.
Commented that this understanding should have been reached in 2003. Even now they don't provide any apportionment.
It is telling that Mr. McBride says this about the Sun and MS deals: "my view of these 2 licenses is that Novell had no more standing than the court recorder" to ask for copies of the licenses.

Novell asks for 9 million (and more digits to the right) for Sun deal, 9 million (and more digits) for MS deal, and for the other SCOsource deals, we ask for all of it. 19 million total (and more digits of course). Justice would not be served if SCO were to [get away with it (I missed how he put it, sorry)].

SCO closing:

Mr. Singer, I think it was, argued for SCO.

This court ruled a SVRX license was implicated. There was no motion or ruling about SCOsource licenses.

Describes witnesses: decades of experience, consistent testimony about value. Novell witnesses: an in-house lawyer with no engineering involvement. Used the term "forfeiture."

"Incidental"
1. SVRX was licensed at no additional fee.
2. No commercial sales of older versions
3. No commercial demand for older versions.

Novell offers no evidence to the value of the older SVRX.

Copyrights are separate. They [Novell] only have entitlement to royalties on certain SVRX licenses.

SCO was unsuccessful largely due to Linux, free, "using the technology" [of SCO] (I thought one couldn't argue at closing things not in evidence. But they managed to get that in there. Sticking with it to the last!)

In plain language, these were UnixWare licenses [not SVRX]
"Trunk" is both old SVRX and UnixWare.
Royalty turns on specific products being licensed.
SCO has the right to distribute UnixWare, which includes SVRX. (UnixWare never reached the threshold where royalties would be due Novell for UnixWare.) SCO distribution rights include all UnixWare versions. Questions about what's new are not relevant.

One other issue: Novell's effort to shift the burden of proof. He cites 3rd Circuit case (Boeller?): fiduciary dispute, appropriate to shift burden, but this rationale is "out" because Novell was not prejudiced. They had discovery rights; e.g., they could depose Sun and Microsoft.
Novell has the burden. But if SCO had it, we have met it.

3 issues:
1. What part of Sun/MS licenses are SVRX
2. What part of SCOsource were SVRX
3. (I missed it) [PJ: Almost certainly on both lists it would be the question of whether or not SCO had the authority to enter into SCOsource licenses, and specifically Sun's without Novell approval.]

Revenue streams:
MS Sections 2, 4
(comments about how section 3 was on the list until Novell dropped it)
Sun Section 4
SCOsource

SCOsource division accounting is irrelevant.

Sun/MS deals: UW license including older SVRX that's in UW
Others: license "IP"

MS Section: de minimis
Extend to allow MS to use UnixWare and older SVRX that's included in UW in its products. Also new Open Server license.
MS (& Sun) was only valuing UnixWare, not older versions. [(Was this proved at trial? I missed it.)]
Prior versions were licensed "at no additional charge" (which was the case all the way back to the AT&T days: license cost was the same for one licensee that didn't want older versions as for another that did) (Shows large chart in the courtroom said to be side-by-side comparison of said two licenses. It faced away from me.)

If using prior version for a derivative, a licensee would still pay their royalties according to the modern product license.

Novell never sought an allocation on prior contracts.

Section 2.1: this was a release by SCO (emphasis on "by SCO")
Section 2.2 also limited: license to all owned or licensable by SCO
Sun: de minimis
1994 Sun royalty buy out: 82.5 million to Novell (every cent)
2003 agreement included OpenServer and drivers to enable Sun to do an x86 version. [(I recall that an x86 Solaris was available back in 1996. Maybe he's referring to x86-64 (IA64) or Merced?)]

Solaris: no evidence that non-UnixWare SVRX code is in OpenSolaris. The confidentiality expansion applied to UnixWare. Novell offered no basis for non- de minimis valuation.

SCO promised not to bring claims. Grant from SCO not Novell
If Novell wants to sue Sun, it can. (He did make a comment about IF the copyright ruling stands.)
Contract contains acknowledgment of uncertainty. "Customer is aware that these claims are in litigation."
Basically, they were getting an insurance policy from SCO.
APA also gave Novell's claims related to business to SCO.

One more item on apportionment:
No basis for Novell's apportionment.
Ceiling valuation:
(from testimony or deposition): Even when the products were current, they would have cost $700K for Sun, 1.2M MS and another 700K somewhere (I didn't catch it all)

(He shows a chart) These values are when the products were current. This should be a ceiling.

Novell says the broader disclosure rights were not part of this valuation. True, but the broader disclosure rights were for UnixWare only. [(really?)]

One other source of evidence (for an alternate ceiling):
MS deal section 3: 7 million to SCO (undisputed)
Testimony puts Sun's deal for undisputed SCO material as "at least as valuable"
Thus, we have another ceiling: 3 million = the 10 million Sun deal - the 7 million SCO portion.

Last issue:
SCO's authority to enter into these agreements. They have the authority for "incidental" licensing. Considered dictionary and case law definitions.

One definition: "minor value" part
Instruction from Novell defining "incidental": not SVRX licenses prior to date of APA.
[(But what about a "restatement" of just such a license? SCO position seems to be that restatement is incidental (no additional cost over prior buyout), but this wasn't stated explicitly)]

Incidental according to Novell: "if it's a license of prior versions along with current product, the prior is incidental" (I missed the source of this.)
Novell "kind of" agrees with SCO in this. But: MS/Sun licenses are different from, say, NCR in Novell's view. Not so in SCO's view: there's no difference.

If someone wanted it, a prior version would be provided to a licensee of the current product, there's just no demand.

The 2003 Sun agreement had no effect on the 1994 agreement (which it restates). [(What about broader disclosure?)]

Regarding APA term enabling SCO to do its business with regard to source code, Novell "reads this provision out of the agreement."

Novell is estopped from contesting SCO's authority with respect to SCOsource because it didn't complain back when the deals were made.

Value of non-UnixWare SVRX: witnesses for SCO outweigh those for Novell.

Final: this court's role is not [didn't record the exact term. "In the business"?] of forfeiture.

After the concluding arguments, the entering of exhibits into evidence was handled, including depositions from IBM case. Most were not objected to. The IBM depositions were limited in scope, and SCO didn't object considering the limit. Some exhibits were also identified as confidential, to be filed under seal.

There was one item, #172, not admitted. I missed the objection/reason.

The usual "I am not a lawyer" and "my notes are not verbatim" disclaimers apply.

And here's the PACER docket entry:

Minute Entry for proceedings held before Judge Dale A. Kimball: Bench Trial completed on 5/2/2008. Court opened at 9:05 AM with all parties present. Testimony of one witness heard and evidence was rec'd. Deposition of Andrew Nagle was published. SCO rested its case. Closing arguments were presented by Mr. Acker and Mr. Singer. The Court took the matter under advisement. All exhibits were reviewed and approved by counsel. Court adjourned at 12:00 PM. Attorney for Plaintiff: Stuart Singer, Edward Normand, Mauricio Gonzalez, Jason Cyrulnik, Brent Hatch; Attorney for Defendant: Michael Jacobs, Eric Acker, David Melaugh. Court Reporter: Becky Janke. (kmj)

So Paul was correct. It was Eric Acker who did the closing statement for Novell. Chris says Paul hit all the bases, so instead of repeating what he wrote, he went to the trouble to make a graphic for us of the Venn diagram that SCO used in its testimony on this day and which Chris carefully copied as he listened. He says this: " In the first diagram, the Solaris circle and arrow leading to it are not shown. In the second, it's there.":


  


Reports on the Last Day of the Trial in Novell v. SCO - Updated 3Xs | 348 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: MathFox on Friday, May 02 2008 @ 04:44 PM EDT
iff any

---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.

[ Reply to This | # ]

Off Topic Comments Here
Authored by: artp on Friday, May 02 2008 @ 04:49 PM EDT
Clickies if you have them, in HTML mode.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Report on the Last Day of the Trial in Novell v. SCO
Authored by: Anonymous on Friday, May 02 2008 @ 04:51 PM EDT
That seems short.

Do you feel like all the evidence properly relevant to the case got an airing in
the three days they were in court?

[ Reply to This | # ]

A bittersweet ending.......
Authored by: Anonymous on Friday, May 02 2008 @ 04:52 PM EDT
....not so much a bang as a whimper.

[ Reply to This | # ]

News Picks Comments Here
Authored by: artp on Friday, May 02 2008 @ 04:53 PM EDT
Title would help.
Link would help even more, especially when the article scrolls off the sidebar.


---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Report on the Last Day of the Trial in Novell v. SCO
Authored by: Anonymous on Friday, May 02 2008 @ 04:53 PM EDT
"We're looking forward to our day in court," said McBride. "All we're looking for is a hearing on the facts."

That. Is utterly priceless.

[ Reply to This | # ]

Appeals
Authored by: Anonymous on Friday, May 02 2008 @ 04:57 PM EDT
I doubt they have the money for an appeal.........


Stick a forn in 'em....they're done...

[ Reply to This | # ]

pump and dump to the end
Authored by: Anonymous on Friday, May 02 2008 @ 04:59 PM EDT
yes folks, that's Darl's plan, and has been all along.
That's why he says and does what he does.

It's all part of the pump and dump scheme. delay it more, dump more stock.

That announcement *should* pump the stock up a bit, and let them make a few more
million $

I'd like to note, none of my predictions have been wrong yet.
watch and learn.

[ Reply to This | # ]

Um, news flash Darl
Authored by: Anonymous on Friday, May 02 2008 @ 05:18 PM EDT
You're having your day in court right now. This is your day in court. Every day you've had in court has been disastrous for you, because you have no case.

If it's any consolation, we in the Linux community also want to you have your day in court.

[ Reply to This | # ]

Thank You Chris and PJ Thread
Authored by: rsteinmetz70112 on Friday, May 02 2008 @ 05:34 PM EDT
That both of you for your extraordinary work in keeping the world informed.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Darl still to have his day in court
Authored by: mikeprotts on Friday, May 02 2008 @ 05:39 PM EDT
SCO have had their day (or many days) in court. Darl should look forward to his
next, but must be wondering it it's for perjury or stock market fraud. From his
recent statements (on oath) he should have to make that choice at some stage.

Cheers
Mike

[ Reply to This | # ]

"Somehing for Everyone, a Comedy Tonight" (n/t)
Authored by: Anonymous on Friday, May 02 2008 @ 06:11 PM EDT
.

[ Reply to This | # ]

Solaris is not base on Sys V!
Authored by: Anonymous on Friday, May 02 2008 @ 06:27 PM EDT
Solaris is based upon Sun0S 4.2, which in turn is based upon Bell Labs System 3
~ System 7 and some BSD code for good measure.

Solaris was Sun's attempt to harmonize it's SunOS with AT&T's Sys V 4.2. At
the time of this harminzation effort other efforts also were underway, for
example, Open Software Foundations OSF/1 and Motif GUI harmonization occurring
during this time, as well the POSIX standardization process.

There where four major differences between SunOS and AT&T.
1) SunOS and AT&T used different startup and switching from single-user to
multi-user operation (architecture/implementation).
2) SunOS was sockets based IO, and AT&T was streams based, each had pluses
and minuses depending upon application/user requirements and thus different
performances.
3) The commands had different parameters to accomplish the same function, common
was the ps command, Sun0S ps -ax, AT&T ps -es.
4) Each OS had different files systems, and windowing shells.

To say that Solaris is based upon SysV is the same as saying Ultrix-32 was SysV
based, when both where System 3 ~ System 7 based that just added
functionality/code from Sys V, mostly Streams, Neither Sun nor Dec thru out
their existing operating systems and started over. Both OS's evolved with the
addition of additional code/functionality that was integrated into the
pre-existing code base.



[ Reply to This | # ]

Thanks Chris,PJ and the Groklaw community
Authored by: Anonymous on Friday, May 02 2008 @ 06:47 PM EDT
Its absolutely amazing that you have such loyalty and devotion. Truly you are
an example for us all. The las witness who was the engineer has no idea of the
value of open code. Its not just the code that matters, its the people behind
it. its the entire community coming together like here on Groklaw. Others may
try to tear us down, but their efforts are wasted. Others talk with no evidence.
Groklaw presents the facts not just words. Never at anytime in history has
there been such a gathering of community like this one. We are unique in all
the world

[ Reply to This | # ]

David Boies
Authored by: sproggit on Friday, May 02 2008 @ 06:57 PM EDT
So unless we missed out somewhere, this particular courtroom drama did not
feature David Boies in it's cast of characters.

Now he was admitted pro hac vice way back last year, but I can't remember if it
was for Novell or IBM.

Either way it is beginning to look a lot more like both the original Darl
McBride pronouncements to the press and even the act of being added to the legal
team at the Courthouse were both little or nothing more than posturing on the
part of SCO.

We'll never know if the tactics were designed to intimidate their targets
[Novell and/or IBM] or to wow the peanut gallery... I mean serious Yankee Group
journalists of course... but it does look as though he had bigger and better
things to do this week.

It's not really clear what, if anything, will happen in the IBM trial now. As I
pointed out in an earlier post, I think Chris Sontag may have completely
deep-sixed SCO's case against IBM, so it is by no means a certainty that the
second trial will go ahead.

As we've seen before, Judge Kimball rarely gives away too much with his
comments, so we're going to have to wait until the rulings are published to get
to the best bits. But after the August 10 ruling and what we've learned this
week, it's going to be an entertaining read...

[ Reply to This | # ]

Is this the end?
Authored by: Phrog on Friday, May 02 2008 @ 07:33 PM EDT
According to their joint statement of 17 August '07 (Novell-379), SCO's 4th
claim for relief and parts of the 2nd and 5th claims are currently stayed
pending resolution of the SuSE arbitration. If these claims haven't beed
dropped, doesn't that mean that a final judgement in this case will have to wait
until the SuSE arbitration is unstayed and settled, delaying SCO's appeal unless
Judge Kimball changes his previous ruling allowing the appeal to go forward?

[ Reply to This | # ]

SCO lost, fair and square.
Authored by: Anonymous on Friday, May 02 2008 @ 07:40 PM EDT

I'm going to have to disagree with P.J. on that call. SCOG didn't loose "fair and square".

Unfortunately, SCOG was fully in charge of whether or not they would have a showing. By choosing not to provide any evidence, as they did in the IBM case when they refused to provide the evidence the three teams of MIT deep divers found, they very clearly stacked the deck against themselves.

Why they would do such a thing is well beyond my reasoning, but they were indeed the ones who stacked the deck against themselves. That did rather make it unfair against them. But it was SCOG themselves that did it...

Perhaps they wanted a challange...

RAS

[ Reply to This | # ]

I must be missing something...
Authored by: Anonymous on Friday, May 02 2008 @ 07:44 PM EDT
How does Nagle's testimony help SCO or hurt Novell? Isn't he saying that almost
all of UnixWare is stuff that Novell still holds copyright to? How does that
square with the amount that is Novell's being none or "de minimis"?

I don't get the point at all...

MSS2

[ Reply to This | # ]

Deadline for appeals?
Authored by: Anonymous on Friday, May 02 2008 @ 08:23 PM EDT
It was said that "McBride is all about appealing the August 10
ruling." August 10 seems like such a long time ago. Isn't there a deadline
to request an appeal? I would that expect that to have passed quite some time
ago.

[ Reply to This | # ]

File system testimony
Authored by: Anonymous on Friday, May 02 2008 @ 08:27 PM EDT
"Q: Compare SVR4 and UW filesystems; A: Same"

Wrong - Unixware had VxFS which was licensed from Veritas. It was huge
improvement over the SVr4.2 options.

[ Reply to This | # ]

Argument that closed source is always more valuable than open source code
Authored by: Anonymous on Friday, May 02 2008 @ 08:43 PM EDT
Here's an argument that closed source is always more valuable than open source
code:

Closed source code can still be made open, but open source code cannot be
closed. So closed source code would always be at least as valuable as open.

A simplification, of course. I think this shows more that the question is kind
of silly.

[ Reply to This | # ]

Darl McBride
Authored by: Anonymous on Friday, May 02 2008 @ 08:57 PM EDT
I was at a Linux conference a month or three ago, and had the privilege of
chatting with John "Mad Dog" Hall. Several of us were standing
around, and someone brought up the SCO suit and Darl. John commented that he
had spoken to Darl at one time, and couldn't believe how LITTLE he knew about
software and technical issues.

I find it very possible that he just doesn't UNDERSTAND why Linux and Unix are
different, and really believes they have to be related because they look the
same, the way a koala resembles a small bear.

[ Reply to This | # ]

Thanks, Paul Hepworth
Authored by: arch_dude on Friday, May 02 2008 @ 09:18 PM EDT
Chris has done an awesome job, but it is still great to see another perspective,
as it gives us a richer and more nuanced understanding of the courtroom scene. I
am personally terrible at taking meeting notes, and I know I would be even worse
as a courtroom observer, so I am really glad you did so well. between Chris, the
transcript, and you, I can almost see the courtroom.

Thanks.

[ Reply to This | # ]

Let's give a big hand...
Authored by: Anonymous on Friday, May 02 2008 @ 11:10 PM EDT
To the very best witness Novell could have possibly had...

Darl McBride!

Thank you Darl, for your rambling, stumbling evisceration of SCOlogic. The
clarity with which you destroyed your own credibility, while talking around both
feet in your mouth was nothing short of astounding. When testifying in court,
threading the needle through all those torturous questions to properly expose
the real facts is a tough assignment, but your perseverance carried the day.

May your next day in court be every bit as successful.

[ Reply to This | # ]

SCO was unsuccessful largely due to Linux
Authored by: kawabago on Friday, May 02 2008 @ 11:46 PM EDT
SCO was unsuccessful largely due to Linux. Ha ha ha.

I would have pointed out that SCO was a Linux company first and it failed at
that. Then it got into UNIX and it failed at that too. Now it's gotten into
LITIGATION and it's dramatically failing at that!

At least one thing is clear from the evidence. SCO is a rudderless ship of
fools.

[ Reply to This | # ]

The Cross Examination of Darl McBride, Wherein the Law of Clarification obtains
Authored by: webster on Friday, May 02 2008 @ 11:58 PM EDT

Sorry, this comment is an article behind. It is under the transcript of the text.

[ Reply to This | # ]

Mr. Nagle Was Not Prepared!
Authored by: iceworm on Saturday, May 03 2008 @ 01:05 AM EDT

Mr. Nagle, Senior Director of the Product Group (OS and mobility) apparently did not make use of the various and sundry tools native to *nix or the spectral analysis tools the MIT Deep Divers had at their disposal to come up with a spreadsheet showing lines-of-code and their presence in the several versions and brands of the operating systems mentioned. Faugh! Mr. Nagle you don't act like an engineer.

[ Reply to This | # ]

Reports on the Last Day of the Trial in Novell v. SCO - Updated 3Xs
Authored by: Bill The Cat on Saturday, May 03 2008 @ 01:05 AM EDT
So what SCO said is that MS and Sun paid WAY TOO MUCH for the licenses they
bought. In fact, the licenses they bought were worthless and therefore, Novell
shouldn't get any money. The fact that they cost tens of millions of dollars is
the "price paid" but not the "value."

So using SCO logic, if they were dumb enough to pay that money, we should be
able to keep it even though it violated the agreements with Novell... except
that these were UW licenses and thus didn't violate the Novell terms except...
that we told the SEC that they were but only to mislead stockholders...

Stop! My sides are hurting. I can't take this much humor all at once!


---
Bill The Cat

[ Reply to This | # ]

Value of SVR4: 5 billion?
Authored by: kh on Saturday, May 03 2008 @ 01:50 AM EDT
Wasn't the value of SVR4 what SCOXQ.PK were claiming from IBM because IBM
allegedly put a few lines of SVR4 code into linux?

5 billion wasn't it?

Estoppel?

[ Reply to This | # ]

License at time of APA does not extend to 2003 Sun or to new(!) MS license
Authored by: SpaceLifeForm on Saturday, May 03 2008 @ 02:13 AM EDT
So, there was a *new* "license" for Microsoft?

Meaning, as in, a *second* "license"? Or rework
of the original scosource/unixware "license"?
(whichever one they are working with today)

If so, I'll bet it happened *after* the
Microsoft-Novell FUD Agreement.


---

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

[ Reply to This | # ]

Schedule 2.2(b) of the APA
Authored by: GLJason on Saturday, May 03 2008 @ 02:48 AM EDT

SCO's argument is that they have the right to license UnixWare, so that includes the right to license Novell's copyrights under any license they wish. In their crazy world there would be no need for the provisions of the APA with respect to converting or granting new SVRX licenses. SCO could just go to any SVRX licensee and say they just need a UnixWare license now, not an SVRX license, and they could stop paying Novell. This was specifically mentioned in the APA, and the language said that an SVRX licensee could not consider to be converted as long as they had any SVRX code. It's right in schedule 2.2(b):


(f) SVRx Converted Units. The parties agree that SCO will have the opportunity to convert existing SVRx-based customers to a UnixWare derived product, thus depriving Seller of the economic benefit of the SVRx licenses. The process for determining if a customer is validly converted is as follows:

The conversion of an SVRx customer to UnixWare will validly occur and result in the UnixWare based revenue flowing to SCO, without giving rise to a continued obligation to make payment to Seller of royalties due under the SVRx licenses, only if the following are true (note: if the customer continues to sell their SVRx based product separately, then these SVRx revenues continue to flow to Novell):

(i) The customer ships a binary copy of a Golden Master of UnixWare, Eiger, MXU or White Box, or

(ii) The product is derived from a source version of UnixWare, Eiger, MXU or White Box and (i) none of the original SVRx code provided by Novell to the customer, under the SVRx license, is included in the new product or (ii) Buyer shall demonstrate to Seller's reasonable satisfaction that an insignificant amount of original SVRx code is so included and the adoption of UnixWare is so substantial as to constitute a valid conversion.

In addition, an SVRx customer can be defined as having converted to UnixWare only if one of the above is satisfied and only if support is provided for NDS (client/server where appropriate) in the resulting product.

The difference between UnixWare and SVRX licenses is plain as day. If they ship a binary copy of UnixWare, it's a UnixWare license. If there is no SVRX code provided from Novell to the client in it (or Novell agrees the amount of code is minimal) then it is a UnixWare license. These are only true if the product also provides support for NDS. Does OpenSolaris have support for NDS? Is there any SVRX code remaining in OpenSolaris? I believe they showed in the trial that there was. Specifically, SCO never contended that any non-SVRX UnixWare code was in Linux.

UnixWare is an SVRX-licensed product! The royalty part of schedule 2.2(b) shows that. The royalty obligations terminated on December 31, 2002, but the fact that "royalties" were required on UnixWare and Eiger is testimony that Santa Cruz was just licensing those rights from Novell. Here's how a royalty is defined:

a compensation or portion of the proceeds paid to the owner of a right
So Novell owns the rights to those products (or at least the SVRX contained therein) and SCO must pay royalties to the owner of the rights.

[ Reply to This | # ]

"Customer is aware that these claims are in litigation."
Authored by: Ian Al on Saturday, May 03 2008 @ 04:17 AM EDT
I'm like a dog with a bone. Singer said in his summing-up
Contract contains acknowledgment of uncertainty. "Customer is aware that these claims are in litigation."

Basically, they were getting an insurance policy from SCO.

APA also gave Novell's claims related to business to SCO.

There are two inferences that can be made (I reserve my right to bring up more before the court of Groklaw).

Both Sun and Microsoft signed written agreements that acknowledged that SCOG might not have the rights to the code on which the contracts were based. They would have known that they might legally have to go to Novell or their agent to actually get what they wanted. Neither company can claim that SCOG acted as a rogue agent and they knew nothing of this. They can't reasonably sue for their money back. So, should SCOG be allowed to keep the money when their illegal acts have irrepairably damaged Novell? You cannot return the wine when you have opened the bottle. You have to give the money to the owners.

Were both contracts, in part, SVRX licences? Yes they were. In fact, the concession that Microsoft bought, in part, Unixware licences is very kindly as they may have only snorted a single line of Unixware and it might have been Unixware 2.0 rather than 2.1 or 7. All this talk about value. Ask a salesman what is the price and (s)he will tell you it's what the mark will pay. So Novell should get 100% of the price and no discussions about value should be even considered.

In closing (and bearing in mind my rights to start again at any time) I would like to thank Chris, Paul and our other court reporters for giving such great reports and obtaining the official transcripts. Thanks also to the kind folk who donated to make it possible. There was someone else, but that will come back to me.

I have to end on a slightly down note. PJ said

SCO lost, fair and square.
I can't believe you gave the ending away: how could you!

:-)

---
Regards
Ian Al

When nothing else makes sense, use Linux.

[ Reply to This | # ]

Here's to Darl, the fastest footgun in the West! (n/t)
Authored by: Anonymous on Saturday, May 03 2008 @ 08:38 AM EDT
Sorry, couldn't resist ;)

[ Reply to This | # ]

How long until the ruling?
Authored by: Anonymous on Saturday, May 03 2008 @ 08:46 AM EDT
So when can we expect the ruling on this? Is it more like days or weeks?

[ Reply to This | # ]

Non-Unix Code in Solaris?
Authored by: sk43 on Saturday, May 03 2008 @ 09:11 AM EDT
In the Venn diagram, the circle labelled "Solaris" contains two
entities: "SVR4.0 (AT&T w/Sun)" and "Non Unix" code. Oh,
really? We have heard at least 4 times on previous days that Solaris is a
DERIVATIVE WORK of UNIX System V (affirmed by Jacobs, La Sala, Sontag, and
McBride.) That sounds a lot like how SCO describes AIX. Yet, according to SCO,
all the stuff contributed by IBM to AIX is called "UNIX-derived" code,
not "Non Unix" code. One wonders if Mr. Nagle could explain how to
distinguish between the two.

[ Reply to This | # ]

Did anyone else catch this?
Authored by: Anonymous on Saturday, May 03 2008 @ 09:13 AM EDT
>>Q: Are you familiar with the OpenSolaris license, that the public can
see the code?
A: Yes
Q: It's the 2003 SCOsource license that gave Sun this right to expose SVR4 to
the public?
A: The right to expose UW code also.
Q: It gave the right to expose SVR4 code?
A: Correct.
<<

Both Chris Sontag and Darl McBride boldly stated, under oath, that SVRx and
Unixware were used "interchangeably". The engineer, by making this
statement, clearly differentiated between the two.

Somebody was just caught in a lie.

[ Reply to This | # ]

  • Don't see how - Authored by: Anonymous on Monday, May 05 2008 @ 03:58 PM EDT
Apportionment
Authored by: overshoot on Saturday, May 03 2008 @ 10:12 AM EDT
It's what you don't see that's really interesting: Caldera doesn't propose any apportionment.

They're technically barred from trying to reargue the August 10 ruling that they owe Novell for the "SCOSource" contracts, but they might as well since all of their closing arguments are to the effect that Novell's portion is de minimis. Nothing remotely resembling any alternative is proposed, so they're effectively going for broke here; it certainly looks like the Court has a choice between Novell's figure and zero.

I'm thinking that zero is in the "snowball's chance" range so the end result is that Caldera was just going through the motions.

[ Reply to This | # ]

SCO arguing things that they were not allowed to?
Authored by: Anonymous on Saturday, May 03 2008 @ 11:37 AM EDT
License at time of APA does not extend to 2003 Sun or to new(!) MS license. From deposition/testimony: Q: In 2003 was the reason that it was after APA? McBride: Yes.
When Judge Kimball ruled on the summary judgements back on August 10, 2007, he ruled that when the APA referred to "ALL SVRx licenses" it was not limited to just licenses that already existed at the time that the APA was executed.

I thought that he also ruled on a Novell pre-trial motion that SCO could not argue things that were already decided by the summary judgement ruling. Why didn't Novell object to SCO briniging this up again through Darl's testimony?

[ Reply to This | # ]

TSCOG => caldera what about the other cases??
Authored by: LaurenceTux on Saturday, May 03 2008 @ 12:04 PM EDT
We have a few other cases to wind up so lets state as a given that TSCOG get
rendered into very small bits and no longer exists as such.
TSCOG V IBM =this one is in front of Judge Kimball so he just has to get
everybody in his chamber to gavel down??
TSCOG V Redhat = simple dismissed (with Pred)
TSCOG V AutoZone = also dropped

....
is this the train we are on??

[ Reply to This | # ]

... why didn't ...
Authored by: Anonymous on Saturday, May 03 2008 @ 12:10 PM EDT
Can someone please tell me why, that when tSCOg put up the graphic ... why
didn't ... the entire courtroom fall out of their chairs laughing?

Almost all of SVr4/4.2MP are in Unixware, and Novell owns them, but they are
"incidental"? Sun's version is based on the save versions, but they
contain NO Unixware? Then you have IBM and it contains SVrx, therefore Unixware,
which was then added to Linux?

I look at the graphic and wonder just how people like the management of tSCOg
got to be in the positions that they are in. I am simply
amazed/stuned/confunded.

George

( no account, but easy to find )

P.S.: If this is an example, then anyone is looking for a CEO, I can start any
time. I can do at least this well.

[ Reply to This | # ]

Vegas odds on Time Serveable
Authored by: LaurenceTux on Saturday, May 03 2008 @ 08:42 PM EDT
So what are the odds on each of the possible charges for the officers of the
soon to be former SCO Group?

lanham
SoX
RICO
(did i miss any??)

and will the NazGul/MoFo train have a stop in Redmond WA?

[ Reply to This | # ]

Leaping tall buildings.
Authored by: Ian Al on Sunday, May 04 2008 @ 06:39 AM EDT
I have some interminable comments taken from the first two days, but appropos of
the summing up. Since I do drip on for quite a while, I have popped them into a
child of this comment.

---
Regards
Ian Al

When nothing else makes sense, use Linux.

[ Reply to This | # ]

Ok, let me get this striaght ...
Authored by: Anonymous on Sunday, May 04 2008 @ 08:50 AM EDT
"where he'd characterized open sourcing as having no direct value as it's not paid for"

OK, so on the one hand SCO says that open sourced code has no value,
and on the other hand they sue everyone in sight for the value in it.

Which is it?

J

[ Reply to This | # ]

Gaaaaaasp!
Authored by: Anonymous on Monday, May 05 2008 @ 01:28 PM EDT
You reproduced a SCO diagram! It contains the valuable DNA of their IP! Only,
of course, it has no real value, only when it is part of the very valuable Venn
Diagram 2.0. Which you have reproduced! And it hasn't even been released yet,
so you must have hacked into their computers to get it! You're for it now!
Die, die, die!

[ Reply to This | # ]

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