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| The Trial Testimony of Greg Jones, Day 2, SCO v. Novell - updated |
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Wednesday, June 25 2008 @ 06:45 AM EDT
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Here is the testimony of the final witness Novell called in the SCO v. Novell trial, Greg Jones, Vice President of Technology Law at Novell. He followed Darl McBride to the stand. His testimony came on day 2 of the trial. It's primarily because of what I learned from this testimony that I took a long time to write an analysis of the trial. I was, frankly, too angry to trust myself to write about it until I had some time to cool off some. We learn two primary things from Jones' testimony: first, what a cynical role Sun played in the SCO saga, and second, that all the time SCO was calling on the world, the courts, the Congress -- nay heaven itself, if I may say so -- to sympathize with it over the ruination of its Most Holy Intellectual Property by it being improperly open sourced into Linux, not that it turned out to be true, it had already secretly given Sun the right to open source it in OpenSolaris. Remember all that falderol about SCO being contractually unable to show us the code, much as it so desired to do so, because of being bound to confidentiality requirements? What a farce. SCO had already secretly given Sun the right to open source Solaris, with all the UNIX System V you can eat right in there. The simple fact is, I gather from Jones' testimony, Sun could have prevented the harm SCO sought to cause by simply telling us what rights it had negotiated and received from SCO prior to SCO launching its assault on Linux. Yet it remained silent. When I consider all folks were put through, all the unnecessary litigation, and all the fear and the threats and the harmful smears, including of me at the hands of SCO and all the dark little helper dwarves in SCO's workshop, I feel an intense indignation like a tsunami toward Sun for remaining silent.
Just before Jones is called to the stand, McBride has testified that he first approached Jones in 2002 about getting the copyrights "clarified" as belonging to SCO, and according to McBride, Jones was willing to help him. Here's what McBride testified:
Q. Can you tell me when the first conversations
occurred?
A. Yes. It would have been in the fall of 2002,
probably early November.
Q. Who initiated the conversation?
A. I first called in to Greg Jones, who was an
attorney at Novell.
Q. Okay. And what did you tell him or ask him?
A. Well, I told him that I was the CEO of SCO, SCO
had acquired the UNIX properties, as we remembered from
the '95 time frame, and we were preparing to enforce our
intellectual property rights and, in the process of going
through the related agreements, I had come across a
head-scratcher, if you will, something in the agreements
that did not make sense to me.
There was competing language, where the
majority of the Asset Purchase Agreement seemed to appear
that all of the property went to the Santa Cruz
operation, and there was really just one word in one
small section that was conflicting that, and that was
relating to the copyrights in the excluded asset list.
And I explained that to Mr. Jones and, at the
same time, explained to him what we were trying to do
with our SCOsource program.
Q. Now, at the time you had this conversation,
were you aware of amendment number 2?
A. No, I was not.
Q. What did you ask Mr. Jones for Novell to do?
A. I asked him if he would help us find all of the
documents that related to the Asset Purchase Agreement in
1995, so we could try and get some clarity to what was
clearly an erroneous problem. Something was in error
because there was conflicting statements.
Q. What did Mr. Jones say to you?
A. He agreed with me and said he would do his best
to see how he could help.
Q. Okay. Was there a follow-up conversation with
Mr. Jones or anyone else from Novell?
A. Yes. Over the period of the next, I would say,
two to three months, there were a number of discussions I
had with Greg. And then, eventually, there was someone
else from Novell, a Dave Wright came in, and I had some
discussions with him, but primarily it was with
Mr. Jones.
Q. Can you relate the substance of that
conversation -- conversations?
A. The substance, if you put a thread through it,
was basically us asking them to clarify this language
that we felt was conflicting and that we had bought the
technology, SCO had bought it, Novell had sold it. I went through that with Greg. Greg agreed with me and
said: Yeah. That doesn't make sense. Let's try and
figure out if there's a document out there somewhere.
So, the first part was going out to try and
find some documents that would help that. So if there
was a thread through it, it was Greg was very helpful
every step along the way to try and help us resolve the
issues.
Q. Well, did they express a willingness to go back
and search for documents?
A. Yes, they did. The first part of of it was
Mr. Jones telling me: Let me go see what I can find out.
I worked with Greg at Novell, and I knew him
well. A lot of people had left over the ten years since
I had worked there, so -- eight years, whatever it was.
So -- but I did know Greg, and Greg was very helpful to,
first of all, go try and find any documentation that
would explain what was going on at the time of the deal.
That makes it sound like he and Greg Jones were kind of on the same wavelength, agreeing that there was just this one little bit of the agreement that made no sense to either of them, until, it is implied, some unknown someone higher up, maybe this Dave Wright person, interfered. Jones, as you will see, remembers it differently. Now, Jones, being a lawyer, was allowed to stay in the courtroom when the other witnesses had to clear out, so he was sitting there listening to this account. I mention it only to say that it gives you some insight into Darl McBride, I think, his boldness, in that he gave the testimony he did with Jones sitting right there in the room. He had to know that Jones disagreed, from his earlier submissions in this litigation and the one between SCO and IBM. Jones' testimony begins with page 303 of Part 2 [PDF] of the day's transcript, which is page 24 of the PDF, and continue with Part 3 [PDF] up to page 390. The line numbers version is thanks to papafox, once again. When you read the summing up in the closing arguments, you'll see that both sides reference testimony by line number, so it matters to have this version, and also when we get to appeals, sometimes it also matters to be able to follow along by line number. So thank you to papafox for coming up with the script that made it endurable to do a long transcript with line numbers.
We've seen Greg Jones before, so to speak, by means of his Affidavit in support of Novell's successful motion to lift the stay in bankruptcy court. In his affidavit, he told the court in Delaware the following: 7. Novell intended with the APA to retain all Unix Copyrights and to protect its interest in all SVRX Royalties. In the event that SCO ultimately went into bankruptcy, the Unix Copyrights and the SVRX Royalties would, thus, not be part of the bankruptcy estate. The retention of the Unix Copyrights also protected Novell's other Unix-related interests, including the rights to negotiate buyouts of SVRX licenses, receive future revenues, and ensure development of future versions of the UNIX operating system. We also saw a Declaration [PDF] of his back in September of 2006 in the SCO v. IBM case, one of the 597 exhibits IBM attached to IBM's various summary judgment motions. The bankruptcy cut across that path, and so they were never decided. Not yet, anyway, and in the meantime, the August 10 decision in the SCO v. Novell case cut into some of them, but someday, some happy day, we'll be picking up that dropped stitch once again. Anyway, in the 2006 declaration, Jones told the court about the APA, what Santa Cruz got and what it didn't. And he tells about SCO's attempts to get the copyrights in 2002. Since we never got the Declaration done as text (597 exhibits all at once turned out to be Groklaw's Waterloo on transcribing) [Update: Erwan reminds me that we did do the transcript, but I forgot, which happens, so it was not quite our Waterloo. The Waterloo was updating the chart, which we are doing now], I'll show you now what he wrote about that back then: SCO's Attempts to Acquire the UNIX Copyrights
13. In late 2002, SCO repeatedly contacted Novell. SCO requested access to or copies of any records concerning rights to UNIX, including any agreements between Novell and Santa Cruz....
14. SCO further requested that Novell transfer its UNIX copyrights to SCO, thereby acknowledging that it did not own the UNIX copyrights. SCO contacted Novell on multiple occasions in late 2002 and early 2003. For example, SCO's CEO, Darl McBride, repeatedly contacted Novell and asked Novell to amend the Novell-Santa Cruz agreement to give SCO the UNIX copyrights. Novell rejected all of these requests. See what I mean about McBride knowing that Jones didn't agree with McBride's version of events? This is our first opportunity to see David Melaugh at work for Novell. He asks the questions of Mr. Jones in the direct examination. Ted Normand for SCO does cross. Jones in addition to being a lawyer also has a degree in computer science from BYU and he worked as a programmer prior to law school, so tech questions are not beyond him, although he claims no expertise in that area now. I'd say that helps him to best Normand in the cross examination, though, when they get into what UnixWare is and how the APA related to it. As for SCOsource, while SCO's position is that Novell never objected, so it felt free to go ahead, Jones says that while SCOfolk told Novell about a kind of licensing program, it was all quite vague on the details: I had never seen anything that explained the exact terms of what that program might be or anything of that nature. That's still true, as far as I'm concerned. If someone asked you to tell them precisely what SCOsource was licensing, could you answer? You could give any number of possibilities, based on quotations from the past and the present, but it's the poor judge who has to finally decide what it was all about. SCOsource was a movable feast, from SCO's perspective. Jones says that back in the 2002 and early 2003 timeframe, "they never got that specific with me." Darl prepared a paper in 2003, Jones tells the court, which SCO sent to Novell, and when Jones saw it, he saw a reference to SVRX, but "it's not really an explanation of what the SCOsource program is. It was, instead," Jones says, "something they were proposing to do to define the rights in a way that they wanted to see them defined." And he tells further that no one from Novell signed the letter or agreed with it. Not exactly matching up with McBride's testimony, is it? Jones also establishes that Novell had no warning in advance that SCO was going to enter into the Sun or the Microsoft agreements and in fact Novell only got to see the documents by demanding them in discovery. When Jones first saw the Sun agreement, he saw it related back to the earlier 1994 agreement between Novell and Sun, and that made him read it and the Asset Purchase Agreement between Novell and Santa Cruz. After he read all that, he says that the Sun agreement primarily makes one very significant change: Well, I guess, first of all, that indeed the 2003 agreement carries over many of the terms from the 1994 agreement, but it does, for all practical purposes, remove the confidentiality obligations for the source code that were part of the 1994 agreement. In short, SCO was in effect open sourcing SVRX while simultaneously suing IBM for purportedly doing the same thing. I can't wait to get back to the IBM case. Remember all the whining about their sooper sekrit code, so utterly and contractually secret that not even SCO could show it to anyone without an NDA? Remember that farce? They had, meanwhile, already given Sun the right to display it to the entire world, from Jones' testimony. So I simply can't wait to hear them explain that to the judge, once the IBM case resumes. The new rights Sun got, Jones says, make the SVRX licensing in the agreement not "incidental" to UnixWare. Yes, Sun had extensive sublicensing rights under the 1994 agreement, but only if it was done pursuant to terms at least as restrictive as those "that Sun uses for its most valuable proprietary source code." And Sun had an obligation to police sublicensees and take action to enforce the confidentiality. Suddenly in 2003, all that secrecy was lifted. Furthermore, since it was a change to an earlier agreement, SCO should have asked Novell's permission first, Jones tells the court. The license lists pre-APA SVRX technologies, he says, and they don't belong to SCO to open source, and yet in letting Sun open source Solaris, that's what SCO did. Jones relates how he compared Solaris code and SVRX, and lo and behold, SVRX is in there. He identified AT&T copyrights from 1989 which he shows to the court from OpenSolaris. He didn't find any UnixWare copyrights. Ironic, no? We have come full circle. It's SCO open sourcing SVRX, in violation of Novell's proprietary IP. That's what really happened. While SCO in the end couldn't show us any infringed code of theirs, we find Novell claiming SCO violated Novell's copyrights. Who'd have predicted such legal humor? It's farcical indeed. All the time SCO was calling on heaven above, and the US Congress, to note the wrongs they had suffered by having their most holy IP open sourced under the horrible GPL, which was allegedly such a danger to the economy, nay the world, they *knew* already that they'd given Sun the full right to open source Solaris themselves, under *any* license Sun wanted to use, according to Jones, even before they began the media push. Cynical? That's maybe not a strong enough word, if Jones is telling the truth, which I assume he would have to, since they were showing the judge the agreement as an exhibit at trial. And what an icky role Sun played, to judge from Jones' description of the agreement. Look at all the damage that resulted from Sun's silence, the litigation that never had to happen. Frankly, if I were IBM or Red Hat or AutoZone or DaimlerChrysler, I'd at least be thinking about it some. And as far as Linux is concerned, why didn't Sun speak out to help? It had in the power of its hand the ability to protect Linux users. Silence. For years and years and years. While folks got sued, and the FUD campaign raged on. I realize a lot has changed since, but no matter how much I try to be an adult about it, it is infuriating to think that none of this had to happen, and when I just think about all I was put through... well, I'd best not think about it. It's worse than what I had thought. And to all of you who gave me a hard time back in 2003, when I wrote about what I viewed as Sun's role, you can all line up and apologize to me for falsely accusing me of being too hard on Sun. Looking back, with the Jones testimony ringing in my mind and heart, I'd have to say I never thought it was going to turn out to be as bad a picture as this testimony paints. Jones also talks about the Microsoft license and the Computer Associates' SCOsource agreement. He views both as SVRX licenses, and with regard to the SCOsource licensing, he explains why like this: And here, you know, there's a reference to -- that the UNIX-based code is UNIX System V or UnixWare. And so, these are, again, implicating versions of pre-APA SVRX in a context in which there are no -- this is not enhancing a previous agreement. This is not adding UnixWare rights on top of UNIX System V rights that were previously obtained. It's just a brand new grant. So I view this as an SVRX agreement. And it's obvious, Jones says, that SCOsource was about preAPA copyrights, because when Novell publicly said that it, and not SCO, owned them, SCO sued them, claiming that Novell was damaging its SCOsource program. "And so -- so, basically, it's quite evident that the SVRX code was just critical to the SCOsource project," Jones tells the court. Ted Normand then cross examines Jones for SCO. He asks if Novell claims trade secrets, if there are any, in UNIX System V, or if SCO owns them and ditto with respect to "know-how and methods and concepts in UNIX System V and UnixWare". I would take that question as an attempt to buttress the new SCO strategy, and save SCO's bacon at least somewhat in the IBM litigation. Jones' answer: Post-APA versions of UnixWare, to the extent not implicating Novell's pre-APA copyrights in SVRX, and to the extent they are developed by SCO, as opposed to some partner of SCO or something, Novell would not be asserting rights to those, certainly. I take his answer as saying that any methods and concepts from UNIX would be Novell's; any methods and concepts that SCO could claim on postAPA work might still be derivative of the earlier methods and concepts from codes the copyrights to which Novell owns. I'd say, in short, that this represents the death knell to any SCO methods and concepts arguments, as far as all current litigation goes. In short, you can read the Jones testimony as being Novell's position in the litigation. And then you get to see two lawyers trying to pin each other down. I enjoyed it immensely, but it'd be hard to explain why. My favorite part, if you are curious, is where Jones asks what Normand means by "UnixWare business", and Normand answers with a question: "What's the ambiguity as to what UnixWare
business is?" That is Normand's "answer". And it doesn't throw Jones at all. He carefully draws a line around Novell's retained interest even in UnixWare. I just enjoyed watching them both at work. I guess you could sum up a lawyer's way of speaking as "don't tell 'em nuttin' unless you have to". It's like watching swordplay in a movie, two lawyers with words. And here they both know what they are doing, but Jones' computer background gives him an edge.
Update: I thought, for historians, I'd reproduce a screenshot from SCO's website back in August of 2004, from the SCOsource FAQ:
SCO has confidentiality clauses in *all* its contracts, eh? Lordy, these folks are too much.
Here's a link to the end of the transcript.
*************************
| 6 | THE COURT: Thank you. You may step down, |
| 7 | Mr. McBride. I assume this witness may be excused. |
| 8 | MR. ACKER: Yes, on behalf of Novell, Your |
| 9 | Honor. |
| 10 | MR. SINGER: Yes, Your Honor. |
| 11 | THE COURT: You may call your next witness. |
| 12 | MR. MELAUGH: Your Honor, we call Greg Jones |
| 13 | GREG JONES, |
| 14 | the witness hereinbefore named, being first |
| 15 | duly cautioned and sworn or affirmed to tell the truth, |
| 16 | the whole truth, and nothing but the truth, was examined |
| 17 | and testified as follows: |
| 18 | THE COURT: Let's see, now. You're |
| 19 | Mr. Melaugh, right? |
| 20 | MR. MELAUGH: Yes, I am. Good morning, Your |
| 21 | Honor. |
| 22 | THE COURT: Good morning. |
| 23 | THE CLERK: Please state your name and spell it |
| 24 | for the record. |
| 25 | THE WITNESS: Greg Jones. G-r-e-g. |
303
| 1 | J-o-n-e-s. |
| 2 | THE CLERK: Thank you. |
| 3 | DIRECT EXAMINATION |
| 4 | BY MR. MELAUGH: |
| 5 | Q. Good good morning, Mr. Jones. |
| 6 | A. Good morning. |
| 7 | Q. Mr. Jones, could you please introduce yourself |
| 8 | to the Court? |
| 9 | A. Yes. I am Greg Jones. I am Vice President of |
| 10 | Technology Law at Novell. |
| 11 | Q. Mr. Jones, could you please describe your |
| 12 | educational background. |
| 13 | A. Yes. I have a Computer Science Degree from |
| 14 | Brigham Young University and also a Juris Doctorate |
| 15 | Degree from BYU. |
| 16 | Q. Could you please describe briefly your work |
| 17 | history following graduation from law school. |
| 18 | A. Following law school, I had a law clerk/baliff |
| 19 | position in Utah County, which included being law clerk |
| 20 | to a State District Judge. In March of '92, I joined |
| 21 | Novell. I have been at Novell since then, always in a |
| 22 | position of advising on intellectual property and |
| 23 | licensing matters, and I currently lead a team of |
| 24 | attorneys that supports Novell's R&D efforts. |
| 25 | Q. Mr. Jones, could I ask you to expand a bit on |
304
| 1 | your responsibilities during the timeframe at issue in |
| 2 | this case; say, from 2002 to the present? |
| 3 | A. Again, leading this team of attorneys and |
| 4 | paralegals in supporting the R&D efforts. So, that |
| 5 | includes inbound licensing of technology and other |
| 6 | intellectual property licensing. Also, if there are |
| 7 | disputes that arise or things of that nature that affect |
| 8 | the R&D organization, then we offer counsel and advice. |
| 9 | Q. Mr. Jones, you have been present in the |
| 10 | courtroom since we began; isn't that right? |
| 11 | A. Yes. |
| 12 | Q. And so you've heard the testimony of Mr. Sontag |
| 13 | yesterday, and Mr. McBride today? |
| 14 | A. Yes. |
| 15 | Q. I'd like to ask you about a segment of that |
| 16 | testimony. I believe the substance of it is that, both |
| 17 | from Mr. Sontag and from Mr. McBride, that SCO explained |
| 18 | the details of the SCOsource program to you; that you or |
| 19 | anyone else from Novell didn't say no to SCOsource; and |
| 20 | that, therefore, SCO felt it could proceed with the |
| 21 | SCOsource program. |
| 22 | How does that testimony comport with your |
| 23 | memory of these communications that are being talked |
| 24 | about? |
| 25 | A. Well, they both did speak of their belief that |
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| 1 | UNIX intellectual property or code may be found in Linux. |
| 2 | I recall Mr. McBride talking about the libraries that he |
| 3 | alluded to. And I recall their desire to enforce their |
| 4 | rights. And, at one point, I do recall them saying that |
| 5 | the enforcement may be by means of a licensing program. |
| 6 | But I didn't have a full understanding exactly what |
| 7 | SCOsource would be or what it would entail. I had never |
| 8 | seen anything that explained the exact terms of what that |
| 9 | program might be or anything of that nature. |
| 10 | Q. Did they ever suggest to you, during these |
| 11 | communications, that SCO might sue Linux users for |
| 12 | infringement of SVRX copyrights? |
| 13 | A. They were not that specific. |
| 14 | Q. As part of these communications, did they ever |
| 15 | suggest to you that SCO was going to go out and license |
| 16 | SVRX? |
| 17 | A. Again, they were never that specific. In those |
| 18 | 2002 conversations, where are they were introducing |
| 19 | themselves and what was happening, they never got that |
| 20 | specific with me. |
| 21 | Q. As well as the early 2003 communications; is |
| 22 | that right? |
| 23 | A. The only thing in 2003 was: There was this -- |
| 24 | Mr. McBride aluded to a document they prepared and they |
| 25 | sent to Novell and, in looking at that document, which -- |
306
| 1 | there is a reference to SVRX, but, again, it's not really |
| 2 | an explanation of what the SCOsource program is. It was, |
| 3 | instead, something they were proposing to do to define |
| 4 | the rights in a way that they wanted to see them |
| 5 | defined. |
| 6 | Q. And, and as a matter of fact, no one from |
| 7 | Novell signed that letter, no one from Novell agreed to |
| 8 | the letter that you're referencing? |
| 9 | A. That's correct. |
| 10 | Q. As part of these communications, did anyone |
| 11 | from SCO ever suggest to you or anyone else at Novell |
| 12 | that SCO was going to purport to authorize the open |
| 13 | sourcing of SVRX? |
| 14 | A. No. |
| 15 | Q. Did they ever suggest to you that they were |
| 16 | going to amend or -- and restate Sun's 1994 buyout |
| 17 | agreement? |
| 18 | A. No. |
| 19 | Q. Did they ever suggest to you, or anyone else at |
| 20 | Novell that you're aware of, that they were going to |
| 21 | enter into a license with Microsoft? |
| 22 | A. No. |
| 23 | Q. Mr. Jones, I'm going to show you an exhibit |
| 24 | that's not in the binder that you have. This has been |
| 25 | premarked as Exhibit 151 from Novell. I want to draw |
307
| 1 | your attention to the paragraph at the bottom of the |
| 2 | e-mail. This is from -- the paragraph right above that |
| 3 | that's from you. |
| 4 | THE COURT: This has not been admitted, |
| 5 | correct? |
| 6 | MR. MELAUGH: That's correct, Your Honor. |
| 7 | Q. Does this comport with your memory of the |
| 8 | communications that you have just described? |
| 9 | A. Yes. |
| 10 | Q. And I want to draw your attention to the top of |
| 11 | the e-mail. And this is a response from Chris Stone. |
| 12 | Does this comport with your memory of Novell's reaction |
| 13 | to SCO's proposal? |
| 14 | A. Yes. |
| 15 | MR. MELAUGH: Your Honor, I'd like to move |
| 16 | Exhibit 151 into evidence. |
| 17 | MR. NORMAND: No objection, Your Honor. |
| 18 | THE COURT: 151 is received. |
| 19 | (Novell's Exhibit 151 received in evidence.) |
| 20 | Q. Mr. Jones, if you could turn in your binder to |
| 21 | Exhibit 187. This is Novell Exhibit 187. It's been |
| 22 | pre-admitted. Mr. Jones, what is this? |
| 23 | A. This is a 2003 software license agreement |
| 24 | between Sun and SCO. |
| 25 | Q. Where did Novell obtain this document? |
308
| 1 | A. We obtained this document from SCO in discovery |
| 2 | in litigation. |
| 3 | Q. Did Novell have a copy of this document prior |
| 4 | to obtaining it in discovery in this litigation? |
| 5 | A. No. |
| 6 | Q. After receiving this agreement in discovery in |
| 7 | this litigation, what did you do? |
| 8 | A. Well, this agreement, you know, it relates back |
| 9 | to this 1994 agreement -- excuse me -- it relates back to |
| 10 | a 1994 agreement between Novell and Sun, and it says that |
| 11 | it meant to restate that agreement. So I went back and |
| 12 | looked at the 1994 agreement. Both of them identified |
| 13 | versions of SVRX as technologies that are being licensed, |
| 14 | so I also took a look at the Asset Purchase Agreement |
| 15 | between Novell and Santa Cruz, SCO. |
| 16 | Q. If you could turn for a moment to the next tab |
| 17 | in this Novell Exhibit 5, which has been pre-admitted, |
| 18 | what is this document, Mr. Jones? |
| 19 | A. This is a 1994 software license and |
| 20 | distribution agreement between Sun Microsystems and |
| 21 | Novell. |
| 22 | Q. Was this the 1994 agreement you were referring |
| 23 | to just a moment ago? |
| 24 | A. Yes. |
| 25 | Q. As a general matter, what is this agreement? |
309
| 1 | A. Well, this is an agreement under which Sun |
| 2 | bought out its royalty obligations for licenses to UNIX |
| 3 | technologies. |
| 4 | Q. After reviewing the Asset Purchase Agreement |
| 5 | and the 1994 agreement and the 2003 agreement, what was |
| 6 | your understanding of the relationship between these |
| 7 | three agreements? |
| 8 | A. Well, I guess, first of all, that indeed the |
| 9 | 2003 agreement carries over many of the terms from the |
| 10 | 1994 agreement, but it does, for all practical purposes, |
| 11 | remove the confidentiality obligations for the source |
| 12 | code that were part of the 1994 agreement. |
| 13 | I also note that the 2003 agreement, basically, |
| 14 | is a restatement of a buyout that was done. So this is |
| 15 | an agreement relating to a buyout of royalties that comes |
| 16 | under provisions of amendment number 2 to the Asset |
| 17 | Purchase Agreement, which requires that such agreements |
| 18 | not be entered without both parties' consent. |
| 19 | Also, the 2003 agreement relates to SVRX |
| 20 | technologies and substantial new rights being granted |
| 21 | with respect to them, independent of the UnixWare |
| 22 | technologies identified in the agreement. So, it is an |
| 23 | SVRX agreement. |
| 24 | The licensing of SVRXs is not merely incidental |
| 25 | to UnixWare. It's not minor. Expansive rights were |
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| 1 | granted with respect to SVRX, that it could even be |
| 2 | released as open source. So, this is also an agreement |
| 3 | that, under the Asset Purchase Agreement, should not have |
| 4 | been entered without Novell's approval. |
| 5 | Q. So, let's walk through that again. You -- I |
| 6 | think, the first part of your answer referred to |
| 7 | confidentiality obligations that were in the 1994 |
| 8 | agreement and in the 2003 agreement. Are you referring |
| 9 | to the -- at least, in part, to the sections that are on |
| 10 | the screen now? |
| 11 | A. Yes. This is from the 2003 agreement, right? |
| 12 | Q. Can you walk us through your understanding of |
| 13 | these sections? |
| 14 | A. Well, so -- well, so, first have all, 10.1 is |
| 15 | just a general -- I'm sorry 10.1 is -- |
| 16 | Q. 10.1 is from 1994, to be clear, and the bottom |
| 17 | one is from 2003. |
| 18 | A. So 10.1 is from the 1994 agreement and imposes |
| 19 | confidentiality restrictions, of course. I'd add that |
| 20 | there are other provisions in the 1994 agreement that |
| 21 | also provide that any source code sublicensing has to be |
| 22 | done pursuant to terms at least as restrictive as those |
| 23 | that Sun uses for its most valuable proprietary source |
| 24 | code. |
| 25 | So, while there were significant sublicensing |
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| 1 | rights in the 1994 agreement, they were very tightly |
| 2 | controlled. And, furthermore, Sun had an obligation to |
| 3 | police those licenses and to act on any violations of the |
| 4 | confidentiality. |
| 5 | And, by contrast, I look at Section 8, Roman 1, |
| 6 | towards the bottom, which basically says that if Sun |
| 7 | distributes these UNIX technologies under a license model |
| 8 | of Sun's choosing, then, at that point, those |
| 9 | technologies are no longer confidential, and there are no |
| 10 | longer any confidentiality requirements that apply to |
| 11 | that technology. |
| 12 | Q. I believe you said it was also your |
| 13 | understanding that SVRX plays a significant role in the |
| 14 | 2003 SCOsource license. What led you to that conclusion? |
| 15 | A. Well, simply that the SVRX products are |
| 16 | identified on the schedules and that this dramatic |
| 17 | expansion of rights received by virtue of removing the |
| 18 | confidentiality applies across the board to all of the |
| 19 | technologies that are identified, whether it's UnixWare |
| 20 | or earlier versions of SVRX that predated the APA. |
| 21 | Q. Stepping back to this change in the |
| 22 | confidentiality obligations, what significance do you |
| 23 | attribute to this change? |
| 24 | A. What significance in terms of how it's |
| 25 | important? |
312
| 1 | Q. In the context of what you know about Sun's |
| 2 | business, the actions Sun took after entering into this |
| 3 | license? |
| 4 | A. So, Sun has an operating system known as |
| 5 | Solaris. It's a UNIX variant. It's competitive with |
| 6 | Linux. This 2003 agreement allows Sun, then, to release |
| 7 | Solaris as open source under an open source licensing |
| 8 | model, which they have done in a project called |
| 9 | OpenSolaris. So it poses a direct competitive challenge |
| 10 | to Linux and, certainly, to Novell, given that Linux is |
| 11 | an important part of Novell's business. We are a Linux |
| 12 | distributor. |
| 13 | Q. Do you know whether there is any SVRX code in |
| 14 | Sun's OpenSolaris product? |
| 15 | A. Yes. |
| 16 | Q. How do you know that? |
| 17 | A. Well, Novell has SVRX code in its possession, |
| 18 | and so I obtained source code files from Novell's |
| 19 | personnel, and then I downloaded source code from |
| 20 | OpenSolaris. I found those same files, and sometimes |
| 21 | with some degree of difference or change but, in the |
| 22 | majority's of instances, identical in the OpenSolaris |
| 23 | project. So I took those files, compared them |
| 24 | side-by-side, so I was able to find SVRX files in the |
| 25 | OpenSolaris project. |
313
| 1 | Q. You said you downloaded the OpenSolaris code. |
| 2 | Is that something anyone can do? |
| 3 | A. Yes. Anyone can do that. |
| 4 | Q. And do you have to pay any money to download |
| 5 | the OpenSolaris code? |
| 6 | A. No. |
| 7 | Q. Do you have to sign an agreement to download |
| 8 | the OpenSolaris code? |
| 9 | A. No. You don't have to do that. |
| 10 | Q. If you could turn to Exhibit 439 in your |
| 11 | binder. This is Novell Exhibit 439. It has not yet been |
| 12 | admitted. Mr. Jones, could you describe what 439 is. |
| 13 | A. Well, the right-hand side of this document |
| 14 | contains the -- just the contents of one of the SVRX |
| 15 | files that I looked at, this one called Auto Push.C, and |
| 16 | the left side of the document, the left column, is a |
| 17 | corresponding file that comes out of the OpenSolaris |
| 18 | project. |
| 19 | Q. And what's significant to you in the text of |
| 20 | the chart that we're looking at right now? |
| 21 | A. Well, one thing just of note is, of course, Sun |
| 22 | has included its open source license notice at the top of |
| 23 | the file, but then below that, on the left-hand side, we |
| 24 | see an AT&T copyright notice, with the latest year of |
| 25 | creation of code being 1989. And then we just jump |
314
| 1 | across the page to the SVRX side and see basically the |
| 2 | identical copyright notice. |
| 3 | And from there on, you can see what's striking |
| 4 | is that while there are places where there are some |
| 5 | additional text or a minor difference, there are just |
| 6 | extensive portions of the file where what you find is |
| 7 | that they are identical. |
| 8 | Q. And, moving to the second page of this chart, |
| 9 | is that what we're seeing here? |
| 10 | A. Yes. |
| 11 | MR. MELAUGH: Your Honor, I'd like to move |
| 12 | Exhibit 439 into evidence. |
| 13 | MR. NORMAND: No objection. |
| 14 | THE COURT: 439 is received. |
| 15 | (Novell's Exhibit 439 received in evidence.) |
| 16 | Q. Mr. Jones, if you could turn to Exhibit 440. |
| 17 | Could you tell us what this exhibit is? |
| 18 | A. Yes. Again, this is a document in which the |
| 19 | right column includes the contents of a source code file |
| 20 | from SVRX, Disk USG.C, and the left column is a -- the |
| 21 | corresponding file that I downloaded from the OpenSolaris |
| 22 | project. And, as with the previous exhibit, you look at |
| 23 | the copyright notices. You see the commonalities. |
| 24 | On this particular one, you see that Sun notes |
| 25 | that it made some modifications in 1999, so they are not |
315
| 1 | going to be identical in every respect, but you walk down |
| 2 | through the file and they are identical in many respects. |
| 3 | And it's evident that the OpenSolaris file is based on |
| 4 | the SVRX file. |
| 5 | Q. Mr. Jones -- I move Exhibit 440 into evidence, |
| 6 | Your Honor. |
| 7 | MR. NORMAND: No objection. |
| 8 | THE COURT: 440 is received. |
| 9 | (Novell's Exhibit 440 received in evidence.) |
| 10 | Q. Mr. Jones, if you could turn -- and we will |
| 11 | just address this briefly, to Exhibit 441. Is this |
| 12 | similar to what we've seen with the past two exhibits? |
| 13 | A. Yes. It's the same. Again, on the right-hand |
| 14 | side, the contents of a source code file from SVRX; on |
| 15 | the left-hand side, the contents of a source code file |
| 16 | from the OpenSolaris project. The file names are the |
| 17 | same, and it's quite clear, as you walk through, the |
| 18 | similarities show that the OpenSolaris file was based on |
| 19 | the SVRX file. |
| 20 | MR. MELAUGH: Your Honor, I move Novell Exhibit |
| 21 | 441 into evidence. |
| 22 | MR. NORMAND: No objection. |
| 23 | THE COURT: 441 is received. |
| 24 | (Plaintiff's 441 Exhibit received in evidence.) |
| 25 | Q. Greg, if you could just page through the |
316
| 1 | exhibits that follow in this book. I'm going to list |
| 2 | them off for the record. They are Novell Exhibits 442, |
| 3 | 443, 446, 447, 448, 449, 450, 451, 452, 453, 455, 456, |
| 4 | 458 and 459. |
| 5 | Mr. Jones, are these exhibits similar to the |
| 6 | three that we have just taken a look at? |
| 7 | A. Yes. |
| 8 | MR. NORMAND: No, objection. |
| 9 | MR. MELAUGH: Your Honor, I move these exhibits |
| 10 | into evidence. |
| 11 | THE COURT: Same nature. Any objection? |
| 12 | MR. NOLRMAND: Your Honor, I said no objection. |
| 13 | THE COURT: I didn't hear you. |
| 14 | MR. NORMAND: I'm sorry. |
| 15 | THE COURT: 442, 443, 446, 447, 448, 449, 450, |
| 16 | 451, 452, 453, 455, 456, 458 and 459 are received. |
| 17 | (Novel Exhibits 442, 443, 446, 447, 448, |
| 18 | 449, 450, 451, 452, 453, 455, 456, 458 |
| 19 | and 459 received in evidence.) |
| 20 | MR. MELAUGH: Thank you, Your Honor. |
| 21 | Q. Mr. Jones, do you know whether there is any SCO |
| 22 | UnixWare code in OpenSolaris? |
| 23 | A. I have not done a comprehensive search. I did |
| 24 | search on the OpenSolaris site for any reference to Santa |
| 25 | Cruze or SCO that would appear on a copyright notice. I |
317
| 1 | didn't find anything, but I didn't make a comprehensive |
| 2 | effort to identify UnixWare code in OpenSolaris. |
| 3 | Q. When you say "search on the OpenSolaris web |
| 4 | site," what do you mean? |
| 5 | A. There is a -- if you go to the OpenSolaris site |
| 6 | on the internet, there is a user interface there, and |
| 7 | there is a utility that allows you to do text searches |
| 8 | that searches through the text of the source code files |
| 9 | that are there on the OpenSolaris site. |
| 10 | Q. I'm sorry. What were the terms that you |
| 11 | searched for in that code? |
| 12 | A. Two of them, Santa Cruz and SCO. Yeah. I |
| 13 | also -- I also did Caldera. There was one Caldera |
| 14 | file. |
| 15 | Q. And by "file," are you referring to copyright |
| 16 | notices? What are you referring to when you say that? |
| 17 | A. Again, all I looked for is whether those terms |
| 18 | appeared in any copyright notices, and I could not see |
| 19 | them appearing in a copyright notice. |
| 20 | Q. Did SCO obtain Novell's permission to enter |
| 21 | into the 2003 Sun SCOsource license? |
| 22 | A. No. |
| 23 | Q. Would Novell have consented to the 2003 Sun |
| 24 | SCOsource license if SCO had asked? |
| 25 | A. No. |
318
| 1 | Q. Why not? |
| 2 | A. Well, it simply would not have been in Novell's |
| 3 | commercial interests. In the fall of 2002, Novell had |
| 4 | acquired Simeon a Linux desk top company. We were |
| 5 | exploring ways to get into the Linux market so enabling a |
| 6 | competitor to Linux simply would not have been in |
| 7 | Novell's interests. In the manner in which they entered |
| 8 | this agreement, when they did it, they kept all the |
| 9 | money. I assume that would have been their proposal but, |
| 10 | fundamentally, it simply would have been contrary to |
| 11 | Novell's business interests to enable something like |
| 12 | this. |
| 13 | Q. What amount does Novell seek from the Sun |
| 14 | SCOsource licensse? |
| 15 | A. Everything that was paid. |
| 16 | Q. Why does Novell believe it is entitled to that |
| 17 | amount? |
| 18 | A. Well, there were expansive rights granted with |
| 19 | respect to the versions of SVRX that pre-date -- |
| 20 | post-date -- pre-date the Asset Purchase Agreement. |
| 21 | These were dramatically greater rights than were enjoyed |
| 22 | under the 1994 agreement, and there is nothing in the |
| 23 | agreement that assigns any value to anything other than |
| 24 | the SVRX technologies for which Novell is entitled to |
| 25 | receive royalties. |
319
| 1 | The customary 5 percent administrative fee that |
| 2 | SCO normally receives for collecting SVRX royalties just |
| 3 | doesn't seem to be germane in this particular instance. |
| 4 | Q. Based on your experience with software |
| 5 | licensing, would you describe the 2003 Sun SCOsource |
| 6 | license as a typical software license? |
| 7 | A. No. I mean, it's an extraordinary agreement. |
| 8 | When you enter an agreement where you take the step of |
| 9 | going from proprietary to open source, that is quite a |
| 10 | dramatic change. And so it's not something you would |
| 11 | custom -- certainly it would not be what you would |
| 12 | customarily see in an agreement. It's an extraordinary |
| 13 | agreement. |
| 14 | Q. 267, Novell's 267. |
| 15 | Did Novell ever ask SCO whether SCO considered |
| 16 | the Sun license an incidental license of SVRX? |
| 17 | A. Yes. |
| 18 | Q. Are you familiar with the letter -- we have had |
| 19 | testimony about this so far. Are you familiar with this |
| 20 | letter that's Exhibit 267? |
| 21 | A. Yes. |
| 22 | Q. This is a letter to Mr. Bench, dated November |
| 23 | 21, 2003, correct? |
| 24 | A. Correct. |
| 25 | Q. If I could draw your attention to the second |
320
| 1 | page of the letter, paragraph 1.2. So, what's going on |
| 2 | in this paragraph, Mr. Jones? |
| 3 | A. Well, this simply -- it's an audit letter, of |
| 4 | course, so this is describing to SCO this particular |
| 5 | aspect of amendment 1 to the Asset Purchase Agreement |
| 6 | that does allow SCO to engage in certain SVRX licensing |
| 7 | activities if they are incidental -- well, just as it |
| 8 | says right there: As may be incidentally involved |
| 9 | through SCO's right to sell and license UnixWare |
| 10 | software. |
| 11 | So, this paragraph kind of says: Okay. Let's |
| 12 | talk about this topic here. |
| 13 | Q. Let's take a look at paragraph 1.6. |
| 14 | A. Okay. |
| 15 | Q. And so what's going on in Exhibit 1.6? |
| 16 | A. That is an invitation to SCO to say, you know, |
| 17 | if the activities -- any activities that you're |
| 18 | participating in that qualify for these exceptions, then, |
| 19 | you know, please make those known to us. |
| 20 | Q. And if we could take a look at paragraph 2.1. |
| 21 | And the same question here, Mr. Jones: What's going on |
| 22 | in this paragraph? |
| 23 | A. So, again, we're introducing the topic of: |
| 24 | We're aware that there is this exception in the context |
| 25 | of incidental licensing and so I think it's, again, going |
321
| 1 | to be an invitation for them to let us know if they |
| 2 | believe any of their activities would qualify for this |
| 3 | exception. |
| 4 | Q. So, after asking three times in this letter, |
| 5 | Mr. Jones, up and until this litigation, did SCO ever say |
| 6 | to Novell that the reason it was entitled to the Sun |
| 7 | SCOsource revenue was because that license was an |
| 8 | incidental SVRX license? |
| 9 | A. No. |
| 10 | Q. Mr. Jones, if you could turn to Exhibit 189 in |
| 11 | your binder. What is this exhibit, Mr. Jones? |
| 12 | A. This is a release, license and option agreement |
| 13 | between Microsoft and Caldera International d/b/a the SCO |
| 14 | group, now known as SCO. |
| 15 | Q. Where did Novell obtain this document? |
| 16 | A. We obtained this in discovery in this |
| 17 | litigation. |
| 18 | Q. Before obtaining this document in discovery in |
| 19 | this litigation, did Novell have a copy of this |
| 20 | document? |
| 21 | A. No. |
| 22 | Q. After receiving the 2003 Microsoft SCOsource |
| 23 | license, what did you do? |
| 24 | A. Well, this agreement -- again, you know, you go |
| 25 | through a license agreement to see what technology is |
322
| 1 | being licensed. And I observed there numerous versions |
| 2 | of SVRX identified as licensed technologies. So I then |
| 3 | took out the Asset Purchase Agreement between Novell and |
| 4 | SCO and looked at this agreement in light of the terms of |
| 5 | the Asset Purchase Agreement. |
| 6 | Q. After conducting that review, what was your |
| 7 | understanding of the 2003 Microsoft SCOsource license as |
| 8 | it concerns the Asset Purchase Agreement? |
| 9 | A. Well, it's certainly an SVRX agreement. I |
| 10 | think it's been found that an SVRX agreement is one that |
| 11 | relates to SVRX code. And this one certainly does. I |
| 12 | also look at it from the perspective of whether this |
| 13 | exception for licensing of SVRX incidental to UnixWare |
| 14 | might be germane. |
| 15 | In this instance, I look at the identification |
| 16 | of all of these SVRX technologies, and I look at the |
| 17 | broad intellectual property licenses that are granted |
| 18 | under the agreement. And I see that there is -- this is |
| 19 | not an amendment to an existing agreement. This is not |
| 20 | adding rights to rights already acquired. So, basically, |
| 21 | all of the rights to the SVRX technologies are new, and, |
| 22 | again, they are quite expansive as you march through the |
| 23 | options. |
| 24 | So I look at this as an SVRX agreement that |
| 25 | should not have been entered without Novell's approval. |
323
| 1 | There is a Section 3 that relates solely to UnixWare, but |
| 2 | the overall agreement is an SVRX agreement, and those |
| 3 | other parts are so substantial that I can't view them as |
| 4 | being really incidental to the UnixWare component of the |
| 5 | agreement. |
| 6 | Q. Did SCO obtain Novell's permission to enter |
| 7 | into the 2003 Microsoft SCOsource agreement? |
| 8 | A. No. |
| 9 | Q. Would Novell have consented to the 2003 |
| 10 | Microsoft SCOsource agreement if SCO had asked? |
| 11 | A. No. I just can't see, again, any commercial |
| 12 | benefit to Novell from this particular agreement, and so, |
| 13 | no. |
| 14 | Q. What amount does Novell seek from the 2003 |
| 15 | Microsoft agreement? |
| 16 | A. Well, I actually don't know the specific figure |
| 17 | myself. It's whatever amounts were paid under Section 2 |
| 18 | and under Section 4 of the agreement, but not whatever |
| 19 | was paid under Section 3. |
| 20 | Q. So let's walk through those. |
| 21 | A. Okay. |
| 22 | Q. If we could put up Section 2, please. Why is |
| 23 | Novell entitled to the revenue from Section 2? |
| 24 | A. Well, here, you know, we have these licenses |
| 25 | that broadly relate to SCO's, you know, intellectual |
324
| 1 | property rights. And I think, at that point in time, I |
| 2 | simply -- I can't avoid looking at this in the context of |
| 3 | what was going on in the marketplace in terms of the |
| 4 | dramatic representation being made about SCO ownership of |
| 5 | UNIX technologies, historic UNIX and so forth. |
| 6 | And so, looking at that context, in combination |
| 7 | with Section 2, I say, basically, this is an invitation |
| 8 | for someone to use intellectual property when in the end |
| 9 | it has been found to be Novell's. There is no |
| 10 | apportionment, value-wise, in this agreement as to, you |
| 11 | know, how many dollars correspond to this or that. And I |
| 12 | think Novell is entitled to conclude that all of it |
| 13 | should come to Novell. |
| 14 | Q. What do you -- what conclusions have you come |
| 15 | to about the Section 3 revenue, Mr. Jones? |
| 16 | A. Well, as previously mentioned, you know, this |
| 17 | is something that Novell is not pursuing. It is -- it is |
| 18 | the case that the Section 4 rights that, again, relate to |
| 19 | SVRX, can't be obtained without these Section 3 UnixWare |
| 20 | optional rights being exercised or being purchased, but |
| 21 | we're not pursuing it. |
| 22 | Q. Are you at Section 4 now? |
| 23 | A. Yes. |
| 24 | Q. Mr. Jones, why is Novell entitled to the |
| 25 | revenue from Section 4? |
325
| 1 | A. Well, again, Section 4, the license grant |
| 2 | relates to all the technologies identified in the |
| 3 | agreement, including those in Exhibit C, which is a list |
| 4 | of SVRX, pre-APA SVRX technologies. And, again, these |
| 5 | are new rights. I don't see any evidence of -- that |
| 6 | these are merely restating rights previously obtained |
| 7 | under some separate agreement, that these are new rights |
| 8 | that are being received to SVRX technologies. I simply |
| 9 | cannot conclude that this is incidental to UnixWare. |
| 10 | They are substantial rights. |
| 11 | There is no -- there is nothing on the face of |
| 12 | the agreement, or otherwise, by which SCO has attempted |
| 13 | to assign value to the UnixWare-unique portion of this |
| 14 | section. So I think Novell is entitled to conclude that |
| 15 | Novell should receive all of this money. |
| 16 | Q. Mr. Jones, if you could turn to what's been |
| 17 | marked as Novell Exhibit 237, which has been |
| 18 | pre-admitted. |
| 19 | A. I think I -- I think I should add that, in |
| 20 | these instances, one thing that factors into my |
| 21 | conclusion in terms of Novell's being entitled to draw |
| 22 | these conclusions is that Novell was counting on SCO to |
| 23 | be our fiduciary, to look at these SVRX agreements, to |
| 24 | bring them to our attention if our rights were |
| 25 | implicated. |
326
| 1 | And, as demonstrated by our repeated requests |
| 2 | for these agreements, and those requests being rejected, |
| 3 | we had absolutely no visibility as to what was going on |
| 4 | with these transactions. And so, there was -- to me, |
| 5 | there is a heightened responsibility here, and it |
| 6 | lends -- and that lends to Novell's being entitled to |
| 7 | conclude that we should receive all these monies. |
| 8 | Q. And I asked you earlier -- we saw that letter |
| 9 | from Mr. Bready, and I asked you earlier whether SCO had |
| 10 | ever said that the Sun license was incidental up until |
| 11 | this litigation. Did SCO ever say that the Microsoft |
| 12 | license -- that it was entitled to the Microsoft money |
| 13 | because it was an incidental license of SVRX, up until |
| 14 | this litigation? |
| 15 | A. No. |
| 16 | Q. So now we're on Exhibit 237, Mr. Jones. What |
| 17 | is this document? |
| 18 | A. This is a SCO Group intellectual property |
| 19 | compliance license for SCO UNIX rights. The agreement is |
| 20 | between SCO, obviously, and Computer Associates. |
| 21 | Q. Where did Novell obtain this document? |
| 22 | A. In discovery in this litigation from SCO. |
| 23 | Q. And, prior to obtaining this document in |
| 24 | discovery in this litigation, did Novell have a copy of |
| 25 | this document? |
327
| 1 | A. No. |
| 2 | Q. After receiving this intellectual property |
| 3 | compliance license, what did you do? |
| 4 | A. Well, again, this is -- it's a license, so I |
| 5 | look for what technology is being licensed or what |
| 6 | intellectual property rights, and, you know, so I go |
| 7 | to -- and you'll see that, you know, a key term here is |
| 8 | that this is UNIX-based code. |
| 9 | Q. You're looking on the second page now? |
| 10 | A. Yeah, on the second page. |
| 11 | Q. And at 1.14, is that what you're looking at? |
| 12 | A. Right. And here, you know, there's a reference |
| 13 | to -- that the UNIX-based code is UNIX System V or |
| 14 | UnixWare. And so, these are, again, implicating versions |
| 15 | of pre-APA SVRX in a context in which there are no -- |
| 16 | this is not enhancing a previous agreement. This is not |
| 17 | adding UnixWare rights on top of UNIX System V rights |
| 18 | that were previously obtained. It's just a brand new |
| 19 | grant. So I view this as an SVRX agreement. |
| 20 | Q. What's your understanding of the larger context |
| 21 | in which this SCOsource license and the SCOsource |
| 22 | licensing campaign is taking place? |
| 23 | A. Well, this was obviously a very public campaign |
| 24 | that SCO was undertaking, and in a very -- a public |
| 25 | campaign carried out in a very public way; a lot of |
328
| 1 | publicity and a lot of assertions of rights and a lot of |
| 2 | assertions that Linux included UNIX code. And so, it was |
| 3 | in that context that these types of agreements were being |
| 4 | offered to people. |
| 5 | Q. And do you have an understanding of what code |
| 6 | SCO claims is at issue in SCOsource, is at issue in |
| 7 | Linux? |
| 8 | A. Well, you know, clearly, Novell's assertion of |
| 9 | ownership to the SVRX -- the pre-APA SVRX copyrights |
| 10 | basically precipitated this litigation, and there were |
| 11 | claims that this was causing great damage to SCO as a |
| 12 | result of damaging the SCOsource program itself. |
| 13 | And so -- so, basically, it's quite evident |
| 14 | that the SVRX code was just critical to the SCOsource |
| 15 | project. |
| 16 | Q. Has Novell ever claimed to own copyrights to |
| 17 | SCO UnixWare? |
| 18 | A. No. If by "SCO UnixWare," you mean any |
| 19 | UnixWare code produced after the date of the Asset |
| 20 | Purchase Agreement, no. |
| 21 | Q. Did SCO obtain Novell's permission to enter |
| 22 | into the license that we're looking at right now? |
| 23 | A. No. |
| 24 | Q. Would Novell have consented if SCO had asked? |
| 25 | A. No. |
329
| 1 | Q. Why not? |
| 2 | A. Well, again, this is entered into in August of |
| 3 | 2003, and, again, in the fall of 2002, Novell's going in |
| 4 | the direction of Linux, and this would simply be |
| 5 | completely contrary to Novell's business interests, among |
| 6 | other things. There's just no -- no benefit to Novell to |
| 7 | enter such an agreement, and a down side. |
| 8 | Q. What revenue from this agreement does Novell |
| 9 | seek? |
| 10 | A. All of it. |
| 11 | Q. Why is that? |
| 12 | A. Again, this is one where there are substantial |
| 13 | SVRX rights granted. There is no allocation or |
| 14 | identification of value uniquely associated with |
| 15 | UnixWare, and, again, all this is in the context of SCO |
| 16 | being Novell's fiduciary and entering SVRX-related |
| 17 | agreements and not disclosing them to us, and we are not |
| 18 | in a position to protect our rights |
| 19 | Q. If you could look briefly at the exhibits that |
| 20 | follow, Mr. Jones. For the record those are Novell |
| 21 | Exhibit 286, Novell Exhibit 300, Novell Exhibit 309, |
| 22 | Novell Exhibit 322, Novell Exhibit 349, Novell Exhibit |
| 23 | 422 and Novell Exhibit 426, all of which have been |
| 24 | pre-admitted in this litigation. |
| 25 | As a general matter, what are these exhibits, |
330
| 1 | Mr. Jones? |
| 2 | A. These are all agreements of a like nature. |
| 3 | Their terms may vary in some, I think, immaterial |
| 4 | respects, for our purposes, but they are all -- well, |
| 5 | they are all agreements that purport to license the |
| 6 | licensee to use any UNIX code that is found in copies of |
| 7 | Linux that the licensee is using; and, again, whether |
| 8 | it's UNIX System V code or UnixWare code. |
| 9 | Q. Did SCO obtain Novell's permission to enter |
| 10 | into any of these licenses? |
| 11 | A. No. |
| 12 | Q. And would Novell have consented to these |
| 13 | licenses, if asked? |
| 14 | A. No. |
| 15 | Q. What revenue does Novell seek from these |
| 16 | licenses? |
| 17 | A. All of the revenue. There is no specification |
| 18 | in the agreements as to any specific amount that's |
| 19 | associated with UnixWare, and there are substantial SVRX |
| 20 | rights granted, and there's a fiduciary relationship |
| 21 | here. So I think we are entitled to all of them. Again, |
| 22 | the 5 percent administrative fee that Novell normally |
| 23 | allows SCO for collecting royalties doesn't seem germane |
| 24 | here. |
| 25 | MR. MELAUGH: Thank you, Mr. Jones. |
331
| 1 | THE COURT: Thank you, Mr. Melaugh. |
| 2 | Mr. Normand, you may cross examine. |
| 3 | MR. NORMAND: Thank you, Your Honor. |
| 4 | CROSS EXAMINATION |
| 5 | BY MR. NORMAND: |
| 6 | Q. Still good morning, Mr. Jones. |
| 7 | A. Good morning. |
| 8 | Q. You're a lawyer, right? |
| 9 | A. Yes. |
| 10 | Q. How long have you been a lawyer? |
| 11 | A. Since 1990. |
| 12 | Q. Did you ever work in selling any software |
| 13 | products since you have been at Novell? |
| 14 | A. No. I have been involved in the outbound |
| 15 | licensing of technologies for revenue. I've assisted -- |
| 16 | I have assisted in a legal role in supporting sales |
| 17 | efforts, but it's not been, by any means, my primary |
| 18 | responsibility or my focus. |
| 19 | Q. Hve you been involved in pricing any software |
| 20 | products, while at Novell? |
| 21 | A. Very tangentially. |
| 22 | Q. Did you ever work in marketing any software |
| 23 | products at Novell? |
| 24 | A. Probably not even tangentially. |
| 25 | Q. Did you ever have occasion to negotiate the |
332
| 1 | terms of any software agreement regarding UNIX at your |
| 2 | time at Novell? |
| 3 | A. Yes. |
| 4 | Q. Can you please explain that? |
| 5 | A. It was -- there was a -- it was after the Asset |
| 6 | Purchase Agreement, there was a source code licensee that |
| 7 | had -- was involved in a buyout situation, and so I |
| 8 | participated to some extent in that. I was not the |
| 9 | primary person responsible for doing that. |
| 10 | Q. Do you remember the name of the licensee? |
| 11 | A. I think it was Silicone Graphics, Silicone |
| 12 | Graphics and Cray. |
| 13 | Q. And do you recall dealing with Santa Cruz on |
| 14 | that issue at all? |
| 15 | A. I believe Santa Cruz was involved, but I can't |
| 16 | recall whether I'm one of the people who spoke to them. |
| 17 | Q. How much familiarity with how computer |
| 18 | operating systems are developed do you have? |
| 19 | A. I have a general familiarity. I have been -- |
| 20 | you know, I have a computer science degree. I have been |
| 21 | working in the industry. I have been legal counsel to a |
| 22 | company that develops and markets operating systems and |
| 23 | legal issues associated with the development process and |
| 24 | so forth. So, I don't know how to quantify my knowledge, |
| 25 | but I come from that background. |
333
| 1 | Q. Have you ever worked as a programmer, |
| 2 | professionally? |
| 3 | A. Yes. |
| 4 | Q. And when? |
| 5 | A. This was prior to law school, just working for |
| 6 | a small software company. |
| 7 | Q. What operating systems did you deal with? |
| 8 | A. There? Well, one was Solaris. And I can't |
| 9 | recall the other operating systems that we were using. |
| 10 | Q. Did you have an understanding, at that time, as |
| 11 | to the origins of Solaris? |
| 12 | A. At that point in time? No. |
| 13 | Q. Do you now? |
| 14 | A. To some extent, yes. |
| 15 | Q. What is that understanding? |
| 16 | A. Well, that Solaris is an SVRX-based operating |
| 17 | system. |
| 18 | Q. Which release? |
| 19 | A. Well, I generally understand SVRX 4. My |
| 20 | knowledge is no more specific than that, and that -- and |
| 21 | that, basically, Solaris is one of the many source code |
| 22 | licensees that takes a source code license and then will |
| 23 | create their own variant, and so Solaris is the Sun |
| 24 | variant of SVRX 4. |
| 25 | Q. Do you know how Solaris was developed? |
334
| 1 | A. I'm not sure what you mean. |
| 2 | Q. AT&T developed Solaris with Sun, correct? |
| 3 | A. You're saying -- if AT&T and Solaris worked |
| 4 | together, side-by-side, to develop Sun? I'm not aware of |
| 5 | that one way or another, so I don't know what you're |
| 6 | asking about. |
| 7 | Q. Let me ask it again because I think you flipped |
| 8 | Solaris and Sun in your answer. Do you know how the SVR |
| 9 | 4 operating system was developed? |
| 10 | A. Well, I have a general understanding that AT&T |
| 11 | developed the base UNIX technologies and that, at a |
| 12 | certain point in time, there was a subsidiary, UNIX |
| 13 | System Laboratories, that was created. They would |
| 14 | advance the core UNIX technologies and then they would |
| 15 | license out that source code to the various UNIX OEMs. |
| 16 | Q. Now, when it came time for AT&T and USL to move |
| 17 | from Release 3 to Release 4, in developing Release 4, |
| 18 | they actually worked with Sun, didn't they? |
| 19 | A. I have no knowledge one way or another on |
| 20 | that. |
| 21 | Q. And when Sun developed Solaris, it did so |
| 22 | simultaneously with the development of Release 4, |
| 23 | correct? |
| 24 | A. I'm not sure exactly what you mean. |
| 25 | Q. Do you have a view as to whether Solaris |
335
| 1 | contains any significant amount of SVR 4 technology? |
| 2 | A. My understanding has been that it does. |
| 3 | Q. Do you know whether previous versions of UNIX |
| 4 | contained source code included in UnixWare? |
| 5 | A. Previous to what? |
| 6 | Q. Previous to the latest release of System V that |
| 7 | UnixWare represents? |
| 8 | A. My general understanding is that you would |
| 9 | find, in the latest release of UnixWare, code that had |
| 10 | been in earlier versions of UnixWare SVRX. |
| 11 | Q. And code that had been in earlier versions of |
| 12 | System V might not have made its way into UnixWare, |
| 13 | correct? |
| 14 | A. Yeah. I'd -- yeah. I don't know that for a |
| 15 | fact, but you say "might," and that sounds very possible |
| 16 | to me. |
| 17 | Q. Do you have a view as to whether, if code from |
| 18 | older versions of System V has not made its way into |
| 19 | UnixWare, do you have a view as to whether that older |
| 20 | code has any commercial value? |
| 21 | A. Well, yes. |
| 22 | Q. What's your view? |
| 23 | A. Well, in terms of -- to me, there are at least |
| 24 | two types of commercial value. One commercial value is |
| 25 | that there is actual technical merit that is still placed |
336
| 1 | on the marketplace, and I can't opine one way or the |
| 2 | other. The other is that there are intellectual property |
| 3 | rights associated with the technology but that, |
| 4 | independent of that current technical merit of that code |
| 5 | base, could have some relevance in the marketplace. |
| 6 | Q. Do you have a view as to whether UNIX System V, |
| 7 | Release 2, for example, has any commercial value? |
| 8 | A. I just -- well, in that respect that I just set |
| 9 | out, I would say, with respect to whether it has |
| 10 | technical merit, I'm not in a position to say. As to |
| 11 | whether the intellectual property rights associated with |
| 12 | it potentially have value, potentially. |
| 13 | Q. But you don't have a view one way or the other? |
| 14 | A. I think I would have a bias towards -- well, |
| 15 | which release is it? |
| 16 | Q. Release 2. |
| 17 | A. UNIX System V? So it's SVR 2? |
| 18 | Q. Two. |
| 19 | A. Let me see. Well, you know, copyright lasts |
| 20 | for a long time, and so if that code is still available, |
| 21 | potentially it could have commercial value in the sense |
| 22 | that I stated, for the intellectual property. |
| 23 | Q. As someone with programming experience, do you |
| 24 | have any view as to whether there is any existing |
| 25 | hardware that you could run SVR 2 on? |
337
| 1 | A. I don't know. I don't know. |
| 2 | Q. Now, in Novell's view, if there are trade |
| 3 | secrets in UNIX System V, SCO owns them, correct? |
| 4 | A. I believe that's been Novell's position. |
| 5 | Q. And was that your position at deposition? |
| 6 | A. I think so. |
| 7 | Q. And, in Novell's view, SCO owns the software |
| 8 | know-how and methods and concepts in UNIX System V and |
| 9 | UnixWare, correct? |
| 10 | A. You're talking post-APA UnixWare, these |
| 11 | rights -- independent of copyright? |
| 12 | Q. I'm asking you whether, in your view -- |
| 13 | A. And I'll answer it this way. Post-APA versions |
| 14 | of UnixWare, to the extent not implicating Novell's |
| 15 | pre-APA copyrights in SVRX, and to the extent they are |
| 16 | developed by SCO, as opposed to some partner of SCO or |
| 17 | something, Novell would not be asserting rights to those, |
| 18 | certainly. |
| 19 | MR. NORMAND: Your Honor, could I publish a |
| 20 | portion of Mr. Jones' deposition in this case? |
| 21 | THE COURT: Sure. |
| 22 | (A portion of the deposition was played.) |
| 23 | MR. NORMAND: That's from Mr. Jones' May 10, |
| 24 | 2007 deposition, Rule 30(b)(6); at page 36, line 24, to |
| 25 | page 38, line 1. |
338
| 1 | Q. Mr. Jones, in Novell's view, it would not be |
| 2 | accurate to say that Novell had transferred its existing |
| 3 | ownership interest in the UNIX System V products to Santa |
| 4 | Cruz in 1995, correct? |
| 5 | A. Could you say that again? |
| 6 | Q. In Novell's view, it would not be accurate to |
| 7 | say that Novell had transferred its existing ownership |
| 8 | interests in UNIX System V to Santa Cruz in 1995, |
| 9 | correct? |
| 10 | A. Right. |
| 11 | THE COURT: SCO 411? |
| 12 | MR. NORMAND: Yes, Your Honor. |
| 13 | Q. Mr. Jones, this is a document dated May 23, |
| 14 | 1996. Do you recognize the document? |
| 15 | A. Yes. I've seen it before. |
| 16 | Q. And the second full paragraph says: |
| 17 | As you may have heard, Novell has transferred |
| 18 | to Santa Cruz, Santa Cruz Operation, Inc., Novell's |
| 19 | existing ownership interest in the UNIX System-based |
| 20 | offerings and related products, collectively transferred |
| 21 | products. |
| 22 | Do you see that line? |
| 23 | A. Yes. |
| 24 | Q. And you think that that's an inaccurate |
| 25 | statement, correct? |
339
| 1 | A. Yes. |
| 2 | Q. Do you have any explanation for why Mr. DeFazio |
| 3 | would sign a document containing such a statement? |
| 4 | A. No. |
| 5 | Q. Have you spoken with Mr. Defazio about that |
| 6 | issue? |
| 7 | A. No. |
| 8 | Q. Mr. Jones, do you have a view as to whether a |
| 9 | UnixWare license gives the licensee the right to use all |
| 10 | prior releases of UNIX System V? |
| 11 | A. I take it a UnixWare license to be a license to |
| 12 | a stand-alone version of UnixWare, and then I would say |
| 13 | that that license includes rights to any code contained |
| 14 | in it, and if it so happens that some of that code was in |
| 15 | prior releases of UNIX, then the licensee is receiving |
| 16 | licenses to that code. |
| 17 | Q. Do you have any view as to whether, when Novell |
| 18 | owned the UNIX business, it granted rights to the |
| 19 | previous releases of System V when it did a license of |
| 20 | the most recent releases of System V? |
| 21 | A. I've had some exposure to that in this |
| 22 | litigation and seeing what's come forward in discovery. |
| 23 | It seems -- what I have seen is that that happens when |
| 24 | consideration has been given for the prior products that |
| 25 | are in the agreement. |
340
| 1 | But, as I have told you before, and as you were |
| 2 | inquiring today, you know, my career focus has not been |
| 3 | doing sales agreements and things of that nature, so -- |
| 4 | Q. Did you watch your counsel's opening argument? |
| 5 | A. Yes. |
| 6 | Q. Did you see reference made to the NCR |
| 7 | supplements? |
| 8 | A. Yes. |
| 9 | Q. Do you recall what the number of that |
| 10 | supplement was? |
| 11 | A. 112. |
| 12 | Q. And it's your position, as you understand it -- |
| 13 | when I say "you," I mean Novell. It's Novell's position |
| 14 | that the only reason the System V prior products were |
| 15 | listed for NCR was because it had previously obtained a |
| 16 | stand-alone license to every previous release of System |
| 17 | V? |
| 18 | A. Well, what I heard was that, in fact, the |
| 19 | licenses had been obtained for previous releases. I |
| 20 | don't necessarily recall having heard that's the only |
| 21 | reason. I just can't recall. |
| 22 | Q. I may have misunderstood your answer. I |
| 23 | thought you said that your understanding was that the |
| 24 | only reason System V prior products would be listed would |
| 25 | be if the licensee had already obtained a stand-alone |
341
| 1 | license to all those releases. |
| 2 | A. Did I say "only?" |
| 3 | Q. That's what I understood you to say. |
| 4 | A. Okay. I -- and I thought I prefaced it with |
| 5 | generally. But, I mean, what I have -- my impression |
| 6 | that I have formed after seeing the documents that I have |
| 7 | been able to see in this litigation is that consideration |
| 8 | has been given for prior products. And I, again, tell |
| 9 | you that I have not surveyed all these agreements. That |
| 10 | has not been my purview. That's is not what I am |
| 11 | about. |
| 12 | Q. Can you recall coming across any agreements |
| 13 | where that could not have been true? |
| 14 | A. No. |
| 15 | Q. Are you familiar with the language in the APA |
| 16 | providing that Novell would receive royalties from SCO's |
| 17 | sales of UnixWare if certain conditions were met? |
| 18 | A. Yes. |
| 19 | Q. You were here for Mr. McBride's testimony, |
| 20 | right? |
| 21 | A. Yes. |
| 22 | Q. So you heard questions and answers regarding |
| 23 | floors and thresholds regarding UnixWare sales? |
| 24 | A. Actually I think my mind drifted off at that |
| 25 | point, but I have seen those parts of the agreement. |
342
| 1 | Q. Are you familiar with language in the APA |
| 2 | providing that, after December 31, 2002, Novell would not |
| 3 | receive any royalties from SCO's sales of UnixWare, even |
| 4 | if the conditions were met? |
| 5 | A. Yeah, something to that effect. I know that |
| 6 | there was a cut-off date and so forth. |
| 7 | Q. So, in Novell's view, after December 31, 2002, |
| 8 | SCO had the right to retain all royalties it received for |
| 9 | licensing UnixWare, correct? |
| 10 | A. Clearly, from the language, at least, |
| 11 | stand-alone versions of UnixWare. |
| 12 | Q. And, in Novell's view, in fact, the entire |
| 13 | intent of the APA was for the UnixWare business to be |
| 14 | transitioned to Santa Cruz, correct? |
| 15 | A. Could you say that again? |
| 16 | Q. In your view and in Novell's view, the entire |
| 17 | intent of the APA was for the UnixWare business to be |
| 18 | transitioned to SCO, correct? |
| 19 | A. Well, I don't -- I guess the only thing I would |
| 20 | say is: You know, in terms of entire intent, certainly |
| 21 | it was a driving factor behind the agreement, was to |
| 22 | transition that technology into another company and have |
| 23 | it advanced. But there were a variety of other purposes |
| 24 | to that agreement, including protecting Novell's |
| 25 | interests in making sure that there were provisions that |
343
| 1 | would enable Novell to receive a portion of an ongoing |
| 2 | revenue stream to be compensated for the business. |
| 3 | And so I'm with you in terms of, you know, the |
| 4 | business motive that triggered the transition was |
| 5 | certainly to advance the UnixWare technology, but I can't |
| 6 | go as far as saying that that was the entire purpose of |
| 7 | that document, the agreement. The agreement also has a |
| 8 | fundamental purpose to protect the interests and rights |
| 9 | of Novell. |
| 10 | Q. Let me rephrase the question. With respect to |
| 11 | UnixWare, Novell's entire intent was to transfer the |
| 12 | UnixWare business to Santa Cruz, correct? |
| 13 | A. Yeah, to the extent consistent with Novell's |
| 14 | other interests that would be implicated by the |
| 15 | agreement, which I think is -- you know, manifests itself |
| 16 | in various places in the document. |
| 17 | MR. NORMAND: Your Honor, I would like to play |
| 18 | a brief excerpt from Mr. Jones' deposition. |
| 19 | THE COURT: Go ahead. |
| 20 | (A portion of the deposition was played.) |
| 21 | MR. MELAUGH: If I could ask Mr. Normand to |
| 22 | state the part in the deposition before your start the |
| 23 | clip. |
| 24 | MR. NORMAND: All right. Sorry |
| 25 | MR. MELAUGH: I don't think you have indicated |
344
| 1 | it yet, the date and the page number you're referencing. |
| 2 | THE COURT: The page number and the line. |
| 3 | MR. NORMAND: Yes, Your Honor. I'm sorry. |
| 4 | That's Mr. Jones' May 10, 2007, 30(b)(6) deposition, and |
| 5 | at page 60 lines 14 to 23. |
| 6 | Q. SCO 61 is a two e-mail chain dated December 4, |
| 7 | 1995, the top e-mail is from David Johnson to, among |
| 8 | others, Larry Bouffard. Do you recognize any of those |
| 9 | names, Mr. Jones? |
| 10 | A. Yes. |
| 11 | Q. And do you see the name of Skip Jonas about a |
| 12 | third of the way down? |
| 13 | A. Yes. |
| 14 | Q. Who is Skip Jonas? |
| 15 | A. He had a position relating to -- he had a sales |
| 16 | position, and I know that at least at one time his |
| 17 | responsibilities related to our UNIX business. That's |
| 18 | about the extent of my knowledge of Skip Jonas. |
| 19 | Q. Do you see this language, Mr. Jones, where |
| 20 | Mr. Jonas says, quote: |
| 21 | Novell is out of the UNIX/UnixWare business |
| 22 | after the closing and does not have the right to sell |
| 23 | UnixWare, so if Novell has any inventory of UnixWare |
| 24 | after the closing, I believe that Novell has only two |
| 25 | choices. Sell it to SCO or destroy it. |
345
| 1 | Do you see that language? |
| 2 | A. Yes. |
| 3 | Q. Is that language consistent with your |
| 4 | understanding of what happened with the sale of UnixWare |
| 5 | under the APA? |
| 6 | A. I'm not familiar with this particular issue of |
| 7 | the preexisting UnixWare inventory and what was done with |
| 8 | it and so forth. At this moment in time, I can't recall |
| 9 | that issue. |
| 10 | Q. But it is your understanding that Novell was |
| 11 | out of the UnixWare business after the APA, correct? |
| 12 | A. Yeah. I think, generally-speaking, I would |
| 13 | have to say yes. I would like to ask a clarifying |
| 14 | question on your earlier question. |
| 15 | Q. Of course. |
| 16 | A. What do you mean by "UnixWare business?" |
| 17 | Q. What's the ambiguity as to what UnixWare |
| 18 | business is? |
| 19 | A. Well, for example, there were pre-APA versions |
| 20 | of SVRX that were UnixWare, and so Novell continued to |
| 21 | have a revenue stream associated with those. So, that's |
| 22 | why I asked the question, in terms of just: What do you |
| 23 | mean by "in the business," because there's still |
| 24 | interests there. And so, hence, my question. |
| 25 | Q. Is that your only caveat to your view that the |
346
| 1 | entire UnixWare business had been transferred, as you sit |
| 2 | here today? |
| 3 | A. Now, that's a different question, the entire |
| 4 | UnixWare business having been transferred. Generally, of |
| 5 | course, Novell's focus was not going to be UnixWare, and |
| 6 | Novell was counting on SCO on moving forward with that. |
| 7 | And Novell had some -- it retained rights in terms of |
| 8 | copyrights, in terms of royalties that corresponded to |
| 9 | UnixWare, you know, and I haven't thought through to |
| 10 | delineate every little interest, ongoing interest Novell |
| 11 | may have, but I'm with you in terms of: No doubt, the |
| 12 | general direction was that UnixWare was moving forward |
| 13 | with SCO, and Novell has some ongoing interest in that |
| 14 | area, but it's certainly not Novell's focus. |
| 15 | Q. You're not suggesting, then, that Santa Cruz |
| 16 | was Novell's agent for purposes of UnixWare licenses, are |
| 17 | you? |
| 18 | A. Well, what do you mean by "UnixWare?" And, |
| 19 | again, I just mean, there are -- there were some pre-APA |
| 20 | releases of SVRX that were UnixWare, so, with respect to |
| 21 | those releases -- and those are identified on the |
| 22 | schedule of SVRX licenses. So, only with respect to |
| 23 | those versions of UnixWare, I would say that that |
| 24 | fiduciary relationship, that collection role applies to |
| 25 | those. |
347
| 1 | Q. But the right that Novell retained was to |
| 2 | continue to receive royalties for certain UnixWare |
| 3 | licenses that were in existence? |
| 4 | A. Anything that would be an SVRX license that |
| 5 | would pertain to the pre-APA release of UnixWare. |
| 6 | Q. Your position is that the APA identifies, as a |
| 7 | basis for SVRX licenses, certain UnixWare licenses? |
| 8 | A. I believe, if we were to take out the Asset |
| 9 | Purchase Agreement and look at the schedule that we would |
| 10 | see that the last one or two SVRX releases were, in fact, |
| 11 | UnixWare. And that's all I'm talking about. |
| 12 | Q. And, apart from that retained royalty interest, |
| 13 | do you have a view as to whether Novell retained any |
| 14 | interest in the UnixWare business after the APA? |
| 15 | A. Again, I think I've mentioned that, you know, |
| 16 | we would have copyrights associated with anything that |
| 17 | was pre-APA. And you said "apart from the royalties," |
| 18 | and so we're not talking about that, you know, and I -- |
| 19 | so, in my mind, those are the primary things. But as |
| 20 | I've told you, this is the last place in the world I |
| 21 | would want to sit and attempt to delineate every single |
| 22 | aspect of the APA and every possible ongoing interest. |
| 23 | And I'm with you in terms of the UnixWare |
| 24 | business, in general, is going to SCO, and that's SCO's |
| 25 | focus, and it's not Novell's from that point going |
348
| 1 | forward. |
| 2 | Q. It's not Novell's view that, when SCO was |
| 3 | licensing UnixWare with SVRX copyrights therein, it's not |
| 4 | Novell's view that SCO had to try to value those |
| 5 | copyrights and remit money to Novell, is it? |
| 6 | A. So, if you're talking about versions of |
| 7 | UnixWare created post-APA and what's being licensed is |
| 8 | that version of UnixWare, yes, that is not Novell's |
| 9 | position that SCO would have to attempt to, you know, |
| 10 | value all the SVRX component parts that make up a part of |
| 11 | that UnixWare release. |
| 12 | Q. Even though that UnixWare release, in your |
| 13 | view, does contain all manner of SVRX code, correct? |
| 14 | A. That's right. |
| 15 | Q. Now, you're familiar with this language in |
| 16 | amendment number 1 to the APA? |
| 17 | THE COURT: What is the exhibit? |
| 18 | MR. NORMAND: This is SCO 71, Your Honor. I'm |
| 19 | sorry. |
| 20 | Q. You have seen this language before? |
| 21 | A. Yes. |
| 22 | Q. Now, I may have misunderstood your testimony, |
| 23 | but SCO had the right to enter into new SVRX licenses if |
| 24 | it was doing so incidentally through its rights to sell |
| 25 | and license UnixWare software, correct? |
349
| 1 | A. Right. |
| 2 | Q. Now, when you were testifying earlier, I |
| 3 | thought you were saying that, in your review of the |
| 4 | Microsoft and Sun agreements, that an important fact to |
| 5 | you was that it was a new license. Did I mishear you? |
| 6 | A. Well, that was an important fact, but it was |
| 7 | taken in combination with my belief that the UnixWare |
| 8 | activity in the agreement was not -- excuse me -- that |
| 9 | the SVRX rights being granted were not merely incidental |
| 10 | to the UnixWare portion. |
| 11 | So I wasn't -- that was not the only factor. I |
| 12 | did highlight that. |
| 13 | Q. It doesn't really matter whether the SVRX |
| 14 | component of the Sun and Microsoft agreements is a new |
| 15 | component for purposes of determining this incidental |
| 16 | exception, does it? |
| 17 | A. I think it does. |
| 18 | Q. How so? |
| 19 | A. Well, so, for example, if you go to that |
| 20 | licensee and they already have a fully paid-up license |
| 21 | for a certain release of SVRX, and then that licensee |
| 22 | approaches SCO and licenses UnixWare, and from the |
| 23 | license -- that wouldn't be surprising -- licenses |
| 24 | UnixWare from SCO and enters an agreement in which |
| 25 | UnixWare is identified and then that version of SVRX, for |
350
| 1 | which the licensee had fully paid up its license, in that |
| 2 | scenario, the fact that -- and, to me, in that scenario, |
| 3 | the licensing of UnixWare very likely is incidental to |
| 4 | the -- excuse me -- the licensing of the SVRX showing |
| 5 | up on the schedule of the new UnixWare agreement, it's, |
| 6 | for all purposes, incidental because no new rights are |
| 7 | being granted. It's significance there is it's almost |
| 8 | meaningless. |
| 9 | However, if I took that same version of SVRX |
| 10 | and SCO approaches a customer, and SCO enters an |
| 11 | agreement with the customer and identifies that same |
| 12 | version of UnixWare on the product schedule and then |
| 13 | separately that version of SVRX, and that customer has |
| 14 | never paid for SVRX before and charges that customer the |
| 15 | very same amount for UnixWare, you know, then, to me, I |
| 16 | say: Well, now this customer has received substantial |
| 17 | additional rights that it did not previously have. |
| 18 | Q. It sounds like you've thought about the issue |
| 19 | of incidental licensing a bit? |
| 20 | A. I've thought about it. |
| 21 | Q. But you don't have any view as to whether this |
| 22 | language, this incidental language, encompasses a prior |
| 23 | practice of licensing older versions of System V with the |
| 24 | most recent release, do you? |
| 25 | A. Well, my view is, to the extent I have been |
351
| 1 | exposed to prior practices, that the theme that I see in |
| 2 | them is consistent with the rationale that I just set |
| 3 | out. |
| 4 | Q. You don't have a view as to whether, in |
| 5 | amendment number 1, the parties intended, through the use |
| 6 | of that language, to encompass the practice of licensing |
| 7 | the prior releases of System V with the most recent |
| 8 | release, do you? |
| 9 | A. I don't have any knowledge of the people who |
| 10 | drafted that language, having -- having spoken and saying |
| 11 | that this is why we are putting that language in the |
| 12 | agreement. I do not have that type of knowledge. |
| 13 | Q. Well, if you have no view on that issue, you |
| 14 | can't make a fully-informed assessment of whether |
| 15 | incidental licensing has occurred, can you? |
| 16 | A. To the contrary. This is an agreement. I |
| 17 | think there is an integration clause that says this |
| 18 | merges prior discussions and understandings. This |
| 19 | agreement, you know, I look at it, and I think that that |
| 20 | language has meaning independent of whatever prior |
| 21 | discussions took place. |
| 22 | Q. Would you acknowledge that it could also be |
| 23 | meant to encompass this prior practice, correct? |
| 24 | A. What prior practice? |
| 25 | Q. The prior practice of licensing older versions |
352
| 1 | of System V with the most recent release? |
| 2 | A. Well, the prior practice that I described is |
| 3 | one in which, for each of those prior releases, |
| 4 | consideration had been given. So I don't know if you're |
| 5 | talking about the same prior practice, but if that's the |
| 6 | prior practice you're alluding to, I could easily see |
| 7 | that this would support that type of practice. |
| 8 | Q. You don't have a view as to whether it |
| 9 | encompasses a practice of licensing releases even to |
| 10 | those people who had not previously acquired a |
| 11 | stand-alone license to the earlier releases? |
| 12 | A. I don't have any knowledge of it being applied |
| 13 | to such people. |
| 14 | Q. And if this provision was intended to encompass |
| 15 | this practice, it would change your analysis, wouldn't |
| 16 | it? |
| 17 | A. I don't know that it would. |
| 18 | Q. So you think the intent of the parties is |
| 19 | irrelevant? |
| 20 | A. No. But, again, there is -- this is an |
| 21 | agreement. I think there is an integration clause. |
| 22 | "Incidentally" is a word that appears in the dictionary. |
| 23 | It has a meaning. |
| 24 | Q. It's ambiguous, isn't it? |
| 25 | A. I don't know. I think it calls for application |
353
| 1 | to circumstances, but I have been asked about this |
| 2 | before, I know, and I said, you know, I'd look at the |
| 3 | dictionary, so -- |
| 4 | THE COURT: Pick a good stopping point. |
| 5 | MR. NORMAND: This is fine, Your Honor. |
| 6 | THE COURT: Are you sure? |
| 7 | MR. NORMAND: Yes. |
| 8 | THE COURT: All right. We'll take our second |
| 9 | break and be in recess for 15 minutes. |
| 10 | |
| 11 | |
| 12 | |
| 13 | |
| 14 | |
| 15 | |
| 16 | |
| 17 | |
| 18 | |
| 19 | |
| 20 | |
| 21 | |
| 22 | |
| 23 | |
| 24 | |
| 25 | (Short recess.) |
354
************************************
Nov-20080430-3.pdf
| 1 | THE COURT: You may proceed, Mr. Normand. |
| 2 | MR. NORMAND: Thank you, Your Honor. |
| 3 | May I approach, Your Honor? |
| 4 | THE COURT: You may. |
| 5 | MR. NORMAND: This is a copy of the bulk of the |
| 6 | exhibits that we'll be using. |
| 7 | THE COURT: Are these all in? Have they all been |
| 8 | admitted? |
| 9 | MR. NORMAND: With one exception, Your Honor. And |
| 10 | when we get to that, I'll offer it. |
| 11 | Q. BY MR. NORMAND: Mr. Jones, do you recognize |
| 12 | Schedule 1.1(A) to the APA? |
| 13 | A. I'm familiar with it. It's not up there right now. |
| 14 | I don't have the exhibit to myself. |
| 15 | Q. And you referenced the schedule of assets that is |
| 16 | in 1.1(A) earlier; correct? |
| 17 | A. Correct. |
| 18 | Q. And that's in Item 6 of the APA; right? |
| 19 | A. Right. |
| 20 | Q. And there's no UnixWare release identified in |
| 21 | Item 6; correct? |
| 22 | A. I'm not certain in that -- my only uncertainty is |
| 23 | that I knew the early release of UnixWare was based on |
| 24 | Release 4.2. And so I just -- I'm not certain whether that |
| 25 | version of 4.2 corresponds to what was in UnixWare release or |
355
| 1 | not. That's my only uncertainty. |
| 2 | Q. Your view is UNIX System 5 Release 4.2 MP is the |
| 3 | same or virtually the same as the first release of UnixWare; |
| 4 | correct? |
| 5 | A. That's a lot more than I said. I just -- I think |
| 6 | that the early version of UnixWare corresponds to 4.2. But |
| 7 | sitting here today, I'm just not certain. So if it is the |
| 8 | case, then there's UnixWare in the schedule. If it's not the |
| 9 | case, then UnixWare is not there. |
| 10 | Q. So looking at Item 6 now, you don't think Novell |
| 11 | retained any interest in any UnixWare royalties after the APA; |
| 12 | correct? |
| 13 | A. If none of those identified as SVRX releases are |
| 14 | UnixWare, then the SVRX licenses and the corresponding |
| 15 | royalties would relate to UnixWare. So it's just a factual |
| 16 | question that I have. And that was -- when I was -- earlier |
| 17 | when you were asking me about UNIX everything I said was based |
| 18 | on whether or not any of these releases are, in fact, a |
| 19 | version of UnixWare. |
| 20 | Q. But in your view, the place to look to determine |
| 21 | what royalties arose is Item 6; correct? |
| 22 | A. Yeah, that's right. Item 6 is where there's a |
| 23 | reference to that in Section 4.16. |
| 24 | Q. You said earlier in your understanding that |
| 25 | System V prior products are only licensed when consideration |
356
| 1 | was given for the prior products; right? |
| 2 | A. I think I said generally. To the extent that I had |
| 3 | an opportunity to see examples that that's what I've seen. So |
| 4 | that's what I said. |
| 5 | Q. You're aware of examples of UNIX licensees who were |
| 6 | not charged any price for getting prior products; correct? |
| 7 | A. I don't believe I am. I'm not saying that that has |
| 8 | never happened. But I don't think I'm aware of any examples. |
| 9 | MR. NORMAND: This is SCO Exhibit 369. It may not |
| 10 | be in the book, Your Honor, as it turns out. |
| 11 | Blow up the top half. |
| 12 | Q. BY MR. NORMAND: Do you recognize this document, |
| 13 | Mr. Jones? Software agreement for Nihon SCO, Limited; |
| 14 | correct? |
| 15 | A. I just need to actually read the document here. |
| 16 | Yes. |
| 17 | Q. Page 10? |
| 18 | MR. MELAUGH: Can I ask Mr. Normand to give a copy |
| 19 | to the witness? Do you have a copy? |
| 20 | THE COURT: Do you have a copy that you can give to |
| 21 | him? |
| 22 | MR. NORMAND: Somewhere, Your Honor. |
| 23 | THE WITNESS: Thank you. |
| 24 | MR. NORMAND: Blow up the top half. |
| 25 | MR. ERIC WHEELER: Yes, sir. |
357
| 1 | Q. BY MR. NORMAND: Mr. Jones, Exhibit A to this |
| 2 | document at Page 10 reflects an initial designated CPU price |
| 3 | of $375,000; correct? |
| 4 | A. Just a second. I'm trying to find it here. |
| 5 | Q. It's at Page 10. Do you see Item A, 1A? |
| 6 | A. I want to make sure it's the same page. It's kind |
| 7 | of clipped at the top. |
| 8 | Okay. Right. |
| 9 | Q. And if you turn to Page 32, Mr. Jones. There are |
| 10 | no prior products listed; correct? |
| 11 | A. Page 32? |
| 12 | Q. Correct. |
| 13 | A. I'm really thrown by the numbering. |
| 14 | Q. Do you not see this on the screen? Do you want me |
| 15 | to blow it up? |
| 16 | A. Well, I'd like to be able to see it in context. |
| 17 | And you're referring to page 32. I'm simply not tracking on |
| 18 | the pages. |
| 19 | Q. Bates number is 1042612. |
| 20 | A. Okay. |
| 21 | Q. So for this supplement, the initial CPU price is |
| 22 | $375,000, and there are no prior products listed; correct? |
| 23 | A. There are no prior products in this exhibit. I've |
| 24 | never seen this agreement before. I'm not familiar with the |
| 25 | way it's organized. So all I can really say is I know this |
358
| 1 | exhibit says that, but I'm not familiar with the agreement. |
| 2 | Q. Okay. |
| 3 | May I approach, Your Honor? |
| 4 | THE COURT: You may. What exhibit are you talking |
| 5 | about? |
| 6 | MR. NORMAND: SCO 370. |
| 7 | Q. BY MR. NORMAND: SCO 370 is a UNIX agreement |
| 8 | concerning UNISYS; correct? |
| 9 | A. Yes. |
| 10 | Q. Do you see at Page 4 which is -- |
| 11 | A. I think the Bate stamp number would help. |
| 12 | Q. It's easier? |
| 13 | A. Yeah. |
| 14 | Q. Bates 1039897. |
| 15 | A. Okay. |
| 16 | Q. In Section 1A, the initial designated CPU price is |
| 17 | $375,000; correct? |
| 18 | A. Correct. |
| 19 | Q. If you turn to Bates 1039921. A lengthy list of |
| 20 | prior products; correct? |
| 21 | A. Right. There is a list, right. |
| 22 | Q. So these two documents reflect the same initial per |
| 23 | CPU price for UnixWare licenses whether or not the prior |
| 24 | products are listed; correct? |
| 25 | A. Again, I'm not familiar with the documents. I can |
359
| 1 | simply say that that information appears on the two pages that |
| 2 | we saw in each agreement. I have never studied this document. |
| 3 | I'm not familiar with the way it's organized and how it works. |
| 4 | Q. Well, having seen what I've shown you, it's clear |
| 5 | that -- |
| 6 | MR. MALAUGH: Mr. Normand, is this a demonstrative |
| 7 | that you intend to use? |
| 8 | We have a stipulation such that demonstratives that |
| 9 | are going to be used with witnesses must be disclosed 24 hours |
| 10 | in advance. |
| 11 | MR. NORMAND: This is from the opening. |
| 12 | THE COURT: It's from what? |
| 13 | MR. NORMAND: The opening argument that Mr. Singer |
| 14 | did, Your Honor. |
| 15 | MR. SINGER: I used those two in my opening. |
| 16 | THE COURT: I thought he did. |
| 17 | MR. MALAUGH: I think our understanding of the |
| 18 | agreement was that if someone was going to use something with |
| 19 | the witness, we would be told it was going to be used with the |
| 20 | witness. |
| 21 | MR. NORMAND: I don't need to use it, Your Honor. |
| 22 | But I do have a different understanding of the meaning of the |
| 23 | stipulation. |
| 24 | THE COURT: Well, I don't have any understanding of |
| 25 | the meaning of that yet. So apparently you two have a |
360
| 1 | different ones. But now it's not relevant; right. |
| 2 | MR. NORMAND: I'll ask Mr. Jones a question without |
| 3 | using the exhibits. |
| 4 | THE COURT: All right. |
| 5 | Q. BY MR. NORMAND: Based on what I've shown you on |
| 6 | these two licenses, the same per CPU price per unit where a |
| 7 | license was charged whether or not the system prior products |
| 8 | was listed; correct? |
| 9 | A. The same price was listed on the page whether or |
| 10 | not the exhibit identified a product or not. And that's all I |
| 11 | can say, is those words appear. And I haven't studied the |
| 12 | agreements, so I don't know how they work. |
| 13 | Q. You are a lawyer; right? |
| 14 | A. I think lawyers actually need to read documents to |
| 15 | understand them, nonetheless. |
| 16 | Q. I understand. |
| 17 | Now, in your view, one needs the details in the |
| 18 | transaction at issue to determine whether there is an |
| 19 | incidental licensing that's SVRX with UnixWare; correct? |
| 20 | A. I'm sorry. Could you say that again? |
| 21 | Q. In your view, one needs to understand the details |
| 22 | of the transaction at issue to determine whether there has |
| 23 | been incidental licensing of any SVRX with UnixWare; correct? |
| 24 | A. Once you understand the circumstances of the |
| 25 | transaction. |
361
| 1 | Q. Now, on the issue of whether any SVRX source code |
| 2 | was licensed incidentally to UnixWare in Microsoft agreement, |
| 3 | you think Microsoft views are irrelevant? |
| 4 | A. As to SVRX agreement, yes. |
| 5 | Q. And as to whether there's been any incidental |
| 6 | licensing; correct? |
| 7 | A. Yes. |
| 8 | Q. And the same is true as to Sun's view in its |
| 9 | agreement as to whether there's been incidental licensing; |
| 10 | correct? |
| 11 | A. Yes. |
| 12 | Q. But you do think the overall facts and |
| 13 | circumstances surrounding the transaction are relevant; |
| 14 | correct? |
| 15 | A. Well, the circumstances of the transaction -- yeah, |
| 16 | to some extent that needs to be understood. |
| 17 | Q. To a significant extent; correct? |
| 18 | A. Yes. |
| 19 | Q. And primarily, you think the actual terms of the |
| 20 | agreements are the most important to determining whether there |
| 21 | has been incidental licensing; correct? |
| 22 | A. Not necessarily. I mean, the terms -- the terms of |
| 23 | an agreement might not fully reflect the circumstances behind |
| 24 | the transaction. |
| 25 | MR. NORMAND: Your Honor, may I play a clip from |
362
| 1 | Mr. Jones' deposition? |
| 2 | THE COURT: Yes. Tell us. |
| 3 | MR. NORMAND: May 10, 2007; Page 246 Line 16 to |
| 4 | Page 247 Line 1. |
| 5 | THE COURT: Thank you. |
| 6 | MR. MALAUGH: It was May 10th? Thanks. |
| 7 | MR. NORMAND: If that's not going to work, I can |
| 8 | read it, Your Honor. |
| 9 | THE COURT: Is it not going to work? All we're |
| 10 | getting so far is it a sounds like someone backing up. |
| 11 | MR. ERIC WHEELER: That is the audio, Your Honor. |
| 12 | THE COURT: If you can read it if you can't get it |
| 13 | to work. |
| 14 | Q. BY MR. NORMAND: Mr. Jones, I asked the following |
| 15 | question, and you gave the following answer: |
| 16 | Question. So in Novell's view -- |
| 17 | MR. MELAUGH: Can I ask -- I'm sorry I'm having |
| 18 | difficulties, but could you give him a copy of the transcript |
| 19 | to Mr. Jones so he can follow along with you? |
| 20 | MR. NORMAND: May I approach, Your Honor? |
| 21 | THE COURT: Oh, yes. Yes. |
| 22 | Q. BY MR. NORMAND: This is at Page 246 Line 16: |
| 23 | Question. So in Novell's view whether the |
| 24 | UnixWare had been licensed or whether the SVRX had |
| 25 | been licensed incidentally with UnixWare is |
363
| 1 | something to be determined from the terms of the |
| 2 | agreements; is that right? |
| 3 | Answer. Well, as I said, I think terms of |
| 4 | the agreement would be the most important |
| 5 | consideration. And my response is I think I |
| 6 | suggested the overall facts and circumstances, and |
| 7 | those facts and circumstances I think are probably |
| 8 | the most important thing in the terms. |
| 9 | Do you recall being asked that question and giving |
| 10 | that answer? |
| 11 | A. Vaguely. But here it is, so.... |
| 12 | Q. Now, beginning in October of 2002, you had several |
| 13 | communications with SCO; right? |
| 14 | A. Yes. |
| 15 | Q. And there were in your best estimate four to six |
| 16 | conversations between Novell and SCO during that time? |
| 17 | A. Something like that. I don't know. |
| 18 | Q. And to your recollection, in October of 2002, |
| 19 | Mr. McBride told that you SCO was starting to look into the |
| 20 | possibility of Linux end users using UNIX code; correct? |
| 21 | A. Yes. |
| 22 | MR. NORMAND: Will you pull up SCO 398? |
| 23 | MR. ERIC WHEELER: Yes, sir. |
| 24 | Q. BY MR. NORMAND: And in this e-mail, in the fall of |
| 25 | 2002, you refer to that earlier conversation with Mr. McBride; |
364
| 1 | correct? |
| 2 | THE COURT: This is SCO 390? |
| 3 | MR. NORMAND: Yes, Your Honor -- 398. |
| 4 | THE COURT: Pardon me? |
| 5 | MR. NORMAND: 398. |
| 6 | MR. MELAUGH: And again, Your Honor, if I could ask |
| 7 | counsel to follow the general practice and give the witness a |
| 8 | copy of the exhibit that he's referring to so that the witness |
| 9 | can see the context of what you're blowing up. |
| 10 | Q. BY MR. NORMAND: Mr. Jones, do you need a copy of |
| 11 | this exhibit to understand this question? |
| 12 | A. Not this one. But in general I really appreciate |
| 13 | having the exhibits. |
| 14 | Q. Of course. |
| 15 | And you recall in this document that a few weeks |
| 16 | earlier on November 15th -- |
| 17 | A. I actually didn't answer your question. But you |
| 18 | had asked me the question about -- |
| 19 | Q. Do you think this e-mail reflects your discussions |
| 20 | with Mr. McBride? |
| 21 | A. Yes. |
| 22 | Q. This is an e-mail from November 15th, 2002; |
| 23 | correct? |
| 24 | A. Right. |
| 25 | Q. And you recall that a few weeks earlier on that |
365
| 1 | date, Mr. McBride, quote: |
| 2 | Expressed interest in pursuing Linux users |
| 3 | who may be using misappropriated UNIX code. End quote. |
| 4 | Right? |
| 5 | A. Right. |
| 6 | Q. This is SCO 397, e-mail dated November 20th, 2002, |
| 7 | from yourself. And in this e-mail you described a |
| 8 | conversation with Mr. McBride that you and Dave Wright had |
| 9 | that same day; correct? |
| 10 | A. Just a second. |
| 11 | (Time lapse.) |
| 12 | THE WITNESS: Yes. |
| 13 | Q. BY MR. NORMAND: You recount the possible efforts |
| 14 | by SCO to assert claims relating to infringing uses of SCO's |
| 15 | UNIX libraries by end users of Linux; correct? |
| 16 | A. Right. |
| 17 | MR. NORMAND: 399. |
| 18 | Q. BY MR. NORMAND: To some extent you may be able to |
| 19 | find it. It's tabbed. |
| 20 | A. Okay. Thanks. |
| 21 | Q. We're on 399 now. |
| 22 | I'm told we may need some time technically to be |
| 23 | able to use the documents this way, which I think is faster. |
| 24 | But I defer to how Your Honor wants to proceed. It may take |
| 25 | us three to four minutes. |
366
| 1 | THE COURT: To get this up and running? |
| 2 | MR. NORMAND: Yes, sir. |
| 3 | THE COURT: Well, we better wait. I think it |
| 4 | ultimately would be quicker. |
| 5 | MR. NORMAND: I agree, Your Honor. |
| 6 | (Time lapse). |
| 7 | THE COURT: There are no -- there are no interlude |
| 8 | non-exhibit questions you could ask? If there aren't, there |
| 9 | aren't. |
| 10 | MR. NORMAND: I'm sort of in the middle of this |
| 11 | topic. |
| 12 | (Time lapse.) |
| 13 | Q. BY MR. NORMAND: There is a discrete area that we |
| 14 | can turn to, Mr. Jones, if you're comfortable with that. We |
| 15 | can go back to this. |
| 16 | A. Yes. |
| 17 | Q. You spoke about the Solaris files with counsel in |
| 18 | your direct examination. Do you remember that? |
| 19 | A. Yes. |
| 20 | Q. Exhibits 439 to 59? |
| 21 | A. It sounds right. |
| 22 | Q. Do you know what functions these files perform in |
| 23 | Solaris? |
| 24 | A. I didn't. No. I didn't attempt to understand what |
| 25 | their functionality was. |
367
| 1 | Q. Do you know what function these files performed, |
| 2 | SVR4-389? |
| 3 | A. No. In neither case did I look at them to what |
| 4 | their functionality was. |
| 5 | Q. Do you know if the files originated in SVR4-386? |
| 6 | A. Meaning that the first version in which they |
| 7 | appeared? |
| 8 | Q. Yes. |
| 9 | A. I don't know. |
| 10 | Q. You said that Novell had a hard copy of SVR4-386; |
| 11 | correct? |
| 12 | A. A hard copy? |
| 13 | Q. A hard copy of the source code? |
| 14 | A. If I said that I'm mistaken. We have SVRX source |
| 15 | code. But if you understood me to say that we have hard |
| 16 | copies of it, I didn't intend to say that. That would be a |
| 17 | huge printout. |
| 18 | Q. I didn't mean to say you printed it out. I mean |
| 19 | you have access to the actual source code? |
| 20 | A. Okay. I understood you to mean by hard copy we had |
| 21 | a printout of the system. |
| 22 | Q. No. Why did Novell have the source code of the |
| 23 | SVR4-386? |
| 24 | A. I don't know why we wouldn't. |
| 25 | Q. Novell transferred all copies of its source code |
368
| 1 | for UNIX and UnixWare to Santa Cruz in 1995; correct? |
| 2 | A. There is a license of technology back to Novell. |
| 3 | The technology license agreement. It was contemporaneous with |
| 4 | the asset purchase agreement. So -- there are certain bounds |
| 5 | on the license, but we're perfectly entitled to have copies of |
| 6 | the pre APA SVRX according to the terms of that license |
| 7 | agreement. |
| 8 | Q. Now you identified 21 OpenSolaris filings that you |
| 9 | found; correct? |
| 10 | A. Yeah. There were 21 that we talked about today. |
| 11 | Q. And all of those files are in UnixWare 1; correct? |
| 12 | A. I don't know whether they're in UnixWare 1. |
| 13 | Q. You did not look at that, did you? |
| 14 | A. I did not look at that. |
| 15 | Q. Now, you testified, Mr. Jones, your views as to |
| 16 | what money Novell is entitled to under the Sun agreement in |
| 17 | 2003. Do you recall that? |
| 18 | A. Yes. |
| 19 | Q. And you said you didn't think that the 2003 Sun |
| 20 | agreement was a customarily license agreement. Do you recall |
| 21 | that? |
| 22 | A. I think I said -- I can't recall -- that may have |
| 23 | been the question. I think what I said it was extraordinary. |
| 24 | I can't recall if I said, used the words, it's not customary. |
| 25 | But I do recall using the word extraordinary. |
369
| 1 | Q. The 1994 Sun agreement was extraordinary, as well, |
| 2 | wasn't it? |
| 3 | A. Yeah. I'd say it's not a typical agreement. It's |
| 4 | a buyout of source code rights. Buyout, excuse me, of source |
| 5 | code royalty obligations. |
| 6 | Q. Now, Novell seeks all 10 million that was paid for |
| 7 | the 2003 Sun agreement? |
| 8 | A. Yes. |
| 9 | Q. The 2003 Sun agreement does provide some broad |
| 10 | rights with respect to UnixWare; correct? |
| 11 | A. Yes. |
| 12 | Q. And you asses no value to that UnixWare license; |
| 13 | correct? |
| 14 | A. No. As I stated, there has been no value specific |
| 15 | to the UnixWare portion suggested by SCO. And given the |
| 16 | relationship between Novell and SCO in this regard and SCO |
| 17 | being the fiduciary and no value being, having been assigned |
| 18 | by SCO, I conclude that we're entitled to all of it. |
| 19 | Q. So your view is the only reason that Novell is |
| 20 | entitled to all of it is because SCO hasn't suggested an |
| 21 | apportionment? |
| 22 | A. Well, I don't think that -- you know, there would |
| 23 | have to be some legitimate apportionment established, and one |
| 24 | has not even been suggested. |
| 25 | Q. But your view is the most important thing to look |
370
| 1 | at to determine whether there's been incidental licensing is |
| 2 | in terms of the agreement; correct? |
| 3 | A. Well, let me see here. I mean, obviously what |
| 4 | we've talked about is the facts and circumstances and the |
| 5 | terms and conditions both mattering, having to look at all of |
| 6 | it. And so in my deposition you asked me the question, I said |
| 7 | one was more important than the other, and today I said the |
| 8 | other is more important. They're both important. They're all |
| 9 | important in understanding the agreement. I don't truly know |
| 10 | that gets us anywhere by trying to say one is more important |
| 11 | than the other. But the circumstances, the facts and |
| 12 | circumstances, the terms, all of those need to be considered. |
| 13 | Q. One can't reasonably review the 2003 Sun agreement |
| 14 | and conclude that no money was paid for the broad UnixWare |
| 15 | license; correct? |
| 16 | A. I don't think one can conclude that the monies paid |
| 17 | were not to some extent in consideration with the UnixWare |
| 18 | related rights. But I have no way of knowing how much of it |
| 19 | was for that. |
| 20 | Q. Your view is SCO should forfeit whatever money it |
| 21 | might be entitled to because it hasn't suggested a specific |
| 22 | apportionment; right? |
| 23 | A. In light of the fiduciary relationship that exists |
| 24 | between the parties and the fact that SCO executed this |
| 25 | without Novell's approval and involvement and SCO has not been |
371
| 1 | forthcoming with some suggestion as to what the value should |
| 2 | be for the UnixWare portion, yes. |
| 3 | Q. You think SCO should forfeit the money? |
| 4 | A. Well -- |
| 5 | Q. You just said yes. |
| 6 | A. Well, then -- |
| 7 | Q. So that's your answer. |
| 8 | A. Well, I guess forfeit the money is a |
| 9 | characterization. |
| 10 | Q. You're an attorney. I've asked you a question. |
| 11 | What's your view? Is it forfeiture? |
| 12 | A. What my view is is that there's no reason Novell |
| 13 | should forfeit any of the monies itself given the position |
| 14 | that Novell is in, given that Novell was excluded. |
| 15 | Q. That begs the question, doesn't it? We were here |
| 16 | to determine who gets what, what the relative value is of this |
| 17 | license. |
| 18 | A. Absolutely. And, of course, as I've expressed and |
| 19 | you certainly are going to disagree with me, that from my |
| 20 | perspective, given the fiduciary relationship and all the |
| 21 | factors that I've described, that if there's a party that's at |
| 22 | risk of forfeiting or foregoing some consideration as between |
| 23 | Novell and SCO, it should be SCO. |
| 24 | Q. Section 3 of the Microsoft agreement is the |
| 25 | UnixWare license; correct? |
372
| 1 | A. Yes. |
| 2 | Q. It was $7 million worth of the UnixWare license; |
| 3 | correct? |
| 4 | A. You know, I just know there's money there. I have |
| 5 | not memorized the payment amounts for each section of that |
| 6 | agreement. |
| 7 | Q. The Sun UnixWare license is broader than the |
| 8 | Microsoft UnixWare license, isn't it? |
| 9 | A. I haven't looked at the two in those terms. |
| 10 | Q. Well, you testified at some length in your direct |
| 11 | examination about how much thought you've put into this. The |
| 12 | Section 3 Microsoft license is narrower than -- Section 3 |
| 13 | license of Microsoft UnixWare is narrower than Sun's UnixWare |
| 14 | license; correct? |
| 15 | A. Is the question whether I said that before or |
| 16 | whether that's a fact? |
| 17 | Q. No. I'm asking you a yes or no question right now. |
| 18 | A. Right now. Well, the elements of a license in its |
| 19 | breath I think are the technology that are licensed and the |
| 20 | rights that are conferred. And the rights that are conferred |
| 21 | in the Sun agreement I can't imagine more expansive rights |
| 22 | than those. I haven't looked at the Sun agreement and the |
| 23 | Microsoft agreement side by side to see if there's any |
| 24 | meaningful distinction in the technologies that are |
| 25 | identified. So I simply haven't looked at the agreement from |
373
| 1 | that perspective. I haven't thought of it that way. |
| 2 | Q. You're not able as you sit here to compare the |
| 3 | scopes of the UnixWare license of Microsoft 2003 to the scope |
| 4 | of the UnixWare of Sun in 2003; that's your testimony? |
| 5 | A. Are you asking me to do that now? |
| 6 | Q. I'm asking you -- |
| 7 | A. I have not done it before. |
| 8 | Q. How could you not have done that and apportion any |
| 9 | value to the Sun license? |
| 10 | A. For the reasons that I've stated before. |
| 11 | Q. The UnixWare license in the Sun agreement is worth |
| 12 | at least $7 million, isn't it? Wouldn't it follow from the |
| 13 | act of the Section 3 UnixWare license in Microsoft was for |
| 14 | $7 million? |
| 15 | A. I have not, you know, come here today having |
| 16 | attempted to made any specific valuations, just as SCO has not |
| 17 | offered any specific valuations. And my position as between |
| 18 | Novell and SCO is it's incumbent on SCO to do that. And if |
| 19 | they haven't done it, then they're the ones that should bear |
| 20 | the risk of foregoing consideration. |
| 21 | Q. But you concede that if you're wrong about that |
| 22 | point, if you're wrong about that burden that you think |
| 23 | applies to SCO, then there is value to the UnixWare components |
| 24 | in the Sun agreement. That is your view, isn't it? |
| 25 | A. Can you say that again? |
374
| 1 | Q. If you're wrong about your argument that SCO should |
| 2 | forfeit the value of any UnixWare license in the Sun |
| 3 | agreement, if you're wrong about that, there is value to the |
| 4 | UnixWare Sun agreement, isn't there? |
| 5 | A. I don't understand what you're saying. There's |
| 6 | value to the UnixWare -- |
| 7 | Q. Are you suggesting that Sun take no money, no |
| 8 | consideration for the broad UnixWare license it received in |
| 9 | 2003? |
| 10 | A. I'm just confused because the whole agreement |
| 11 | characterizes the UnixWare agreement. And you're specifying |
| 12 | the UnixWare portions? |
| 13 | Q. I understand Novell's position to be that there's |
| 14 | at least a broad UnixWare license in the Sun agreement. I |
| 15 | understand that Novell takes the position, that there's more |
| 16 | than that as well. And SVRX components. Are we on the same |
| 17 | page? |
| 18 | A. No. Where I got disconnected from you is that you |
| 19 | said that the Sun UnixWare license. And what I've heard SCO |
| 20 | do is it characterize the entire agreement as a UnixWare |
| 21 | license. And you just asked me if there's value associated |
| 22 | with it. And I think, well, yeah, Sun paid for it. So I |
| 23 | wasn't sure if you were asking about the entire agreement. |
| 24 | Q. I'm asking just about what you regard as the |
| 25 | UnixWare portion. |
375
| 1 | A. The UnixWare portion? Yeah. I've never said -- |
| 2 | I'm drawing some conclusion that there's no value in the |
| 3 | UnixWare related rights that are conferred. But the question |
| 4 | is, how do you establish some valuation for apportionment |
| 5 | purposes? And SCO has not provided anything on that. And |
| 6 | again, under those circumstances, I feel Novell's entitled to |
| 7 | conclude that that money should be Novell's, and Novell should |
| 8 | not be required to forfeit something here. |
| 9 | Q. Your view that Novell gets all the money, the |
| 10 | 10 million, is based on a legal argument; correct? |
| 11 | A. Well, it's based on -- legal arguments don't exist |
| 12 | in a vacuum. It's based on the factual circumstances and the |
| 13 | legal arguments arising out of the fiduciary relationship that |
| 14 | exists between the two parties. |
| 15 | Q. Your view that Novell gets everything is not based |
| 16 | on an objective assessment of what was paid for the rights in |
| 17 | the 2003 Sun agreement, is it? |
| 18 | A. It's not -- it does not reflect any type of |
| 19 | economic valuation or analysis or anything of that nature. |
| 20 | Q. I want to turn back to your discussions with SCO in |
| 21 | the fall of 2002. |
| 22 | A. Okay. |
| 23 | Q. I won't be much longer. |
| 24 | Exhibit 400, Mr. Jones. It should be in that book. |
| 25 | THE COURT: This is SCO 400? |
376
| 1 | MR. NORMAND: Yes, Your Honor. |
| 2 | THE WITNESS: Yes. I've got it. |
| 3 | Q. BY MR. NORMAND: Now, at the time of these |
| 4 | discussions with Mr. McBride, Novell had no interest |
| 5 | whatsoever in supporting any UNIX infringement claims against |
| 6 | end users of Linux; correct? |
| 7 | A. Yes. I think that's correct. And that's what our |
| 8 | executives advised me. |
| 9 | Q. Novell's efforts were prioritized in other places; |
| 10 | correct? |
| 11 | A. Well -- I guess I just say yes, just by virtue of |
| 12 | the fact that this didn't have priority. So.... |
| 13 | Q. Now, at the time of these discussions Novell was |
| 14 | fully moving in the direction of being involved in Linux; |
| 15 | correct? |
| 16 | A. That's correct. |
| 17 | Q. And you didn't say that to SCO in these |
| 18 | discussions; correct? |
| 19 | A. No. I mean, to me I think we had acquired Zimeon |
| 20 | at that point, which is the Linux desktop company. So that |
| 21 | was public knowledge. And any other information that I had |
| 22 | about Novell's investigations would have been confidential, so |
| 23 | no. |
| 24 | Q. You didn't raise any objections with respect to the |
| 25 | perspective licenses that Darl had mentioned; correct? |
377
| 1 | A. I did not understand the licenses that would be |
| 2 | granted. |
| 3 | Q. You understood -- |
| 4 | A. Darl, he came to me requesting help with due |
| 5 | diligence and assessing what SCO's rights would be. I |
| 6 | confided that once they understood what their rights would be, |
| 7 | they would act accordingly. So not having known the terms |
| 8 | that would have been offered to people in any such program or |
| 9 | any agreement and also just understanding that SCO seemed to |
| 10 | be investigating intellectual property rights to understand |
| 11 | the bounds what they might properly do, I don't think there |
| 12 | was any need for me -- I don't know what I would have objected |
| 13 | to. |
| 14 | Q. He specifically told you that they were concerned |
| 15 | about the use of UNIX code and use of UNIX code by Linux end |
| 16 | users; correct? |
| 17 | A. That's right. |
| 18 | Q. What did you understand UNIX code to be? |
| 19 | A. At that point I wouldn't know. |
| 20 | Q. Didn't think about it? |
| 21 | A. There wouldn't be -- as has been discussed, there |
| 22 | is a wide variety of UNIX code that's been developed over the |
| 23 | years. So how would I know what specific code he would be |
| 24 | discussing? He did mention -- the one specific thing that |
| 25 | Darl mentioned was the library. But I couldn't understand, |
378
| 1 | you know, in the vast scheme of things, you know, where that |
| 2 | would factor in or under what terms it would be offered or -- |
| 3 | you know, my information was very scant. |
| 4 | Q. But you knew it concerned Linux and UNIX; correct? |
| 5 | A. That I knew. |
| 6 | Q. And Novell's position is that it retained |
| 7 | substantial rights in the UNIX business; correct? |
| 8 | A. We have substantial rights in pre-APA SVRX. UNIX |
| 9 | would be a pre-APA SVRX as a subset of UNIX. So when someone |
| 10 | says they're going to do something with UNIX, I cannot know if |
| 11 | they're taking about something that would implicate Novell's |
| 12 | interest or not. |
| 13 | Q. And you understood SCO to be contemplating a |
| 14 | program on its own; correct? |
| 15 | A. Yes. On its own -- well, what do you mean by, on |
| 16 | its own? |
| 17 | Q. You understood that SCO was interested in pursuing |
| 18 | its own efforts against Linux end users; correct? |
| 19 | A. Yeah. I guess I just need not to jump to a |
| 20 | conclusion here. They were asking for Novell's cooperation |
| 21 | and assistance to the extent of helping them identify |
| 22 | documents or due diligence purpose and things of that nature. |
| 23 | And, of course, they had questions about the terms of the |
| 24 | earlier agreements. And whether or not they had any |
| 25 | involvement with third parties was something I had no |
379
| 1 | knowledge of. So I was hasty to say they were going alone. |
| 2 | That was what I just described was the extent of the knowledge |
| 3 | that I had. |
| 4 | Q. You're not suggesting that Mr. McBride had asked |
| 5 | you to be a business partner in pursuing these Linux end |
| 6 | users, are you? |
| 7 | A. What do you mean by business partner? |
| 8 | Q. It was SCO's effort and they were asking for due |
| 9 | diligence support from Novell; right? |
| 10 | A. Yeah. The nature of the cooperation, and, you |
| 11 | know, partnering covers a wide variety of activities. So |
| 12 | Mr. McBride suggested, as he explained earlier here today, you |
| 13 | know, hey, Novell, if you help support us in some way, what we |
| 14 | intend to do that could have some business benefit to you. |
| 15 | And so, Novell, what we want of you is to help us do due |
| 16 | diligence. We think that will help support our efforts. |
| 17 | So is that partnering? I think that's some form of |
| 18 | partnering. But that's the extent of what Mr. McBride |
| 19 | explained to me. He didn't explain something beyond that to |
| 20 | me or suggest something beyond that. |
| 21 | Q. This is Exhibit SCO 87, Your Honor. |
| 22 | THE COURT: Okay. |
| 23 | Q. BY MR. NORMAND: Mr. Jones, I want to go back to a |
| 24 | couple of letters that we discussed. In 1996, you were |
| 25 | employed by Novell; correct? |
380
| 1 | A. Yes. |
| 2 | Q. Now, in 1996, Novell informed its customers and |
| 3 | business partners that Novell had transferred its existing |
| 4 | ownership interest in all releases of UNIX and UnixWare to |
| 5 | Santa Cruz; correct? |
| 6 | A. Could you say that again? I was looking at the |
| 7 | document, and you were speaking. |
| 8 | Q. I said in 1996 Novell represented to its customers |
| 9 | and business partners that it had transferred its existing |
| 10 | ownership interest in all releases of UNIX and UnixWare to |
| 11 | Santa Cruz; correct? |
| 12 | This paragraph that is Attachment A. You can go to |
| 13 | Attachment A. |
| 14 | A. I guess the only liberty -- I mean, this letter was |
| 15 | sent. I simply don't have the personal knowledge of how |
| 16 | extensively it was sent, but I think you said its customers. |
| 17 | So I don't know how many -- I just don't know how many |
| 18 | customers received it. But this letter does reference in this |
| 19 | exhibit all releases of UNIX System V and prior releases of |
| 20 | the UNIX system. And the letter would be inconsistent, of |
| 21 | course, with the asset purchase agreement. |
| 22 | Q. But Novell did make these representations to |
| 23 | Prentice-Hall; correct? |
| 24 | A. It's sent -- well, you know, again, I assume |
| 25 | Prentice-Hall received it, Novell wrote this in a letter to |
381
| 1 | Prentice-Hall by an Novell employee. |
| 2 | Q. Novell said that it was assigning its right under |
| 3 | its agreements that concerned those releases; correct? |
| 4 | A. If this letter says that, it's inconsistent with |
| 5 | the asset purchase agreement. |
| 6 | Q. Let's go to Exhibit 411. |
| 7 | THE COURT: SCO 411? |
| 8 | MR. NORMAND: Yes, Your Honor. |
| 9 | Q. BY MR. NORMAND: This is a letter from Mike DeFazio |
| 10 | to SunSoft. Do you know what SunSoft is? |
| 11 | A. I thought it was a software division of Sun. |
| 12 | Q. You're correct. |
| 13 | A. Okay. |
| 14 | Q. And Novell specifically told Sun that Novell had |
| 15 | transferred its existing ownership interest and all releases |
| 16 | of UNIX and UnixWare; correct? |
| 17 | A. This letter says that, and it's inconsistent with |
| 18 | the APA. |
| 19 | Q. Who signed this letter? |
| 20 | A. Michael J. DeFazio. |
| 21 | Q. What was his position? |
| 22 | A. I don't know his precise title, but he was -- I |
| 23 | know he had significant responsibilities for Novell's UNIX |
| 24 | business. You know, I regard him as having headed it up, |
| 25 | really, at certain points in time. |
382
| 1 | Q. Was he head of the organization within AT&T and USL |
| 2 | and later Novell responsible for product management, marketing |
| 3 | and licensing terms and conditions for UNIX from 1984 to 1995? |
| 4 | A. I don't know what you're reading. It sounds |
| 5 | plausible. It's obvious I don't come in here with that |
| 6 | specific knowledge in my mind. But that sounds plausible. |
| 7 | Q. But you think he was wrong about what he said? |
| 8 | A. Yes. |
| 9 | MR. NORMAND: SCO 136. |
| 10 | Q. BY MR. NORMAND: There is a SCO -- what number is |
| 11 | this? |
| 12 | MR. ERIC WHEELER: 136. |
| 13 | MR. NORMAND: 136, Your Honor. |
| 14 | Q. BY MR. NORMAND: This is a similar letter to |
| 15 | Microsoft; correct? |
| 16 | A. Just a second. |
| 17 | MR. NORMAND: |
| 18 | Your Honor, I don't think there's a stipulation as |
| 19 | to this document, so I move for its admission. |
| 20 | THE COURT: 136. |
| 21 | MR. MELAUGH: No objection. |
| 22 | THE COURT: Well, it's on the list, isn't it? |
| 23 | THE CLERK: It is not on the list. |
| 24 | THE COURT: 136. It's on my list. |
| 25 | SCO Exhibit 136. |
383
| 1 | THE CLERK: I don't have a 136 on mine, on my list. |
| 2 | THE COURT: Well, I'll admit it. It's on my list. |
| 3 | (Whereupon, SCO 136 was received.) |
| 4 | MR. NORMAND: Thank you, Your Honor. We'll cure |
| 5 | the confusion. |
| 6 | Q. BY MR. NORMAND: Now, in these letters, Mr. Jones, |
| 7 | Novell was telling people to deal directly with Santa Cruz; |
| 8 | correct? |
| 9 | A. I've been reading the other part of the letter. So |
| 10 | just a second. |
| 11 | (Time lapse.) |
| 12 | Q. BY MR. NORMAND: Have you had a chance to review |
| 13 | the document? |
| 14 | A. Yes. Yes. It's consistent with what you said. |
| 15 | These are -- it's informing the parties that the contracts |
| 16 | have been assigned to SCO. So in effect that they should, you |
| 17 | know, they should be dealing with SCO then. |
| 18 | Q. And Novell told Sun and Microsoft that; is that |
| 19 | correct? |
| 20 | A. SunSoft and Microsoft. |
| 21 | Q. My colleagues remind me that when we went down with |
| 22 | the system, I was on one of your e-mails. |
| 23 | A. Okay. |
| 24 | Q. Your infamous e-mails. |
| 25 | A. Infamous. |
384
| 1 | MR. NORMAND: This is still 399, Your Honor. |
| 2 | Q. BY MR. NORMAND: Do you have that e-mail in front |
| 3 | of you, Mr. Jones? |
| 4 | A. Hang on just a second. Tab -- this is Exhibit -- |
| 5 | yeah, I've got this. |
| 6 | THE COURT: SCO 399. |
| 7 | THE WITNESS: Right. Thanks. |
| 8 | Q. BY MR. NORMAND: Let me know when you've had a |
| 9 | chance to review it. |
| 10 | A. Okay. |
| 11 | (Time lapse.) |
| 12 | THE WITNESS: Okay. |
| 13 | Q. BY MR. NORMAND: Thank you, Mr. Jones. |
| 14 | You said on December 4th, 2002, that you and Mr. |
| 15 | Wright had returned a phone call from Mr. McBride; correct? |
| 16 | A. Yes. |
| 17 | Q. And you said that Darl reiterated his request from |
| 18 | Novell's assistance, and then he informed us that next week |
| 19 | SCO will announce a Linux licensing program; correct? |
| 20 | A. Correct. |
| 21 | Q. That's an accurate statement; correct? |
| 22 | A. I believe so. |
| 23 | Q. In your review of this document, have you had seen |
| 24 | any statements that you made that you think are inaccurate? |
| 25 | A. That I made that are inaccurate? |
385
| 1 | Q. Correct. |
| 2 | A. I think the only thing I might take issue with is |
| 3 | my poor writing in the second sentence of the fourth paragraph |
| 4 | where I talk about potential increase of the declining |
| 5 | $8 million revenue stream. |
| 6 | Q. But the rest of your statements in the e-mail you |
| 7 | believe are accurate? |
| 8 | A. Yeah. And I think, as Mr. McBride was saying, I |
| 9 | think he was just suggesting that the decline would slow, not |
| 10 | that there would be some substantial increase or something of |
| 11 | that nature. |
| 12 | MR. NORMAND: May I approach, Your Honor? |
| 13 | THE COURT: Yes. |
| 14 | Q. BY MR. NORMAND: I hand you two last documents, |
| 15 | Mr. Jones. |
| 16 | A. Okay. |
| 17 | Q. These are Novell 468 and 469. This is a Novell |
| 18 | letter to Microsoft from September of 2007; correct? |
| 19 | A. Well, there are two letters. I'm sorry. We were |
| 20 | on -- |
| 21 | Q. I'm sorry. I'm on 468. |
| 22 | A. Okay. |
| 23 | Q. And 469 is a letter to Sun. |
| 24 | A. Yeah. |
| 25 | Q. And the content of the letter is the same; correct? |
386
| 1 | A. I don't know. |
| 2 | Q. Let's do 468. |
| 3 | A. Okay. |
| 4 | Q. Have you seen this letter before? |
| 5 | A. I think I have. I've seen so many documents. But |
| 6 | I believe I've seen it. |
| 7 | Q. In this letter, Mr. LaSala, who was general counsel |
| 8 | at the time; correct? |
| 9 | A. Yes. |
| 10 | Q. Tells Microsoft, quote: |
| 11 | We believe that the 2003 agreement is |
| 12 | unenforceable, void or invalid, and hence that |
| 13 | there may be copyright issues arising out of |
| 14 | Microsoft's use of UNIX or UnixWare code in which |
| 15 | Novell retains copyright ownership. |
| 16 | Do you see that line? |
| 17 | A. Yes. |
| 18 | Q. Does that statement reflect Novell's position |
| 19 | today, as well? |
| 20 | A. Yes. |
| 21 | Q. Exhibit 469 is a letter to Sun. And it contains in |
| 22 | bottom third of the letter the same statement; correct? |
| 23 | A. I think they're not quite identical. But you're |
| 24 | asking if that still reflects Novell's position? That's the |
| 25 | question? |
387
| 1 | Q. Right. |
| 2 | A. I believe so. |
| 3 | MR. NORMAND: Nothing further, Your Honor. |
| 4 | THE COURT: Pardon me? |
| 5 | MR. NORMAND: Nothing further. |
| 6 | THE COURT: Thank you, Mr. Normand. |
| 7 | Anything else, Mr. Melaugh? |
| 8 | MR. MELAUGH: Your Honor, we have no further |
| 9 | questions of this witness. |
| 10 | THE COURT: Thank you, Mr. Jones. You may call |
| 11 | your next witness. |
| 12 | MR. JACOBS: Your Honor, we have no further |
| 13 | witnesses. We have a couple of exhibits to move into |
| 14 | evidence. And we would request the opportunity to just check |
| 15 | this evening against the exhibits that we looked at to make |
| 16 | sure that they were either part of the stipulation or we moved |
| 17 | them into evidence. |
| 18 | THE COURT: What exhibits are you talking about? |
| 19 | MR. JACOBS: So 430, Novell Exhibit 430 is the |
| 20 | letter to the Arbitral Tribunal in which SCO stated that it |
| 21 | had no further claims after this Court's copyright decision. |
| 22 | THE COURT: This is Novell 430. |
| 23 | MR. JACOBS: Correct. |
| 24 | THE COURT: Any objection? |
| 25 | MR. SINGER: No objection. |
388
| 1 | THE COURT: 430 is received. |
| 2 | (Whereupon, Novell Exhibit 430 was received.) |
| 3 | MR. JACOBS: And Novell Exhibits 468 and 469 are |
| 4 | the two exhibits that you just saw in the examination of |
| 5 | Mr. Jones. The letters from last September to Microsoft and |
| 6 | Sun. |
| 7 | THE COURT: You want them in twice? |
| 8 | MR. JACOBS: No. He did not move them into |
| 9 | evidence. |
| 10 | THE COURT: Didn't he? I thought he did. |
| 11 | MR. NORMAND: I missed the reference to the |
| 12 | exhibits number. I'm sorry. |
| 13 | THE COURT: It's SCO. |
| 14 | MR. JACOBS: No. I believe it's Novell. |
| 15 | THE COURT: Novell 468 and 469. |
| 16 | MR. NORMAND: I would like to move them into |
| 17 | evidence. Thank you. |
| 18 | THE COURT: I thought you would. 468 and 469 are |
| 19 | received. |
| 20 | (Whereupon, Novell Exhibits 468 and 469 were received.) |
| 21 | MR. JACOBS: And then if we may, Your Honor, just |
| 22 | check, we don't know of anything we left out. But we would |
| 23 | like to check this evening on whether there were any further |
| 24 | exhibits. |
| 25 | THE COURT: We'll check at the end of the trial, as |
389
| 1 | well, for both of you. All right. |
| 2 | MR. JACOBS: Otherwise we rest, Your Honor. |
| 3 | THE COURT: Thank you. |
| 4 | MR. SINGER: Your Honor, we would like to move at |
| 5 | this time for an involuntary dismissal of these claims. I'm |
| 6 | not going to ask to argue at this time, but argument on a |
| 7 | certain basis later today. But we simply would like to do so |
| 8 | on the basis of all the papers that have been submitted |
| 9 | including arguments in our trial brief and proposed findings. |
| 10 | THE COURT: All right. And I'll take those motions |
| 11 | under advisement. |
|
|
|
|
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- Recording Industry: AM-FM Broadcasting 'A Form of Piracy' - Authored by: Anonymous on Thursday, June 26 2008 @ 03:17 PM EDT
- Is correlation enough? - The End of Theory: The Data Deluge Makes the Scientific Method Obsolete - Authored by: Anonymous on Wednesday, June 25 2008 @ 08:12 PM EDT
- Nokia's Symbian Is Going Open Source - Authored by: Anonymous on Thursday, June 26 2008 @ 09:09 AM EDT
- MS claims credit for FOSS on windows - Authored by: Anonymous on Thursday, June 26 2008 @ 09:19 AM EDT
- The low-down on Open Source Law - Authored by: bbaston on Thursday, June 26 2008 @ 01:15 PM EDT
- Those Who Want An EEE, Your Day Is Coming - Authored by: TheBlueSkyRanger on Thursday, June 26 2008 @ 01:53 PM EDT
| |
| Authored by: Erwan on Wednesday, June 25 2008 @ 06:54 AM EDT |
| As usual. ---
Erwan [ Reply to This | # ]
|
- We the undersigned petition the Prime Minister to Stop ISP's from breaching customers privacy - Authored by: SilverWave on Wednesday, June 25 2008 @ 07:01 AM EDT
- A Normand answer - Authored by: Anonymous on Wednesday, June 25 2008 @ 08:11 AM EDT
- A Normand answer - Authored by: Anonymous on Wednesday, June 25 2008 @ 08:48 AM EDT
- We can't complain - Authored by: Winter on Wednesday, June 25 2008 @ 08:58 AM EDT
- Whatever you say, say nothing - Authored by: Anonymous on Wednesday, June 25 2008 @ 09:43 AM EDT
- Hmmmm, - Authored by: Anonymous on Wednesday, June 25 2008 @ 10:37 AM EDT
- Hmmmm, - Authored by: PJ on Wednesday, June 25 2008 @ 12:26 PM EDT
- Hmmmm, - Authored by: Anonymous on Wednesday, June 25 2008 @ 05:06 PM EDT
- Hmmmm, - Authored by: Tyro on Wednesday, June 25 2008 @ 12:49 PM EDT
- Hmmmm, - Authored by: Anonymous on Wednesday, June 25 2008 @ 04:58 PM EDT
- Hmmmm, - Authored by: timkb4cq on Wednesday, June 25 2008 @ 05:24 PM EDT
- Hmmmm, - Authored by: Anonymous on Wednesday, June 25 2008 @ 08:11 PM EDT
- Hmmmm, - Authored by: PJ on Wednesday, June 25 2008 @ 11:53 PM EDT
- Hmmmm, - Authored by: Anonymous on Thursday, June 26 2008 @ 07:38 AM EDT
- Hmmmm, - Authored by: mrcreosote on Wednesday, June 25 2008 @ 08:31 PM EDT
- Hmmmm, - Authored by: PJ on Thursday, June 26 2008 @ 12:28 AM EDT
- Hmmmm, - Authored by: mrcreosote on Thursday, June 26 2008 @ 01:00 AM EDT
- Hmmmm, - Authored by: PJ on Thursday, June 26 2008 @ 01:29 AM EDT
- Hmmmm, - Authored by: Winter on Thursday, June 26 2008 @ 02:18 AM EDT
- Hmmmm, - Authored by: Vic on Thursday, June 26 2008 @ 06:44 AM EDT
- Tainted evidence is a safeguard against toture - Authored by: Winter on Thursday, June 26 2008 @ 02:06 AM EDT
- Example of how a lawyer should not act - Authored by: Anonymous on Wednesday, June 25 2008 @ 08:17 AM EDT
- House Approves FISA Amendments Act - Authored by: jbeadle on Wednesday, June 25 2008 @ 09:54 AM EDT
- Question? If we download a copy of OpenSolaris, then it seems that SCO has no claims? True? - Authored by: Anonymous on Wednesday, June 25 2008 @ 10:51 AM EDT
- Stallman, Microsoft, and Harvard on Connecticut Public Radio - Authored by: Anonymous on Wednesday, June 25 2008 @ 11:02 AM EDT
- Re: Luis Villa's Blog on the "dominance of Word" - Authored by: Anonymous on Wednesday, June 25 2008 @ 01:52 PM EDT
- Microsoft, documentation and power - Authored by: PolR on Wednesday, June 25 2008 @ 02:19 PM EDT
- Plausible Deniability - Authored by: Anonymous on Wednesday, June 25 2008 @ 04:11 PM EDT
- OASIS TC ... - Authored by: Anonymous on Wednesday, June 25 2008 @ 04:54 PM EDT
- DRM is a software parasite - Authored by: Anonymous on Wednesday, June 25 2008 @ 08:08 PM EDT
- USSC slashes punitive damages against Exxon - Authored by: mrcreosote on Wednesday, June 25 2008 @ 09:15 PM EDT
- Maybe we will now see some action. - Authored by: Anonymous on Thursday, June 26 2008 @ 04:48 AM EDT
- Code open sourced by SCO - Authored by: Anonymous on Thursday, June 26 2008 @ 06:29 AM EDT
- Bad news for SCO? - Authored by: JamesK on Thursday, June 26 2008 @ 10:04 AM EDT
- Bell Canada - Tubes plugged ? - Authored by: Anonymous on Thursday, June 26 2008 @ 12:43 PM EDT
- Copy as HTML Link 1.1 - cool :) - Authored by: SilverWave on Thursday, June 26 2008 @ 01:07 PM EDT
- Computers for Seniors for Dummies - Authored by: Anonymous on Thursday, June 26 2008 @ 02:56 PM EDT
- Transcript - Authored by: Anonymous on Thursday, June 26 2008 @ 05:40 PM EDT
- Snouts at the trough - Authored by: Anonymous on Thursday, June 26 2008 @ 05:48 PM EDT
| |
| Authored by: Anonymous on Wednesday, June 25 2008 @ 06:57 AM EDT |
Sun and Ethics - an oxymoron. But then, most FOSS supporters knew it all along.
They have learned PR from M$ - stick it to the "unwashed masses", then
spin it to your benefit...[ Reply to This | # ]
|
| |
| Authored by: Winter on Wednesday, June 25 2008 @ 07:10 AM EDT |
Always accuse your opponent first of the wrongs you are in the process of doing
yourself.
That is also the first rule of MS preemptive damage control. That is, almost all
their PR.
It seems to be a general PR rule nowadays.
Rob
---
Some say the sun rises in the east, some say it rises in the west; the truth
lies probably somewhere in between.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 25 2008 @ 08:03 AM EDT |
"Sun could have prevented the harm SCO sought to cause by simply telling us
what rights it had negotiated and received from SCO prior to SCO launching its
assault on Linux."
Is that so?
Yes it is all Sun's fault. Or so the words chosen here would like to have us
believe.
Yet, your own writing suggests that Novell has suggested to Sun that in fact,
they (Novell) do not believe SCO has such a right.
Hmmn, I think you better consult a lawyer PJ. It isn't so clear how Sun should
have proceeded.
They in fact may not have the rights that you suggest they claim to have.
Obviously by open-sourcing what they did, Sun would seem to believe they are on
OK ground. Still, it may be wise for them to proceed cautiously until it gets
settled in court.
Why did Novell make such an unclear agreement in the first place? That would
seem to be the culprit rather than Sun.
So for the lawyers, if Sun doesn't have the right to open-source as SCO said
they did, and they said they do, couldn't Novell go after them for slander of
title as they told Sun they don't have the rights?
So maybe Sun is believing SCO and SCO has violated their responsibility to
Novel. Maybe Sun is being cautious as they know what Novel claim.
Try as you might PJ, I think your attempt to blame Sun for these events is just
your own personal need to drum up drama.[ Reply to This | # ]
|
- settle down - Authored by: Winter on Wednesday, June 25 2008 @ 08:12 AM EDT
- A question... - Authored by: OrlandoNative on Wednesday, June 25 2008 @ 12:30 PM EDT
- A question... - Authored by: Ian Al on Wednesday, June 25 2008 @ 01:49 PM EDT
- A question... - Authored by: PJ on Wednesday, June 25 2008 @ 01:58 PM EDT
- A question... - Authored by: russellphoto on Wednesday, June 25 2008 @ 02:12 PM EDT
- Be careful, PJ - Authored by: Anonymous on Wednesday, June 25 2008 @ 02:20 PM EDT
- Rock On, PJ - Authored by: bezz on Wednesday, June 25 2008 @ 03:15 PM EDT
- More PJ naivete - Authored by: Anonymous on Thursday, June 26 2008 @ 01:07 PM EDT
- Schwartz on SCOs legal claims ... - Authored by: emacsuser on Wednesday, June 25 2008 @ 03:50 PM EDT
- Funny you should mention that. - Authored by: JamesK on Wednesday, June 25 2008 @ 07:55 PM EDT
- Yah but - Authored by: Anonymous on Wednesday, June 25 2008 @ 11:14 PM EDT
- However.... - Authored by: OrlandoNative on Thursday, June 26 2008 @ 10:24 AM EDT
- A contract is not a defense agaist illegal, unethical or immoral behavior. - Authored by: artp on Thursday, June 26 2008 @ 11:54 AM EDT
- settle down - Authored by: Anonymous on Wednesday, June 25 2008 @ 07:40 PM EDT
- Bwahahaha! - Authored by: Anonymous on Wednesday, June 25 2008 @ 09:49 PM EDT
- Nice rant. - Authored by: Anonymous on Thursday, June 26 2008 @ 09:19 AM EDT
- I think you are confused.... - Authored by: tiger99 on Wednesday, June 25 2008 @ 08:18 AM EDT
- According to Simon Phipps: - Authored by: Anonymous on Wednesday, June 25 2008 @ 08:27 AM EDT
- settle down - Authored by: DBLR on Wednesday, June 25 2008 @ 08:28 AM EDT
- Hi Scott, - Authored by: bezz on Wednesday, June 25 2008 @ 08:56 AM EDT
- What unclear agreement did novell make? - Authored by: Anonymous on Wednesday, June 25 2008 @ 09:55 AM EDT
- ethically challenged ... - Authored by: Latesigner on Wednesday, June 25 2008 @ 10:06 AM EDT
- settle down - Authored by: Anonymous on Wednesday, June 25 2008 @ 11:35 AM EDT
- settle down - Authored by: Anonymous on Wednesday, June 25 2008 @ 08:50 PM EDT
- settle down - Authored by: PJ on Wednesday, June 25 2008 @ 11:48 PM EDT
- settle down - Authored by: russm on Wednesday, June 25 2008 @ 01:38 PM EDT
- settle down - Authored by: Anonymous on Wednesday, June 25 2008 @ 08:47 PM EDT
- "Personal need to drum up drama" - BINGO! - Authored by: Anonymous on Wednesday, June 25 2008 @ 08:47 PM EDT
- settle down - Authored by: Anonymous on Thursday, June 26 2008 @ 04:01 AM EDT
- Nameless and shameless - Authored by: NigelWhitley on Thursday, June 26 2008 @ 08:18 AM EDT
| |
| Authored by: Anonymous on Wednesday, June 25 2008 @ 08:39 AM EDT |
It seems possible to me that Sun was constrained: perhaps they weren't allowed
to disclose the terms of the deal.
I'm not sure whether this was before Simon Phipps' time (he's Sun's Chief open
Source officer) but I've met him and he seemed ethical. Focused on FOSS as a
business strategy, but concerned about ethics. Leaving aside ethics, just from
the point of PR, I don't think he would have willingly _not_ disclosed the terms
if he was able. Assuming he knew.
JeffV[ Reply to This | # ]
|
| |
| Authored by: DannyB on Wednesday, June 25 2008 @ 08:44 AM EDT |
Vista is the best!
Thing to happen to Linux
Thank you Microsoft!
Linux is master
A Microsoft disaster
Vista not faster
Incompatible,
Is Internet Explorer,
with the world wide web.
---
The price of freedom is eternal litigation.[ Reply to This | # ]
|
| |
| Authored by: webster on Wednesday, June 25 2008 @ 08:48 AM EDT |
..
The SCO suits were supposed to make Linux radioactive. SUN thought they were in
a position to thrive as Linux vaporized. So SCO got SUN's and the Monopoly's
millions, SUN got the right to mop up as companies fled Linux. SUN had options.
Opening Solaris or outing SCO weren't part of the early plan. They covered for
SCO. Don't think SUN and the Monopoly spent their millions in ignorance.[ Reply to This | # ]
|
| |
| Authored by: Steve Martin on Wednesday, June 25 2008 @ 08:53 AM EDT |
McBride testified:
There was competing language, where the
majority of the Asset Purchase Agreement seemed to appear that all of the
property went to the Santa Cruz operation, and there was really just one word in
one small section that was conflicting that, and that was relating to the
copyrights in the excluded asset list. And I explained that to Mr. Jones and, at
the same time, explained to him what we were trying to do with our SCOsource
program.
Q. Now, at the time you had this conversation, were you aware
of amendment number 2?
A. No, I was not.
So at
the time McBride was considering SCOsource and contacted Novell regarding the
copyrights, he was working from the position of the un-amended explicit
copyright exclusion in the original APA.
What part of "all copyrights"
confused him, I wonder?
---
"When I say something, I put my name next
to it." -- Isaac Jaffe, "Sports Night" [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 25 2008 @ 09:24 AM EDT |
Interesting timing indeed with this revelation via slashdot.
http://www.builderau.com.au/news/soa/Sun-We-screwed-up-on-open-source/0,33902822
7,339290077,00.htm
--- More in the video
Speaking in a recent interview with Builder AU, Phipps explained the situation
in which Sun finds itself.
"Open source developers have been much more sceptical of Sun, a lot of open
source developers don't remember the fact that Sun was pretty much the first
open source start-up in 1982.
"All they can remember is what happened in 2001/2002 when, to be quite
frank with you, we screwed up. We alienated a large group of open source
developers by the attitudes we had of the community back then," said
Phipps.
--[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 25 2008 @ 10:08 AM EDT |
I think PJ is right about Normand trying to buttress "methods and concepts", but
I disagree with her take on Jones' answer to the methods and concepts
question:
"I take his answer as saying that any methods and concepts from
UNIX would be Novell's; any methods and concepts that SCO could claim on postAPA
work might still be derivative.." PJ has taught us that lawyers tend to
be very careful in their choice of words, and I think Jones answered that
question very carefully and indirectly using the word
"copyrights".
Q. And, in Novell's view, SCO owns the software
know-how and methods and concepts in UNIX System V and UnixWare, correct?
A.
You're talking post-APA UnixWare, these rights -- independent of copyright?
Q.
I'm asking you whether, in your view --
A. And I'll answer it this way. Post-APA
versions of UnixWare, to the extent not implicating Novell's pre-APA copyrights
in SVRX, and to the extent they are developed by SCO, as opposed to some partner
of SCO or something, Novell would not be asserting rights to
those,certainly.
My take on this is that Jones recognized the
attempt to buttress "methods and concepts" and deflected it by explicitly
referring to only copyrights in his answer. I might well be wrong, but it looks
to me like he is recognizing the trap and avoiding it. [ Reply to This | # ]
|
| |
| Authored by: bbaston on Wednesday, June 25 2008 @ 10:48 AM EDT |
Share "Eyeballs for ODF" feedback here. PJ says:
"Stay polite
at all times, of course, if you say anything, and you needn't say anything, but
do follow along and please keep us posted on anything you see that sounds
peculiar." and
"Do whatever is possible to avoid engagement with trolls,
here and there."
OASIS discussion list for ODF
Implementation, Interoperability and Conformance
Links: original formation, discussion's
archive, and draft
charter.
Registered for OIIC discussion? Monitor #oiic with xchat,
etc [irc.freenode.net, /join #oiic]. #oiic traffic is later log-dumped to an
OIIC discussion thread - so remember to "stay polite". ---
IMBW, IANAL2,
IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 25 2008 @ 11:17 AM EDT |
I'm rushed this morning so could not read the entire (very lengthy) article, but
you've got to calm down just a bit. Sun screwed up with some of their more
recent open source endeavors (they even admit it, see related news stories over
the last couple of days), but unless you have the full content of the agreement
signed between Sun and newSCO I think you should back off on the vitriolic
attack you are directing against Sun.
It's been my experience that many agreements between corporations almost always
include some form of confidentiality clause. At their simplest, both parties are
effectively gagged about the terms of the agreement, though some make an effort
to say just what can and can not be shared with third-parties. It all depends on
the nature of the agreement.
IF that is the case, then Sun should NOT have tried to come forward or say
anything. Say what you will about newSCO's inability to keep things confidential
(EV1), but just because newSCO may violate parts of an agreement does NOT
justify Sun's violation of their agreement.
They should honor their agreements, keep their word, or in short let their yes
mean yes. I'm surprised and disappointed in you PJ.
Now, if in the length of the entire post (that I did not read) there is a copy
of the agreement included, or if testimony clearly indicates there was no
confidentiality clause in force, then I apologize, but I seriously doubt it's in
there. Sun has their problems, just like every other corporation out there.
However, I can't see painting a target on Sun without more information.
Otherwise, you're just acting like newSCO, using partial information and half
truths to mount an attack for your own reasons.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 25 2008 @ 12:04 PM EDT |
Scott McNealy was in control of Sun at the time. From my conversations with Sun
Employee's at the time, it seemed he was bent on destroying Linux. He was
charismatic, but shady and mislead in my opinion.
Then came Jonathan Schwartz who still has the mandate to make money, but seems
to understand that Scott's shinanigans are NOT good for long term prospects. Of
course they(sun) are not excited about admitting the role the corp played under
Scott, but seem to really distance themselves from this, and I am sure they
secretly would LOVE to not have to live down these (crimes? or) events.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 25 2008 @ 12:39 PM EDT |
Everyone has known all along about the Sun agreement. The
parties have had it throughout.
So whatever there is in it that's relevant has been
available to IBM's and Novell's attorneys all the time.
They had much better reason than Sun to know what
information might be relevant, and could approach Sun
(even subpoena them if necessary) for relevant
disclosures.
If Sun is guilty in this case, then so are IBMs and
Novell's lawyers. Well, either that or incompetent.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 25 2008 @ 12:49 PM EDT |
SCO: "Your honor, we are scum-sucking, two-faced deceivers. We lied to
IBM, we lied to the world, and we lied to this court. We should be
punished."
Not that I expect to see that happen.[ Reply to This | # ]
|
| |
| Authored by: Treadmore on Wednesday, June 25 2008 @ 01:51 PM EDT |
Greg Jones says the 1996 letter - sent by Novell to licensees - is inconsistent
with the APA.
Couldn't Sun, who had not seen the APA, be forgiven for thinking at that time
that they had to deal with SCO for any licensing deals, as they later did?
Seems Novell muddied the water a bit with that letter.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 25 2008 @ 02:07 PM EDT |
I am not going to apologize for thinking you are too hard on Sun.
I like what Sun has done with opensourcing Java, what they've done with for Open
Office and Mozilla.
Having said that, I am sorry that you took a beating because SCO had already
arranged to allow Sun do something SCO claimed it must not ever do.
It's interesting. SCO has a contractual and legal requirement to keep this
source code private. But for a big enough fee, they will let someone else
publish it to the world.
I can fully understand Sun's keeping it's yap shut. Were I Sun with this deal,
and the IBM and Novell furworks (fur and fireworks) flying all over the place,
just the fact I got the attention I did for taking a license with SCO would be
more attention than I would desire. (A certain blogger has certainly shined a
spotlite on that deal, and uncounted numbers of eyes have read those postings.)
I fear Sun may be facing some sever consequences from Novell, unless the two get
together and bury the hatchet somehow.
So, in the interest of your own health, ie not letting past injuries harm your
current health, I ask you to take this piece of irritation and put it in a
bottle in a safe place, until we find out what Novell will require of Sun, after
Novell finishes with the current battle. I don't think Novell will be doing
Open Source any favors if it takes any action. In my personal opinion, I
consider what Sun is doing for open source, is far more than what Novell is
doing.[ Reply to This | # ]
|
- Keeping your yap shut is not the best option - Authored by: Anonymous on Wednesday, June 25 2008 @ 02:27 PM EDT
- The Trial Testimony of Greg Jones, Day 2, SCO v. Novell - Authored by: Anonymous on Wednesday, June 25 2008 @ 10:15 PM EDT
- The Trial Testimony of Greg Jones, Day 2, SCO v. Novell - Authored by: Anonymous on Thursday, June 26 2008 @ 12:09 AM EDT
- The Trial Testimony of Greg Jones, Day 2, SCO v. Novell - Authored by: Anonymous on Friday, July 04 2008 @ 05:18 PM EDT
| |
| Authored by: JamesK on Wednesday, June 25 2008 @ 02:44 PM EDT |
"Ironic, no? We have come full circle. It's SCO open sourcing SVRX, in
violation of Novell's proprietary IP. That's what really happened."
I seem to recall that the old AT&T confidentiality requirments ended should
the code be made public by someone else. It appears SCO was trying to make it
look as though IBM released the code, so they'd be free to sell the new rights
to Sun, without violating confidentiality.
---
Duct tape is like The Force. It has a light side and a dark side, and it holds
the universe together.
[ Reply to This | # ]
|
| |
| Authored by: JamesK on Wednesday, June 25 2008 @ 02:51 PM EDT |
"And what an icky role Sun played, to judge from Jones' description of the
agreement. Look at all the damage that resulted from Sun's silence, the
litigation that never had to happen."
I can understand Sun doing this deal, without knowing what SCO was up to. Was
there a non disclosure agreement about their deal that might have kept them
quiet? Did they have any obligation to come forward?
---
Duct tape is like The Force. It has a light side and a dark side, and it holds
the universe together.
[ Reply to This | # ]
|
| |
| Authored by: Ian Al on Wednesday, June 25 2008 @ 03:05 PM EDT |
Remember all that falderol about SCO being contractually unable to
show us the code, much as it so desired to do so, because of being bound to
confidentiality requirements?
I've had a go at this before keeping the source code
secret
The pivot of my argument is that SCOG are obligated to keep the
code secret by the section of the APA that says Schedule
1.1(c)
Assumed Liabilities
1. All
obligations, whether existing on the
date hereof or arising hereafter, under the
assigned contract listed on Schedule
1.1(a).
The obligation would arise from the confidentiality of
source-code requirements in the contracts for SVrX transferred to Santa
Cruz.
I suspect that SCOG had two reasons for sueing Novell for slander of
title. The first was that the selling point for most of the SCOSource Linux
licences depended on SCOG owning the copyrights. I think the SUN and Microsoft
licences were the other, and perhaps more pressing, reason. If SCOG owned the
copyrights to SVrX then secrecy of the code would not be an obligation arising
from the existing SVrX contracts. IF Novell owned the copyrights then the
secrecy of that code would be an obligation arising.
The question that
occurs to me is, if Darl really thought SCOG owned the copyrights when they sued
Novell, why did they think they had a contractual obligation to keep the
source-code confidential?
How did we miss that? We could have insisted that
SCOG revealed at least some of the infringed code in SVrX because they were
claiming to own the copyrights. Where was the contract that obliged them to
obfuscate those Powerpoint slides?
I wish we had the text of the Sun and
Microsoft contracts. I suspect that it would be easy to show that SCOG were not
selling anything to which they had the rights. I suspect that there is no
reference to the Unixware combined product and I would also be interested to see
if the code to the essential component of the combined product, Novell Netware,
is also included in the two contracts. Not that either company (especially
Microsoft!) would have any interest in that code, but it is inconceivable that
SCOG had any rights to release this code. Without this code, they were not
entitled to licence Unixware.
As both Greg Jones and Darl make clear in
their testimony, SCOG did not believe they had clear title to SVrX
copyrights. The investors' conferences, news items, paid-for comments from MoG,
university presentations, press conferences and web-sites were all puffery to
try to present SCOG's copyright title as clear, valuable and protected. You
know, I think this was really a pump and dump and an extortion scheme all along!
They must have known that actually sueing IBM and Novell would inevitably reveal
what SCOG were doing. Everything we hear makes the sins of SCOG more starkly
clear. It seems to me that US business really needs to make sure that this sort
of thing is hit by really significant penalties. Bankrupting the company is
nowhere near sufficient. ---
Regards
Ian Al
If you are not using Linux, you may be beyond help. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 25 2008 @ 04:20 PM EDT |
PJ, Normand's cross examination of Greg Jones involved the Prentice-Hall Letter
referenced by McBride in his testimony. That's the letter, I believe, that you
wrote up extensively in the May 9 post here on Groklaw, "SCO's
Prentice-Hall Letter - McBride's Trial Testimony".
It looks like Normand was able to trick Jones into looking at the language in
the letter out of the correct context (because in fact the letter was referring
to a different set of copyrights under an old ATT contract, not the UNIX code
copyrights). Normand used that confusion to extract an admission from Jones,
unwarranted-by-the-facts, wherein Jones surmised that a Novell officer-employee
must have made a mistake, and that Novell had appeared to have contributed to
the confusion over the status of the copyrights.
It would be worthwhile to direct Groklaw readers back to that post, and then tie
it into the tactics used by Normand.
Jones could also have been more forceful about the meaning of Novell's decision
not to ask for the $7M in the Microsoft-SCO agreement that was attributed to the
Unixware code. I presume that Novell made a tactical decision not to go after
that part of the $20M total, but that doesn't mean that there was any
condonement or admission by Novell that 'that' part of the license was proper.
After all, SCO still needed Novell's approval for the entire license, and in the
event of a license for mixed rights, such as the MS license purportedly was,
Novell would still have the right to opine of the correctness of the license
revenue apportionment, and withhold approval if the Unixware rights were being
over-valued at the expense of the SVRX rights.
Normand used Jones' apparent 'condonement' of that section of the MS license to
argue that a similar condonement of the SUN license was also appropriate. That's
what happens when you give an inch to a party like SCO -- they take a mile.
LEXLAW[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 25 2008 @ 04:25 PM EDT |
PJ, thank you, I'm so happy you have covered the testimony of G. Jones. Such a
constrast to the testimony of D. McBride would you say?
Now, in my 'lay' experience, the words of a witness are one thing, and in this I
find great contrast between G. Jones and D. McBride. The words of the lawyer,
putting question to the witness, are also a part of the story. I wonder, PJ,
would you comment on the 'lawyer who questions' of G. Jones compared to the
'questioning' of D. McBride?
I, for one, would be very interested in your informed opinion.
[ Reply to This | # ]
|
| |
| Authored by: hAckz0r on Wednesday, June 25 2008 @ 05:39 PM EDT |
| Anybody that SCO has a SysV licensing contract with couldn't care less if
SCO gives away all their own IP, but then they would have a real problem
if SCO decided to gave away the licensee's IP. Thats just common
sense.
SCO's real obligation is to keep 'the SysV code' in confidence so
that Novell's IP does not get disclosed without the proper fees. By the very
virtue of SCO going off and doing the SUN Open Source'ing contract they broke
that very real contractual obligation.
SCOg has absolutely everything
backwards. That must be all the confusion setting in from the repetitive
percussion waves of the foot gun going off all the time. Ask any war vet and
they can tell you percussion waves can completely scramble your brains given
enough time and duration. ---
DRM - As a "solution", it solves the
wrong problem; As a "technology" its only 'logically' infeasible. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, June 26 2008 @ 12:56 AM EDT |
Normand keeps trying to get Jones to stipulate claims that he has no direct
knowledge of. So why didn't SCO call up as witnesses the people who did have the
knowledge -- for instance, the negotiatitors between SCO and Microsoft who could
tell us what valuation they placed on the UnixWare section? I guess it is
because SCO knew their testimony would go against its case. [ Reply to This | # ]
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| Authored by: pcrooker on Thursday, June 26 2008 @ 01:24 AM EDT |
I hope someone makes a movie about these cases. Let's see, the cast:
Tom Cruz as David Marriott
Jack Nicholson as Darl McBride
Demi Moore as Pamela Jones
Is this too obvious? ;-)
But really, a movie would be pretty cool.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, June 26 2008 @ 05:02 AM EDT |
Dear PJ
while I sympathize with you and all the ordeal you have been put through, here I
must to disagree a bit. You are right that it's better if you try not to think
of that. And if you do, and you try to be a bit practical/cynical you will see
things are probably a lot simpler than they seem.
My view after all these years (and I have been following Groklaw since the first
article) is more or less like this:
SCO wanted to buy UNIX but couldn't. The most they could get with their money
was a right to develop their own version and manage the business (which gave
them a 5% AND a special visibility as _the_ UNIX company). But in order to
develop their variant they needed some assurance that they could protect their
new developments and so the APA stated that (c) would be transferred on an as
needed basis and only to the extent needed to protect those developments.
After 8 years have passed and no one remembers any longer what happened, SCO is
going south, they look at their assets, build up an unfounded IP theory and
decide to use UNIX. Then the odd quote Darl mentions pops up and Darl takes it
as an inconsistency believing they got everything they wanted at the time.
On Novell side the problem is distinct: SCO _has_ a right to be transferred some
copyrights (to the extent needed to defend their IP --their own developments)
and when SCO contacts them vaguely talking of defending their IP (meaning all
UNIX) Novell needs to figure out what if anything needs to be transferred. While
figuring out time passes.
Darl, still thinking of all of UNIX takes silence as a yes and adding in the lot
the also wrong assumption that anything that remotely touches or sees UNIX
belongs to them, goes forward... to wrongly sue everyone and the cat.
Meanwhile Sun wants to open source Solaris. We old timers all know they wanted
to do so since at least 1992-1994 because of some internal memos leaked at the
time. Not only that: Solaris (and SysV) is built on
- ancient code up to SysIII that the BSD lawsuit left unprotected (but the
public didn't know until recently) and Caldera had open sourced anyway
- BSD code that is usable
- a very big addition of code developed by Sun from the Sun and ATT
collaboration in the '80s
- what remains (and that's probably a minority of the code) was ATT and
protected
- a few odd lines spread all around from third parties which in many cases
those third parties have also implemented on BSD or Linux opening them.
Sun sees open source Solaris (since early '90s) as the way to go. They had made
a successful test in 2000 with Solaris 8. And all they need is a permission for
the minority of code that is still ATT-Novell-apparently SCO. So they get it
from SCO.
Now as for their role... Think again:
- IBM, Novell, etc... do not need the help of Sun at all. All of them have
access to original SysV and -and this AND is the crucial point- the agreements
they had clearly state that the confidentiality clause only holds as long as the
confidential information is not disclosed by a third party. As soon as Sun
releases OpenSolaris they can compare their source trees with OpenSolaris, and
anything in common is no longer bound by any confidentiality clause
automatically. They do not need Sun to speak up for them. Further, IBM and
everybody else have long realized that the suit is not about SysV but about
IBM's JFS and unprotectable interface definitions. From Sun's point of view the
others are grown up and quite capable of defending themselves. And if they don't
then it is only to Sun's strategical advantage, so better stay silent.
- SysV is sorta kinda actually unprotectable. And you know, and I would expect
IBM as well, that Solaris 6 sources were around in the Net for several years in
a notoriously public repository by a third party. None of the pre-APA licensees
is bound any longer to keep any SysV code in Solaris 6 confidential any more.
- Sun believed SCO and bought the rights from them. At the time Sun wanted to
kill off Linux. So when Novell immediately tells them the agreement may not be
valid, they are in a really weak position against one of their main competitors.
It's better for them to shut up and see what comes. BTW I suspect this may have
driven Sun's change towards open source: the aggressive move put them in a weak
position and won them the opposition of a UNIX community that had been on their
side since the '80s. Time to go back to their roots.
- With Novell at play, strategy must change. If SCO is ruled to own the (C) then
Sun are OK, but then they want to stay in good terms with SCO and saying
anything against them (like clearing up how much of OpenSolaris is SysV) would
raise no end of trouble for the company that allowed them to open source Solaris
in the first place by undermining SCO ability to sell their own enhanced product
(Unixware). Better stay shut. If Novell is ruled to own the (C) then they may be
in deep trouble and saying anything about how much of secret SysV is in
OpenSolaris would be a problem as well and might undermine the ability of Novell
to (re)negotiate other SysV licenses. Better stay shut on any of the two
situations.
- If Novell owns the (c) there is another reason to stay shut. OpenSolaris is
not GPL, and competes with Suse... but then, if Novell owns UNIX, and since most
of SysV is already either open or belonged originally to Sun, the current
situation renders itself into another advantage for Sun: they and Novell are the
only ones who can open source UNIX, for -barring ancient SysIII and BSD code-
the rest belongs to them (let's say half and half, although I suspect Sun
developed most) although ATT/Novell got management of (C). So, for Sun is the
opportunity to negotiate with Novell: they can withdraw OpenSolaris and Novell
gets the bad reputation or they can GPL OpenSolaris (and may be SystemV) and
Novell gets two GPL OSes to deploy their applications and services: Linux and
Solaris. Solaris kernel would not be controlled by Novell, but neither is Linux,
and Novell would hold significant (C) on Solaris (which it doesn't on Linux) A
bargain additional payment and Sun would get GPL solaris and re-syncrhonized
with the community. Plus they would cut a large number of avenues for competing
proprietary closed source OS vendors and guarantee that any closed source vendor
would still need to continue paying Novell royalties.
So, no matter how, from a business sense and a legal sense Sun better stays shut
until this is all over.
That leaves you alone... Here Sun had to weight in their ethical responsibility
to defend you against their corporate interests and those of all their
investors. A cynical would say they should shut up for corporate interest. A
less cynical person _might_ sat the benefit to many shareholders needed to be
weighted in against the benefit to one blogger. After all, from Sun point of
view, it was SCO wrongdoing and not theirs.
Personally I think they could have spoken, but I'm not Sun CEO of the time. Nor
now :-)
Finally there is the damage to the community. But then, as I said, they
'half-opened' Solaris 8 in 2000. There was many people -like me- who had had
access to it and although bound by some restrictions we could -and did- match it
with Linux and see what was preserved and realize this was all very close to a
red herring. There remained the possibility of some SysV having been removed
from Solaris and of some Unixware having slipped in Linux, but it was already
evident at the time that any infringed material would be minor.
All in all, Sun could have acted differently, but at the time their management
acted otherwise. Still one should not forget that the company is more than
managers, and it has had ingrained a pro-open source philosophy since its
creation. It was bound to resurface again and it seems it is.
This said, Novell might have as well published their own comparison results...
but they couldn't be sure if some odd Unixware code was infringed and they
needed to wait the judge decision re. the (C). Probably something similar holds
for IBM and other licensees.
So, relax, enjoy summer and try to remember that it is the misled overreaching
attitude of SCO executives (probably lay on what IP means, lacking in
experienced old-timers in the company and pressed by overdemanding shareholders)
that has led us to this mess.
If there is a lesson to learn is that firing all old timers in a company is bad
as you forget corporate history and, as a professor used to say, he who ignores
history can't face the future).
j
--
Jose R. Valverde
EMBnet/CNB
[ Reply to This | # ]
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| Authored by: sk43 on Thursday, June 26 2008 @ 07:27 AM EDT |
Once again, Jones alludes to a letter drafted by Sontag that was sent to
Greg
Jones at Novell but was never signed (p. 306):
A. The only thing
in 2003 was: There was this -- Mr. McBride aluded to a
document they prepared
and they sent to Novell and, in looking at that
document, which -- there is a
reference to SVRX, but, again, it's not
really an explanation of what the
SCOsource program is. It was, instead,
something they were proposing to do to
define the rights in a way that
they wanted to see them
defined.
The letter is Exhibit 2 to a Declaration of Chris Sontag
[Novell-347-22]:
[SCO letterhead]
February 10,
2003
NOVELL, Inc.
Re: Asset Purchase Agreement by and Between
the
Santa Cruz Operation, Inc. and Novell, Inc.
dated as of September 19,
1995
Dear: _________________
This letter clarifies the intent of the
parties with respect to the
above-captioned transaction.
It is our
understanding that the Asset Purchase Agreement by and Between
the Santa Cruz
operation, Inc. and Novell, Inc. dated as of September 19,
1995 (the "Asset
Purchase Agreement") transferred all of the rights and
obligations under the
various AT&T SVRX Software Agreements and
Sublicensing Agreements (the
"AT&T SVRX Agreements") from Novell to SCO,
excepting only the ongoing right
to received royalty payment streams
according to the terms specified in the
Asset Purchase Agreement.
We wish to clarify the following:
1. That all
right, titile and interest in and to copyrights associated
with the AT&T
SVRX Agreements held by Novell at the time of the Asset
Purchase Agreement were
intended to be part of the Included Assets
identified in Schedule 1.1(a);
2.
That no right title or interest in and to copyrights associated with
the
AT&T SVRX agreements otherwise held by Novell at the time of the
Asset
Purchase Agreement were intended to be part of Excluded Assets
identified
in Schedule 1.1(b); and
3. That no right title or interest
whatsoever in and to the trademark
"UNIX" was intended to be part of the
Included Assets identified in
Schedule 1.1(a).
Please confirm your
concurrence with the above by countersigning this side
letter of understanding
in the space provided below.
[Signatures]
The letter had
several problems, but it was only a draft. However, most
curiously, the letter
makes NO MENTION of UnixWare!!! The ONLY copyrights
that SCO was interest in
were those for SVRX.
[Reference:]
[Novell-347-22]
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, June 26 2008 @ 11:39 AM EDT |
betcha sun was just waiting in the wings for the IBM lawsuit to take down
linux.
then they would come out and be the open source hero saying we open sourced our
os go and enjoy opensolaris without any eye pee worries.
what a joke all the big rich boys playing while little linux pulls the rug out
from under them.
yeah for tux! show them how to be honest and straight forward instead of these
back room business deals - give the customers what they want - an os that does
what they want it to do and being the most stable at the same time.
I would say linux has hit all those points and I am recommending linux wherever
I go. converted one person this past weekend.
peace[ Reply to This | # ]
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| Authored by: SilverWave on Thursday, June 26 2008 @ 11:41 AM EDT |
13 Q. You are a lawyer; right?
14 A. I think lawyers actually need to read documents to
15 understand them, nonetheless.
Q. BY MR. NORMAND
A. BY Greg Jones. (Vice President of Technology Law at Novell.
LOL
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, June 26 2008 @ 12:01 PM EDT |
I don't understand why a witness gets to stay in the courtroom just because he
is a lawyer.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, June 26 2008 @ 01:14 PM EDT |
Johnny Depp as Darl McBride...
[ Reply to This | # ]
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| Authored by: ak on Thursday, June 26 2008 @ 03:27 PM EDT |
In Unfairly
indicting Sun for its SCO testimony? Matt Asay states
this:
Even if Sun had an obligation, legal or otherwise, to
disclose Linux's clean bill of health, why would it? We can argue that it may
have had a moral obligation, but it also has a fiduciary duty to its
shareholders, which arguably wouldn't have been well-served by propping up a
competitor, however unfairly maligned."
To summarize: Matt Asay
states that a "fiduciary duty" is more important than a "moral obligation" and
more important than a "legal obligation".
Darl McBride and Ralph Yarro will be
glad to read that.
[ Reply to This | # ]
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| Authored by: sproggit on Thursday, June 26 2008 @ 03:32 PM EDT |
For sure, the more interesting part of this exchange was going to come when Greg
Jones was being cross-examined by Ted Normand.
We're all fortunate to
have PJ and some of the more legally-aware Groklaw regulars here to point
out some of the subtle niceties of some of the exchanges, but there are parts of
this questioning of Mr Jones that I find quite remarkable. Remarkable in the
context that he is, as PJ has explained, an experienced lawyer. For example,
from pages 341-342:
Q. And it's your position, as you understand it
-- when I say "you," I mean Novell. It's Novell's position that the only reason
the System V prior products were listed for NCR was because it had previously
obtained a stand-alone license to every previous release of System
V?
A. Well, what I heard was that, in fact, the licenses had been
obtained for previous releases. I don't necessarily recall having heard that's
the only reason. I just can't recall.
Q. I may have misunderstood your
answer. I thought you said that your understanding was that the only reason
System V prior products would be listed would be if the licensee had already
obtained a stand-alone license to all those releases.
A. Did I say
"only?"
Q. That's what I understood you to say.
What's
fascinating about this exchange is not the fact that Mr Normand is clearly
trying his utmost to twist every single word uttered by Mr Jones. [That's
practically a given in this context]. It's perhaps not even the blatant and
cavalier way that Mr Normand openly does his best to force Mr Jones to speak on
behalf of Novell for which he is not retained, but Mr Jones' willingness to go
along with this and answer the questions.
Or how about
this:
Q. And, in Novell's view, in fact, the entire intent of the
APA was for the UnixWare business to be transitioned to Santa Cruz,
correct?
A. Could you say that again?
Q. In your view and in
Novell's view, the entire intent of the APA was for the UnixWare business to be
transitioned to SCO, correct?
Here, not only is Mr Normand trying
to re-write history after the fact, he is attempting to get Mr Jones to answer
on behalf of Novell. How can Mr Jones reasonably have an opinion of the intent
of the APA if Mr Jones was not involved in it's drafting? We know that the
relevant Novell witnesses have come forward and given testimony - particularly
devastating testimony of Tor Braham, as it happens.
Yet here SCO are
shamelessly trying to wrangle some concessions out of another Novell lawyer that
was not directly involved in this specific activity.
I am clearly
ignorant of the niceties of testimony technique, but why didn't Mr Jones answer
with a response along the lines of,
"Sir, I believe I understand the
question as you have asked it, and understand the information you are trying to
establish, but I have no direct experience on this topic and do not believe
myself qualified to answer."
as opposed to giving a more detailed
response and opening the door to the possibility of tripping over a well-planted
trick question? It just doesn't make sense to me. If you don't know for sure, or
the question is outside your area of expertise, isn't it more of a risk to try
and answer?[ Reply to This | # ]
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| Authored by: vb on Thursday, June 26 2008 @ 04:20 PM EDT |
I find it interesting the PJ's anger is directed at "Sun", the
corporation, not specific individuals employed by Sun.
It's relatively rare to cite individuals for corporate unethical behavior. The
exception is SCO, where we cite Yarro and McBride for their ethical lapses.
That's because court and SEC documents have made it clear what's going on behind
the corporate curtain.
Contrast that with a blogger who has nothing to hide behind and note who has
more ethical behavior.
[ Reply to This | # ]
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| Authored by: bugstomper on Thursday, June 26 2008 @ 04:28 PM EDT |
"SCO has confidentiality clauses in *all* its contracts?"
No, SCO said they had confidentiality clauses in all its contracts with 3000
licensees.
And another contract with one more licensee, Sun, that they happened not to
mention :-)
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, June 27 2008 @ 10:36 PM EDT |
Hello Pam,
I've thought about it; your anger at Sun for not coming forward. I think I'd be
angry too. But then, as I review all that's happened, the discovery of who owns
what, I think I'd be like Sun. Saying nothing until the dust has settled. For
all the money they paid to SCO, did they really get a license? Sun can't be
sure. They sort of think so now, but Sun's reluctance to release Open Solaris
show's, to me at least, that they took the license with SCO with a couple grains
of salt.
I think they reviewed the code, then looked at what was left after the Berkeley
lawsuit and created a version of OpenSolaris that would conform even if their
license from SCO was invalidated (as I expect it to be). Caution in business is
a norm for most.
Thanks for the excellent reviews.
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, June 28 2008 @ 09:52 AM EDT |
Ok, PJ is accusing Sun of dirty tricks. Never having liked Sun, it's products,
or Scott McNealy that makes me want to take her accusation at face value.
Especially since she's always careful to provide documentation for her beliefs.
However....
This is Groklaw. And this is *law* we're talking about. Common sense has no
place in law, insane precedents that go unquestioned can twist the obvious into
the wrong.
But Groklaw is all about *evidence*.
I've been following SCO's "case" (*cough*) since the beginning and I'm
pretty convinced that SCO has a snowball's chance in the Sun :) (so to speak) of
prevailing.
But after having read her article and the posts following it (as best my poor
non-lawyer brain can) I have some questions.
1) Does Groklaw have the Sun-SCO agreement? Do we actually know what it says? If
so, where is it because I'd really like to read it.
2) Is there an NDA clause in the agreement that Sun would have to keep its mouth
shut about terms of the contract?
3) Does Sun have a *legal* responsibility to stay silent (because of a possible
NDA)? Would Sun be breaking the contract by actually saying something to end
this farce before it began?
4) There are lawyers and ex-lawyers reading Groklaw, so assuming there was an
NDA is there a higher legal duty to reveal the information (whistle-blowing) or
to stay silent (not breaching the terms of the contract).
5) If there was NOT an NDA would the average lawyer (who are risk-averse by
nature) have advised Sun to keep quiet so as to avoid entanglement in what
increasingly appeared to be a nonsense lawsuit? Since SCO *should* have gone
down in flames years ago anyway?
6) What's the timeline of SCO suing, the Sun contract's coming into force,
Novell's alerting Sun that SCO didn't have the rights to do what they did?
7) And finally, assuming Novell told Sun after the contract became active, what
is Sun's legal obligation? SCO is telling Sun one thing, Novell another, and
it's only been this year that the judge ruled SCO didn't have the copyrights.
Who does Sun believe and why?
Here's what I'm thinking at the moment, barring some correction of my logic:
It appears to me (and I'm being careful here) that if #1 is No (we don't have
the contract) then PJ's accusation against Sun is without evidence and should be
withdrawn.
I hate defending Sun but Groklaw is about evidence. I'd be delighted to be
proven wrong about having the agreement!
Second if we *do* have the agreement and there's an NDA then again it would
appear Sun has a legal obligation to stay silent and in that case actually
*couldn't* say anything without breaking the law and the contract. Again, if we
have the agreement and there's no NDA this doesn't apply.
Third, if there was no NDA but Sun's legal department (I assume they have one)
said Sun should stay silent then should Sun's board have gone against their
lawyer's advice? Would that have served Sun's shareholders best? Fiduciary
responsibility is very real, and the consequences of breaching it can be
severe.
Fourth, was the contract in force before or after SCO sued IBM? If *before*,
then I'm really having a hard time seeing Sun's culpability here.
PJ does outstanding work, but in this case it appears PJ might have erred.
Again, I'd be delighted to find out I'm wrong.[ Reply to This | # ]
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| Authored by: Rudisaurus on Tuesday, July 01 2008 @ 05:44 AM EDT |
Sorry, I was away on vacation all last week and couldn't comment until
today.
10 Q. You said that Novell had a hard copy of
SVR4-386;
11 correct?
12 A. A hard copy?
13 Q. A hard copy of the
source code?
14 A. If I said that I'm mistaken. We have SVRX
source
15 code. But if you understood me to say that we have
hard
16 copies of it, I didn't intend to say that. That would be
a
17 huge printout.
18 Q. I didn't mean to say you printed it out. I
mean
19 you have access to the actual source code?
20 A. Okay. I
understood you to mean by hard copy we had
21 a printout of the
system.
22 Q. No. Why did Novell have the source code of
the
23 SVR4-386?
24 A. I don't know why we
wouldn't.
Hardcopy has meant one thing and one thing only
to programmers (since before I myself began programming back in the days of
punched cards): a printout. It has never referred to mere access to
source code in digital form. As a former programmer, Jones understands this, and
that's why he's puzzled when Normand asks whether Novell has a hard copy of the
source code. How could Normand make such a fundamental mistake? It makes him
look profoundly ignorant and undermines his subject authority.[ Reply to This | # ]
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