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Trial Witness Lists/Exhibits from SCO v. Novell
Monday, July 21 2008 @ 08:46 AM EDT

The trial witness lists and exhibit lists filed by SCO and Novell at the beginning of the trial in April are available:
05/02/2008 - 535 - Trial Witness List. (kmj) (Entered: 05/08/2008)

05/02/2008 - 536 - Trial Exhibit List of Novell exhibits. (kmj) (Entered: 05/08/2008)

05/02/2008 - 537 - Trial Exhibit List of SCO exhibits. (kmj) (Entered: 05/08/2008)

It's worth going through them with a fine toothed comb, actually, because all of them together make up what the judge based his Order upon, and it's what the appeals court can consider, also, so if you spot anything that contradicts any factual conclusions, it's of interest. As you'll notice, the judge got to see more than we did, so if you find something online that matches the exhibit, it might be good to mention it. If any heroic soul can OCR it to get a text version ready, that would be wonderful.

I can't believe that we have to think about UnixWare and OpenServer again, but we do. So it's a good idea, if you spot anything of value, to keep a copy of the original, so it will be possible to prove things down the road. SCO doesn't allow Wayback to keep a record of its site, so that workaround doesn't work. That leaves you and me. If someday SCO sues someone over UnixWare or Open Server, we'll be glad we did the squirrel work. I have my first contribution to that effort.

In SCO's Memorandum in Objection to Novell's Motion for Summary Judgment on its Fourth Claim for Relief SCO lumped three things together, and this is the story they told at trial also. According to SCO, when it says "Unix System V" it means Unix System V and UnixWare and OpenServer, allegedly because whatever was the latest in Unix System V code got put into UnixWare and OpenServer. That was SCO's story after Kimball ruled that the copyrights to Unix System V did not transfer to SCO, and Kimball appears to have bought it. Here's how SCO's lawyers put it in the memorandum:

Second, as noted above, contrary to Novell's core argument that SCO's concerns with the unauthorized use of "Unix System V" technology in Linux could not have pertained to UnixWare, UnixWare is the latest version of UNIX System V, not some entirely new and unrelated product. The APA distinguishes between the two operating systems and the SCOsource Agreements refer to both, but Novell's efforts to try to create some fine distinction between them for purposes of analyzing public statements regarding "UNIX" technology is unavailing. In referring to its "UNIX" or "UNIX System V" or "SVRX" rights, SCO was including the most current version of UNIX System V, UnixWare and OpenServer.

As often happens with SCO, that is almost true, but it's misleading. It might be plausible in 2008; it most definitely was not true in 2002 and 2003, when SCOsource began and SCO was talking aobut its UNIX System V rights. Here's one factual problem with this claim. OpenServer didn't upgrade to the latest, most current version of Unix System V until SCO launched OpenServer 6, or Legend, according to this article about it, titled "SCO OpenServer 6 Launches with Unix SVR5 Kernel" by Timothy Prickett Morgan in IT Jungle. The date? June 23, 2005, several years after SCOsource began:

The OpenServer base, despite the acquisition of the UnixWare product line from Novell in 1995, still represents the bulk of SCO's revenue stream. That is why SCO is fired up about the Legend release. While OpenServer 5.0.7 is notable in that it provided some limited support for UnixWare 7 applications, OpenServer 5 was based on the Unix System V Release 3.2 kernel, which is very old and has some pretty severe limitations in terms of threading, main memory, and file system support. That's why SCO bought UnixWare and the rights to the Unix operating system created by AT&T from Novell to have a more scalable Unix than OpenServer. To preserve backward compatibility with the large installed base of OpenServer customers--there could be as many as 1 million servers installed in the world that are running OpenServer and UnixWare--SCO has not messed with that kernel, even as Unix System V was updated to Release 4 and then Release 5. With Legend, that changes, and OpenServer now uses the SVR5 kernel while maintaining backward compatibility with all prior generations of OpenServer, Unix, and Xenix Unixes from SCO.

See what I mean? So prior to 2005, saying Unix System V couldn't mean Open Server in the sense of being identical, do you think? The story SCO now tells doesn't match that information. And as for UnixWare, if SCO suddenly 'discovers' infringed UnixWare code in Linux after all, half a decade into this saga, note who said it was unifying UnixWare and Linux. In a white paper, "Caldera Gives You a Choice", reported on back in May of 2003 by Steven J. Vaughan-Nichols, we find some details:

"Caldera's plan is to unify SCO UnixWare with Caldera's OpenLinux to create an LSB-compliant operating platform that will combine UNIX scalability with the application support of Linux to provide a common build environment for solutions that scale up or down, depending upon the business need. Caldera gives you a choice."

That paper disappeared from SCO's website, after which I found it in June of 2003 on Wayback, but it's gone now from there as well. See what I mean about saving whatever seems relevant?

And here's a Registration Statement, Form S-4, as filed with the SEC on March 26, 2001:

One key issue will be the integration of Caldera's Linux product offerings and SCO's UnixWare. This product line integration will involve consolidation of products with duplicative functionality, coordination of research and development activities, and convergence of the technologies supporting the various products.

According to this 2000 article in InfoWorld, Santa Cruz was working on merging UnixWare and Linux too:

A reorganization aims to increase investment in the company's Tarantella software and in Linux, and to reduce expenses in the company's core Unix server business. The California-based company expects to report "significant losses" after reorganization costs.

The new structure also will make it easier for each division to pursue the Linux market, Orr said. The company already has announced significant steps in the Linux market, including professional services and a version of Tarantella for Linux.

Orr said the company now intends to take portions of its UnixWare operating system and market them as layered products on top of other Unix versions and Linux. "That way, we get a bigger market for each product individually," Orr said. Programming interfaces for SCO UnixWare and Linux will be "virtually identical," he said, and added, "Increasingly, we will not care which one you use."

You can't find it online any more via a Google search, or at least I couldn't, so here are a couple of proof screenshots of the article which I saved long ago for a rainy day, first the title and date and then the relevant quotation:

As you can see, saving for a rainy day sooner or later does pay off.


  


Trial Witness Lists/Exhibits from SCO v. Novell | 104 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here...
Authored by: feldegast on Monday, July 21 2008 @ 08:51 AM EDT
So they can be fixed

---
IANAL
My posts are ©2004-2008 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

News Picks Discussions here.
Authored by: Erwan on Monday, July 21 2008 @ 08:58 AM EDT
Please, quote the article's title.

---
Erwan

[ Reply to This | # ]

Off topic thread starts here
Authored by: Totosplatz on Monday, July 21 2008 @ 09:16 AM EDT
Please make links clicky

---
Greetings from Zhuhai, Guangdong, China; or Portland, Oregon, USA (location
varies).

All the best to one and all.

[ Reply to This | # ]

Hat-trick thread
Authored by: Alan(UK) on Monday, July 21 2008 @ 09:23 AM EDT
No award today but note that the three canonical posts come from three
continents (not sure which three).

---
Microsoft is nailing up its own coffin from the inside.

[ Reply to This | # ]

Trial Witness Lists/Exhibits from SCO v. Novell
Authored by: Anonymous on Monday, July 21 2008 @ 10:03 AM EDT
"That's why SCO bought UnixWare and the rights to the Unix operating system
created by AT&T *from* Novell to have a more scalable Unix than
OpenServer."

Santa Cruz bought from Novell. Caldera, now SCO Group, bought
from Santa Cruz at a later and thus different time.

[ Reply to This | # ]

Nuance of ruling
Authored by: bbaston on Monday, July 21 2008 @ 10:24 AM EDT
From PJ's article above,
"According to SCO, when it says "Unix System V" it means Unix System V and UnixWare and OpenServer, allegedly because whatever was the latest in Unix System V code got put into UnixWare and OpenServer. That was SCO's story after Kimball ruled that the copyrights to Unix System V did not transfer to SCO, and Kimball appears to have bought it."
When Judge Kimball ruled, he heavily leaned on the fact that only tSCOg's new work in UNIX was tSCOg's - and that only the new work could be valued by tSCOg in new contracts and that if any crumbs of tSCOg's were there, he allowed tSCOg the benefit of the doubt on its value. He also accepted that inclusion of legacy UNIX code was allowed (with source code confidentiality) by the agency contract terms - as described in the APA and by the parties at trial.

What Kimball did not consider is when the bulk of those new pieces arrived - in 2005 or so with Legend.

Why did this nuance weigh so heavily in his thinking? Because he had ruled tSCOg did not own UNIX, only the modification pieces that tSCOg themselves had produced since the agency with Novell began - and no one had identified when and to what extent tSCOg' code began to be part of the products that they sold.

This thinking was because those crumbs are all that were left - but if a crumb was there, tSCOg sold the crumbs - while representing the crumbs as the whole cake.

So the SCOsource contracts were about crumbs while representing the crumbs as cake - fraudulently as Kimball suggests - but that is an issue between tSCOg and those that bought SCOsource, and not involving this trial.

If tSCOg appeals, my belief is that the courts will respond to the relative absence of any original tSCOg code in any product until well after the trial started - and adjust the portion owed to Novell up by considerable millions of dollars. The appeal also might reverse the finding that tSCOg had the right to issue SCOsource contracts - as the crumbs were too small to matter.

A separate point - all of the code that tSCOg did put in its own improvements to UNIX - should be subjected to scrutiny looking for included Linux code. Quite logically, some techniques used in Linux might have been used by tSCOg in their "improvements", IMHO.

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

[ Reply to This | # ]

Trial Witness Lists/Exhibits from SCO v. Novell
Authored by: Anonymous on Monday, July 21 2008 @ 10:43 AM EDT
That last InfoWorld one is interesting. IANAL but I got the impression, from the
judgement, that Novell and TSCOG were being told to sit down and agree on what
was Unix and what was Unixware then apportion money appropriately.In other words
TSCOG can keep the money from Unixware and had to give dues to Novell for the
UNIX layers they used. If there was one line of Unixware then this was to be
done. The InfoWorld article seems to suggest layers. I find it hard to belive
that inserting one line of code would hand the whole IP rights over to TSCOG,
this would be too open to abuse. If a car dealer put a pair of fuzzy dice on a
Ford would he be free of paying Ford for the car?

Tufty (squirrel)

[ Reply to This | # ]

PJ's dedication is exemplary
Authored by: Anonymous on Monday, July 21 2008 @ 10:52 AM EDT
My wife asked me the other night what I was reading on the Internet and I told
her. She said is that case still going on after all these years! She was
surprised I had followed it for so long. After thinking of all the time and
energy you have put in this, it is unbelievable to think of. Your passion and
commitment to this litigation is amazing. I believe you could take SCO on single
handed. I wonder how many lawyers yearn for someone like you. Keep up the
fantastic job. On the other hand how can SCO have so much zeal! They have been
losing left and right most everything, winning a morsel here and there. I guess
those morsels give them hope. They are losing there business, and employees all
through this they smile to the public reporting they can appeal and win it all.

[ Reply to This | # ]

New evidence?
Authored by: Anonymous on Monday, July 21 2008 @ 11:25 AM EDT
Can an appeal be based upon new evidence? If it can be shown that evidence
entered during trial was misleading or factually incorrect, can that be the
basis of an appeal? IANAL so I really don't know.

[ Reply to This | # ]

Santa Cruz was a Charter Member of LSB.
Authored by: Anonymous on Monday, July 21 2008 @ 02:21 PM EDT
Santa Cruz (old SCO) was a charter member of the LSB organisation with the goal of standardising Linux. The announcement at the time stated:
From: SCO Information i...@sco.COM
Subject: SCO Joins Free Standards Group
Date: 2000/05/10

SANTA CRUZ, CA (May 10, 2000) - The Santa Cruz Operation, Inc. (SCO) announced today it has become a charter member of the Free Standards Group, an assembly of industry-leading companies driving to establish the Linux Standard Base (LSB). SCO has been involved since late 1999 in an effort to standardize Linux.
(...)
Mike Orr, president of the Tarantella Division at SCO (said) "LSB would also help SCO's Server Software Division by increasing Linux compatibility with SCO operating platforms." (emphasis added).

Santa Cruz had a stated goal of increasing compatibility between SCO Unix and Linux. Other members of LSB were:
Charter members of the Free Standards Group include IBM, LinuxCare, Sun, Red Hat, VALinux, Caldera Systems, TurboLinux, SuSE and others. Specifically, the LSB project consists of Linux developers, users and companies who have a vested interest in the overall success of the Linux market and share SCO's goal and vision of standards and interoperability.

"With their history in the UNIX world, SCO brings their experience and understanding of standardization issues to the Linux Standard Base," said Daniel Quinlan, chairman of the Free Standards Group. "It's natural to see them interested in Linux application compatibility and we're glad to have a senior SCO engineer like Dave Prosser involved in the effort."

So, SCO, Caldera, IBM, Sun, Red Hat, Sun, and Suse were all in LSB together at the beginning. These law suits must be like a reunion party.

[ Reply to This | # ]

SVRx and UbixWare are different products.
Authored by: Anonymous on Monday, July 21 2008 @ 04:47 PM EDT
> UnixWare is the latest version of UNIX System V, not some
> entirely new and unrelated product.

UnixWare is built using SVRx, but these are not the same thing. If I buy a
'UnixWare' I get a binary distribution of a complete operating system that can
be loaded and executed on a computer and a licence that allows me to use this on
a single machine. The only 'source code' supplied is headers and samples in the
SDK so that I can write my own programs. This is similar to buying 'Windows
XP'.

If I buy a 'SVRx' I get a pile of source code that I can use to develop an
operating system. I would need to add a lot of other stuff to this, such as X,
CDE (or KDE), utilities, administration programs and such. The result would be a
binary distribution which I could then sell.

Many companies did this: ICL with DNX, Unisoft with UniPlus, plus dozens of
others some tied to hardware, others, like UnixWare, for ICL PC-AT type
machines.


> The APA distinguishes between the two operating systems

SVRx is _not_ an operating system. It is the source code from which an operating
system can be built by adding lots of other stuff.

McDonalds sells two things: franchises and fast foods. SVR5 is a franchise,
UnixWare is a Big Mac and fries. Certainly the Big Mac is the latest version of
the recipes in the the franchise pack, but that does not make them the same
thing. Nor do they give you the recipe for the sauce and allow you to publish it
when you buy a Big Mac, or even a million of them.

[ Reply to This | # ]

SCO v. Novell: It's not over til the fat lady sings "It's not over til it's over."
Authored by: webster on Monday, July 21 2008 @ 05:27 PM EDT
..
This trial is still going on. Since it is a non-jury trial, the Judge can
always reconsider and correct himself.

A final Judgment has not been entered. Judge Kimball ordered Novell to prepare
the order in ten days. He signed the order on July 16. It was docketed that
day or shortly thereafter. That puts it on next weekend so Monday, July 28 will
be the tenth day.

Novell will produce the judgment order encompassing this trial and the August 10
order unless they ask for more time. They will be composing an order they don't
entirely agree with.

Once they submit the order SCO may object to it if they don't like it. The
Judge may not like it and change it. When the judge signs the order and it is
docketed, Rule 59 comes into play and the trial continues with further motions.

Here is Rule 59. Look how there are extra procedures when it us a non-Jury
trial.

************************

Rule 59. New Trial; Altering or Amending a Judgment
(a) In General.

(1) Grounds for New Trial.

The court may, on motion, grant a new trial on all or some of the issues — and
to any party — as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been
granted in an action at law in federal court; or

(B) after a nonjury trial, for any reason for which a rehearing has heretofore
been granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial.

After a nonjury trial, the court may, on motion for a new trial, open the
judgment if one has been entered, take additional testimony, amend findings of
fact and conclusions of law or make new ones, and direct the entry of a new
judgment.
(b) Time to File a Motion for a New Trial.

A motion for a new trial must be filed no later than 10 days after the entry of
judgment.
(c) Time to Serve Affidavits.

When a motion for a new trial is based on affidavits, they must be filed with
the motion. The opposing party has 10 days after being served to file opposing
affidavits; but that period may be extended for up to 20 days, either by the
court for good cause or by the parties' stipulation. The court may permit reply
affidavits.
(d) New Trial on the Court's Initiative or for Reasons Not in the Motion.

No later than 10 days after the entry of judgment, the court, on its own, may
order a new trial for any reason that would justify granting one on a party's
motion. After giving the parties notice and an opportunity to be heard, the
court may grant a timely motion for a new trial for a reason not stated in the
motion. In either event, the court must specify the reasons in its order.
(e) Motion to Alter or Amend a Judgment.

A motion to alter or amend a judgment must be filed no later than 10 days after
the entry of the judgment.

******************************

So the parties can file their post-trial motions and give Judge Kimball another
shot at seeing things their way. They can then appeal the Judgment and his
denial of these motions. Kimball is really giving the parties, and GL, an
opportunity to pick over his ruling and correct any errors he may have made.

[ Reply to This | # ]

Channel Intelligence Sues Just About Everyone Who Offers Wishlists
Authored by: philc on Monday, July 21 2008 @ 08:42 PM EDT
This has got to be more than just a list. A list is a fundamental programming
construct that was an old concept when I got into programming in 1970. Attaching
a list to an object is done all over the place. Just look in any advanced data
structure textbook published over the last 2 decades.


Relational databases consist of tables which are basically lists. That is all
that they do. Also, think about spread sheets. Both use a set of named columns
with a number of rows.

A wish list could just be a specific collection of columns and the associated
rows associated with a table of users.

Relational databases go back over 30 years and spread sheets go back at least as
far as Visicalc.

Could you make this problem go away by changing the name from
"wishlist" to "what I want list"?

So, hundreds of people and corporations will end up spending millions to get
this through the courts. The people will have their assets and credit rating
ruined for years while this works its way through the courts. SCO vs. world has
demonstrated just how bad this can get.

[ Reply to This | # ]

Trial Witness Lists/Exhibits from SCO v. Novell
Authored by: Anonymous on Tuesday, July 22 2008 @ 03:51 PM EDT

since
http://web.archive.org/web/*/http://www.caldera.com/images/pdf/volution/linux_un
ix.pdf appears to be blocked, is it permissible (i.e., fair use) for one of us
to make a saved copy appear on some website?

If I had a copy, I might be tempted to do so for example...

[ Reply to This | # ]

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