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Day 5 of the SCO v. Novell Trial & Some Help for Journalists - Mattingly & Broderick - Updated
Friday, March 12 2010 @ 08:32 PM EST

One of our reporters in the courtroom today, bprice, has sent his first dispatch. More to come. He had a pleasant chat with Tom Harvey of the Salt Lake Tribune. And in the trial itself, there was testimony from Bill Broderick again, then Ty Mattingly.

Here's Ty Mattingly's deposition [PDF], Exhibit 9 in the collection. And here's William Broderick's declaration [PDF], Exhibit 15 in that collection of exhibits.

Here's what he says happened before the session got going:

pj--

I was there with my red dress on, carrying two pads and five (not just two) pens. Nobody seemed to notice the red dress lapel pen from the American Heart Association, though.

Before I do my full report, a couple of highlights:

Groklaw was discussed (with jury out of the room) twice, with respect to the Maureen O'Gara deposition. The first was to strike a mention of Groklaw; the second, a mention of pj. In the end, Judge Ted Stewart observed that if we can't trust the jury to follow his admonitions, we'd just as well quit. It's not clear just how much will be allowed in the end. I see you have an article up that may be about this, but I won't get to read it until I finish reporting.

Our friendly neighborhood Salt Lake Tribune reporter was there for the whole thing. He seemed friendly with the SCOGlings, but didn't seem to talk to Novell's side. I went up to him and mentioned that 'it must be nice to cover a story in person, rather than sitting around doing telephone work'. Then we got serious. I mentioned that Groklaw had been following his stories, and was dissatisfied with the one-sidedness. He said he had gotten some emails about it. He complained of having trouble finding things on Groklaw, agreeing that there's a lot there. He couldn't find the search function; I couldn't help, because I use the red-dress essayage style, rather than the default that he would use. His bottom line was that it's still SCOG's turn, so that's all he has to report on.

All right. Let's lend a friendly hand. It's certainly true that there is a lot of information on Groklaw. Since he's reporting on the SCO v. Novell case, here are some resources that will help him:
But, Tom, you can email me anytime. I'll be glad to help you find anything you need to find. It's a free service Groklaw has always provided, and it's available to you also, so you can file accurate reports. That is our goal as journalists, after all, to get the facts and get them right. Why include the rulings by Judge Kimball? Because only part of his ruling was overturned, not all of it, so a great deal of it is still relevant.

And the appeals court did not send the case back so SCO could finally have a day in court. It's had two bench trials already, just in this one litigation. It sent the copyright ownership back for a jury decision and related issues to that question, but it stated that Novell has strong arguments as to copyright ownership. You can read that for yourself in the appeals court order. And as for Amendment 2's supposed significance, here's what the appeals court wrote about it in footnote 2:

2We think the parties' dispute over whether Amendment No. 2 retroactively changed the APA or affected a clarification as of October 16, 1996 is ultimately much ado about nothing. None of the claims in this litigation depend on the meaning of the APA during the time period prior to Amendment No. 2. Moreover, while both parties attribute different meanings to the APA and Amendment No. 2, neither party argues that Amendment No. 2 was meant to substantively change the intent of the APA; both SCO and Novell agree that it merely clarified or affirmed the original intent of the transaction.
I thought you'd want to know that.

In short, the issue with the appeals court was that summary judgment is only appropriate when there are no facts in dispute, and when no rational trier of fact could accept a party's side. They said Novell had strong arguments, but it was up to the jury, not a judge, to actually make the determination. It is never the case that only one side gets to speak in litigation, in any case. This isn't SCO's day in court. It's every bit as much Novell's. Remember, Novell has counterclaims that are being tried simultaneously. So covering only one side would be only half the assignment.

We've been covering this case every day since it began, so it's likely we can find whatever you need in a lot less time than you can, so ask away. We won't bite.

And with that, our reporter fills us in on the first part of the day:

I apologize for not being able to note all the exhibit numbers flying by. Since much of the time was spent establishing foundation, I've concentrated on summarizing substance.

All other courtrooms I've seen, either photographically or in person, have had a bench in front bar, behind the counsel tables. This bench is usually the place for counsel 'accessories', like investigators, boxes of files, excess lawyers, and (most important) paralegals. This courtroom doesn't have such a bench, so all the accessories go behind the bar, intermixed with us mere mortals.

8:20 Arrived. 11 other spectators milling around; most were SCO lawyers, judging by their note-passing routes and who they spoke to. Hatch's bowtie was muted, brown, maroon, or such: I've only seen (reference to) louder ones.

8:28 Judge Stewart arrives; discussed designations with regard to the Maureen O'Gara deposition. Hatch doesn't want to allow mention of Groklaw. Judge Stewart allows about 5 pages of the deposition *[but see below]*.

He asks counsel whether the trial should continue, in light of the letter he just saw announcing the cert petition. Singer says, don't worry. Novell says nothing will happen until April, anyway. Judge Stewart: "Neither of you is saying, 'quit and go home, then'." Counsel agreed with this.

8:35 Jury enters. Broderick direct by Normand continues from yesterday.

Discussing SOFT0015, IBM source license (SLA): source code is the "family jewels". Licenses demand confidentiality. SLA is common provisions for sublicensing and supplements (license for a product on a CPU).

The Judge asks about "flavor" creations with regard to licenses; he got it right. The creator of a flavor works from a source license and a sublicensing license for the binaries.

Discusses Exhibit 592, a letter from Novell notifying licensees of transition to Santa Cruz. Most licensees got a standard form letter, but some had to approve the transfer and got special letters. There were about 3000 letters in all; none of them mentioned copyright.

Discusses 1/22/96 letter, Novell to Microsoft--why is it different? Microsoft is a third-party (code) supplier, and must approve the transfer.

After clearing an objection on lack of foundation, discusses APA 4.16a, schedule 1.1a item 6--source-code licensing: why does 4.16 give Novell waiver power on changes to licenses, etc.? A: to protect Novell's royalty stream.

Discusses letter from Novell to Cray. What was this about? Cray license had included source sublicensing, unlike most source licenses. When SGI bought Cray, they wanted to include the Cray provision under the existing SGI license.

Discusses Novell slide from their opening: "Copyright not required for flavor." Q: when entering into a license, were employees transferred to licensee? A: No.

Discusses Exhibits 487 and 488. These are copyright registration certificates TXU 516 702 and TXU 516 706 *[numbers approximate--I think I got them right, but I won't bet on it]*. Also discusses the whole story of the certificates. During the Novell-Santa Cruz transition, Broderick and an assistant set up a table in the file room and made two piles. One pile was stuff that he decided should go to Novell; the other was stuff to keep for Santa Cruz. He recalls deciding that the certificates should be put into binders and kept for Santa Cruz. This decision was based on general instructions for the transition, not on anything specific with respect to copyrights, registrations, or certificates. Upon review of Schedule E (list of registered copyrights from APA), none of the listed registrations were for code. Specifically, the exhibits under discussion were manuals, although one of the certificates mentioned 'software program'.

9:37 Broderick - cross by Acker

Q: Do you have any equity interest in SCO Group?

A: Over 6000 shares plus options on about 30000 shares.

Broderick admits: he wasn't involved in the APA negotiations; wasn't at the BoD meeting; and wasn't involved in the amendments.

Comparing Sun and Microsoft 2003 licenses: Microsoft license included release from some claims by Caldera against Microsoft. *[No discussion of the nature of these claims.]* The releases were not itemized separately in the deal, so the license paperwork doesn't show their value.

*[Throughout direct and cross examination, Broderick has seemed apologetic.]*

9:58 Recess.

[MORE TO COME]

Update: cpeterson ran to the courthouse today for us too:
On the O'Gara deposition - Hatch wanted to exclude from page 64, line 22 to p.65, line 3, saying that all the information there was available elsewhere, and we needed to not tempt the jury by showing them the Groklaw website address.

Brennan objected that in order to make that request, you'd have to assume that the jury will disobey the instructions they are given every day.

Singer maintained the claim that the risk was not worthwhile and the material not necessary.

Judge Stewart started to sustain Brennan's objection to that, then realized he had to wait until Brennan voiced the objection. ("I'm going to sustain... er, you want to object to that, Mr. Brennan?" "Yes, your Honor..." "Ok, I'm going to sustain the objection." He went on to say that if we can't trust the jury, we're in deep effluvia anyway (not his words, mind) and that the probative value is such that the jury needs to see it.

Hatch then requested that "scrolling be turned off" for that part. (I'm assuming that it's something like closed captioning - I've not seen a deposition run yet.) Novell consented & Judge Stewart agreed to that.

One highlight of today: when Ty Mattingly referred to Ed Chatlos' testimony. (Cue sound of jaws dropping.) "How did you know what Mr. Chatlos said? How did you know that Mr. Chatlos had testified?" asked Brennan. After some stammering, and hunting for an answer, Mattingly said, "Lee Johnson told me." Bad case of footgun, I think.

Or maybe he read it on Groklaw. Maybe SCO imagines no one follows the judge's directions for a reason? Kidding around. But how did Lee Johnson know what Ed Chatlos testified about? SCOfolk aren't cheating or anything, are they?

By the way, I wrote to a journalism society guru on ethics on covering trials. His advice matched Judge Stewart's, that you have to at some point trust the court to set the rules that the participants follow, but I have no responsibility other than to tell the truth.

Which I do.

Here's the PACER minutes for the day:

03/12/2010 - 797 - Minute Entry for proceedings held before Judge Ted Stewart: Jury Trial held on 3/12/2010. Trial continues. Testimony heard, exhibits admitted. The Court reminds jurors that only a portion of the evidence is in and they are not to be making up their minds, nor discussing the case with anyone. Jurors released until Monday morning at 8:30 a.m. Attorney for Plaintiff: Stuart Singer, Edward Normand, Brent Hatch, Attorney for Defendant Sterling Brennan, Eric Acker, Michael Jacobs. Court Reporter: Patti Walker, Ray Fenlon, Laura Robinson. (slm) (Entered: 03/12/2010)

That's good advice for us watching too, to wait until all the evidence is in before drawing final conclusions on the trial.

Update: And now part 2 of bprice's notes:

Picking up after 10:00 AM break.

10:16 Judge Stewart enters; Broderick to witness chair; jury returns; continue cross-examination by Acker.

Discusses APA Sch 1.1b, Exclusions. Broderick doesn't want to discuss this, because it has been changed by Amendment 2.

APA Attachment E, Copyrights acknowledged by Seller. On this 7-page list, only the last 4 items are code, and they date from 1978.

Q: Is it true that flavor creators didn't have or need copyrights?

A: That's true.

Discusses SCO 641 (exhibit?): shows Novell copyright notices through 1995.

SCO L6 and L7 show new Software License Agreements by Santa Cruz in May, 1996. **[Thus, Santa Cruz, without copyrights, could and did enter new SLAs. At least, I think that's the point here]**

Broderick says that APA 4.16a only covers binary licenses.

10:48 Broderick redirect by Normand.

Q: Can a literal contract interpretation be absurd?

A: Yes.

Q: If a contract is ambiguous, do you look at performance?

A: Absolutely.MO Ambiguity means two interpretations of wording.

11:08 Ty Mattingly, Direct by Singer

Close friends with Ryan Tibbits since BYU days. *[I watched Mattingly and Tibbits leave the courthouse together at the end of the day's festivities.]* Still friends with Bradford at Novell, too. Owned about 9000 shares of Vultus.

Mattingly identified himself as the 'high-level business negotiator' for Novell, in the Santa Cruz deal. Chatlos was the detail business negotiator, and Tor Braham was the lawyer. He was fairly dismissive of Braham's role in the transaction, as a lawyer who just wordsmithed the meeting of the minds that he and Chatlos had hammered out. He testified that he and Chatlos had drafted the Memorandum of Understanding (MOU) on a six-to-eight week trip to California **[check my number recall, here.]**, then they left town since their part was all done. It was Braham's job to write up the MOU in legalese.

Questioning turned to 9/18/1995 Board of Directors meeting. But first, Normand had Mattingly establish that Bradford produced the exhibits for most BoD meetings, and then presented them.

Bradford circulated a letter dated 9/15 (Friday) for the 9/18 (Monday) meeting. It had an attachment, being the term sheet for the Santa Cruz deal. The term sheet didn't cover the copyrights, says Mattingly, so the minutes of the BoD meeting must mean that Novell retained copyrights only for retained products.

11:40 20 minute recess **[which I was well ready for]**.

12:05 Judge Stewart returns. Discusses jury instructions with counsel. He seemed a little peeved about the subject (but maybe not), and called for them to be submitted Monday.

Jury returns. Mattingly cross-examination by Brennan. They had a little byplay about whether Mattingly knows Brennan from a deposition or whatever. Brennan had been at BYU when Mattingly was, but not studying engineering.

The Santa Cruz deal was codenamed "sleighride" at Novell; "Rhine River" was codename for HP deal to expand Unix availability on Intel processors **[Was this the 64-bit stuff? Mattingly called it x86, though.]* *

Mattingly found a bunch of Novell documents in his garage during the last quarter of 2009, and turned them over to Ryan Tibbits. It appears that Tibbits finally gave some of them to Novell's counsel today. This included NOV045, an undated draft of the APA, with a notation, not in Mattingly's hand, of the date 9/16/1995. This draft had an exclusion in 1.1(b) that did not appear in the final, excluding patent licenses. This was on the line above the copyright exclusion.

**[The inference seems to be that deleting the patent-license exclusion would call attention to the copyright exclusion: if the copyright exclusion were a scrivener's error, it really should have been caught when that line got renumbered.]**

Mattingly has had disputes with both sides. He maintained that Vultus was undervalued (or Caldera overvalued) in the sale. Since he held about 9000 shares of Vultus, he took a hit, he says. He also claims a hit over Novonix, a joint venture between Novell and Netscape, due to valuation issues.

*[His description of Novell retaining the royalty stream indicates that the royalties were not to be consideration in the Santa Cruz deal.]*

He will make the garage documents available to Novell's counsel; therefor, he's still an active witness so that he can authenticate them for the record.

13:16 Mattingly redirect by Singer.

Mattingly says that business folks are better than legals as information sources. Someone said "Legal work on both sides was sloppy.": my notes seem to indicate that it was Singer or Hatch, not Mattingly, that said this, but they're not clear.

Jury excused for weekend.

More discussion of the MoG deposition, and whether to strike what about Groklaw and PJ. This is where Judge Stewart made his remark about trusting the jury to follow the admonitions.

How precious. SCO finds some surprise contracts in a garage. Then fails to turn them over to Novell until during the trial, live. I'm sure you have no doubt at all about their authenticity, so no need to check that. Wouldn't Mattingly's word be enough for you? Heh heh. What a bunch of cynics. I know. You will tell me SCO made us this way, and you'd be right.

[ Update: I remembered later that Burt Levine spoke about a later draft in his 2007 Deposition [PDF]. It will show you how that line about patent licenses ended up being taken out on Levine's instructions. He did not take out the exclusion of the copyrights from the same section. So that deposition will give you context, and of course a later draft means more than an earlier one, in terms of intent. It also might be of interest to compare the two, to see if the Mattingly version is legit, I'm thinking.]

And we have another reporter's notes now, beginning with Broderick:

Day 5

Judge Stewart spoke of O'Gara at first regarding pages 64-69 of a document, discussing something like probative value outweighs the prejudicial value.

Judge Stewart asks if Brennan has anything to add.

Brennan replies: "Depends on your ruling." This results in smiles and a couple chuckles.

Hatch refers to the 3rd set of designations. I could not hear Hatch properly (very soft tone at times) but I think he is referring to the O'Gara / Groklaw document that will be discussed later at the end of the day.

Hatch mentions if one was to search the internet with names from this case it is the first website that comes up..... says something like an obscure website.

Judge Stewart responds: I understand that there are other more readily available places for information.

Singer speaks of the very low chance of the SCOTUS petition and makes some statements. Brennan responds that he agrees with the chances but has an opposite position with the rest of the things Singer said.

Singer seeks an extension of time, two were given to Novell.

Begin Continuation of Broderick:

Reviews comments about "umbrella software".

Software agreement between AT&T and IBM.

Normand: what does the document do?

Broderick: grants rights to source code

IBM Product license is shown, UNIX System 5 ver. 3.0

Exhibit SCO 167

They mention the number in the top right of the documents.

SCO exhibit 3 AT&T Sublicensing Agreement

1.04 -> Broderick says it grants rights to distribute a sublicensed binary (unmodified code) - he used the Windows example again.

Broderick has been addressing the jury in most of his longer answers, ones he is comfortable in answering, others are short and directed to Normand.

At this point, I believe the jury is less interested than the day before; they are not taking as much notes during Broderick's second part of testimony.

Judge Stewart raises a question about "flavors" of UNIX and what is needed. Broderick: software licenses to create a "flavor".

Broderick hesitates for a moment and says to the jury "makes my job sound boring" and smiles. Jury reacts and smiles/chuckles, and so do some at the SCO table.

SCO 592 letter to licensees and partners -> Novell transfers products to SCO (the amount of 3000 letters is established) signed by Levine.

SCO 22 Novell letter to Microsoft.

Broderick: SCO bought the business and got the contracts.

Question asked: Who is Michael De____ 1.1a sec 6 referenced SVRX listed. When asked about it, Broderick: source code products that we had licenses to.

Asked what SVRX is? Broderick: all software except UnixWare. They had rights to change product schedules because of royalty streams.

He goes on to explain that the royalty stream is Novell's only interest and that if Novell had the ability to change any of the software it would in Broderick's terms "destroy our business."

SCO 213

Talking about Cray super computers (binary and source) SGI acquired Cray and tried to include their licenses in their existing binary-only buyout. It was disputed and Broderick went to Novell about the binary royalties.

Consultant Price Index I believe was the term used for a document to set pricing on licensing.

Signed by Steve Sabbath and explains royalties and to give notice to licensees of increase.

Broderick again pauses and says “god, my job sounds boring” less of a response from the jury this time.

When asked about Novell's stance on copyrights: Broderick: “They are nuts; they only had rights to royalties."

Questioned, what would he say to someone saying SCO bought a license? Broderick: “They are nuts.”

Explains license versus APA.

SCO 706 Objection - Predates SCO, he cannot remember where or when he saw it.

Normand then moves to third page and Broderick then recognized that page as the SCO agreement.

No objection.

A slide is shown at this point, I created a rough copy of it.

The slide shows the transfer of UNIX from AT&T to Novell and that HP, Sun, and IBM were licensing the code.

487, 488 copyright registration certificates in 2 blue binders. I think they had an AT&T logo on them but not sure.

Broderick states these are SCO's and were located in Lindon, Utah. They are brought to Broderick on the stand and are referenced later.

2.10 Seller disclosure schedule of APA.

Copyright registrations.

Attachment E page 8 selling copyrights at the bottom go the list, 3 are pointed out, pertaining to UNIX OS Edition 6.

SCO 486 not admitted yet, copyright registrations.

The documents on the computer are then compared to the binders in Broderick’s hands - asked if it corresponds? Broderick: it corresponds.”

SCO 487 moved into evidence.

Asked about the nature of authorship (computer program).

Is UNIX a computer program? Broderick: “Oh, yes.”

End of Normand Questions for Broderick

And here's his Part 2:
Part 2 of 2: Stuart Acker cross of Broderick.

Where do you work? A: SCO Group

Equity Interest? A: Stocks (76k) and options (30k)

Was not involved in negotiating APA.

Not at board meeting during APA approval.

SCO 04 Software Licensing Agreement.

Broderick is answering very short and not addressing the jury. Acker is much louder than Normand and the jury was paying more attention to Broderick when he spoke directly to them during SCO's questioning, but now the jury focus is on Acker.

Admitted. N13 “newSCO” and Sun agreement.

T13 SCO and Microsoft Agreement

In 2003, licensing of UnixWare most recent version was 7.1.3, Acker was making a point about the most current software. The important thing was the current software and not the old content. This continued into a back and forth about what the customer was motivated to purchase.

15-minute recess.

Sec 2.0 Seller Disclosure Schedule

Acker: describes list of copyrights.

Attachment c, d, e.

Acker- Novell’s description of IP.

Sec 1.1 b

Acker: what assets were excluded?

Acker makes the point that it was included in the APA that was approved by the board.

Broderick talks about the “entire” document a couple times.

Attachment E: Only code is on page 8 last 4 items.

Questioned what year was that code written? A: in the 70’s

Acker- has Broderick read from the physical binders, that the copyrights are from 1978.

Novell H6(A6?) March 25th 1996.

Letter from SCO to Novell.

What is pointed out is that both companies have the same address in Utah.

Questioned did anyone move? Such as even out of offices? A: Pretty much everyone stayed in the same spot in the office.

SCO 641 page 3 roman numeral 6, question about engineers changing Novell to SCO in the Copyright Notices. Changes to the code.

Normand counter- content of the document being discussed.

Acker- trying to show whether he knew of the changes.

Judge Stewart- advises to question without going into detail.

L7 Order Form May 1996

Regarding UNIX being licensed. 2nd license agreement May 10th 1996.

4.16a SVRX Royalties

Asked to show where it says it limits it to royalties. A: “It’s in the amendments”

Novell H6 letter March 12th 1996 Jim Maciaszek, Product Manager.

Once again, it is pointed out that Novell/Santa Cruz have identical addresses at this time.

Maciaszek writes that source code royalties would be passed on to Novell.

4.16b says nothing about binary.

End of Cross

Normand begins again.

Broderick: If something is amended, it is as if the old language does not exist, the language was replaced. Referenced Amendment #2.

Objection- Legal opinion.

Overruled.

4.16 SVRX.

SCO 168 Paragraph 2 HP Binary Royalty Buyout.

Copyright registration for all?

Objection, speculation - Sustained. Later an Objection, Leading. So Normand restates as an open-ended question.

End of Normand questioning.

Acker - something about ambiguous questions and 2 opinions.

Singer announces next witness, Ty D. Mattingly.

Singer asks about background:

BYU 1980-1987 College of Engineering --Design Engineering

14 month Education at ISM

On off post-grad work.

IBM 5 years.

Novell 1992 Feb – 1997.

Startup consulting.

Investor 2004.

Vultus(sp?) during acquisition by SCO received 9000 Shares of SCO stock. Mentions he knows: Ryan Tibbitts from BYU.

David Bradford Novell

Russell …. CFO

He was a Novell Product Manager.

Ray Noorda asked him to work with him. When Frankenberg came into the picture, he served the same role. Switched to VP. Mentions Doug Thompson, Ed Chatlos. Asked about negotiations:

Bradford – not very involved
Braham- not very involved

Asked about what transferred.

Exhibit 570 Bradford Memo Sept 15 1995

Exhibit 83 from Bradford memo Novell SCO Term Sheet

Item 1 Novel transfer to SCO

Mattingly- Unix technology assets, UnixWare binary assets.

If copyrights were withheld, would Frankenberg have noticed? Objection speculation, overruled.

Later an objection, leading sustained.

SCO G4 Bradford to Chatlos

Objection - document speaks for itself, sustained.

Recess.

Judge Stewart asks Singer if he will respond to “open door” issue. A: by Monday.

In addition, Normand will submit jury instructions today, and Novell will respond by Monday.

Brennan begins questioning Mattingly.

Brennan start out asking if Mattingly remembers him, Mattingly asks, from the deposition? Brennan says no, “I was your classmate at BYU.” Mattingly responds, “Oh, you’re the guy who cheated off me.” This was a funny exchange and everyone laughed.

Questions about two codenames:
Sleigh ride - refers to Novell and SCO
Ryan River - refers to HP

Discussion of MOU drafts, legal docs and power points

Mattingly said he was there for the MOU part of the negotiation.

At this point Mattingly has a folder. This folder was brought by him to the courtroom. He found it in his garage, I believe; during the break Brennan approached Mattingly, while Mattingly is at the witness stand and looks at the documents. Singer realizes that Brennan is over talking to Mattingly and quickly approaches. There is a discussion between Brennan and Singer and I think Singer asks to look at the documents too.

Mattingly does not address the jury much during his being questioned. He mentions Tibbitts, and Brennan points over his shoulder “you mean this good looking man?” Tibbitts looks behind him for the “good looking man”. Mattingly calls Tibbitts stuffy in a joking manner. Court reacts to the comedic exchange.

Talks about the 9000 shares versus stocks. And how the value of stock changes the value of his shares. This was in dispute with SCO acquiring Vultus. Brennan offers that they “welched” on the deal with Mattingly; Mattingly stops short of agreeing with that term, but says there was an argument over the value of his shares.

Left Novell for Novonyx (a joint venture of Netscape and Novell), I think it was to get Netscape server to run on Netware.

Establishing why he retained a lawyer.

There is a discussion here about “protecting shareholder interests” Brennan takes a legal approach, Mattingly points out, and Mattingly sees it as maximizing value for the shareholder.

Brennan states it is an “occupational hazard.”

Mattingly states he was involved in the input stage of the MOU phase.

OKAY big moment here, Mattingly makes a statement about Chatlos’ testimony and says something like Brennan should know from Chatlos’ already speaking about it. Brennan starts immediately asking, “What do you mean?” “How would you know about that?” It turns into a very tense moment in court when Brennan started pressing Mattingly about how he knew about Chatlos being a witness. Nobody in the room moved. Mattingly finally said he talked with Lee Johnson about it and that Ed Chatlos was on the stand before him.

Mattingly’s replies shorten quite a bit at this point.

Page 89 line 3 and page 90 line 5 of deposition. Quite a bit of back and forth here about what it means to “draft” the document.

Mattingly replies at one point, do I think Braham sat typing at the keyboard, and talks about this being semantics, and one point he ends with “do you?” to Brennan.

Judge Stewart stops him and reminds him not to ask questions.

Mattingly responds: Sorry, I am a little rattled (slight smile).

Novell o45

Brennan asks for it to be marked o45, Singer replies “no objection to it being marked”, Brennan then asks for it to be submitted.

Draft of excluded assets. The document is from Mattingly’s folder I believe.

The date 9/16/95 is handwritten in ink in the top right corner (later Mattingly recounts and says it is a copy, not ink).

Brennan is trying to establish that Mattingly received the document two days before the board meeting on the 18th.

Mentions passage: all copyrights and trademarks .... except ...

SCO 570 Sept 15 1995 Package Brennan asks about what the intent of the board was, at some point it sounds like Mattingly says it was not to protect revenue stream. Mattingly says “stop badgering me” (Mattingly says "badgering" about three times during his testimony").

Singer stands and states “compound question”.

Exhibit z3

Brennan reads the names of those attending the meeting.

Did ____ speak at the meeting? A: yes

What did they say? A: I don’t remember.

This continued for three or four iterations.

Court reporter asks Brennan to slow down at one point in the exchange.

Mattingly goes into a little speech about what he tried to accomplish in CA with 12 people from SCO and 12 from Novell.

Judge Stewart stops him again and reminds him to answer Brennan. And if he has anything to add he can say it with Singer.

Duff Thompson was his boss after Frankenberg, becomes VP of Corporate Development and Strategic Relationships. States that Duff was not really involved in details.

Another revisiting of the “draft” argument. Judge Stewart says “thank you” to Mattingly and stops him.

Brennan asks Mattingly about the patents and if they transferred.

Mattingly mentions Pike(sp?) patents, says he doesn’t think any patents transferred.

Brennan asks how he would know that, Mattingly refers to the document in which it states no patents transferred, one line below the line about the copyrights not being transferred.

At this point Singer reacts and drops down in his chair then whispers to Normand; their lawyers that sit behind them seem to jump onto their blackberries, almost everyone on the SCO side reacted to this exchange. From here on out Singer will shake his head slightly after each of Brennan’s questions.

Brennan leans to speak with Acker or Jacobs, I could not tell, and then asks Mattingly if he has any more documents in his garage and if he would mind getting him the documents. Mattingly says he will.

Brennan also asks if he will return if they have any questions, Mattingly says yes.

End of Brennan questions for Mattingly.

Singer stands and asks one question: who has better understanding, Brahmam or the negotiating team, and Mattingly replies the team would.

Brennan has sat down at this point and then gets up to ask more questions, while Singer is walking back to the SCO table. He hears Brennan start up again, he turns around surprised. Normand puts his hands up in the air at the same time and looks around.

Brennan is asking questions and Singer objects “Way beyond…” Sustained.

End of Mattingly questions.

Hatch addresses, so does Brennan.

P64 line 22 to page 65 line 3

PJ and Pamela Jones is mentioned, then Groklaw.

O’Gara competes with PJ.

Brennan states she is not objective, he then makes the point that Hatch presumes the jury will disobey the Judge’s instructions.

Judge Stewart agrees and Hatch is denied.

SCO counters with, not allowing “scrolling” to jury. I take this to mean they will not display the digital text to the jury, but the word Groklaw will be said. This goes to the jury not being able to see the spelling. I guess the Judge thinks there is little chance of Heinlein fans in the jury.

Brennan says this is fine and agrees to not displaying the words/spelling.

Next Time:

Madsen, Maciaszek, Nagel, depositions? (Steve Sabbath)? and possibly *McBride*.

Update: cpeterson wants to hop in with some answers to questions he's seen posted:
I'm going to shine some color on some spots, and I'll admit right up front that I'm cheating: I'm looking at the comments that have already been posted. I'm going to try to fill in some points of interest.

First point that caught my ear: early in Acker's cross examination of Broderick. Broderick says he has 6,000 shares of SCO stock, plus about 30,000 options. Acker mentions that some of them have strike prices of as low as 12 cents; thus if SCO stock were to rise to, say, $10, Broderick stood to make quite a bunch of money.

Broderick responds that there are also some of his options with strike prices of almost $10; so that if the price went there, he'd make about 30 cents a share.

Then he said something to the effect of "not much chance of that anyway, with a company that's in Chapter 11."

It seems like both sides completely ignored that statement. Did the jury catch on? Dunno.

Eric Acker made a good start, but later on in his cross the jury started to lose interest, or so it seemed to me. Fidgeting, looking around... there's about 3 that are still taking notes at that point.

About Brennan and Mattingly: Brennan starts in by asking Mattingly, "Have you ever seen me before today?"

Mattingly: "I don't know. I don't think so... unless you took my deposition."

It seems like just for sport, Brennan "misunderstands" what Mattingly means by "took my deposition", saying no, your deposition is still on the desk in front of you. They run verbal circles for a moment establishing that the deposition is, indeed, with Mattingly on the witness stand, that Brennan wasn't the lawyer who deposed Mattingly, and that they'd not met before.

Brennan: "I'm disappointed."

Mattingly is looking bewildered and apprehensive.

Brennan: "We were classmates at BYU, so I'm disappointed that you don't remember me." (laughter in the court)

Mattingly: (light dawns) "Oh, I remember - you were the one who always cheated off me!" (more laughter)

Brennan, still laughing with everyone, "Well, actually, I was in Economics, so I never got a chance to get over to the Engineering building."

Then he mentions the folder that he and Mattingly had been looking at during the break. (There had been no mention of the folder during Singer's direct.) The folder, according to Mattingly, was found "during 4th quarter of 2007" (note that my recollection is different from bprice's; he recalls hearing 2009, and I could be wrong. But I remember, as Brennan was saying "4th quarter, so you mean October, November, or December of 200*" that the thought that went through my head was, "hmmm. Right after the Kimball ruling and the bankruptcy filing - before the appeal - at that point SCO looked toast - low urgency, nothing more than a curiosity then." I'm not going to insist on my interpretation, though, 'cause I could very easily be wrong.)

Anyway, Mattingly called SCO's general counsel Ryan Tibbitts (who was a friend of his at BYU), and he did not contact any of Novell's lawyers. It appears, though, that Tibbitts must not have had much interest in them, because he didn't take them - they were still in Mattingly's possession until he brought them to court, or so he indicated.

Further Mattingly & Brennan: the exchange over who was at the board meeting, who was not, who spoke, &c...

Mr. Mattingly started arguing rather than answering. He was admonished by the judge. Mr. Brennan kept the pressure pretty high; Mattingly's answers were becoming hot and loud. As Brennan got into iterating the same set of questions with respect to each person listed as attending the board meeting, the tempo, and the hostility, increased - until the point where the court reporter threw up her hands, palms outward toward each of the two men, and cried "Stop it!"

Mr. Brennan apologized to her; gave her a few seconds to catch up, and then slowly, and much more calmly, continued the set of questions. Mr. Mattingly kept his tone lower, but he clearly wasn't mollified.

How tough is it being a court reporter? I don't know. But I did notice that we got a new reporter at each break.

Mr. Brennan had much better luck keeping the jury on track than Mr. Acker. When he was going over details, everybody was taking notes.

When it got loud and abrupt, though, the jury seemed to be turned off. I don't think they like confrontation.

Mr. Brennan often will take away the opposition's objections before the judge has a chance to rule on them. While going over Mattingly's deposition with him, he asked Tom, the person running the document display, to highlight a certain exchange. Singer objected, saying that the entire answer should be included. Brennan nods to Singer, says "I think that's a great idea. Tom, please extend the highlight to include the next 3 lines to the end of the answer."

I think I remember three occasions where he responded to objections in such fashion.

Mr. Jacobs hasn't been mentioned much. He's keeping pretty quiet. However, from my viewpoint, it looks like he's very active in an air traffic control type role: he keeps track of what points have been made, current trends, and very often has little side conferences with the other lawyers.

The guy who seems to be kind of left out of the whole thing is Mr. Hatch. The only issue I saw him engaged in at all on Day 5 was the O'Gara / Groklaw / PJ matter.


  


Day 5 of the SCO v. Novell Trial & Some Help for Journalists - Mattingly & Broderick - Updated | 621 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: bprice on Friday, March 12 2010 @ 08:36 PM EST
As needed.

---
--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

Off Topic
Authored by: bprice on Friday, March 12 2010 @ 08:37 PM EST
But nothing about day 5--that goes below.

---
--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

News Picks Discussion
Authored by: bprice on Friday, March 12 2010 @ 08:38 PM EST
Please give us a clue about which news pick you're commenting on.

---
--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

Comes comes here
Authored by: bprice on Friday, March 12 2010 @ 08:39 PM EST
Parse that title ;-). Thanks for the work on the Comes documents.

---
--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

Anonymous Corrections Thread
Authored by: Anonymous on Friday, March 12 2010 @ 08:40 PM EST
Because nobody has created a non-anonymous one yet.

[ Reply to This | # ]

Day 5 of the SCO v. Novell Trial & Some Help for Journalists Covering the Trial
Authored by: charlie Turner on Friday, March 12 2010 @ 08:47 PM EST
Judge Stewart starts to sustain an as yet unstated objection, then asks Mr
Brennan to object???? YIKES!

[ Reply to This | # ]

And the thank you list...
Authored by: jesse on Friday, March 12 2010 @ 08:49 PM EST
For all attending.

[ Reply to This | # ]

Five pens?
Authored by: Anonymous on Friday, March 12 2010 @ 08:55 PM EST
Somebody learned from my experience! Plus a few to share with those who
didn't...

MSS2

[ Reply to This | # ]

Copyright Registrations
Authored by: sk43 on Friday, March 12 2010 @ 08:56 PM EST
TXU-516 702: "Marva glass adaptor drawings."

TXU-516 704: "UNIX(R) Operating System Edition 32V and Instruction Manual

TXU-516 705: "UNIX(R) Operating System Edition 7 and
Instruction Manual

TXU-516 706: "Chasing the dragon : original screenplay."

Hmmm, which registrations is Broderick guarding?

[ Reply to This | # ]

  • Copyright Registrations - Authored by: Anonymous on Friday, March 12 2010 @ 09:13 PM EST
    • Very Nice - Authored by: sk43 on Friday, March 12 2010 @ 09:53 PM EST
      • Very Nice - Authored by: Anonymous on Monday, March 15 2010 @ 02:30 AM EDT
"Lee Johnson told me."
Authored by: charlie Turner on Friday, March 12 2010 @ 09:02 PM EST
Oops!

[ Reply to This | # ]

The fix isn't in
Authored by: Anonymous on Friday, March 12 2010 @ 09:07 PM EST
The "I'm going to sustain the objection that you haven't even asked for
yet" ought to be the final nail in the coffin of that theory.

MSS2

[ Reply to This | # ]

Lee Johnson is another SCO witness
Authored by: Anonymous on Friday, March 12 2010 @ 09:14 PM EST

Both Mattingly and Johnson (if Mattingly's statement is truthful) have violated the exclusionary order and are liable to be held in contempt. Novell may move to exclude their testimony.

[ Reply to This | # ]

Weekend
Authored by: inode_buddha on Friday, March 12 2010 @ 09:16 PM EST
PJ I hope you plan on getting as much rest as possible this weekend. And a huge
thank-you goes to our reporters!

---
-inode_buddha

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

  • Weekend - Authored by: Anonymous on Friday, March 12 2010 @ 09:45 PM EST
  • Thank you all! - Authored by: athelas on Saturday, March 13 2010 @ 11:08 AM EST
Rules? Those are what you use against others
Authored by: grouch on Friday, March 12 2010 @ 09:19 PM EST

One highlight of today: when Ty Mattingly referred to Ed Chatlos' testimony. (Cue sound of jaws dropping.) "How did you know what Mr. Chatlos said? How did you know that Mr. Chatlos had testified?" asked Brennan. After some stammering, and hunting for an answer, Mattingly said, "Lee Johnson told me." Bad case of footgun, I think.

Witnesses in the gallery? Transcripts in witness prep sessions? Cell phones accidently left on and connected?

Only the scoggies know.

---
-- grouch

GNU/Linux obeys you.

[ Reply to This | # ]

Day 5 of the SCO v. Novell Trial & Some Help for Journalists Covering the Trial
Authored by: Tufty on Friday, March 12 2010 @ 09:44 PM EST
>
neither party argues that Amendment No. 2 was meant to substantively change the
intent of the APA; both SCO and Novell agree that it merely clarified or
affirmed the original intent of the transaction.
<

intent
So that is why the word 'intent' is coming in from the TSCOG side like a
skipping record.
Wondered why it was nagging me.


---
Linux powered squirrel.

[ Reply to This | # ]

Day 5 of the SCO v. Novell Trial & Some Help for Journalists Covering the TrialSo covering only
Authored by: Anonymous on Friday, March 12 2010 @ 09:53 PM EST
So covering only one side ***should*** be only half the assignment.

[ Reply to This | # ]

PJ's actual identity is unimportant
Authored by: CraigV on Friday, March 12 2010 @ 09:59 PM EST
Everyone here knows that PJ maintains her personal privacy and that there is no
difficulty communicating with the super-intelligent person known as PJ who runs
this blog. Her actual identity is irrelevant although we all hope to see her
give a keynote speech some day in the distant future.

[ Reply to This | # ]

MOG is that you?
Authored by: Anonymous on Friday, March 12 2010 @ 10:00 PM EST
lol

[ Reply to This | # ]

    give them your full name and credentails
    Authored by: Anonymous on Friday, March 12 2010 @ 10:02 PM EST
    Good idea. What did you say yours were.

    [ Reply to This | # ]

    Why so supercillious, Pamela?
    Authored by: Anonymous on Friday, March 12 2010 @ 10:03 PM EST
    Court case will not be won online
    Enjoy your outcome

    [ Reply to This | # ]

    Troll Alert: Scary too it would cause me to feel I was under duress. n/t
    Authored by: Anonymous on Friday, March 12 2010 @ 10:05 PM EST
    stage_v

    from under the bridge

    [ Reply to This | # ]

    And anonymous' actual name is ...
    Authored by: nola on Friday, March 12 2010 @ 10:10 PM EST
    TROLL

    No worth, no value, no interest in any of your criticism.

    Had you followed this issue for more than a few days you would have
    appreciated what has been done here. By Pamela and many volunteers.

    If you are unwilling to acknowledge that - whether or not you agree with any
    particular opinion - then you should find a different venue.

    We don't all agree but we are civil and do discuss the pros and cons in a
    courteous manner. You should do likewise.

    [ Reply to This | # ]

    Calm down, Lamb Chop
    Authored by: Anonymous on Friday, March 12 2010 @ 10:26 PM EST
    There, there.

    [ Reply to This | # ]

    What was this about?
    Authored by: Anonymous on Friday, March 12 2010 @ 10:30 PM EST
    >He asks counsel whether the trial should continue, in light of the
    >letter he just saw announcing the cert petition. Singer says,
    >don't worry. Novell says nothing will happen until April, anyway.
    >Judge Stewart: "Neither of you is saying, 'quit and go home,
    >then'." Counsel agreed with this.

    Does anyone know what this was about? Sorry if it is obvious but I can't figure
    it out.

    [ Reply to This | # ]

    Day 5 of the SCO v. Novell Trial & Some Help for Journalists Covering the Trial
    Authored by: Anonymous on Friday, March 12 2010 @ 10:33 PM EST
    Mr. Brennan did state the reason for his objection. It seems that he did not
    actually object. I guess the legalese for this is that the objection was not in
    the proper form.

    This is a court of law not a baseball game where if the runner leaves second the
    umpire remains quiet until the runner goes back and tags second, the runner is
    tagged. second base is taggeed or the next pitch is thrown.

    What would have happened if the Judge had not asked about the objection. I
    envision something like that, "Objection sus..." long pause, "Mr
    Singer I grant your motion." "But your honor what about my
    objection." "What objection?" "The objection I just
    made." "You haven't made an objection." "In that case I
    object." "Objection sustained. Mr. Singer I am denying your
    motion." Do we really want that kind of silliness in the court room.

    [ Reply to This | # ]

    This meme seems familiar
    Authored by: Anonymous on Friday, March 12 2010 @ 10:35 PM EST
    (From MOG deposition)

    Q: And in comparison you felt you were balanced or more
    balanced compared to her reporting?

    A: She's not reporting. That's not reporting. Reporting has to
    do with facts She is writing a piece. It's an editorial or
    editorializing,

    [ Reply to This | # ]

    • PJ is MOG! - Authored by: Anonymous on Sunday, March 14 2010 @ 07:36 PM EDT
    I see.
    Authored by: Anonymous on Friday, March 12 2010 @ 11:02 PM EST
    You are using a large bozotron generator to try to discover
    the elusive massless bozotrino. Many people here however have
    bozotron detectors and bozometers that are very sensitive
    to that type of high energy activity. I would check the liquid
    helium coolant on my end corrector magnets if I were you.
    Meaningless radiation is leaking from your apparatus.

    [ Reply to This | # ]

    Schedule E
    Authored by: Anonymous on Friday, March 12 2010 @ 11:14 PM EST
    > Schedule E (list of registered copyrights from APA), none
    > of the listed registrations were for code

    That does raise an interesting point. Schedule E is a list of all the copyrights
    owned by Novell that are subject of the APA. It is only these copyrights that
    are in dispute because no others are contemplated by the APA, and these are
    excluded. None of these are the SVRx source code copyrights.

    If Amendment 2 does modify the 'Excluded Assets' to the point where they are not
    excluded because. allegedly, SCO (Santa Cruz) required them, then it is only
    those of Schedule E that are affected.

    And none of these are source code copyrights.

    Now, much later, Novell did register some copyrights, but:

    a) these were not back dated to the time of the APA.

    b) these were not retrospectively added to Schedule E, or any other part of the
    APA.

    How can SCOg claim Unix SVRx source code copyrights when no mention was made of
    them in the APA, and if they had been they were excluded.

    [ Reply to This | # ]

    • Schedule E - Authored by: Anonymous on Friday, March 12 2010 @ 11:29 PM EST
    • Schedule E - Authored by: sk43 on Saturday, March 13 2010 @ 07:08 AM EST
      • Schedule E - Authored by: Anonymous on Saturday, March 13 2010 @ 01:24 PM EST
    • Schedule E - Authored by: Anonymous on Saturday, March 13 2010 @ 07:24 AM EST
      • Schedule E - Authored by: Steve Martin on Saturday, March 13 2010 @ 07:54 AM EST
        • Attachment E - Authored by: Anonymous on Saturday, March 13 2010 @ 08:04 AM EST
      • Schedule E - Authored by: Anonymous on Saturday, March 13 2010 @ 01:36 PM EST
        • Attachment E - Authored by: Anonymous on Saturday, March 13 2010 @ 03:02 PM EST
          • Attachment E - Authored by: Anonymous on Saturday, March 13 2010 @ 03:29 PM EST
            • Attachment E - Authored by: Anonymous on Saturday, March 13 2010 @ 04:08 PM EST
          • Attachment E - Authored by: Anonymous on Saturday, March 13 2010 @ 10:54 PM EST
    • Attachment E (was Schedule E) - Authored by: Anonymous on Saturday, March 13 2010 @ 07:54 AM EST
    • 1978 copyrights - Authored by: Leg on Saturday, March 13 2010 @ 08:50 PM EST
    • Schedule E - Authored by: proceng on Sunday, March 14 2010 @ 06:13 AM EDT
      • Correction - Authored by: proceng on Sunday, March 14 2010 @ 06:16 AM EDT
      • Schedule E - Authored by: Anonymous on Sunday, March 14 2010 @ 02:41 PM EDT
    Sequestration and other thoughts
    Authored by: webster on Friday, March 12 2010 @ 11:29 PM EST

    Sequestration: Incredible excitement this day. SCO is so worried about the jury consulting Groklaw. They should offer to pay for sequestration. They can put them in a different hotel than their lawyers... and a different one than their witnesses. Novell's too. They should also screen the hotel for any Groklaw reporters. They should get an old hotel without internet. They should monitor the jury's calls and computer use. They could let them watch TV and movies. They could discourage ingesting recreational substances. They could also put GPS boxes on their legs. What about room visits? [As far as one side or another is concerned there is a lot of juror misbehavior that becomes known about, to say nothing more of surreptitious netsurfing.] Novell would object to sequestrastion. The Judge would take the blame to avoid prejudice to SCO. ;-)

    Caution: No matter what you think is going on in this trial, it is impossible to know what is going on from the jury's perspective. They were chosen because they knew nothing about this situation. They are only exposed to what they hear in court, the witnesses and lawyers. They get exhibits too. Sympathy is the most important ingredient. It is what resolves doubts. Groklaw readers have been following for too long to even begin to limit their perspective to that of a juror.

    Blake and Mo: Just think that the Novell lawyers have known about this email, and many other documents for years. It has only become known to us today. They sit hunched over at counsel table trying to mask their anticipation as a SCO witness opens the door to the devastating introduction of such documents. Novell's pounding away with even losing motions over time will bring the Judge up to snuff since he is years behind the lawyers and PJ. SCO may well regret using O'Gara now. It is known, it is misleading, biased and malicious. They also exposed their experts to her. It will taint them. If SCO won't use her now, Novell will.

    Another fly on the wall: The rosy fingers of dawn are starting to wake Trustee Judge Cahn in the middle of the night. Apparently Singer left out a few things when he briefed Ms. Fatell. But how would she know what questions to ask? Who would have thought a reporter and blog were relevant to litigation? Who would have thought Judge Stewart would reverse himself? Cahn now even tried to call Singer himself, but Singer is "in trial." Stowell says he was just doing his job. He sent releases and gave background to many. Did any lawyers give Stowell ideas? Who suggested sources to the experts? Did Stowell stoke any of these other sources used by SCO experts? Did Darl or anyone else?Can Cahn get a copy of all the sealed depositions? Cahn wants to know now what difficulties lie ahead, but the lawyers are in trial and the SCOfolk see outrage, not problems. Why didn't BSF see that claiming slander damage since the lawsuit started would open the door to the rulings of our open court system? What? Is he questioning their professionalism? What about Stewart suggesting aborting the trial due to the cert? Isn't abortion illegal in Utah? Would Stewart do such a thing? It's late. What a day! Has anyone else given up reading mysteries?

    ~webster~


    [ Reply to This | # ]

    Yes! It Works!
    Authored by: sk43 on Friday, March 12 2010 @ 11:31 PM EST
    I am posting this message while running SCO OpenLinux
    3.1.1. The default desktop is KDE, and the web browser is
    Konqueror. What better platform to run when you want to
    read all about the SCO/Novell lawsuit?

    So far, Groklaw renders just fine.

    [ Reply to This | # ]

    Footnote from Court of Appeals. Does anyone understand it?
    Authored by: Anonymous on Saturday, March 13 2010 @ 12:08 AM EST
    I am having a great deal of trouble trying to make sense of
    the following assertion, quoted in the article above, from a footnote in the
    Court of Appeals decision.

    "None of the claims in this litigation depend on the meaning of the APA
    during the time period prior to Amendment No. 2. Moreover, while both parties
    attribute different meanings to the APA and Amendment No. 2, neither party
    argues that Amendment No. 2 was meant to substantively change the intent of the
    APA; both SCO and Novell agree that it merely clarified or affirmed the original
    intent of the transaction."

    The above excerpt contains two sentences. Every time I try to look again, it
    appears to me that the second sentence flatly contradicts the first.

    Specifically, if both Novell and SCO agree that Amendment 2 "merely
    clarified" the "original intent" then how exactly does the
    "meaning of the APA during the time period prior to Amendment No. 2"
    become unimportant? Whatever logic there may be in this, totally escapes me.

    Does anyone else have the same problem? Everyone else? Or can someone explain?

    [ Reply to This | # ]

    Not much substance from the reports today
    Authored by: Anonymous on Saturday, March 13 2010 @ 12:58 AM EST
    From all the note taking today there sure wasn't much substance here from the
    witness testimonies. Disappointing.

    [ Reply to This | # ]

    fake documents? utah?
    Authored by: maco on Saturday, March 13 2010 @ 02:59 AM EST
    scandalous

    [ Reply to This | # ]

    Perry Mason moments
    Authored by: BobDowling on Saturday, March 13 2010 @ 03:29 AM EST
    Compare and contrast the following from this article:
    Mattingly found a bunch of Novell documents in his garage during the last quarter of 2009, and turned them over to Ryan Tibbits. It appears that Tibbits finally gave some of them to Novell's counsel today. This included NOV045, an undated draft of the APA, with a notation, not in Mattingly's hand, of the date 9/16/1995. This draft had an exclusion in 1.1(b) that did not appear in the final, excluding patent licenses. This was on the line above the copyright exclusion.
    and this description of Discovery Rules by PJ back in 2003:
    Real trials are not like Perry Mason, where big surprises occur as someone is testifying or a surprise witness is suddenly called. Both sides, at least in most cases, know pretty much what to expect before the trial opens.
    So what am I missing? Why wasn't counsel for Novell all over this? Why wasn't the judge?

    [ Reply to This | # ]

    Patents didn't transfer
    Authored by: PolR on Saturday, March 13 2010 @ 05:29 AM EST
    SCO bought UNIX "lock stock and barrel" according to SCO

    Patents didn't transfer according to Mattingly

    It cannot be both. Besides if they cannot operate the business without the
    copyright as they claim, how could they operate without the patents? No wonder
    there was a Blackberry moment. They need to find a way to spin out of this
    one.

    [ Reply to This | # ]

    Flavors
    Authored by: PolR on Saturday, March 13 2010 @ 05:36 AM EST
    So they have established the vendors of UNIX flavors could operate their
    business without the copyright.

    The question is were Santa Cruz a flavor vendor before the APA? Did they get
    have the copyright back then?

    The next question is how could they say the APA was not the purchase of the
    right to make a new flavor? I guess we will see the tree is the branches and the
    branches is the tree dance once again.

    [ Reply to This | # ]

    The Blackberry exchange...
    Authored by: Anonymous on Saturday, March 13 2010 @ 05:50 AM EST
    Cahn: What happen?
    Singer: Ty Mattingly set up us the evidence
    Fatell: We get text message
    Fatell: Blackberry turn on
    Brennan: How are you Cahn!!
    Brennan: All your evidence are belong to us
    Cahn: What he say!!
    Brennan: You have no chance to prevail make your case [chortle]
    Cahn: Sell off every asset
    Cahn: You know what you doing
    Cahn: Move asset
    Cahn: For great profit

    [ Reply to This | # ]

    Day 5 of the SCO v. Novell Trial & Some Help for Journalists Covering the Trial - Updated
    Authored by: odysseus on Saturday, March 13 2010 @ 06:16 AM EST
    It would appear Mr Mattingly is not a fully paid-up member of the SCO conspiracy
    and has probably done more harm to the SCO cause than good. Remind me which
    side he's supposed to be testifying for again??? :-)

    And did the Judge really say that there were easier sources to find online than
    Groklaw? I'm finding it hard to compose a Google query where Groklaw isn't in
    the top 2 or 3 results, or at least on the first page. Obscure? I don't think
    that word means what you think it means...

    [ Reply to This | # ]

    Have the cake and eat it?
    Authored by: Anonymous on Saturday, March 13 2010 @ 06:44 AM EST
    > Mattingly mentions Pike(sp?) patents, says he doesn’t
    think any patents transferred.
    Brennan asks how he would know that, Mattingly refers to the
    document in which it states no patents transferred, one line
    below the line about the copyrights not being transferred.


    Soooo... the patents didn't transfer because the document
    says so, but the copyrights did transfer, although the
    document says the same about them?

    It's so funny to see how SCO's witnesses sink this case.

    Reminds me of a case where I was the plaintiff and I was
    worried because I knew the defendant had "witnesses" that
    were about to testify falsely. But it took only 5 minutes of
    the first cross examination and I had to suppress a big
    smile because the guy's story was so full of ... that even
    the judge couldn't keep a straight face.

    __
    magicmulder

    [ Reply to This | # ]

    Wait A Moment...
    Authored by: sproggit on Saturday, March 13 2010 @ 06:46 AM EST
    Mattingly found a bunch of Novell documents in his garage during the last quarter of 2009, and turned them over to Ryan Tibbits. It appears that Tibbits finally gave some of them to Novell's counsel today. This included NOV045, an undated draft of the APA, with a notation, not in Mattingly's hand, of the date 9/16/1995. This draft had an exclusion in 1.1(b) that did not appear in the final, excluding patent licenses. This was on the line above the copyright exclusion.

    IANAL, but this seems highly irregular to me. Counsel for SCO are attempting to introduce evidence to trial for which Counsel for Novell have not been properly notified (a notification which I believe should happen in advance of the trial if at all possible). Now, the above statement clearly indicates that the materials in question were discovered in September 2009 - that is six months ago.

    Question 1: why would Judge Stewart not voluntarily disallow this evidence on the grounds that SCO and their Counsel could have and should have made it available to Novell and their Counsel before the trial?

    Question 2: why did Novell not object to this evidence being introduced in this way and ask for it to be struck and/or disallowed? Why have they not asked for Tibbits and/or SCO to be sanctioned for this?

    Question 3: if Ryan Tibbits only gave the documentation to Counsel for Novell during the actual trial itself - not even on day 1 - then surely he must be held in contempt for something? Ryan Tibbits - SCO's General Counsel no less - must surely know that he has a duty to the court and to due process to present such evidence in a timely manner?


    Seriously folks, this is mighty interesting - in some senses it's almost the most important part of today's travesty. What surprises me most about it, though, is Novell's lack of reaction. So they expected this? They have an even better answer? What's the angle here?


    The other bit that really caught my eye concerns this:

    OKAY big moment here, Mattingly makes a statement about Chatlos’ testimony and says something like Brennan should know from Chatlos’ already speaking about it. Brennan starts immediately asking, “What do you mean?” “How would you know about that?” It turns into a very tense moment in court when Brennan started pressing Mattingly about how he knew about Chatlos being a witness. Nobody in the room moved. Mattingly finally said he talked with Lee Johnson about it and that Ed Chatlos was on the stand before him.

    Mattingly’s replies shorten quite a bit at this point.


    You bet they do! He realised that he was digging a hole for himself and SCO because he was inches away from admitting that he had been conferring with another witness. I suspect that Novell didn't pounce because they view his testimony as being peripheral to the case.


    I also think it's interesting that SCO are specifically working to undermine the testimony of Tor Braham before it's actually been given. You get a sense, from SCO's work here, that you are beginning to see the areas where they are nervous. We know that they do not have any witness to put up who can refute what we know Tor Braham can testify to. Even if former Novell executives can be persuaded by newSCO to say, "We intended to sell the copyrights.", that statement of intent is easily trumped by the lawyer who wrote the agreement and who can say, "I actually wrote the agreement, and I was directed to structure it like this, and I did just that. Here are my notes from that process."


    The O'Gara dispute and Brennan's objection... There is a post in commentary on this point that talks about 'the fix is in'. Just to clarify: Brennan is Counsel for Novell, and not SCO. By over-ruling Singer, Judge Stewart was denying SCO. Just to be clear.


    [ Reply to This | # ]

    Slander of title "from" date -- showing of malice impossible?
    Authored by: Anonymous on Saturday, March 13 2010 @ 07:08 AM EST
    Posted this in another thread, but I should also post here:

    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.

    [ Reply to This | # ]

    Highlight of the day - Day 5 of the SCO v. Novell Trial & Some Help for Journalists Covering...
    Authored by: Anonymous on Saturday, March 13 2010 @ 08:26 AM EST
    "One highlight of today: when Ty Mattingly referred to Ed Chatlos'
    testimony. (Cue sound of jaws dropping.) "How did you know what Mr. Chatlos
    said? How did you know that Mr. Chatlos had testified?" asked Brennan.
    After some stammering, and hunting for an answer, Mattingly said, "Lee
    Johnson told me." Bad case of footgun, I think."

    I thought this was even more interesting:

    "Brennan asks Mattingly about the patents and if they transferred.

    Mattingly mentions Pike(sp?) patents, says he doesn’t think any patents
    transferred.

    Brennan asks how he would know that, Mattingly refers to the document in which
    it states no patents transferred, one line below the line about the copyrights
    not being transferred.

    At this point Singer reacts and drops down in his chair then whispers to
    Normand; their lawyers that sit behind them seem to jump onto their
    blackberries, almost everyone on the SCO side reacted to this exchange. From
    here on out Singer will shake his head slightly after each of Brennan’s
    questions."


    What did he know? When did he know it? What did he say under oath?

    [ Reply to This | # ]

    RE: Slander of Title Date -- per yesterday's postings and discussion
    Authored by: Anonymous on Saturday, March 13 2010 @ 08:37 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?

    Maybe you're referring to one of my posts from yesterday, and you're missing a
    key distinction.

    Of course one can conclude form all the evidence that Novell has a strong
    defense against Slander of Title -- and McBride's phone calls requesting the
    transfer is just one piece of evidence among many supporting that conclusion.

    But -- that conclusion is based on the general evidence that will be in the
    case. And general evidence is "a brick, not a wall". You have to put
    the pieces together. For example,Darl is going to be on the stand later in this
    case, and his evidence is going to be that he denies Novell's version of that
    phone call. So the jury is going to have to sift out who is truthful, what
    evidence is supported by other evidence, etc.

    Contrast that with "legal facts", and here I reference one of my posts
    yesterday. Anything that the Judge directs the jury to accept as fact IS a fact
    for the case. There is no further weighing and sifting required by the jury.
    Hence Novell's requests earlier for Findings of Facts based on the
    Appellate rulings.

    So -- once Judge Kimball ruled in Novell's favor in Summary Judgement, up until
    the time that the Appellate COurt decided that, no, this had to go to trial,
    during that interval it is a judicial FACT that Novell had a right to maintain
    that it retained title to the copyrights.

    And the point we made yesterday was Stewart denied the Finding of Fact request
    on that point because while true, it was more prejudicial than probative - it
    would be telling the jury that Novell has already won on this point in a Federal
    Court, which Stewart believed would have a overly-strong influence on the jury.


    But now Singer has stepped forward and attempted to beat Novell on the head by
    maintaining that they maliciously continued to assert their ownership of the
    copyrights continuously since 2003 -- "to this day" -- in an attempt
    to make Novell seem reckless and intemperate.

    So -- that opens the door for Novell to say to the Judge,you can't allow us to
    be handcuffed and not be permitted to mention Stewart's ruling -- and Singer
    has already, numerous times, asserted something that is prejudicial to OUR case,
    which the jury might use in wrongfully determining that we were slanderous. You
    HAVE to let us respond, and you need to reverse your ruling on our previous
    motion.

    THAT'S the distinction.

    LEXLAW

    [ Reply to This | # ]

    Ty Mattingly in (k)nots
    Authored by: webster on Saturday, March 13 2010 @ 09:24 AM EST

    Thanks to the Groklaw reporter [BPrice?] for this remarkable account of SCO witness, Ty Mattingly's (the Witness) testimony. SCO is well-advised to provide Groklaw with immediate transript so as to pre-empt such crucial, impressionistic reporting. Details such as the sudden silence in the courtroom, the poses of SCO attorney's, and then their mass thumbing will not be gained from a transcript. It is exactly what the jurors are seeing and hearing. Transcripts would be less damaging accounts of this day than this account filtered through an observant, knowledgeable reporter with a proud Groklaw bias.

    Mr. Mattingly's testimony certainly exemplifies some lessons in witness preparation. Witnesses should be told to tell the truth. One would think that is enough to keep them on track and free of self-contradiction. Listen to the question and answer the question no matter what the answer is. The lawyers deal with the answer no matter what it is. Ideally the witness would look at the judge or jury as they answer. Professional or expert witnesses do this, but it is a lot to expect from a nervous layman. Answer the other side's lawyer the same way you answer the lawyer who put you on; isn't everyone looking for the truth. These are good instructions even when revealed by the witness on cross-examination.

    The Witness intently ground the SCO axe, particularly on cross. One gets the impression that there is a level of preparation going on aside from the SCO lawyers. Withholding documents, Johnson's talking about other witness' testimony to this next Witness are not things a lawyer would risk. So to is Walking in with a supposedly helpful document un-reviewed and undisclosed by lawyers for years. They did know about this lawsuit around SCO; unknown,remotely-stored documents are inexcusable. Now all the SCO witnesses are going to be asked about old, relevant or SCO documents stashed stored in their garages or anyplace else, and if they talked to Johnson or anyone else about Chatlos', this Witness or anybody's testimony. The answers don't matter. The jury will hear the question and harken back...

    It is simply amazing that there can be such dramatic, self-contradictory testimony on the key issue of the trial --the APA on copyrights. Mattingly tells the truth on patent exclusion and then crumbled on a parallel line on copyright exclusion. He is no stone wall like D. McBride. This brought on the pin-drop silence and then the scuttle at SCO table. Mattingly, Stowell, O'Gara, Johnson, among the SCObirds of a feather --the SCO cabal, just smear each other. They muddy the fields. The don't know trust, of each other or their lawyers. The Witness testimony shall resound in closing arguments and in the jury room. With witnesses such as this Novell may not need any. Will the day's events spur any motions? What does Judge Stewart think? He certainly jumped on the witness trying to ask a question. The lawyer didn't get a chance.

    One has to remind oneself that this was SCO's own witness. What are the jurors thinking now about copyright title, malice and slander? This was a pivotal event. After this evocative performance --apparently even by SCO lawyers. Who were they thumbing on their BB's? Their brokers, or orders to rein in Johnson and protect the remaining witnesses?

    ~webster~

    [ Reply to This | # ]

    Okay, I haven't been following...
    Authored by: Anonymous on Saturday, March 13 2010 @ 10:49 AM EST
    the SCOcapades recently, but can anyone tell me about Lamb Chops?

    [ Reply to This | # ]

    Lee Johnson == Snowshoes n/t
    Authored by: Anonymous on Saturday, March 13 2010 @ 11:14 AM EST
    some people will understand

    [ Reply to This | # ]

    Tinfoil theory: Mattingly is deliberately crashing the case
    Authored by: Anonymous on Saturday, March 13 2010 @ 11:49 AM EST
    1. Mattingly retains a very close relationship with Yarro. viz: Voonami, Xymbiot pages on Facebook.

    2. Yarro now has a "default" clause that gifts him all remaining assets in SCO for a very small upfront payment to payoff the Trustee lawyer bill.

    3. Yarro and Mattingly know the "slander" case is a loser even if they "win". No real pay-off, and even that is years in the future after appeal and what not.

    4. Yarro and Mattingly have concocted a plan to crash the case deliberately. SCO will default on its DIP loan in that wreckage. Yarro (and his partially obscured financial backers) get the assets.

    5. They want the assets, because: they think a little income stream is available. Or because some other payoff has been promised them if they can regain control of the corpse.

    [ Reply to This | # ]

    SCO Timeline
    Authored by: Anonymous on Saturday, March 13 2010 @ 12:21 PM EST
    August 18 2002, Michael Davidson finishes his code comparison for SCO. It's summed up with "we had found absolutely nothing, i.e., no evidence of any copyright infringement whatsoever,"

    August 28 2002, McBride said Linux does not infringe SCO's copyrights, and that they would not ever make such a claim.

    March 2003, McBride says the case is solely about IBM not living up to "contract violations"

    April 2003, Microsoft pays SCO $16M for "unix licenses" that it doesn't need.

    May 2003, McBride claims that Linux infringes it's copyright, and contains "millions" of lines of SCO code.

    August 2003, Microsoft arranges for Baystar to invest $50M in SCO.

    [ Reply to This | # ]

    Day 5 of the SCO v. Novell Trial & Some Help for Journalists Covering the Trial - Updated
    Authored by: belzecue on Saturday, March 13 2010 @ 12:47 PM EST
    THIS is Maureen O'Gara:
    http://mooreslore.corante.com/archives/images/maureen%20ogara.jpg

    I have no idea who is the young, attractive woman prominently bannered on her
    website.

    Pot, kettle, black much, Maureen?

    [ Reply to This | # ]

    OUCH!!!
    Authored by: Anonymous on Saturday, March 13 2010 @ 01:11 PM EST
    That's going to leave a mark. I will need to sit down this afternoon and read
    all through this again, thoroughly.

    Tufty

    [ Reply to This | # ]

    A reminder notice for those on a jury?
    Authored by: Anonymous on Saturday, March 13 2010 @ 01:22 PM EST
    Maybe a front page notice/disclaimer to remind those on a jury that if a judge
    has instructed you to not look for information about the case your involved in
    that you should not be here. Your web presents is not invisible and can be
    found out, it could result in messing up the current court case.

    [ Reply to This | # ]

    Bizarro World on the stand
    Authored by: Anonymous on Saturday, March 13 2010 @ 01:32 PM EST
    We've spent many years grinding our teeth at the 'up is down' strategery of SCO, but it now seems to be playing out as farce on the stand. My favorites of the last two days:

    MOG is an objective journalist; PJ is editorializing.

    Groklaw is an anti-SCO smear site; LinuxGraham(sp) is a highly respected bastion of journalistic integrity.

    Groklaw is puppeted by IBM; MOG just coincidentally enacted SCO's puppetry.

    PJ is a harridan; MOG is not.

    MOG throws away her notes every week, so she can't produce any ; Ty Mattingly keeps his for years, and just happens to find a mysterious draft of the APA, years after the case commenced.

    The real howler, though, was the assertion on the stand that the executives were the ones who really knew the content of the APA, and are much more reliable than the mere 'wordsmith' Tor Braham!

    I look forward to SCO's Bizarro Word die the death of a thousand cuts in this trial, and whatever comes next; Whether you call them chickens or ducks, they both come home to roost eventually.

    [ Reply to This | # ]

    The best statemen in court so far!
    Authored by: Anonymous on Saturday, March 13 2010 @ 01:32 PM EST
    Mattingly responds, “Oh, you’re the guy who cheated off me.”

    Ok, I laughed out loud on this exchange between Novell's Brennan and Ty
    Mattingly. That was dang funny! Probably a bit of a foolish move on Brennan's
    part to open the door so wide for a smack down.

    [ Reply to This | # ]

    Too Much Excitement
    Authored by: DaveJakeman on Saturday, March 13 2010 @ 02:27 PM EST
    After seven years of waiting for SCO's day in court before a jury, this is quite
    exciting enough, without SCO torpoedoing their own case in front of said jury!

    Knowing SCO, we were expecting surprises, but now we are surprised at how
    surprising their surprise is! I'm still reeling from the aftershocks.

    How will PJ sleep? How will I sleep? We've two more weeks of this!

    Many thanks to the reporters -- excellent stuff. Breathtaking detail of SCO's
    breathtaking antics.

    [ Reply to This | # ]

    I found these documents under my hat
    Authored by: Anonymous on Saturday, March 13 2010 @ 03:00 PM EST
    Please call me as witness, please please please!

    [ Reply to This | # ]

    On re-reading...
    Authored by: DaveJakeman on Saturday, March 13 2010 @ 03:12 PM EST
    There was something that happened that perhaps we're missing the significance
    of:

    When Mattingly drops the witness collusion blooper -- a potentially serious
    charge -- there is no reported reaction from the SCO lawyers. That isn't to say
    there wasn't one, just that none was reported. However, when Mattingly points
    to the exclusion of patents in his draft, right next to the exclusion of
    copyrights, *THAT* is what causes the kerfuffle and consternation among the SCO
    lawyers.

    What's going on there? Why are they more concerned about that than Mattingly
    impeaching himself as a witness beforehand?

    Just asking.

    [ Reply to This | # ]

    Great Timing
    Authored by: DaveJakeman on Saturday, March 13 2010 @ 03:19 PM EST
    So much for the jury being swayed by Singer's persuasive (or otherwise) opening
    on Monday, I think the events of late Friday will have a far bigger impression
    on them. And they've got the whole weekend to ponder that Perry Mason moment.

    Timing is of the essence.

    :)

    [ Reply to This | # ]

    Come Hell or High Water how many Reporters are going to show up for Daryl McBride.
    Authored by: Anonymous on Saturday, March 13 2010 @ 03:28 PM EST
    I wish I could go just for this fud fest.

    All hat no cowboy.

    [ Reply to This | # ]

    So much for "The branch is the tree"
    Authored by: Anonymous on Saturday, March 13 2010 @ 06:57 PM EST
    Asked what SVRX is? Broderick: all software except UnixWare.
    So UnixWare is not SVRX.

    Didn't SCO swear up an down in the bench trial that UnixWare was just the latest version of SVRX? Wasn't that part of the reason that Judge Kimball made some of the decisions that he did in his final judgement, and why Novell wan't awarded as much money as we thought that they should have been?

    [ Reply to This | # ]

    Old-boy joking usually causes trouble
    Authored by: Anonymous on Saturday, March 13 2010 @ 07:41 PM EST

    When I saw that "you cheated off me" line it made me think of old-boy
    networks. And the offhand production of a document from the "garage"
    stash was a similar unwelcome fake-familiarity.

    a big fish in very small pond

    [ Reply to This | # ]

    Not to put on a tin foil hat or anything but...
    Authored by: Anonymous on Saturday, March 13 2010 @ 07:46 PM EST
    Could this be a setup? They find a document in the pile that seems to support
    Novell and get Novell to introduce it, later they "find" something
    else that does not support Novell, but since Novell allowed it to be put into
    evidence SCO has now just got something slidden in through a back door.

    [ Reply to This | # ]

    And on the 6th and 7th day, Groklaw rested
    Authored by: crs17 on Saturday, March 13 2010 @ 07:58 PM EST
    Great job everyone this week - all the court reporter, PJ, and everyone else!
    Amazing level of detail.

    Time to relax for two days - although I know PJ will keep on plugging away.

    [ Reply to This | # ]

    March 12th: National Petard Day
    Authored by: jbb on Saturday, March 13 2010 @ 08:33 PM EST
    How did SCO hoist themselves up? Let me count the ways:
    1. SCO's opening arguments and testimony that Novell slanders their title to this day opened the door for Novell to move to get Kimball's previous rulings allowed as evidence. If Stewart grants their motion, the best outcome for SCO is that their slander of title claim vanishes. Even then, Singer's histrionics during opening arguments could end up totally destroying SCO's credibility.

    2. Judge Stewart denies Hatch's motion and allows Novell to use O'Gara's statements that indicate she was working for SCO. Ouch. This could cast doubt on SCO's expert witnesses who relied on O'Gara being an impartial journalist. I think that's a lose-lose for SCO, maybe even a lose-lose-lose. It damages O'Gara's credibility, it makes SCO look slimy, and it might discredit some of their experts.

    3. Ty Mattingly announces that he found a bunch of relevant documents in his garage and turned them over to SCO's General Counsel, Ryan Tibbitts. For some unknown reason Tibbetts violated the most basic rule of discovery by keeping the existence of these documents secret. Oops.

    4. But wait, it gets worse. One of the documents, an early draft of the APA, says the copyrights were not supposed to transfer which devastates SCO's entire case. This might explain why Tibbitts kept mum about the existence of the documents. The commotion at SCO's table and in the audience after this bombshell hit may have reinforced its importance in the minds of the jurors.

    5. Then we find out that not one, but two of SCO's witnesses violated the judge's orders by discussing the testimony of a previous witness. This happened in open court in front of the judge and the jury.

    6. Judge Stewart asks a SCO witness about flavors of Unix. IMO this totally sinks SCO's argument that they needed the copyrights in order to be in the Unix OS business. Okay maybe this one wasn't directly self-inflicted, but combined with him prompting Novell's lawyer to object at one point, it indicts the judge is getting up to speed on SCO's true nature which does make it self -inflicted.
    Did I miss anything? The stories from SCO and Novell conflict. The primary issue the jury must decide is: which side is lying? I think the judge has already figured it out. When reading about all these events yesterday, I kept thinking of a telecom commercial with one of SCO's lawyers saying to the jury:
    Can you hear me lying now?


    Regarding the word "petard", the Wikipedia explains:
    The word [petard] remains in modern usage in the phrase hoist with one's own petard, which means "to be harmed by one's own plan to harm someone else" or "to fall into one's own trap", literally implying that one could be lifted up (hoist, or blown upward) by one's own bomb.

    ---
    You just can't win with DRM.

    [ Reply to This | # ]

    The Need For Copyrights
    Authored by: sproggit on Sunday, March 14 2010 @ 05:03 AM EDT
    One of the common themes being voiced by witnesses for The SCO Group seems to
    centre on the idea that it is simply not possible to run a software business
    without full ownership of the copyrights.

    Although this is something that we've discussed a few times here at Groklaw, I'm
    conscious that the trial coverage and mention of this blog in the case itself
    might bring in a few new visitors who are not familiar with our prior
    deliberations, so I thought it might be an idea to take another quick look at
    that argument and the holes in it.


    So SCO have claimed that they do not know of a way to run a soft business
    without the ownership of the copyrights. Here are a few points to consider:-

    1. A License Model
    If you look at the terminology used to describe the way that IBM 'bought out'
    their license responsibilities to AT&T (at around the time the software
    business was sold by Novell to Old SCO) you will see that IBM were granted an
    'irrevocable license' to use the source code in their own products. IBM did not
    receive and have not claimed to receive the copyrights to that early AT&T
    code. Yet they were entirely happy to make the purchase and continue to produce
    and license AIX - something with AT&T, Novell and Old SCO were all entirely
    happy for IBM to do. So there is our first real-world example of a company
    operating a software business without owning the copyrights. The same situation
    can be used to describe Sun Microsystems and their Solaris OS.

    2. A Variation on Source Code Licensing
    Today, RSA make available cryptographic software (in C and JAVA language
    variations) libraries such as Crypto-C and Crypto-J. Clients can purchase
    licenses to use this software in their own software products, provided that the
    RSA code is used un-modified and with the copyright notices preserved. Thus a
    company can get the benefit of the RSA intellectual property without owning the
    copyright. They can even build and develop new software that leverages the RSA
    code, without taking over the RSA copyrights.

    3. Source Code & Open Source
    Another tremendously successful example of this comes from the Free & Open
    Source Software movement, where literally thousands of programmers contribute
    their code to FOSS projects - including, of course - the Linux kernel.

    4. Finally - an Analogy
    Well, not so much an analogy as an example from a different but related world:
    book publishing...

    An author can write a book and sign a deal with a publishing house to have that
    book published. The publisher purchases the *publication rights* but does not
    get the copyrights. The author grants the publisher the right to produce the
    book in different versions (hardback, paperback, perhaps even audio or
    electronic form) but the author retains the copyrights. At some point in the
    future, the publisher may elect to sell those publishing rights to another
    company. The receiving company cannot say that they have received the
    copyrights, which will of course have remained with the author.




    The publishing company might be a powerful example here, because of it's
    widespread use across the world. So when you read about SCO claiming that it's
    simply not possible to run a software business without copyrights, at least
    you'll have some hopefully valid examples of the errors in this assertion.

    [ Reply to This | # ]

    The Salt Lake Trib article on 3/12/2012 is in line with what actualy happened at the trial.
    Authored by: Anonymous on Sunday, March 14 2010 @ 08:10 AM EDT
    Apparently Tom Harvey stopped parroting Sco talking points , and realized the
    real truth behind the Sco Novell trial.
    This article is actually as good as Mimm's stuff was.
    Kudos to all.

    [ Reply to This | # ]

    Novell-281-9: Is This Mattingly's MOU?
    Authored by: sk43 on Sunday, March 14 2010 @ 08:40 AM EDT
    According to bprice:

    >>He testified that he and Chatlos had drafted the Memorandum of
    Understanding (MOU) on a six-to-eight week trip to California **[check my number
    recall, here.]**, then they left town since their part was all done. It was
    Braham's job to writeup the MOU in legalese.<<

    Exhibit 9 attached to the Declaration of Tor Braham is a 20-page document called
    a "TERM SHEET". This document has the right flavor to be Mattingly's
    MOU. According to Braham, it was marked up by Aaron Alter. The document
    describes the deal (sounding more like a joint development venture among Novell,
    SCO, and HP than just an asset sale) but there are many details left unresolved.
    The markups make sense if Aaraon were working through it making sure all items
    have been incorporated into the APA.

    Most interestingly, pdf pages 5-6 of the TERM SHEET have the following section:

    "C. Identified Techology Contribution (ASSET TRANSFER OR LICENSE)."

    The parenthetical expression "(asset transfer or license)" is in
    italics, meaning that it still hasn't been decided yet which form the
    contribution will take.

    There follows the familiar list of Source Code Products: UnixWare 2.0 and SVRX,
    binary products, and other technologies.

    If the above interpretation is correct, it means that Mattingly and Chatlos had
    not yet reached agreement with SCO that UnixWare and SVRX were even being
    sold!!! Yet Mattingly and Chatlos then left town. Meaning that it was up to
    Bradford and Braham to make the decision.

    The reason for the uncertainty was probably that the valuation of the assets
    (and of SCO's stock) was still in progress, and it was unclear what the size of
    the gap would be.

    [ Reply to This | # ]

    Brennan and Mattingly exchanges
    Authored by: Leg on Sunday, March 14 2010 @ 03:01 PM EDT
    Our reporters in the courtroom didn't comment on something that seemed to pop
    out to me regarding the line of questioning that went:

    Was Mr. A at the meeting? Yes? What did he say? I don't remember. Was Mr. B at
    the meeting? Yes? What did he say? I don't remember. Was Mr. C at the meeting?
    Yes? What did he say? I don't remember. Was Mr. D at the meeting? Stop badgering
    me!

    If I were in that jury, my bogousity meter would be hitting the pin at this
    point, and making loud plinking noises. What Mr. Brennan is doing is showing us
    that Mr. Mattingly is hiding something. I would take this to mean that Mr.
    Mattingly was instructed as to what to say. For this reason, what he did say
    would be accepted only with a great deal of caution.

    To hear that the jury wasn't focused on this encounter -- that they tuned out
    because they may have been put off by the confrontation -- is a serious
    disappointment.

    So I wonder if we're going to hear from Mr. A, Mr. B, etc., as Novell's
    witnesses, and Mr. Brennan asking, "Was Mr. C there? (detailed answer) Was
    Mr. Mattingly there?" later in the trial to underscore Mr. Mattingly's
    evasiveness?

    What might be in that box of documents next to the water heater that SCO thinks
    will be damaging?

    [ Reply to This | # ]

    Search
    Authored by: Anonymous on Sunday, March 14 2010 @ 03:37 PM EDT
    Tom Harvey might have a point, as a noob on this site. I know I
    took a while to find the [Search] function on my first two or three
    attempts. Many sites now that want to encourage searching of
    their archives place the [Search] function prominently on the top bar,
    with the text box for search term entry right there on the front page.

    But now that I know where to find it I have no quibble with GL's
    search function location. It even allows me to open it in a new Tab,
    which the "popular" versions I mentioned do not. The only minor
    grizzle I have with it is that over the years it seems to drift up and down
    amongst the other inhabitants of that left sidebar. That could throw
    even a seasoned hack like Tom Harvey.

    [ Reply to This | # ]

    • Search - Authored by: Anonymous on Monday, March 15 2010 @ 12:56 AM EDT
    Really curious
    Authored by: Anonymous on Sunday, March 14 2010 @ 08:03 PM EDT
    In the text, there is a reference to how SGI acquired Cray and wanted to bundle
    the source code license: SCO WENT TO NOVELL FOR CLARIFICATION. Now why would
    they do THAT, if they owned the copyrights? Hmmm?

    [ Reply to This | # ]

    Day 5 of the SCO v. Novell Trial & Some Help for Journalists Covering the Trial - Updated
    Authored by: Leg on Monday, March 15 2010 @ 01:12 AM EDT
    Having heard quite enough of Darl's statements over the last few years, I'm not
    really looking forward to his testimony Monday. That is, unless Mr. Brennan is
    going to ask him to explain why he requested that Novell transfer the copyrights
    when he was cranking up SCOSource, why he ignored the advice of his staff who
    told him there was no infringement, what portion of SVR4 and UNIXware was new
    since the AT&T vs UC Regents case and UNIX 32V, and what is the meaning of
    the GPL. I suppose I've left something out.

    [ Reply to This | # ]

    The unanswered questions
    Authored by: NigelWhitley on Monday, March 15 2010 @ 08:04 AM EDT
    After execution of Amendment 2, Schedule 1.1b reads
    "All copyrights and trademarks, except for the copyrights and trademarks
    owned by Novell as of the date of the Agreement required for SCO to exercise its
    rights with respect to the acquisition of UNIX and UnixWare technologies.
    However, in no event shall Novell be liable to SCO for any claim brought by any
    third party pertaining to said copyrights and trademarks."

    SCO have presented various witnesses claiming that their understanding was that
    the copyrights had to have transferred because it made no sense to do otherwise.
    Novell, in cross, has asked them whether they can remember anyone saying that
    they *had* transferred or specifically discussing whether they would (to which
    the answer, generally, seems to have been "No").

    But there is one question which none of SCO's witnesses seem to have answered :
    before the creation of SCOSource, what aspects of SCO's business required the
    UNIX SVRX copyrights and how was this need apparent in the course of that
    business? In fairness to them, the reason they have not answered is that Novell
    have not asked. That seems a curious omission.

    Lots of businessman saying they obviously need the copyrights to run the
    business but nobody asking them why? Other companies clearly develop UNIX
    variants without holding the UNIX SVRX copyrights - that's what licenses are for
    - so what makes SCO's business unique in that regard ? What special aspects of
    their business (other than the SCOsource shakedown) rely on holding the SVRX
    copyrights?

    If these aspects of the business are not necessary to "exercise its rights
    with respect to the acquisition of UNIX and UnixWare technologies", but are
    solely the right of the copyright holders (such as charging for copyright
    infringment) then how could the copyrights have transferred?

    I understand that Novell want to keep things simple and rely on the plain
    language of the APA and the Amendments. Unfortunately the language of Amendment
    2 is not terribly plain so getting the extrinsic witnesses to expand on why the
    copyrights are required seems an essential part of Novell's defense. Simply
    allowing them to state that they are required seems, at best, unhelpful to the
    jury.

    Perhaps Novell's witnesses will answer those questions. If not, what is the jury
    to conclude based on SCO's claims that all the copyrights are required?

    BTW, thanks to all those attending and sending eyewitness reports and, of
    course, to PJ's unstinting efforts to collate and present them along with her
    invaluable commentary. Without all of you the rest of would have far more
    questions.
    ---------------------------
    Nigel Whitley

    [ Reply to This | # ]

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