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Report from Denver: The SCO v. Novell Appeals Court Hearing
Wednesday, May 06 2009 @ 04:55 PM EDT

Here is our eyewitness account of what happened at today's appeals court hearing in the SCO v. Novell appeal, thanks to Groklaw member Clocks, who traveled to Denver, to the U.S. Tenth Circuit Court of Appeals to attend. Thank you, Clocks. Here's a picture of what the courtrooms there look like, to give you an idea. The hearing was in Courtroom II.

I must caution, as he does, that you can almost never get a definite idea of how a court will rule just from the hearing, and he explains why. I have to say, though, that from his report, it sounds encouraging to me.

Stuart Singer of Boies Schiller argued for SCO, and I gather he did a fabulous job with very little to work with. Considering that Boies Schiller claims it is "way into the red" on SCO, it's interesting that they still sent one of their very best, a partner in the firm. Michael Jacobs of Morrison & Foerster argued for Novell, and he is consistently excellent. Both attorneys, Clocks says, were spectacular to watch.

I know you are dying to know how it went. I'd say from this report that it went very well indeed. Here's the only possible sticky wicket that I see in the report:

McConnell stated something to the effect that the language for the exclusion in Amendment 2 includes all copyrights and trademarks other than the ones "that are required". He also said that he has no problem with the premise that they have not shown what is required and the appeals court likely will not rule on that, but he didn't see how that would not be an issue for trial.
Clocks found some biographical information about the three appeals court justices for us, and I'll put that after his account, after a double row of stars. He also checked today to find out what all those boxes of exhibits Novell filed with the court were, so we could find out if we need them or if we have them already. He says they are the record from the District Court, which heaven only knows we have here on Groklaw in detail.

Here is the docket entry regarding today's hearing:
05/06/2009 - [9656815] - Case argued by Stuart Singer for appellant and Michael Jacobs for appellee and submitted to Judges Lucero, Baldock and McConnell.
********************************

The full report from Clocks:

It's really important to understand that the format of an appeals oral argument is quite different from trial or some motion hearings. The judges are really an active presence here. Basically each side has 15 minutes on the clock in which to make their argument. There is little to no monologuing but rather, right from the start, the judges ask the attorneys questions during their time to probe for information that they need. The judges have already read all of the paperwork before them before walking into the room. They also come to the bench with some things they would like to see come out during oral argument, points of clarification or the attorney's position on a specific subject they are thinking about.

Oh, and remember that the appeals are generally focused on procedure and propriety of action, NOT the facts. Those are the domain of the court of first instance. The appeals court is looking more narrowly at the basic subject of "Should this case go back to the district court with some order to do something different this time?"

When you see the transcript, you will see what I'm talking about. There is a lot of back and forth between the judges and the attorneys. The judges have intelligence (generally) and a measure of wit as well, which comes out during questioning. In a case earlier in the day, there was a real gem where counsel for an immigration petitioner indicated that there was no way for her client to accurately provide an affidavit reflecting testimony from 5 months prior. She noted that any such statement from her client would "be likely to be self-serving." Justice Lucero responded "By all means, that's what the appeals court is all about; parties being self-serving.' [General laughter in the court room.]

I will also warn the folks reading this from generally reading too much into it. You are getting my notes on the questions that were asked and answers given. The judges are asking clarification around specific points that they would like to see more information on, or are looking to see what counsel are thinking about something the judge has already thought of. So let's say the court was leaning one way or another, they may still be asking hard questions around the edges of their leanings on the filed briefs which may be difficult for a party to answer -- even if the judges are leaning in that party's direction!

The case was brought before Carlos Lucero (first Hispanic judge on the 10th, by the way, and has served as president of the Colorado bar association among other posts), Senior Judge Bobby Baldock, and Judge Michael McConnell (for whom this was one of his last days on the bench for argument as he is resigning later this year to take a position at Stanford).

My impression was that Judge Baldock was largely silent, Lucero was coming from the perspective of trying to make the point that much of SCO's argument about getting to parol evidence relies on FIRST finding ambiguity in the contract, and McConnell spent much of his time in a back and forth with the parties over the specific relationship of Amendment 2 to the APA and was trying to find out exactly what amendment 2 did if "copyrights required for" the UNIX business was "a null set" and if that were the case, why does amendment 2 even exist?

Stuart Singer argued for SCO. Singer is amazing, and if he is put in front of a jury, there is no doubt in my mind that we would see some spectacular lawyering.

For those interested, the difference between mediocrity and the class of attorney we had here is shown in the coherence, flexibility, preparation, and articulation of both side's attorneys. They were both coherent and smooth, even on direct examination by the judges. Singer in particular seemed unflappable even when the judges repeatedly interrupted him early on from going down the path of discussing the strength of his client's parol evidence as moot until they determine that there is sufficient ambiguity to address it. Both attorneys felt polished, prepared, and likely had a number of prepared arguments in anticipation of probable questions, with the applicable statutes and cases memorized to support their arguments. They didn't get bogged down trying to make their point even under direct. Also, Singer did a good job with his last couple of minutes weaving in excerpts (out-of-context, to my ears) from Jacobs' argument that made it sound like Novell's position suited SCO's own. Great stuff.

** THESE NOTES ARE NOT COMPLETE (People talk way too fast for that) **

Lucero started, when calling the case, with a note of irony / muted sarcasm, calling the case and docket number and noting that "fortunately, this is not a contentious case." [Laughter in courtroom.]

Singer started for SCO.

Singer stated that the district court's error was in disregarding the ten strong witnesses they had to provide evidence around the business intent and was in the middle of making a statement to the effect that an opposing side usually has difficulty finding one witness from the other side that supports their position and that SCO has ten.

Baldock or McConnell (I didn't write down which) interrupted to note that we hadn't gotten that far yet. The court needs to find ambiguity to get to parol evidence and to look at the strength of your parol evidence; the APA has a plain exclusion for copyrights. Baldock jumped in with "I'm with Judge McConnell, it's pretty clear on this to me."

Singer restated the number of witnesses and was starting a statement around the business evidence that doesn't support that being the intent.

Court (didn't write down which judge said this) said that they "didn't want to get there yet".

SCO stated that "when you look at the APA with amendments it creates ambiguity". Asserted that Amendment 2 transferred the copyrights and the district court did not make their decision within Amendment 2 making any inferences with the reading most lenient to SCO in making summary judgment against them.

The court, McConnell in particular, asked about the chronology of the agreements and some of the work that Novell did to specifically add a clause that stated the effective date of Amendment 2. They asked Singer whether that had any impact on the issue here. Singer stated that it did not and that it is their client's decision that the dating of Amendment 2 within the document is irrelevant. McConnell came back with "I find it mysterious that they would insist on language which you say makes no difference at all."

SCO said that the amendment date does not change how it modifies the APA and that all of the causes of action related to this case are after Amendment 2 was signed anyway. He reiterated SCO's position that Amendment 2's date is irrelevant.

McConnell asked SCO about the differences in language between Amendment 2 and the representations that were made in SCO's brief. The difference of "required for versus "pertains to". "I think we can all agree that required for is narrower than pertains to".

Singer stated that he thought that was arguable and was going to go on and McConnell stated something to the effect of "yet you seem to be making your case based on the 'pertains to' argument when the language is 'required for'"

SCO finished its time saying that they are asking for remand to a jury to appropriately put the issues of whether the contract was clear and whether the copyright transferred before a jury.

Michael Jacobs for Novell then took the podium and stated that there is a chronology to making these kinds of agreements. There are business negotiations that happen that form the basic intent of what they want to do with a legal document. Then there are the legal negotiations where a different team takes over and implements the technical parts to make sure that each party is properly protected in whatever instrument is created to execute the business intent. Bringing in the negotiators from the business portions of the agreement process is irrelevant, and they would be unqualified to provide evidence as they are not competent on the legal mechanisms required to implement the business agreement.

Also stated that when you look at the amendment on top of the APA, it's an integrated whole -- it's not a separate agreement that could create ambiguity between the two.

Lucero asked about whether or not Amendment 2 created ambiguity in a document that was on its face apparently clear in the form of the APA and Amendment 1. Jacobs said to look at it as the "entire package" and that the judge should not have to look at the extrinsic evidence to make a determination on the contracts.

McConnell said that the amendment was a clarification to the APA and if that is a clarification and if the legal language is inconsistent between the agreement and the amendment, does it create an inconsistency?

Jacobs replied to the effect that the amendment is controlling because in the chronology it specifically states that it is amending the terms of the previous agreements.

McConnell stated something to the effect that the language for the exclusion in Amendment 2 includes all copyrights and trademarks other than the ones "that are required". He also said that he has no problem with the premise that they have not shown what is required and the appeals court likely will not rule on that, but he didn't see how that would not be an issue for trial.

Jacobs indicated that 204(a) has to be met and there plainly needs to be an instrument of transfer.

Lucero asked how Novell would characterize the sale.

Jacobs stated that SCO purchased the developers, the business licenses, the sales streams -- much like some of the other business deals. Without the copyrights, they get rights and didn't need ownership of the copyrights to carry on that business.

The court (I didn't note which judge) stated that Jacobs was making it sound like SCO was another licensee when it is the impression of the judges that the deal with Santa Cruz was more expansive than that. Jacobs clarified the way that SCO purchased the business and explained that what they purchased was the right to take over the revenue stream and act as Novell's agent.

SCO took the podium with just another minute or two of time (including a small extension because Novell went over slightly).

Before SCO said anything, McConnell commented that "I hope you will address the 204(a) issue."

Singer stated that he believed that the contracts satisfy 204(a) as 204(a) even lists a memorandum as a means of conveyance for contracts.

McConnell asked, if the first transfer used a bill of sale then how does Amendment 2 relate to that first bill of sale, when there is no other bill of sale for further asset transfer?

SCO replied that they felt that Amendment 2 is like a curative deed in that it was retroactively correcting the bill of sale through a contract to address a loophole that had come up in a dispute with IBM before Amendment 2 had been signed.

McConnell said something about he didn't entirely accept that line of reasoning and treating the contract amendment like a curative deed and Lucero indicated SCO was out of time at that point and made his speech about the appeal being fully briefed.

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

Senior Judge Bobby R. Baldock

Federal Judicial Service:
U. S. District Court, District of New Mexico
Nominated by Ronald Reagan on May 2, 1983, to a seat vacated by Edwin L. Mechem; Confirmed by the Senate on June 6, 1983, and received commission on June 7, 1983. Service terminated on January 24, 1986, due to appointment to another judicial position.

U. S. Court of Appeals for the Tenth Circuit

Nominated by Ronald Reagan on October 7, 1985, to a seat vacated by Oliver Seth; Confirmed by the Senate on December 16, 1985, and received commission on December 17, 1985. Assumed senior status on January 26, 2001.

Education
New Mexico Military Institute, 1956
University of Arizona College of Law, J.D., 1960

Professional History
Captain, Adjutant General Staff, New Mexico National Guard, 1960-1970
Private practice, Roswell, New Mexico, 1960-1983
Adjunct professor, Eastern New Mexico University, Roswell Campus, 1962-1981

Judge Carlos F Lucero

Judge Carlos F. Lucero was appointed to the United States Court of Appeals for the Tenth Circuit by President Clinton June 30, 1995.

Judge Lucero was born November 23, 1940, in Antonito, Colorado. He received a B.A. degree from Adams State College, where he was student body president and the editor of The South Coloradan, and a J.D. degree from the George Washington University Law School in 1964.

Judge Lucero clerked for Judge William E. Doyle, United States District Court for the District of Colorado, during the 1964-1965 term. Prior to his clerkship, he was a staff aide for the United States Senate Judiciary Subcommittee on Administrative Practice and Procedure. He entered private practice in Alamosa, Colorado where he became senior partner of the law firm of Lucero, Lester and Sigmund. He specialized in civil litigation, including water and natural resource matters. He served as president of the Colorado Bar Association in 1977-1978.

Judge Lucero is married to Dorothy Stuart Lucero. He is a member of the American Bar Association, the Colorado Bar Association, of which he was president, the San Luis Valley Bar Association, of which he was president, and the Colorado and National Hispanic Bar Associations. He is a fellow of the American College of Trial Lawyers, International Academy of Trial Lawyers, International Society of Barristers, American Bar Foundation, and the Colorado Bar Foundation, of which he was president.

While in private practice, Judge Lucero served on the Colorado Supreme Court Board of Law Examiners, the ABA Action Commission to Reduce Court Cost and Delay, the advisory board to the ABA Journal, the ABA Committee on the Availability of Legal Services, the Board of Directors of Colorado Rural Legal Services and the CBA Ethics Committee. He served on President Carter's Presidential Panel on Western State Water Policy, and on the Board of Directors of Colorado Rural Legal Services, the Colorado Historical Society, and the Santa Fe Opera Association of New Mexico.

During his years of law practice, Judge Lucero made time available to teach an annual undergraduate level course on Pre-Law Studies for students from diverse backgrounds, as an Adjunct Professor at Adams State College in Alamosa, Colorado.

Judge Lucero's chambers are in Denver, Colorado.

Judge Michael W. McConnell

Federal Judicial Service
U. S. Court of Appeals for the Tenth Circuit Nominated by George W. Bush on September 4, 2001, to a seat vacated by Stephen H. Anderson;
Confirmed by the Senate on November 15, 2002, and received commission on November 26, 2002.

Education
Michigan State University, B.A., 1976
University of Chicago Law School, J.D., 1979

Professional History
Law clerk, Hon. J. Skelly Wright, U.S. Court of Appeals for the District of Columbia Circuit, 1979-1980
Law clerk, Associate Justice William J. Brennan, Supreme Court of the United States, 1980-1981
Assistant general counsel, Office of Management and Budget, 1981-1983
Assistant to the solicitor general, U.S. Department of Justice, 1983-1985
Professor, University of Chicago Law School, 1985-1996
Professor, University of Utah College of Law, 1997-2002


  


Report from Denver: The SCO v. Novell Appeals Court Hearing | 382 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: gakulev on Wednesday, May 06 2009 @ 04:58 PM EDT
If any...

---
Gakulev

May the source be with you.

[ Reply to This | # ]

OT - off topic thread starts here
Authored by: Totosplatz on Wednesday, May 06 2009 @ 05:00 PM 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 | # ]

News Picks articles
Authored by: Totosplatz on Wednesday, May 06 2009 @ 05:02 PM EDT
Please indicate the title of the News Pick in the subject.

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

All the best to one and all.

[ Reply to This | # ]

Clocks Mistakes Thread
Authored by: Anonymous on Wednesday, May 06 2009 @ 05:03 PM EDT
All mistakes in the notes are mine, PJ was kind enough to
edit out some of my grammatical issues.

"when you look at the APA with appointments" from Singer's
early discussion -> "when you look at the APA with
amendments"

Also it WAS michael jacobs. I had to look back on my
laptop for my original notes. I had normand on the brain
after re-reading some of the earlier briefs, i think.

---
Clocks
"Ita erat quando hic adveni."

[ Reply to This | # ]

Jury??
Authored by: Steve Martin on Wednesday, May 06 2009 @ 05:04 PM EDT

"SCO finished its time saying that they are asking for remand to a jury"

Um, I don't recall The SCO Group asking for any such thing. Their appeal brief does not list Kimball's summary judgment ruling for a bench trial as being one of the issues on appeal. Can they literally sneak this in at the very last minute and expect it to be granted??

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

[ Reply to This | # ]

Report from Denver: The SCO v. Novell Appeals Court Hearing
Authored by: tknarr on Wednesday, May 06 2009 @ 05:14 PM EDT

It sounds a lot like SCO's running aground on the same problem it's always had: the contract says the opposite of what they need it to say to make their arguments fly, and the judges seem to have taken notice of that.

I'd like to say I expect the appeals court to rule against SCO, but I can't. I expect them to send it back, probably with instructions for the district court to clarify a few things (eg. "Address directly whether Amendment 2 transferred any additional copyrights."), and things will drag out a few months longer.

[ Reply to This | # ]

I'm sorry to hear that McConnell is retiring from the bench
Authored by: Anonymous on Wednesday, May 06 2009 @ 05:17 PM EDT
I know him, though not especially well, but I found it encouraging to know that
a person of his talent and character was on the bench.

And to have him hear the appeal of SCO v. Novell? Priceless.

MSS2

[ Reply to This | # ]

When might a transcript be available?
Authored by: webster on Wednesday, May 06 2009 @ 05:42 PM EDT
.

[ Reply to This | # ]

When do they rule?
Authored by: Anonymous on Wednesday, May 06 2009 @ 07:02 PM EDT
I know, nobody knows. But roughly, will it be a day? A week? A month? A
quarter? A year? Or a decade?

MSS2

[ Reply to This | # ]

SCO will get jury trial granted
Authored by: Anonymous on Wednesday, May 06 2009 @ 07:08 PM EDT
I'm not a betting man, but if I were, I'd bet that the Appeals court is going to
overturn Kimball's summary judgement ruling and send it back to district for a
jury trial. My primary rationale is that I think Kimball probably erred in
giving too much credence to a non-deposed witness of Novell's (Bradford) over 10
Novell and old-SCO witnesses. Summary judgements are supposed to be slanted in
favor of evidence for the plaintiff (SCO). I think the 10th Circuit is going to
frown on that from Kimball.

I think, however, that we'll never end up seeing a jury trial. I believe Novell
and SCO will work some deal out and possible IBM as well. For me, I'd like to
see the end of all of this. I'm tired of hearing about it. Let's talk about
something else like Microsoft.

[ Reply to This | # ]

Did court notice an SCO misrepresentation?
Authored by: Anonymous on Wednesday, May 06 2009 @ 07:45 PM EDT

McConnell asked SCO about the differences in language between Amendment 2 and the representations that were made in SCO's brief. The difference of "required for versus "pertains to". "I think we can all agree that required for is narrower than pertains to".

I would like to think this will count against SCO, in that the court will not be able to trust the veracity of what SCO says.

Well, we're used to that, but the appellate court may hold SCO to a higher standard when it addresses the court than SCO's usual public deceptions.

[ Reply to This | # ]

Thanks, Clocks
Authored by: pcrooker on Wednesday, May 06 2009 @ 08:38 PM EDT
Just wanted to thank clocks for his excellent reporting. I sure couldn't write
that fast. Well done.

[ Reply to This | # ]

The SCO Group to change name . . .
Authored by: Nemesis on Wednesday, May 06 2009 @ 08:44 PM EDT

The new name will be:

Norwegian Blue Inc.

;)

[ Reply to This | # ]

Impression
Authored by: DaveJakeman on Thursday, May 07 2009 @ 06:06 AM EDT
McConnell asked, if the first transfer used a bill of sale then how does Amendment 2 relate to that first bill of sale, when there is no other bill of sale for further asset transfer?
These judges are hot. They are on the ball and asking the right questions. They probably read this bit of Kimball's ruling:
The APA does not constitute an instrument of conveyance because it merely describes the assets that Novell “will” sell in the future. The instrument of conveyance for the APA was the Bill of Sale that the parties signed on the date the APA closed. When the parties executed Amendment No. 2 a year later, it was not made retroactive, did not amend the previous Bill of Sale, did not refer to a new Bill of Sale, and did not itself contain any language of conveyance to transfer any copyrights.
And this bit:
During negotiations on Amendment No. 2, SCO attempted to effectuate a transfer of the copyrights of UNIX and UnixWare, but Novell rejected the proposal. Decl. Allison Amadia at ¶ 6, 8, 10. During the summer of 1996, Steve Sabbath, Santa Cruz’s General Counsel, telephoned Allison Amadia, in-house counsel for Novell, about amending the APA. Id. ¶ 6. She testifies that Sabbath stated to her that the original APA explicitly excluded copyrights to UNIX and UnixWare and that Santa Cruz wanted to amend the original to give Santa Cruz those copyrights. Id.

Amadia had not been involved in the original deal. After her conversation with Sabbath, she reviewed the APA and contacted Novell’s outside counsel, Tor Braham, to gain his understanding of the transaction. Id. ¶ 7. Through these efforts, she learned that ownership of the UNIX and UnixWare copyrights did not transfer to Santa Cruz under the APA. Id.

Sabbath later sent Amadia a draft proposal revising Schedule 1.1(b) of the APA to read: “All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of this Amendment No.2, which pertain to the UNIX and UnixWare technologies and which SCO has acquired hereunder. . . .” Id. ¶ 8, Ex. 1. Novell rejected the proposed amendment. Id. ¶ 10. Amadia told Sabbath that while Novell was willing to affirm that Santa Cruz had a license under the APA to use Novell’s UNIX and UnixWare copyrighted works in its business, Novell would not transfer ownership of any copyrights. Id.

They are focusing on the right area, as did Kimball. This is encouraging.

---
Monopolistic Ignominious Corporation Requiring Office $tandard Only For Themselves

[ Reply to This | # ]

An empty amendment
Authored by: jpvlsmv on Thursday, May 07 2009 @ 10:01 AM EDT
Novell was asked if Amendment 2 to the APA was basically a "do nothing
(null set)" with regard to the copyrights transferred by it.

Well, if the copyrights were explicitly excluded from the original APA because
SCO didn't have money to buy the whole kit and caboodle, and since presumably
SCO didn't pay any more for the APA to be amended by Amendment 2, isn't it
reasonable to assume that Novell wouldn't be interested in giving them something
for free?

Amendment 2 seems (to me) to have been an attempt by SCO to gain more from the
APA than they originally negotiated for no additional cost. So if Novell can
appease them without actually giving them anything, it seems like a fair trade
to me.

There were, of course, other terms in Amendment 2, presumably changed for free,
but the exchange of valuable? copyrights for nothing? No.

What's the problem with admitting that?

--Joe

[ Reply to This | # ]

Report from Denver: The SCO v. Novell Appeals Court Hearing
Authored by: Anonymous on Thursday, May 07 2009 @ 04:14 PM EDT
Let me report what I heard in the courtroom. Judge McConnell (brilliant, BTW)
stated that SCO's position that Amendment 2 was a clarification of the intent of
the deal and conformed the deal to what the parties had already agreed to. He
said "that strikes me as very reasonable and logical."

When Novell's lawyer tried to advance the fiction that Santa Cruz was simply a
licensee to UNIX just like IBM and HP, Judge McConnell squashed him and said
"so you're telling me the Santa Cruz agreement here is just like
IBM's?" Novell: "Er, ah, no its an APA."

Judge: "That is what I recall, Santa Cruz bought the WHOLE business,
they're not just a licensee."

Novell: "Ya, but . . . "

Judge Lucero: "Novell would you please just respond to our questions, for
once."

Judge McConnell: "Do you seriously want us to believe that Amendment 2
accomplished nothing? Transferred no copyrights at all?"

Novell: "That's our position."

Judge: "Sorry, that is just unreasonable. I can't agree with you and I
cant see any way you will be able to avoid a trial."

Judge to SCO: "You are simply asking us to remand this back to the
district court for trial, right?"

SCO: "Yes, your honor."

Judge: "That is what I thought; thank you."

PJ knowing your view that there can never, ever, ever; no matter what, be any
positive news for SCO, I'm still surprised that you are encouraged by what
happened yesterday. My observation is that Novell got its head handed to it. .
. .

[ Reply to This | # ]

Report from Denver: The SCO v. Novell Appeals Court Hearing
Authored by: eggplant37 on Thursday, May 07 2009 @ 05:42 PM EDT
Why is it that the only sound I can think of in relation to this occasion is the
sound of a toilet flushing?

[ Reply to This | # ]

What is the big deal about "required for"?
Authored by: Anonymous on Friday, May 08 2009 @ 10:32 AM EDT
Am I missing something?

My understanding is that when SCO sued Novell, SCO's position was that they
already owned the copyrights to UNIX, etc. and that Novell said that the
copyrights never transfered.

Before there would need to be a trial to determine whether or not the copyrights
are "required for" SCO to exercise their rights with respect to UNIX,
wouldn't SCO need to admit that they were totally wrong?

I would think that SCO would first have to say that Judge Kimball and Novell are
completely correct, SCO does not own the copyrights to UNIX. The copyrights were
never transfered. Then, wouldn't they have to file a new lawsuit claiming that
the copyrights are "required for" them to exercise their rights and
Novell won't transfer them?

That is why I don't understand Judge McConnell's comment about determining what
is "required" being an issue for a trial.

What am I missing?

[ Reply to This | # ]

The Spin Cycle is on Max
Authored by: Anonymous on Saturday, May 09 2009 @ 07:32 AM EDT

It seems like the spin cycle on "max" in some of the comments for this story. I find it hard to believe that SCO's managers don't have better things to do with their time other than to troll obscure blogs. I would have thought they would be too busy trying to come with an acceptable re-organisation plan.

Or perhaps they believe this is part of their work to come up with a re-organisation plan? To avoid liquidation they need to find a new PIPE fairy. To persuade someone to give them money, they need a "victory" of some sort, something to make it look like they have a chance. To be persuasive, they need that "victory" to be widely written about in the press in a way that is favourable to SCO.

The problem is that I don't see where winning this appeal on a technical point gets SCO. Even winning this appeal gets them no closer to a viable business. They've managed to flush something like 100 million dollars down the drain and gone nowhere except to bankruptcy court. Why would anyone want to give SCO another 100 million dollars to pour down the same rat hole?

We have to remember that this whole Novell case is a sideshow. Their main litigation lines against IBM and Chrysler have already collapsed. Exiting bankruptcy simply exposes them to a barrage of counter claims. SCO has been on the defensive for several years. All that is in question now is which case finally sinks them for good.

If this appeal is all about persuading the bankruptcy court that there is some light at the end of the tunnel, I don't see how it helps. All it does is buy them the right to another long drawn out legal battle. They already have lots of long draw out legal battles to choose from. That's how they got into this situation. What they haven't shown is any hope of immediate revenue, which is what they need to avoid liquidation.

[ Reply to This | # ]

Report from Denver: The SCO v. Novell Appeals Court Hearing
Authored by: Anonymous on Sunday, May 10 2009 @ 12:21 PM EDT
Considering that Boies Schiller claims it is "way into the red" on SCO, it's interesting that they still sent one of their very best, a partner in the firm. Why is that puzzling? SCO has demonstrated a habit of filing suits against anybody they have dealt with. The last thing Boies Schiller wants is to be sued for malpractice. Long ago they committed to defending SCO, and they must fulfill that commitment to the best of their ability--or become the next target of SCO's "litigation business".

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