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First Word from Utah in SCO v. Novell: Trial Set for March - Updated 6Xs
Tuesday, December 01 2009 @ 04:59 PM EST

I just received our first word on the hearing in Utah on SCO v. Novell from one of our reporters. "looking for a march 8th trial date, to run 3 weeks" is the report. I'm sure there will be more info on the way as soon as they can type it up. We had several eyewitnesses in attendance. So stay tuned for updates.

Update 1: We have the hearing minutes. And a more lengthy report. This was a scheduling hearing. There will be a hearing on Novell's wish to consolidate or assign to the same judge later.

Here they are:

12/01/2009 - 605 - Minute Entry for proceedings held before Judge Ted Stewart: Scheduling Conference held on 12/1/2009. The Court sets a Final Pretrial Conference for 2/25/2010 02:00 PM and a 3-week Jury Trial for 3/8/2010 08:30 AM in Room 142 before Judge Ted Stewart. Counsel will meet to determine other dates and deadlines, and Mr. Hatch will submit an order for the Court's signature reflecting those dates. Attorney for Plaintiff: Brent Hatch, Edward Normand, Mauricio Gonzalez, Attorney for Defendant Michael Jacobs, Thomas Karrenberg. Appearing by phone: Judge Edward Cahn, Trusee; and Bonnie Fatelle Court Reporter: Kerry Sorensen. (slm) (Entered: 12/01/2009)

I am editing to correct what I wrote because we have a more lengthy report from a second volunteer now. This was merely a status hearing, not the hearing on Novell's Notice. And what happened is they discussed timing and when to set the trial, but the issue of consolidation or reassignment did not come up today. Judge Stewart did indicate he'd like an official motion, not just a notice.

2nd Report:

I just returned from the SCO v Novell Status Conference before Judge Ted Stewart.

The courtroom appeared much newer than Judge Kimball's is, having much lower ceilings and "modern" architecture. There were LCD monitors and microphones on all tables and six monitors built into the jury's furniture. There were two types of video cameras, the "normal" ones that were in Judge Kimball's but additional cameras that appeared to be for broadcast use.

Appearing for Novell were Michael Jacobs and Thomas Karrenberg. For SCO were Edward Normand, Brent Hatch, Mauricio Gonzales, and accompanied by Ryan Tibbetts. Just before before Judge Stewart came in the clerk put Trustee Judge Edward Cahn and Bonnie Fatell on speakerphone.

Before the judge entered the clerk discussed scheduling with the attorneys, first asking them how many week trial they're expecting. Brent Hatch said two weeks and Michael Jacobs said three. She said she could schedule a three week trial starting June 14th. Ted Normand asked if that was the earliest possible date, which it was for a three week trial. Though a two week trial could be scheduled Feb 14th. Both Michael Jacobs and Thomas Karrenberg had conflicts for that time frame along with concerns about some motions they expect to bring prior to trial. There was some discussion of "tightening it up" to do perhaps 2 1/2 week which the clerk could schedule for March 8th giving them two and a half weeks but that the following Thursday and Friday were reserved for final motions in a trial starting the following week. Michael Jacobs was still concerned about this date as he didn't think there would be time for the motions before trial.

The clerk said that she would give the Judge both the March 8th and June 14th dates and they can discuss it.

The clerk then got Trustee Judge Edward Cahn and Bonnie Fatell on the speakerphone and Judge Ted Stewart entered.

The Judge asked about the two dates and the time estimate. Mr. Hatch said that SCO would like to go to trial as soon as possible for two weeks. He had stood to speak, but Judge Cahn said he was having trouble hearing his response. Judge Stewart asked Mr. Hatch to be seated and use the microphone at his table. The mic and courtroom speakers made understanding the parties far easier than it was in Judge Kimball's courtroom. Mr. Hatch repeated what he'd said. Judge Stewart then addressed Mr. Jacobs saying he understands Novell would like to wait longer and asked Mr. Jacobs to explain why.

Mr. Jacobs said there were Summary Judgement motions that were mooted when Judge Kimball ruled which Novell would like to heard, including their motion on no special damages. Judge Stewart asked if they were fully briefed before Judge Kimball, which Mr. Jacobs said they were.

Judge Stewart said he prefers the earlier date. He set the trial to start March 8th saying this is an "old case." He said he understands their are motions to consolidate the cases and that before Judge Kimball the parties filed "notices." He said in his court he can only act based on motions and told the parties to only file motions, not notices. He then held the court in recess. The court was only in session for about 5 minutes.

After the judge left, the clerk and the parties continued to discuss scheduling. They set Feb 25th at 2pm for the final pre-trial conference. Michael Jacobs said that right after the new year they will file a summary judgment motion regarding no malice pertaining to the slander of title claim. There was some preliminary discussion of dates and time frames for motions but nothing really decided. A court clerk when asked said that on motions that have already been fully briefed, and argued, before Judge Kimball, a new judge would likely want another hearing for argument. It was decided the attorneys would discuss between each other the various dates they will require and call the court back for scheduling.

There was some discussion about the Thursday and Friday during the third week of trial. The clerk went and discussed dates and scheduling with Judge Stewart in his chambers. When she returned she said she was scheduling for a full three week trial including that Thursday and Friday, during which that other case's hearings (if any) would be scheduled for the afternoon. When asked, the clerk said that the court's trial schedule for those three weeks will be 8:30am to 1:30pm. This seemed to be met with pleasure by the attorneys.

All the discussions and the court session itself took less than half an hour, everyone leaving by 1:55pm.

What does it mean? It doesn't mean the trial will really start in March. Remember the trial date in SCO v. IBM getting reset and reset? Motions are before the court, which Judge Kimball's ruling made moot, but Novell wishes them to be heard now. So a lot could happen next. One thing that will happen next, one of our reporters found out from talking with the lawyers, is that Novell will be filing its petition with the Supreme Court, hoping the court will hear its appeal, in January. It's a long shot, of course, but they are going to follow through.

Update 2: And here's another report from a third attendee:

In attendance were Brent Hatch, Edward Normand, Mauricio Gonzalez, and there was one other name I didn't catch for SCO, Michael Jacobs and Thomas Karrenberg for Novel.

Initially they were discussing possible trial dates with Sandy, Judge Stewart's court clerk. Talking about a possible June 14th trial date, that seemed to appeal to Novell more than SCO.

Some notes to the best of my recollection on that part: Jacobs: (responding to how much time they would need) It is the plaintiff's case. We could go 2 1/2 weeks.

Hatch (I may be wrong here, I believe he did most of the talking I didn't get his name until after this part): We could go as little as 2 weeks. What if it were 2 weeks? Does that change the calculus? We would like to go earlier if possible. That's why we are checking that.

Sandy: Yeah, actually, March...what does March 8th look like?

Some back and forth there, including a joke from Hatch I believe about the trial possibly running "rough-shod over my father's birthday". [PJ: Note he is referring to Senator Orrin Hatch.]

Jacobs: I think we would like some more time to get some motions filed before trial.

At that point Sandy got Judge Cahn (using their phrasing) on the phone and then Judge Stewart entered the courtroom.

Hatch started to give their preliminary estimate of time needed, but Judge Cahn couldn't hear on the phone so he started over.

Hatch: "So Judge Cahn can hear me, we were looking for 2 1/2 weeks, we would prefer this matter to go as fast as possible."

Jacobs then said that they would like to have more time to file some motions. He mentioned motions that were mooted by Judge Kimball's ruling that may have been resurrected (my wording) by the remanding. Specifically the motion on "No special damages" and summary judgment.

Judge Stewart wanted to know if the motions were fully briefed before Judge Kimball. I didn't get all of it but I believe he pointed out a few that were.

Judge Stewart: "I prefer the earlier date. This is an old case with a tortuous history." Then Judge Stewart went on to address the possibility of consolidation of Novell and IBM.

Judge Stewart: "This court can only respond to motions, not notices." And implied (don't remember the wording) that he would expect it to be consolidated under him and not Judge Campbell. He also instructed the attorneys to get together after the conference and hash out the schedule for any pre-trial motions and that Brent Hatch was to file it.

Judge Stewart then left and both sides went back to figuring out dates with Sandy.

Jacobs commented to the attorneys for SCO that they are thinking of filing a motion for a judgment of No malice on the slander of title claim. There was also some joking about being able to file motions the day before Christmas, and they asked about the first available court date after the New Year, presumably to argue or respond to any motions filed at the end of the year.

The court dates I have are:

January 4th, not yet specified but it is the first court date after the New Year.

February 11, to reargue the "No special damages" motion before Judge Stewart (or whomever it turns out to be), the court clerk. And someone else there (court employee) suggested that Judge Stewart would rather hear it reargued than be presented with the transcript from the first time it was argued.

February 25th at 2:00pm, the final pretrial hearing.

March 8-26th 8:30am-1:30pm for the actual trial.

I wish I remembered shorthand from high school I feel like I missed a lot.

Well, we thank you very much for the details you did catch. It explains, for one thing, the hearing minutes about Hatch writing up and filing the scheduling order for the judge to sign.

Update 3: And now our first reporter sends us his longer account:

The conference actually started early. We were talking in the hall; decided to go in 5 minutes early and found the scheduling discussion in progress. The attorneys had only entered about 3 minutes before us, so we didn't miss much.

The initial portion of the conference was scheduling issues with the clerk, Sandy Malley.

The calendar listed 3 attorneys for plaintiff - Hatch, Normand, and Singer. There were 4 in attendance, and we all caught the names of the 3 listed in the hearing minutes, but not the other one. I think Singer was the other, but won't know for sure until I can find a picture. Listed on the docket for defendant were Acker, Brakebill, Goldstein, Jacobs, Karrenberg, Lundberg, Melaugh, Pernick, and Sneddon. Only Jacobs and Karrenberg were there for Novell.

Hatch did all the talking on SCO's side; Jacobs for Novell.

Novell wanted a trial date in June. SCO wanted a date "as soon as possible". Novell wanted a trial lasting 3 weeks, SCO wanted 2.

The openings on the court's schedule were for March 8th, and June 14th. The earlier date was only a 2-week opening; at the end of the conference Ms. Malley made some phone calls and wedged in the extra week. (Jacobs: "You're going to have to tell me who you called so I'll know who's going to be mad at me.")

Finally, when they had discussed schedules as far as they could, the courtroom deputy called Bonnie Fatell on the phone, who then patched in Mr. Cahn. After he came on the line, Ms. Malley went to get Judge Stewart.

Judge Stewart quickly let everyone know he was very much in favor of having the trial as soon as possible.

(Judge Stewart: "This is an old case, with a long, and frankly, tortured, history.") He wanted to know why Novell wanted so much time. Jacobs said that they would need some time for motion practice, there being some matters which had been mooted by Judge Kimball's ruling, but since the appeal are now going to be before the court again.

Judge Stewart also expressed concern "that both sides had spent so much time arguing the matter of consolidation." And he rather pointedly noted that he couldn't rule on a notice, only on a motion; so if Novell really wants a ruling on consolidating their case with SCO v. IBM, they needed to file a motion to that effect.

Anyway, prior to the trial on March 8th there will be number of hearings, SCO to confer with Novell about subjects and dates. SCO (Hatch) is then to submit the proposed order tomorrow.

In addition to the three Grokreporters, there were 6 others in the gallery. I think one was Darl (dressed in a striped t-shirt and jeans) and a couple of younger (20's?) men (long-sleeve t-shirts and jeans) with him. Also a young couple; the young man had to observe a civil case for a college, I think, class. One other observer had been to enough sessions that he was recognized by attorneys on both sides.

I noticed that Mr. Cahn was called "Judge Cahn" by everyone - Judge Stewart, the courtroom deputy, lawyers on both sides. The only person who didn't call him "Judge" was Ms. Fatell.

The attorneys who spoke seemed very congenial toward each other. Mr. Gonzales and the Unnamed One (I'll go looking shortly) didn't have anything at all to say.

Richard noted that Judge Stewart seemed to agree quickly with everything that Mr. Hatch said. I didn't really notice that so much; but thinking it over, the only time Judge Stewart sent anything edged toward Hatch was on things that were obvious ( a "you-too" kind of thing about filing motions rather than notices if a ruling was desired).

Interesting, no? I had two reporters now privately tell me that Judge Stewart seemed grumpy toward Novell and more friendly to SCO. Hmm. I'll reserve judgment until I get to read the transcript, which is on order, and when I share it with you, we may get more of a reading, but to tell you the truth, I do listen when two separate reports tell me the same thing.

And it is true that as it stands, this will be the third judge Novell will have to plead its case before who was either appointed to his position by Orrin Hatch or connected to him in some clear way. Judge Kimball was appointed by Orrin Hatch, Judge Stewart used to work for him, although his official bio leaves that detail out, I notice (more on Stewart here in this PDF), and Judge McConnell, who wrote the appellate decision, was also strongly supported by Orrin Hatch for his position as judge to what was a Utah vacancy, as you can see by his statement when he introduced his nomination at the confirmation hearing in 2002.

Just saying. And yes, it's beginning to feel just a tad creepy.

Incidentally, at one hearing about Stewart, Sen. Leahy commented on recusals, as you can see in this transcript, and noted that Stewart promised to "liberally interpret" the recusal standards to avoid giving the wrong impression in matters where opponents worried he'd have a bias due to his background:

This is an unofficial transcript, but I believe you'll find it in the Congressional Record, specifically as a starting point here in the Congressional Record Index.

That would seem to hint that he would honor his solemn promise both in the specific and in the broader principle, should any such request be made, assuming he saw it as a valid request. Novell has made no such request to date. I'm just sharing all the interesting tidbits I find. And his grumpiness could be just that there have been battles over him not wishing to recuse himself in other cases, and that can't have been pleasant. And here is a party asking him, in effect, to send this case along to another judge, not by recusal, but for other reasons, but the result is similar.

We know what the Supreme Court recently ruled is the standard for recusal for state judges, but what about federal judges? If you are curious, here it is, from a decision denying a recusal motion involving other judges in Utah:

Title 28 U.S.C. § 455(a) provides that a federal judge must recuse himself “in any proceeding in which his impartiality might be reasonably questioned.” In applying this standard, the Tenth Circuit looks to determine “whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s impartiality.” United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992). “The inquiry is limited to outward manifestations and reasonable inferences drawn therefrom.” United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).
The operative word is "reasonable". Here's where you'll find Title 28 U.S.C. § 455, if you would like to read it for yourself.

Update 4: We have our fourth eyewitness report now:

I don't have much to add to the other reports, except for a few specific points:

  • Jacobs explained that Novell's wish for more time concerned the motion practice. Novell intends to push the motions that were mooted by Judge Kimball's decisions, but became un-mooted as a result of the appeal. In particular, he mentioned the special-damages issue. He particularly stated that he didn't want the Judge to have to rush through the motion paperwork to reach his decisions.

  • Novell intends to file a motion (or something) concerning absence of malice in the original (slander of title) claim. This may have been the subject of some repartee between Jacobs and Hatch concerning a 12/24 filing date for it.

  • You now have a third reporter telling you that Judge Stewart seemed much better disposed towards Hatch than towards Jacobs, me.

  • Hatch--and maybe some of the others--are involved in a case before Judge Stewart, that they referred to as the Adams case. This is set for six weeks, between the March and June dates that they had discussed.
That is our last report, so I know you join me in thanking all the volunteers for taking time out to bring us the same-day scoop.

Update 5: I've told you that the lawyers usually do get along fine, in between jousting in the court room. It's usually a cordial atmosphere, with considerable politeness shown. And everyone tells me that today's atmosphere was very light and good-humored, with teasing and jokes among most of the lawyers, and everyone laughing and kidding around. Another reporter says this, about the Adams case:

Brent Hatch and Michael Jacobs were both involved, it seems, at one time in the "Adams case." They had mentioned their firms were in the case when chatting before the bench trial too. However both of them, when chatting with the clerk about scheduling said they'd "gotten themselves out of it" which prompted the impressed clerk to call them "her heroes." Every time it's come up in the past and today, it has seemed like a case none of them wanted to be involved in. I have no idea what it's about or its proper name. But scheduled for a six-week trial, it must be something complicated.
Remember, this is all just lawyers joking around, not to be taken literally. But it will give you a flavor of the day. We think the case, by the way, is probably Phillip M. Adams & Associates, L.L.C. v. Dell, Inc., et al., a patent infringement case. You can read about it here. It's an enjoyable read. It should be captioned Adams v. Everybody, because it started by suing Lenovo and Gateway and Asus and NEC and IBM and Fujitsu and Sony and others. But as some got out of the case, the name changed. So that's what they'd mean in this context, that they successfully got their client out of the case. Morrison & Foerster represented Fujitsu, now out of the case as of November 13, and Hatch's firm represents MSI, still in there battling, unless there is something very recent, which is possible. I think, then, that what was overheard on that point might be inaccurate. Time will tell. Another eyewitness says this is what he overheard:
Ms. Malley, the clerk, (to Hatch): "You're on the Adams case too?"
Mr. Hatch: "Yes"
Ms. Malley: "Looks like we're going to get to be *great* friends!"
Mr. Hatch: "I... uh... think I'm going to... uh... reserve comment." (I couldn't see his face, but he lowered his head, and I had the distinct impression that his face was going red.)

(Laughter from both sets of attorneys)

There have been so many lawyers in this Adams case. If someone challenged me to name every famous law firm I could think of, my list would be about the same as the list of law firms that are or were involved in this litigation.

The case started as Adams v. Lenovo et al., but Lenovo got out too. You can read more about it here. The magistrate judge David Nuffer famously said at a hearing, "Computer gobblydegook is not confusing or prejudicial", as described in this article:

ASUS had another objection to admissibility of ESI that was original, but lame. They claimed the evidence was confusing because it included some computer code, hexadecimal and even zeros and ones, along with readable text. They actually argued that this would be so confusing to a jury that it would prejudice them. They wanted to keep this evidence from the jury, even though the readable text was obviously relevant. Judge Nuffer rejected this by saying at *10 ”Computer gobblydegook is not confusing or prejudicial.” You have got to admire a judge who says computer gobblydegook, a phrase I have not heard in many years. I guess the defendants picked the wrong judge for a dazed and confused by computers argument. I wonder if that argument has actually worked for them before with someone else?
That article says Judge Nuffer is a computer nerd. It's certainly nice to know there are some. And may they multiply!

By March, in a perfect world.

: D

Update 6: Here is a bit more detail on some of the objections raised against Stewart's appointment, as well as an indication of how hard Orrin Hatch fought for it, from an ABA article:

However, in this Congress, Senator Hatch has not scheduled even a single hearing on judicial nominations. What has caused this failure? It appears that it revolves around the pending nomination of Ted Stewart, Chief of Staff to the Governor of Utah and a conservative, to the federal district court.

Although Stewart’s name is currently only in the pre-nomination process in Utah, he is under attack from environmental groups who criticize his strong support of mining and development interests. These groups have expressed their strong concerns to the White House. They are openly critical not only of the president’s lack of persistence in pursuing the confirmation of other, more liberal appointees but also of his willingness to make deals with the Republicans—appointing a conservative judge as quid pro quo for the confirmation of a liberal one. While the environmentalists are bombarding the White House, they are also filling the airways and newspapers in Utah with strong criticism of Stewart. However, Senator Hatch remains deeply committed to Stewart’s appointment and has said that "things can get rough around here" if the president does not pick Stewart.


First Word from Utah in SCO v. Novell: Trial Set for March - Updated 6Xs | 290 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
It will be before Judge Ted Stewart :( n/t
Authored by: Anonymous on Tuesday, December 01 2009 @ 05:12 PM EST

[ Reply to This | # ]

Minute entry
Authored by: Steve Martin on Tuesday, December 01 2009 @ 05:19 PM EST
Minute Entry for proceedings held before Judge Ted Stewart: Scheduling
Conference held on 12/1/2009. The Court sets a Final Pretrial Conference for
2/25/2010 02:00 PM and a 3-week Jury Trial for 3/8/2010 08:30 AM in Room 142
before Judge Ted Stewart. Counsel will meet to determine other dates and
deadlines, and Mr. Hatch will submit an order for the Court's signature
reflecting those dates. Attorney for Plaintiff: Brent Hatch, Edward Normand,
Mauricio Gonzalez, Attorney for Defendant Michael Jacobs, Thomas Karrenberg.
Appearing by phone: Judge Edward Cahn, Trusee; and Bonnie Fatelle Court
Reporter: Kerry Sorensen. (slm) (Entered: 12/01/2009)

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

[ Reply to This | # ]

Corrections Here
Authored by: clicky_maker on Tuesday, December 01 2009 @ 05:35 PM EST
I don't see any errors, maybe someone else will.


[ Reply to This | # ]

News Picks Here
Authored by: clicky_maker on Tuesday, December 01 2009 @ 05:36 PM EST
Please note which article you are referencing
in the title.


[ Reply to This | # ]

OT - Off Topic Here
Authored by: clicky_maker on Tuesday, December 01 2009 @ 05:38 PM EST
Please make any links clickable.


[ Reply to This | # ]

First Word from Utah in SCO v. Novell: Trial Set for March
Authored by: Anonymous on Tuesday, December 01 2009 @ 05:42 PM EST

Perhaps I am being too cynical, but it seems that this litigation has sped up
enormously recently. Previously SCO used any and every excuse possible to gain
delays and the judges allowed that delay is no longer in SCO's best
interest then everything has moved into overdrive...

[ Reply to This | # ]

First Word from Utah in SCO v. Novell: Trial Set for March
Authored by: Anonymous on Tuesday, December 01 2009 @ 05:47 PM EST
"SCO has prevailed with respect to assigning to the same judge or

I thought you said something to the effect that judges try to avoid any
appearence that the fix is in.

[ Reply to This | # ]

If a jury decides that the copyrights held by Novell transfered, what are they?
Authored by: PTrenholme on Tuesday, December 01 2009 @ 05:52 PM EST

Novell was selling the UNIX support business they had, and they may have had some UNIX copyrights, but wouldn't any materiel in Linux covered by those copyrights be, ipso facto, released under the GPL by Novell when they joined SuSE?

Several other findings by Judge Kimball were not, IIRC, challenged. Among then was the finding that Novell had the absolute right to tell the SCOG to abandon much of the IBM case. If that recollection is correct, there's not much left there even if some copyrights did transfer.

And, if some old UNIX copyrights did transfer, so what? Does that have any impact on the rest of SCO v. Novell? And, given the SUSE arbitration and the "open sourcing" of the Sun OS, does the SCOG still have any copyrights that impact Linux?

IANAL, just a retired statistician

[ Reply to This | # ]

First Word from Utah in SCO v. Novell: Trial Set for March
Authored by: Anonymous on Tuesday, December 01 2009 @ 06:04 PM EST
From a few articles ago:
It's one reason why judges recuse themselves, to avoid even causing the impression that the fix is in.
The "politically correct" term that the press has used over the past several years is "avoiding even the appearance of impropriety".

Judge Stewart appears to be following the recent judicial trend of "whatever SCO wants, SCO gets" regardless of appearances of impropriety or the law. I still can't believe that the appeals court ruled that the APA as amended was unclear enough that extrinsic evidence should be weighed by a jury, yet that lack of clarity didn't make it fall outside the "clear writing" requirement that is supposed to be necessary for a copyright to transfer.

Hopefully Novell will appeal to the Supreme court at the lat possible moment and the Supremes will order that this jury trial be put on hold until they hear the appeal.

[ Reply to This | # ]

Novell will be appealing to the Supreme Court, won't they?
Authored by: skyisland on Tuesday, December 01 2009 @ 06:05 PM EST
I hope so!

[ Reply to This | # ]

Something else to look forward to!
Authored by: Anonymous on Tuesday, December 01 2009 @ 07:33 PM EST
The issue of consolidation or reassignment did not come up today.

But what should we expect?

Why on earth did Novell point to Kimball, of all people, as proof that assigning
different but overlapping cases to one judge serves judicial economy?
Why don't we count instead the inconsistencies and contradictions between the
stories of IBM and Novell which Kimball, without one single word and certainly
not a question, let exist?
I mean, as a starter, how is Novell (and a judge handling both cases) supposed
to react in a courtroom when IBM says that it got a license to Novell's
copyrighted code ... from Caldera in 1999?
Or when IBM says that Novell waived things "IF the language of its Software
Agreements could be construed to preclude disclosure of so-called home-grown
code", after Novell said it waived things precisely because the language
can NOT and shall NOT be construed that way?
And how was Kimball supposed to react when Mr. Jacobs told him that if (the
Arbitral Tribunal agrees with Novell's position that) SCO's copyrighted code in
UnitedLinux (technology/Software/kernel) transferred to UnitedLinux LLC, this
would prove that Novell did NOT slander SCO's title to ANY of the Unix
copyrights listed in Attachment E to APA Seller Disclosure Schedule? By assuming
those ALL went into UnitedLinux (technology/Software/kernel) as "related
technology" though not as Pre-existing Technology?

Did it escape to Kimball that Mr. Jacobs in fact was only trying to tell him
1. if, and only if, there is evidence of Unix copyright infringement in Linux,
2. if the Arbitral Tribunal agrees with Novell's position that as a consequence
SCO ought to divest its infringed copyrights to UnitedLinux LLC for proper
release under the GPL; then
3. Novell was only slandering for years SCO's title to all other Unix copyrights
listed in Attachment E that did NOT make it into UnitedLinux and hence NOT
towards UnitedLinux LLC, and
4. Novell will address the possibility that there is no evidence of Unix
copyright infringement in Linux another time.

But this one was also funny to read again. Or became funny to read again. 20317
Though that was when Novell was full of rage and fury. In the knowledge that
Kimball was around.
When Novell said that the case which was most ready should go first.
And when IBM said that instead the Novell case should go first because it would
resolve a lot of issues in the IBM case.
Now however, Novell says that the case which is most ready should rather be
consolidated with the case that is not.
And IBM said nothing. Probably because IBM, unlike Novell, didn't change its

BTW Mr. Jacobs did weird today. The fellow next to me asked who he was. And why
he was yelling like a pig on its way to the slaughterhouse. I told him that he
was the guy writing training manuals for MoFos. And the one who managed to get
Novell in Federal Court with some smartass story about the Jasper case. Of all

[ Reply to This | # ]

Authored by: jbeadle on Tuesday, December 01 2009 @ 09:21 PM EST
Seems like an inordinate number of anonymous "thread-starters"


Naw - can't be...



[ Reply to This | # ]

  • Hmmm. - Authored by: PJ on Tuesday, December 01 2009 @ 10:23 PM EST
    • Hmmm. - Authored by: Grog6 on Tuesday, December 01 2009 @ 11:20 PM EST
      • Hmmm. - Authored by: PJ on Wednesday, December 02 2009 @ 12:27 AM EST
    • Hmmm. - Authored by: Marc Duflot on Wednesday, December 02 2009 @ 04:25 AM EST
      • Hmmm. - Authored by: Ian Al on Wednesday, December 02 2009 @ 10:32 AM EST
    • Hmmm. - Authored by: Anonymous on Wednesday, December 02 2009 @ 07:06 AM EST
  • I am grateful anonymous posts are allowed - Authored by: Anonymous on Wednesday, December 02 2009 @ 02:37 AM EST
First Word from Utah in SCO v. Novell: Trial Set for March - Updated 4Xs
Authored by: Anonymous on Tuesday, December 01 2009 @ 10:09 PM EST

It is entirely possible that I missed something, although it still seems that
SCO contracted to pass all license fees collected back to Novell, who would then
return 5% as a commission.

Why is Novell still letting SCO get away with non-payment of this over the

Also a "common-sense" look at such an agreement seems to strongly
imply that Novell must have retained something substantial in order to back up
such a contractual stipulation.

Can you say "copyrights"? ... Sure you can! :)

[ Reply to This | # ]

A very big "Thank you!" to the reporters...
Authored by: charlie Turner on Tuesday, December 01 2009 @ 10:09 PM EST
Having done this once myself, I can appreciate and relate to your experience
today. Many thanks for your efforts!

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Just saying. And yes, it's beginning to feel just a tad creepy.
Authored by: SilverWave on Tuesday, December 01 2009 @ 10:13 PM EST
well well...

...small world.

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

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First Word from Utah - 2nd Word from O'Gara
Authored by: dmarker on Tuesday, December 01 2009 @ 11:25 PM EST
Maureen O'Gara has already published the second word :)

Anyone interested can go to (I won't post a link or clicky)
to see her excitement at Novell's discomfort e.g. This is her byline to her
article "If Judge Stewart didn't already know how jury-shy Novell is, he
does now".

I guess we will get to hear more from & about her yet again.

Doug M

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What is the difference between "notice" and "motion"
Authored by: bugstomper on Wednesday, December 02 2009 @ 02:18 AM EST
This is a question for those of you who know more about the legal terminology. I
tried searching for definitions of "motion" and "notice" in
legal contexts, but what I found seem too different to explain how they are
being used here. The Novell filing is asking the Court to do something and
explaining why the Court should do it, which seems like the definition of a
motion. The definitions of "notice" seem to involve situations in
which one party is making the other party or the Court aware of some
information, but does not include a request to do something about it.

By those definitions I don't see how a lawyer can substitute one for the other,
or why Novell would have submitted their request in the form of a document that
was titled as a notice. I could just accept that Judge Stewart obviously thinks
that way, but that doesn't explain why Judge Kimball has the lawyers use notices
instead of motions or why an experienced lawyer would do that with a different
judge. What am I missing about it?

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Orrin Hatch connection with Judges
Authored by: The Mad Hatter r on Wednesday, December 02 2009 @ 03:04 AM EST

Senator Orrin Grant Hatch is 75 years old. He became a senator in January 1977,
and has been Chairman of the Senate Committee on the Judiciary for most of the
last 10 years. Because of the way the U.S. political and judicial systems work,
and the small population of the state he represents (only 2.7 million people),
it would be surprising if he didn't know most of the local judges.

That's the way it is in small states, or for that matter small political
entities of any type. A lot of the major players will know each other.

Just because he knows Orrin Hatch, doesn't mean he can't be unbiased. He may not
even like Senator Hatch. We don't know.


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A New Style and Some Old Thrills
Authored by: webster on Wednesday, December 02 2009 @ 07:49 AM EST

The new judge is certainly a horse of a different color. He doesn't have the patience or endurance of Kimball. It's full steam ahead --spare the details. The clerk handles the details and does most of the talking --without the judge on the bench.

  1. The Judge is stern with Jacobs because Jacobs is threatening his schedule with more delay. The Judge wants motions not notions. The judge is whipping this party into shape. The judge doesn't care what the case is about but he is going to have to learn.
  2. Jacobs is talking motions filed and motions to come. Jacobs notes there are summary motions that had been mooted. He also makes the thrilling suggestion of a motion on malice and special damages. Kimball twice refused to dismiss the slander of title claim despite finding a good faith copyright issue. The Court of Appeals has put their stamp on the copyright issue mandating a jury trial. So Slander of Title here we come again with the Court of Appeals on Novell's side.
  3. The bully pulpit is not going to be able to give this case short shrift. He is bound to have a jury trial but he has a lot to decide before that happens. Stewart already knows about this case. Does he already have an attitude? It is too early to tell. Years ago we discussed here how a judge has his desk in an open courtroom with everything recorded. His mind becomes known to all. His reputation is set only to be confirmed day after day. Clearly this judge doesn't like to sit out there and bother with the details. We shall learn more soon enough.

There is a recess in the concentration on these matters brought on by the bittersweet prospect of a Funeral in New Orleans.


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

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Underlying meaning?
Authored by: kenryan on Wednesday, December 02 2009 @ 09:02 AM EST
> Some back and forth there, including a joke from Hatch I
> believe about the trial possibly running "rough-shod over
> my father's birthday". [PJ: Note he is referring to
> Senator Orrin Hatch.]

Thus ensuring the clerk is well aware of the Hatch-Stewart connection ...

(speaking only for myself, IANAL)

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  • Question - Authored by: Anonymous on Wednesday, December 02 2009 @ 01:19 PM EST
    • Question - Authored by: PJ on Wednesday, December 02 2009 @ 02:00 PM EST
Re: Transcripts
Authored by: kenryan on Wednesday, December 02 2009 @ 09:08 AM EST
Question: Does the official court record (i.e. transcript) include the time the
clerk is conversing with the parties, or just when the judge is on the bench?

In other words, will we get to read the details of the whole session, or just
the short time Judge Stewart was in the room?


(speaking only for myself, IANAL)

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Is it time to look seriously at a beneficial tort reform in Utah?
Authored by: IMANAL_TOO on Wednesday, December 02 2009 @ 11:59 AM EST
Is it time to look seriously at a beneficial tort reform in Utah? At least that is what Senator Dave Thomas thought in 2005:

We have a problem with “lawsuit abuse” in Utah, but you wouldn’t know it if you talked to the Utah Trial Lawyers Association. I am the Chairman of the Judiciary Interim Committee and I recently had representatives of the Trial Lawyers appear before my committee. To a man, each stated that there was no problem with the Utah tort system. In fact, I was told that a frivolous lawsuit had not been filed in Utah in many years. Do you believe that? I don’t.

[long argument]

It is time to look seriously at beneficial tort reform in Utah.

Surprisingly, he did not mention SCO, IBM, or Novell once.



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The Adams Case looks to be about Floppy disk errors
Authored by: jws on Wednesday, December 02 2009 @ 09:54 PM EST
I recall a suit about a problem which created unreadable floppies which was
related to a bios bug or some sort.

I suspect the gobbledygook (spell check knew this :-) was the crap on the screen
when one boots. I think this may be one which is on a chase to see who to screw
over the bios bug. ASUS apparently can't produce business records of some sort
which is what one blog column is covering that PJ linked to.

Geesh, floppies. They'll be suing over DVD's in the year 10000 if capacity ==
the number of possible lawsuits.

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