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Novell's Motion to Allow Evidence: SCO Opened the Door
Friday, March 12 2010 @ 10:14 AM EST

Yesterday, at the end of the day at the trial of SCO v. Novell, there was a discussion of whether certain evidence could be let in after all, due to something SCO said. Judge Ted Stewart asked Novell to put it in the form of a motion, and they have.

SCO accused Novell in its opening argument four times of slander of title "to this very day". And in questioning Duff Thompson yesterday, the lawyer asked him if he saw evidence of slander of title to the present, and he said yes. It indicates a desire for damages covering the entire time period.

However, Novell points out that prior rulings by this court and the appeals court found that Novell was in fact the owner of the copyrights, among other things, and Novell thinks it is grossly unfair that it can't be allowed to mention those salient facts to the jury, if the judge is going to allow SCO to claim damages "to this day":

In view of the foregoing, the Court should permit Novell to introduce evidence that Novell’s representatives acted with knowledge of the following three facts:

1. Judge Kimball ruled on August 9, 2004, that “the APA did not transfer any copyrights” and “the agreements raise substantial doubt as to whether the APA as amended by Amendment No. 2 qualifies as a [17 U.S.C.] Section 204(a) writing”;

2. Judge Kimball ruled on August 7, 2007 that “Novell is the owner of the UNIX and UnixWare copyrights”; and

3. The Tenth Circuit recognized on August 24, 2009 that “Novell has powerful arguments to support its version of the transaction.”

SCO's attorney Stuart Singer may have gotten carried away with his theatrical indignation. And when a party slips like this, what lawyers call opening the door, it can indeed have consequences. Novell was just waiting for a moment like this.

Here's the motion:

03/11/2010 - 790 - MOTION to Allow Evidence Responding to SCO's Allegation that Novell's Slander Continues "To This Very Day" filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A-Trial Testimony, # 2 Exhibit B-Order)(Brennan, Sterling) (Entered: 03/11/2010)

And here's the essence of it:
The issue presented by this Motion is not whether prior adjudications are relevant to ownership. Instead, the issue presented is whether awareness that those rulings were made is relevant to whether Novell’s representatives "continue[d] to assert ownership" and "continue[] to republish that slander" "to this very day" with either knowledge that those assertions are false or reckless disregard for their truth. Clearly, awareness of those rulings is relevant to state of mind. Thus Novell should be permitted to introduce evidence that those accused of publishing and authorizing publications on its behalf were aware of those rulings.

Necessarily, such evidence will include disclosure of the contents of the rulings themselves; which SCO will argue is unfairly prejudicial and potentially misleading. But SCO created that problem for itself when it opened the door by repeatedly asserting in its opening statement, and eliciting testimony, that Novell’s supposed slander "continues to this very day." Moreover, the risks SCO has created can be minimized by a limiting instruction to the jury that they may consider the evidence only to determine the state of mind with which publications were made, and not to determine who owns the copyrights. Because any residual risk cannot be said to substantially outweigh the enormous probative value of this evidence, the evidence should come in. See Fed. R. Evid. 403.

We'll see what the judge says, but it will be hard for him to do nothing about this. Novell may not be allowed to mention, for example, the appeals court statement, but perhaps the other two. Or the judge will fashion some other remedy, but I don't see how he can do nothing, at least not without creating another appealable issue. If Novell's executives are to be judged for what they said they owned, surely they have to be able to defend themselves by saying what they knew about the matter. If they said it, for example, after the court ruled in their favor on August 10, 2007, how can that be slander of title, malice, reckless disregard for truth? The judge's *order* said they did own the copyrights:
As Novell’s representatives “continue[d] to assert ownership” and “continue[d] to republish that slander” from June 9, 2004 “to this very day,” they did so knowing that a sitting United States District Judge had ruled that the APA, without amendments, “did not transfer any copyrights”; and that there was “substantial doubt as to whether the APA,” even “as amended by Amendment No. 2,” satisfied the statutory requirements to transfer the copyrights. Certainly evidence that Novell’s representatives were aware of that fact is probative of whether they “continue[d] to assert ownership” and “continue[d] to republish that slander” either knowing that those assertions were false or with reckless disregard for their truth.
The balance that Judge Stewart ruled on before, thinking the prior rulings would be more prejudicial than probative, has now shifted, and he will be measuring the field again to see which is now dominant. Novell's state of mind and reasons for what was said are now relevant, Novell argues, in a way they were not before. Frankly, from my point of view, the claim itself is outrageous on its face; but compounding it by allowing SCO to make the allegation and denying Novell the means with which to defend itself would be laughable. That doesn't mean it can't happen. But I doubt it can be defended. It's like tying Novell's hands behind its back and then letting SCO fight with chains. Nobody watching is going to call it fair.

I have about reached the impression that the only reason SCO is pursuing this claim is so they can at least act sincere about SCOsource. They are vulnerable, after all, to Novell's claim of slander of title, not to mention IBM's counterclaims eventually, and Novell has at least some evidence that SCO knew when it began its litigious course that it knew it did *not* own the copyrights but went ahead anyway. Now *that's* what I'd call slander of title, personally. So maybe all the extreme emotion and pounding on the table is to silence that little voice in the jury's mind saying, but SCO *knew*.

Exhibit A is 7 pages of Stuart Singer's opening argument, by the way, which is lovely to have, and his questioning of Thompson. It's from the dailies, which is what we were thinking we might need to order when we thought no one had attended on our behalf on Wednesday. This is their normal purpose, to be used by the parties.

I've removed the headers, just for time:

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

NOVELL’S MOTION TO ALLOW
EVIDENCE RESPONDING TO
SCO’S ALLEGATION THAT
NOVELL’S SLANDER CONTINUES
“TO THIS VERY DAY”

I. INTRODUCTION

Yesterday, SCO's lead counsel elicited from Robert Duff Thompson, SCO's second witness, the following testimony:
Q. Are you aware of continued assertions of ownership to UNIX copyrights by Novell to this very day?

A. Yes. (Tr. at 275:8-10 [emphasis added].)1

That testimony was previewed and emphasized by SCO not just once, or even twice, but three times the day before, in its opening statement. First, SCO's lead counsel told the jury:
  • "Then in December of 2003, another important date as you'll learn, Novell goes public again, says they have the copyrights, and starts a web page where it continues to assert ownership of the UNIX copyrights to this very day." (Id. at 13:21-25 [emphasis added].)

    Minutes later, he repeated:

  • "So this is a campaign of slander, broadcast and repeated to the world that continues to this very day." (Id. at 14:8-9 [emphasis added].)

    Then SCO's local counsel returned to the same theme, ensuring it would not be lost on the jury:

  • "And to this day Novell, on their web site, continues to republish that slander." (Id. at 32:16-18 [emphasis added].)
In view of the foregoing, the Court should permit Novell to introduce evidence that Novell's representatives acted with knowledge of the following three facts:
1. Judge Kimball ruled on August 9, 2004, that "the APA did not transfer any copyrights" and "the agreements raise substantial doubt as to whether the APA as amended by Amendment No. 2 qualifies as a [17 U.S.C.] Section 204(a) writing";

2. Judge Kimball ruled on August 7, 2007 that "Novell is the owner of the UNIX and UnixWare copyrights"; and

3. The Tenth Circuit recognized on August 24, 2009 that "Novell has powerful arguments to support its version of the transaction."

1

II. ARGUMENT

A. Any Information Bearing on Novell's Ownership and Available to Novell's Representatives when they Are Alleged to Have Asserted Ownership Is Relevant

As this Court has already ruled, SCO must prove Novell published its alleged slanders of SCO's purported title with knowledge of their falsity, or at least reckless disregard for their truth. (Dkt. 762.) Thus SCO has, by accusing Novell of "continu[ing] to assert ownership of the UNIX copyrights" and "continu[ing] to republish that slander" on its website "to this very day," placed at issue whether such publications were made with either knowledge that Novell did not own the copyrights or reckless disregard for the truth. See United States v. Chavez, 229 F.3d 946, 952 (10th Cir. 2000) ("It is widely recognized that a party who raises a subject in an opening statement 'opens the door' to admission of evidence on that same subject by the opposing party.").

Any evidence tending to make the existence of that scienter "more probable or less probable" is relevant, Fed. R. Evid. 401, and therefore admissible, Fed. R. Evid. 402, unless "its probative value is substantially outweighed by the danger of unfair prejudice," Fed. R. Evid. 403 (emphasis added). Evidence that Novell's representatives had and have information supporting Novell's ownership claim, as they asserted and continue to assert "ownership" and "republish that slander" on Novell's website, makes the existence of the requisite scienter less probable; and is thus admissible unless its probative value is substantially outweighed.

B. Certain Rulings Made by Judge Kimball and the Tenth Circuit Are Now Relevant

The information available to Novell's representatives as they asserted and continue to assert Novell's ownership includes several key judicial rulings. First, in his June 9, 2004 order denying SCO's motion to remand (Dkt. 29, reproduced as Ex. B hereto), Judge Kimball ruled:

  • "It is undisputed that the APA did not transfer any copyrights" (id. at 8) and

2

  • "the agreements raise substantial doubt as to whether the APA as amended by Amendment No. 2 qualifies as a [17 U.S.C.] Section 204(a) writing" (id. at 10).
As Novell's representatives "continue[d] to assert ownership" and "continue[d] to republish that slander" from June 9, 2004 "to this very day," they did so knowing that a sitting United States District Judge had ruled that the APA, without amendments, "did not transfer any copyrights"; and that there was "substantial doubt as to whether the APA," even "as amended by Amendment No. 2," satisfied the statutory requirements to transfer the copyrights. Certainly evidence that Novell's representatives were aware of that fact is probative of whether they "continue[d] to assert ownership" and "continue[d] to republish that slander" either knowing that those assertions were false or with reckless disregard for their truth.

Second, in his August 10, 2007 order granting summary judgment (Dkt. 377), Judge Kimball ruled:

  • "Novell is the owner of the UNIX and UnixWare copyrights." (Id. at 62.) And third, in its August 24, 2009 ruling reversing Judge Kimball's grant of summary judgment, the Tenth Circuit concluded:

  • "Novell has powerful arguments to support its version of the transaction." SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1215 (10th Cir. 2009).

Thus as Novell's representatives "continue[d] to assert ownership" from August 10, 2007 to August 24, 2009, they did so knowing Novell was the adjudicated owner; and as they "continue[] to republish that slander" "to this very day," they do so knowing that a sitting United States District Judge reached the same conclusion and the Tenth Circuit has recognized that "Novell has powerful arguments" in support of its contention. Again, evidence that Novell's representatives were and have been aware of those facts is highly probative of whether they "continue[d] to assert ownership" knowing that those assertions were false, or with reckless disregard for their truth.

3

C. Novell Should Be Permitted to Introduce Evidence that its Representatives Were Aware of Judge Kimball's and the Tenth Circuit's Rulings

The issue presented by this Motion is not whether prior adjudications are relevant to ownership. Instead, the issue presented is whether awareness that those rulings were made is relevant to whether Novell's representatives "continue[d] to assert ownership" and "continue[] to republish that slander" "to this very day" with either knowledge that those assertions are false or reckless disregard for their truth. Clearly, awareness of those rulings is relevant to state of mind. Thus Novell should be permitted to introduce evidence that those accused of publishing and authorizing publications on its behalf were aware of those rulings.

Necessarily, such evidence will include disclosure of the contents of the rulings themselves; which SCO will argue is unfairly prejudicial and potentially misleading. But SCO created that problem for itself when it opened the door by repeatedly asserting in its opening statement, and eliciting testimony, that Novell's supposed slander "continues to this very day." Moreover, the risks SCO has created can be minimized by a limiting instruction to the jury that they may consider the evidence only to determine the state of mind with which publications were made, and not to determine who owns the copyrights. Because any residual risk cannot be said to substantially outweigh the enormous probative value of this evidence, the evidence should come in. See Fed. R. Evid. 403.

III. CONCLUSION

Now that SCO has opened the door, by arguing and presenting evidence to the jury that Novell's supposed slander "continues to this very day," Novell should be permitted to introduce evidence that its representatives acted with knowledge that:

  • On June 9, 2004, Judge Kimball ruled, "[i]t is undisputed that the APA did not transfer any copyrights" and "the agreements raise substantial doubt as

4

to whether the APA as amended by Amendment No. 2 qualifies as a [17 U.S.C.] Section 204(a) writing";
  • On August 7, 2007, Judge Kimball ruled, "Novell is the owner of the UNIX and UnixWare copyrights"; and

  • On August 24, 2009, the Tenth Circuit concluded, "Novell has powerful arguments to support its version of the transaction."

DATED: March 11, 2010 Respectfully submitted

By: /s/ Sterling A. Brennan

WORKMAN NYDEGGER
Sterling A. Brennan
David R. Wright
Kirk R. Harris
Cara J. Baldwin

MORRISON & FOERSTER LLP
Michael A. Jacobs, pro hac vice
Eric M. Acker, pro hac vice
Grant L. Kim, pro hac vice

Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.

______________

1 Transcript excerpts are reproduced as Ex. A hereto.

5

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

EXHIBIT A


BEFORE THE HONORABLE TED STEWART

March 9, 2010, Jury Trial

... was present in their files. They say the amendment appears to support SCO's claim that ownership of certain copyrights for UNIX did transfer to SCO in 1996.

Now if that was the end of the story, it would be bad enough, a slander made and published to the entire world on the very day that SCO was announcing record earnings. But this is far worse, because not long after the June 6th retraction, Novell decided to retract the retraction and resume a campaign of slander.

So, on May 28th, we had the initial statement. On June 6th, there was a retraction. There were some letters back and forth between the parties. August 4th, Novell says that SCO's claimed ownership in the UNIX technologies must be rejected and they go back to saying they own the copyrights.

In October they go in to obtain copyright registrations themselves on UNIX, and they told the copyright office they retain all or substantially all of the ownership of the copyrights in UNIX, including the U.S. copyright registration referenced above.

Then in December of 2003, December 22nd, another important date, as you'll learn, Novell goes public again, says they have the copyrights, and starts a Web page where it continues to assert ownership of the UNIX copyrights to this very day.


In January of 2004, they launched their own program for licensing UNIX users to protect them against infringement that competes with SCO's program.

In March 2004, a Novell executive goes so far as to stand up at a convention and flat out say, we still own UNIX, even though that was a product that was sold to our client's predecessor and now belongs to SCO.

So this is a campaign of slander, broadcast and repeated to the world that continues to this very day. Mr. Hatch will talk later about the effect that this had on SCO's business. It depended on those UNIX copyrights.

Now how do we know it's a slander? You will hear tremendous amount of evidence about that in this trial. What is remarkable, though, is that this is a case where the executives at the time of the sale, on both Novell's side and Santa Cruz's side, agreed that the copyrights were sold.

Ladies and gentlemen, you're going to hear testimony in this trial from ten witnesses on both the Novell and the Santa Cruz side of the transaction which indicate that the copyrights were sold by Novell to Santa Cruz.

Our first witness, which you'll hear later today, is Robert Frankenberg. He was the president and chief executive officer of Novell. The number one guy at the time. He will testify that it was the intent of Novell to


slander.

I think we're going to need to rerun that.

[Video clip played]

MR. SINGER: SO here you have him publicly saying flat out, we still own UNIX, we still own UNIX, even though they have sold the company, they've told customers they've sold the company, we have copyright registrations, and they are continuing to slander in public.

Compare, if you will, what Mr. Stone said, we still own UNIX, to what Novell told its customers in 1995 when the deal was done. In 1995, they say Novell transferred to the Santa Cruz Operation its existing ownership interest in UNIX system-based offerings, which are defined as all releases of UNIX. And in 2003, their vice chairman stands up and says, quote, we still own UNIX. That was false, that was slander we believe you will find. And to this day Novell, on their web site, continues to republish that slander. So there will be plenty of evidence where you will be able to conclude that Novell acted recklessly, intentionally and maliciously.

But there is something more. All of this was timed to harm SCO to the max. Chris Stone, the man who stood up at the 2004 conference and said we still own UNIX, is also the Novell executive who talked to the press on May 28th, 2003, and said, here's the press release we're going ...


March 10, 2010, Jury Trial, Volume II


p. 275

... by this correspondence, SCO has been well aware that Novell continues to assert ownership of the UNIX copyrights.

Q. Mr. Thompson, are you aware of whether December 22nd, 2003 also was a date on which SCO was announcing its earnings, this time for the period ending in December?

A. I don't remember the exact date, but it was in or near this date.

Q. Are you aware of continued assertions of ownership to UNIX copyrights by Novell to this very day?

A. Yes.

Q. Now, were you the person in charge of the sale of UNIX to Santa Cruz?

A. Yes. I was given that charge by Bob Frankenberg.

Q. Based on your knowledge of that transaction, Mr. Thompson, was the statement by Novell in May of 2003 that they owned the UNIX copyright true or false?

A. It is false. It is not consistent with the transaction that we conducted.

Q. Based on your knowledge of that transaction, was the statement by Novell on December 22nd, 2003 continuing to assert ownership of the UNIX copyrights, was that true or false?

A. I believe it is false.

MR. SINGER: Thank you. That concludes my direct examination.



  


Novell's Motion to Allow Evidence: SCO Opened the Door | 243 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
My hope
Authored by: Leg on Friday, March 12 2010 @ 10:21 AM EST
Today, I hope that Judge Stewart rules favorably on this motion.

[ Reply to This | # ]

Hehehe
Authored by: Shadow Wrought on Friday, March 12 2010 @ 10:47 AM EST
Trial lawyers live for this moment. Even if Novell brings it in, wins, and SCO
appeals; SCO was responsible for it coming in, essentially cutting the legs off
of their appeal.

It'll come in, and Novell is going to beat SCO over the head with it in closing.

---
"It's a summons." "What's a summons?" "It means summon's in trouble." -- Rocky
and Bullwinkle

[ Reply to This | # ]

Potential repercussions.
Authored by: Anonymous on Friday, March 12 2010 @ 10:52 AM EST
Do lawyers get fired over this sort of thing?

[ Reply to This | # ]

Wrong Date
Authored by: DaveJakeman on Friday, March 12 2010 @ 11:01 AM EST
Understandably, Novell wrote this in a hurry. Kimball's ruling that Novell
owned the copyrights was 10th August, 2007, not the 7th.

Not a correction -- it's in the PDF.

[ Reply to This | # ]

Novell's Motion to Allow Evidence: SCO Opened the Door
Authored by: Anonymous on Friday, March 12 2010 @ 11:08 AM EST
I wonder what bearing (if any) this will have on Novell's counterclaims that SCO slandered their title to those same copyrights.

(When will the court system deal with that one, anyway?)

[ Reply to This | # ]

Wrong link to Exhibit B
Authored by: holdenSK on Friday, March 12 2010 @ 11:10 AM EST
Wrong link to Exhibit B - Should point to Novell-790-2.pdf

[ Reply to This | # ]

"We still own UNIX"
Authored by: DaveJakeman on Friday, March 12 2010 @ 11:16 AM EST
Singer repeatedly asserts that Novell claims "to this day" they still
own UNIX.

That is not true. That is SCOtwist. Novell claims "to this day" they
still own the UNIX *copyrights*. Big difference.

The APA and much of the witness testimony shows that UNIX transferred to Santa
Cruz, which Singer is trying to befuddle the jury with. But that's not what he
needs to prove. He's trying to say, "I have some ham, therefore I was
given ham and eggs".

[ Reply to This | # ]

Par for the course...
Authored by: gjleger on Friday, March 12 2010 @ 11:17 AM EST
As usual, SCO is its own enemy. The one thing that has been consistent from day
one is SCO has over and over made bold "statements" which have come
back to haunt them time and time again.

[ Reply to This | # ]

Corrections here, please...
Authored by: jbeadle on Friday, March 12 2010 @ 11:18 AM EST
Please note the correction in the title line.

Thanks,
-jb

[ Reply to This | # ]

Off Topic here, please...
Authored by: jbeadle on Friday, March 12 2010 @ 11:20 AM EST
If you have links to follow, please make them clicky per the instructions on the
"Post a Comment" page.

Thanks,
-jb

.

[ Reply to This | # ]

Newspicks discussion threads here, please...
Authored by: jbeadle on Friday, March 12 2010 @ 11:21 AM EST
The title should reflect the Newspick topic.

Thanks,
-jb

.

[ Reply to This | # ]

All things COMES here, please...
Authored by: jbeadle on Friday, March 12 2010 @ 11:23 AM EST
Keep on identifying these documents.

Thanks,
-jb

.

[ Reply to This | # ]

Maybe Stewart will take a sane compromise and remove Slander of Title from the trial
Authored by: Anonymous on Friday, March 12 2010 @ 11:33 AM EST
Or stubbornly deny Novell's motion and guarantee that this whole trial is an
appeal-worthy waste of time.

[ Reply to This | # ]

Hence we Learn - be careful what you pray for..
Authored by: Ollathair on Friday, March 12 2010 @ 11:39 AM EST
Sadly, for anyone who has been employed in management, much less, in senior
Information Technology positions/s, the mantra of the Military, as well as those
in the know, of the elder generation of such senior (as in, has some ethics,
sense & morals) management, be YEA aware, of that which you pray for.

SCO, Darl & CO, have prayed for their day in court.

Long have I thought that this is truly a bad idea.
However, I digress to the wisdom of those in SCO & CO.

Sadly, somewhat, many would share many a divergent opinion of this current
circumstance.

Although, many an informed opinion would mostly agree with Ms PJ.
Oddly enough, this opinion seems to agree with the status (GNU/Linux) quo.

The informed GNU opinion to date, is that Darl's legacy has no legs, no back
bone, in fact, no actual standing.

Now, it seems that, regardless of any appeal, this has been proven true.

From here on in, SCO are truly facing doom.
Not any ordinary doom, mind you, but a legacy of doom, of historical, dare we
say, biblical, proportions.

Such seems the fate of those who would support SCO & CO.
However, their doom is some days to yet follow.
Follow, however, it will.
As a legacy of doom, of historical proportions.

You just have to got to love it!

[ Reply to This | # ]

Just a question regarding Sco's IBM Claims
Authored by: Anonymous on Friday, March 12 2010 @ 12:01 PM EST
If novell released a linux distribution prior to selling the unix business to
sco, that would pretty much take the legs out from under sco regarding anything
in the linux kernel wouldn't it? At the time they were the undisputed
holders of the copyrights, so could release it or not at their discretion.

[ Reply to This | # ]

Novell's Motion to Allow Evidence: SCO Opened the Door
Authored by: Anonymous on Friday, March 12 2010 @ 12:08 PM EST
The Judge has shown, to date, that he was determined to give SCO its trial, with
the minimum of appealable issues, such that he ruled against a number of
well-reasoned MILs from Novell.

On the other hand, the Judge has also shown that he is willing, where no
reasonable alternative exists, to reverse himself and give - begrudgingly -
Novell the benefit of its original argument.

So -- I expect that he is going to do backflips with his clerks to try to find a
way to deny Novell's motion -- but I suspect he won't find a way. He can't
fairly undo the damage to Novell, and it is critical that SCO not only made the
statement in opening arguments, but also in it's trial testimony from its own
witness.

It's important to consider that the damage done to Novell by those statements
align in 2 dimensions.
First, the claim "to this very day", if not allowed to be rebutted,
goes to the establishment of malice -- i.e, the fundamental proof of the claim.

It also goes to the amount of damages that a jury might assign to the slander.

The judge might have some techniques or remedies to address the second
dimension, but the first dimension cannot be remedied, IMO, without granting
Novell's request.

Now, the entire reason the Judge ruled against Novell's request for a Finding of
Fact on this matter in the first place was that, if granted, it would render
SCO's Slander claim into a virtual nullity. Because -- it is obviously
reasonable (and not reckless or malicious) to rely on the decision of a Federal
Judge.

So, if he grants the request now, then it follows that ........... BSF will look
pretty bad.

LEXLAW

[ Reply to This | # ]

Novell's Motion to Allow Evidence: SCO Opened the Door
Authored by: Anonymous on Friday, March 12 2010 @ 12:37 PM EST
I hate to be the party pooper here, but based on what I've seen from the courts
in this case, I don't see the judge doing diddly squat on this. I predict he
will let the SCO mentioning of "to this day" slide with some
netherworld darkrealm justification for denying Novell's motion.

[ Reply to This | # ]

Did SCO "Open the Door" to much more than this?
Authored by: Leg on Friday, March 12 2010 @ 12:37 PM EST
I am not a lawyer, though I was once married to one -- I helped her through law
school, read her the questions and answers while flipping through the flash
cards. Even that knowledge of the legal system is already 35 years old.

But I have learned logic.

SCO charges that Novell continues to commit slander of title.

Why? Because SCO wants to charge that to damage them to this day. They are
trying to intimate that SCOSource would continue to profit them to this day if
not for ongoing slander of title.

However, SCO's failure to present evidence of copyright infringement when
ordered by the judge to do so in the SCO vs. IBM case becomes relevant to this
case now that SCO opened the door. Without both the copyrights and
infringement, there is no justification for SCOSource, so no chance of profits.

So Novell should now be allowed to present evidence regarding the absence of
infringement that might otherwise not have been pertinent if SCO did not attempt
to charge damages to this very day.

In my opinion, the judge may now be faced with a choice between (1) a three
month long trial during which the infringement issues are argued and the weak
case for copyrights that emerged from the AT&T vs UC Regents case is exposed
-- which can only lead to SCO being thoroughly discredited, or (2) making an
incorrect interpretation of the law which is likely to be overturned or (3)
declaring a mistrial and starting over.

[ Reply to This | # ]

Novell's Motion to Allow Evidence: SCO Opened the Door
Authored by: odysseus on Friday, March 12 2010 @ 01:27 PM EST
Which just goes to show, you can have all the courtroom theatrical tactics down
pat, but you still need the strategic thinking to go with it. Someone on
Novell's side obviously thought long in advance about how to get the ruling into
evidence and was watching for anything that would open the door when Mr Silver
helpfully blundered straight through it without even pausing to open it first.

[ Reply to This | # ]

English to Judge translation request
Authored by: Guil Rarey on Friday, March 12 2010 @ 01:36 PM EST
How does one say, as a district judge speaking to an appellate court,
"Look, you bozos screwed this one up. This mandate is an internally
inconsistent, incomprehensible pile of dog mess. I've had to ignore substantial
amounts of settled rulings in the case to try to comply with your mandate and
it's coming apart like wet toilet paper in my fingers."

---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so

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Hopefully this will be forever after known as the "to this very day..." mistake :-)
Authored by: SilverWave on Friday, March 12 2010 @ 01:42 PM EST
Every lawyer wants to be famous... although maybe Singer didn't have this in
mind ;-)

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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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PJ: What happened to article ...
Authored by: Anonymous on Friday, March 12 2010 @ 02:17 PM EST
Blake Stowell Email to Maureen O'Gara: "I Need You to Send a Jab PJ's
Way".

I was reading it, clicked away to something else, closed my window, came back
and can't find it now.

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RSS post missing: Blake Stowell Email to Maureen O'Gara: "I Need You to Send a Jab PJ's Way".
Authored by: SilverWave on Friday, March 12 2010 @ 02:24 PM EST
Its just disappeared.

hmmm

---
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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Mistrial or admit it. SCO Opened the Door - Brilliant and Fascinating
Authored by: webster on Friday, March 12 2010 @ 02:25 PM EST
.

The judge should grant this. It reflects reality not a litigious puppet show.
He can let Novell's requested evidence in and blame it on SCO. SCO can't
complain. If SCO argues it is still too prejudicial, then we are in mistrial
territory. The judge can declare a mistrial, blame it on SCO, and make them pay
Novell's expenses of trial and legal fees for this blown trial. That is SCO's
choice: mistrial or let it in.

[No wait! SCO has another choice. Drop the slander of title claim, the only
claim to the jury. Then they could excuse the jury and resume the trial....

....But better yet, they could reinstate the previous non-jury trial, moot the
appeal.. Na, SCO can't do that. {Oops, snarfing on the keyboard}]

Then the next trial would leave off claims for any damages for slander of title
after Kimball's August decision of the last decade. [2007 or 8].

Novell will argue these points repeatedly but carefully aimed only at damages
for slander of title. They can't help it if the jurors think of it in relation
to ownership of copyright. (: :) ;) The Judge's handling of this will be a
test of his fairness.

One wonders what other little traps await the SCOfolk. Imagine what stink bombs
they have planned for D. McBride. This never should have gone to trial.
Stewart knows it and is as stunned as anyone at what the Court of Appeals did.


Let it in. Send it to the jury and then mop up. That is what Stewart should do.
Cahn and others are having Rule One spasms (common to all branches of the law)
and brooding about the fees he will never get.

~webster~

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God, I'm confused ... does this trial also choose who owns the copyrights?
Authored by: jsoulejr on Friday, March 12 2010 @ 02:40 PM EST
n/t

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Did Novell object?
Authored by: jbb on Friday, March 12 2010 @ 03:45 PM EST
Can Judge Stewart deny this motion because Novell didn't object when they had the chance? IANAL so I don't know how this works. I also don't know if Novell objected.

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You just can't win with DRM.

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Right. This isn't logic class, it's a U.S. Court.
Authored by: Anonymous on Friday, March 12 2010 @ 04:12 PM EST

Frankly, ... the claim itself is outrageous ... laughable. That doesn't mean it can't happen.

I wouldn't bet money on the outcome either way.

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Rational and Courageous
Authored by: webster on Friday, March 12 2010 @ 04:15 PM EST

Judge Stewart has a chance here to correct the Court of Appeals and moot the pending Cert to the Supremes.

Novell asks to admit evidence of the following:

1. Judge Kimball ruled on August 9, 2004, that “the APA did not transfer any copyrights” and “the agreements raise substantial doubt as to whether the APA as amended by Amendment No. 2 qualifies as a [17 U.S.C.] Section 204(a) writing”;

2. Judge Kimball ruled on August 7, 2007 that “Novell is the owner of the UNIX and UnixWare copyrights”; and

3. The Tenth Circuit recognized on August 24, 2009 that “Novell has powerful arguments to support its version of the transaction.”

Since malice and punitive damages are at stake, it is all probative and relative. In fact 1 & 2 rule out malice as a matter of law at least from their dates of entry. Number 3 rules out malice outright from the APA. Given the current posture of the evidence at a jury trial, Stewart should rule that there is no malice as a matter of law and cram it back up the Appeal Court's docket. Stewart is a strong character. This trial should go on without Slander of Title. You can't have a genuine dispute about copyrights AND Slander of Title. It is one or the other.

SCO's goal was to attack Linux. They had to assume the copyrights to do this. If they first tried to establish who had the copyrights, they could not attack Linux right away, and maybe never. They skipped a step. This suit is a feint. The suit is being used by the PIPE Fairy to attack Linux back then. It isn't about the issues in this suit. They are secondary at best. Someone approved millions to be used for legal fees to attack Linux. Indirect goals lead to a warped trial. Someone asked today if this trial was about who owns the copyrights. The answer is not directly. SCO says they already have them, not that they need to show that they needed them to conduct the business and now get them. The latter is a concession that they don't have them yet.

~webster~

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





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SCO's empty rhetoric is full of it!
Authored by: Ian Al on Friday, March 12 2010 @ 04:32 PM EST
Danger, that is.
In January of 2004, [Novell] launched their own program for licensing UNIX users to protect them against infringement that competes with SCO's program.
So, SCO had their own program 'for licensing UNIX users to protect them against infringement'. Which UNIX users would those be? What would they be infringing? What would that be protecting them from, exactly? What was this SCO program called and what infringements does it offer 'protection' against?

SCO have already mentioned lost revenue from their SCOSource program, so that might be the program to which they refer. However, the SCOSource licences do not offer protection against infringement of anything and certainly not against the copyrights at issue in the Slander of Title claim.

Also, the SCO licence only offers protection against being sued by SCO for using Linux. Since the licence does not offer indemnification for the violation of SCO copyrights or other intellectual property or any other rights SCO may have in Linux then it is protection against frivolous law suits from SCO.

It would make a little more sense if Linux was UNIX and that SCOSource gave a licence for using UNIX, but it does not. No evidence has been offered that Linux is Unix and SCOSource is not a licence to use UNIX.

OK, let's have a look at Novell's competing program. Novell offered to indemnify its own customers for Linux service against claims of copyright infringement. SCO offered no such program.Even if they did, how does Novell offering indemnification to their own customers compete with a SCO stand-alone offering?

The sad fact is that SCO had no need to assert ownership of the SVrX copyrights even for their extortion racket. Now they are going to be found guilty of Slander of Title for doing just that.

The noise you can hear is veils being pierced.

---
Regards
Ian Al

PJ: 'Have you read my open letter?

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Maybe SCO will drop slander of title claim
Authored by: Anonymous on Friday, March 12 2010 @ 05:53 PM EST
I don't think they have a chance of winning that claim, and
dropping it would keep the original decision from the jury.
Dennis H

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Slander of title "from" date -- showing of malice impossible?
Authored by: Anonymous on Saturday, March 13 2010 @ 07:05 AM EST
So far the talk has been about Novell having a defense against malice re Slander
of Title from the date the court made a favorable ruling for Novell.

However, I believe (by SCO's own actions) this date should really be as early as
when McBride first contacted Novell requesting the copyrights. Around early
2003?

That McBride pestered Novell for the copyrights alone should give Novell a
defense against malice, since SCO would have been giving Novell a reason to
believe that they still had the copyrights. If so, it should be impossible for
SCO to show malice, because Novell's claims were after the fact.

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