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Week 3, Day 12 in SCO v. Novell - Tolonen, Amadia
Wednesday, March 24 2010 @ 12:27 PM EDT

First on the stand yesterday in SCO v. Novell was James Tolonen, who you may recall was Novell's CFO from 1989 to 1998 and was the chief business executive who provided direction for the APA and Amendment 2. And then they called Allison Amadia, the Novell lawyer who drafted Amendment 2. Here's her declaration [PDF] and Tolonen's [PDF]. Tor Braham was mentioned in both of their testimonies, so here's his declaration [PDF] as well.

So looking at the overview, Novell has both business people and several lawyers who were involved in the APA and the amendment; SCO has only business people and attorney Steve Sabbath and one paralegal, Kim Madsen, who contradicted each other somewhat. SCO had said they might want to put another lawyer, Troy Keller, on as a witness, and they got the judge to order a deposition, which happened yesterday we learn, but afterwards SCO decided they would not use him after all in their case in chief. What does that tell you?

Maybe he'll show up for impeachment purposes. Here's Keller's Declaration, if you are curious. A couple of other documents you might want handy as you read the day's events are the draft of Amendment 2 [PDF] that Steven Sabbath sent to Amadia, which she rejected, and the language [PDF] that was finally agreed on. She explains that language like this: she was working from his language, and he was, she says, a bit of a screamer, so it was the best she could get from him. It might have been written more clearly had she been starting from scratch, without his draft in the way. Finally, here's David Bradford's declaration and Amendment X, both referenced in the day's testimony. I think you have now everything you need to follow along meaningfully.

Here's Chris Brown's full report:

3/23/10 Part 1 - Initial Matters and Testimony of James Tolonen

Novell's attorney Michael Jacobs tells Judge Ted Stewart that in the wake of the court's ruling on Troy Keller, the parties have taken his deposition. Subsequently, SCO stated they will not call him in their "case in chief" but reserve to do so for their rebuttal case.

SCO's attorney Stuart Singer asks about summation time. The sides asked for one and a half hours each. Judge Stewart recommends one and a quarter. He said jury instructions will take 45 minutes.

Novell's attorney Sterling Brennan indicated the two sides have worked out a mechanism for one and a half hours each. Judge Stewart asked what it was. I missed the response, but Judge Stewart laughed and asked, Your "mechanism" is to go until 12:30?

There was some discussion of time where Judge Stewart was indicating that the longer they go, they may lose the jury's attention and there will be diminishing returns. He said he'll leave it to the parties to decide but kept his hour and a quarter recommendation. The time includes each party's summation and rebuttal in the overall time.

He expects the sides to complete their examinations by 1:30pm on Thursday and to start summation Friday morning at 8:30am.

Judge Stewart then asked for the jury to be brought in. There was a delay, and his clerk returned to report that one of the jurors was not here yet. It was hypothesized that the juror may be on the other side of an accident on the southern I-15. (Salt Lake's commute is primarily North-South with I-15 being the main artery).

We all sat for a few minutes, and then Judge Stewart told the parties that he doesn't want to sit there and make them nervous, so he will retire until the juror arrives.

After perhaps 10 minutes total, we were told the jury was ready, and they were brought in.

Brennan calls Mr. James Tolonen to the stand and asks him if he worked for Novell.

Tolonen: Yes, 1989 to 1998 as CFO and served in the "Office of the President". He described it as a small senior executive team that met regularly to discuss strategy with Ray Noorda.

When asked, Mr. Tolonen described his history as having received an engineering degree, an MBA, and CPA. He listed (without naming names) other businesses where he'd worked and his position. He says he met Ray Noorda in a small company where Mr. Noorda was brought in as CEO.

Mr. Brennan asked, Who is Ray Noorda?

Mr. Tolonen reported he was the CEO of Novell who was brought in at the founding of Novell. Mr. Tolonen said he directly reported to Mr. Noorda and described him as his mentor.

Mr. Tolonen describing his work since 1998 said he's been the president of a small company, then CFO of Business Objects and that he retired about a year ago when Business Objects was bought by SAP.

Asked what the duties and responsibilities of a CFO are, he gave a long list.

When asked, he said he came to Novell via Excelan. He was asked about his duties as a CFO of Novell and he said he was responsible for, among other things, the accounting system, external SEC reporting, internal reporting, etc. He said he also worked on acquisitions, of which there have been 15 or more while he was at Novell.

He's asked if he's familiar with Unix?

Tolonen: Yes, that though he's not a programmer, he's familiar with it. He describes Unix, including that it is a broad stable operating system developed by AT&T's Bell Labs, later Unix System Laboratories.

Mr. Brennan asks if it's true that Novell acquired USL?

Tolonen: Yes, around 1992-93.

When asked, he describes NetWare. He's then asked about UnixWare. Was it developed by Novell? Yes.

Were you involved in the USL acquisition? Yes. He described the merger and acquisition process as being like a marriage (dating, wedding, ...)

He is asked to describe the state of the industry (around the time of the USL acquisition). He does so.

Mr. Brennan asks, Did Novell acquire all or part of USL?

Tolonen: All.

Q: How much did Novell pay?

Tolonen: $300 million. It included copyrights, all assets, liabilities, etc.

Q: Were you involved in the sale to Santa Cruz?

Tolonen: Yes.

Q: What was the difference?

Mr. Tolonen said that in an acquisition, you acquire the entire operation, people, property, etc. as opposed to sale of only specific parts.

Mr. Brennan asks, Was there a point where Novell contemplated selling all?

Tolonen: Yes.

Brennan: Ultimately, did Novell sell all to Santa Cruz?

Tolonen: No, a subset.

Q: Why?

Mr. Tolonen replies that there were two or three reasons. Santa Cruz had a product in the Unix PC marketplace, Xenix; it was a good company to take a product into the small computer space, but they had other customers, larger, HP, IBM, etc. Also, they had Tuxedo, and they were selling the rights to continue developing into the microcomputer PC market space. He said Novell would also be receiving royalties on the UnixWare business (based on targets).

He reports he is one of about three people who worked on the sale. He names Michael DeFasio, David Bradford, and Tor Braham, with the law firm Wilson Sonsini. When asked, he reports that Larry Sonsini was on Novell's board of directors. Relation to Wilson Sonsini? Yes. He was identified as being one of the founders and a name partner in Wilson Sonsini. He said that Tor Braham is a lawyer with Sonsini. He identified Wilson Sonsini as being Novell's primary outside counsel.

Mr. Brennan asks, What were your impressions of Tor Braham?

Tolonen: He liked him a lot. He's a really smart guy.

Q: Have you reviewed drafts of the agreements?

Tolonen: Yes. He was the business executive reviewer of virtually every draft. Mr. Bradford was lead in developing drafts with Mr. Braham.

Q: What did Novell get for its sale of specific assets? Mr. Tolonen says they received mostly stock, about a seventeen percent ownership, worth approximately $50 million.

Tolonen testified it was Novell's intent to retain the copyrights and that it is his understanding that the Board of Directors passed a resolution to do so. He testified that the draft Amendment 2 language from SCO's Steve Sabath was unacceptable, since Santa Cruz did not obtain the copyrights. He said Amendment 2 was a "cleanup" amendment not changing the APA but instead to provide clarification especially regarding third parties. He testified he had no financial interest in the outcome of the litigation.

Cross Examination:

On cross examination SCO's Mr. Hatch attempted to show that Mr. Tolonen wasn't as involved in the APA and Amendment 2 as he indicated. He did so by using a couple of emails regarding the APA where Mr. Tolonen was not copied or mentioned. He also pointed out that Mr. Tolonen was not at the one meeting daily with Santa Cruz for the three months of APA negotiations, but instead Mr. Chatlos went for face-to-face meetings. Mr. Tolonen said that he was at the more executive level.

Mr. Hatch also said that Mr. Frankenberg and Ed Chatlos both said he was not involved in the negotiations. Mr. Tolonen opined that it might be a matter of definition, that there's the negotiation team which he was not on, but he was rather the executive signature authority overseeing the transaction.

Mr. Hatch also pulled out various phrases from the APA "all of seller's right, title, and interest", "all rights and ownership", & etc.

Redirect:

On redirect Mr. Brennan confirmed that the Board of Directors minutes show they approved a resolution retaining copyrights. Mr. Brennan also showed documents showing Mr. Tolonen was involved in discussion of APA, including with the Board of Directors.

In regard to the letter from Mr. Bradford (which did not have Tolonen mentioned), it was pointed out this was in regard to Mr. Bradford's legal review of the document stating it was an accurate reflection of the business' intent and approved it for signature.

ReCross:

Mr. Hatch on re-cross pointed to a Novell 10Q Mr. Tolonen signed that said Novell had sold its Unix and Unixware line to Santa Cruz.

In my opinion Mr. Tolonen sounded confident, knowledgeable, and credible.

Allison Amadia:

Novell's Mr. Brennan then called Allison Amadia (nee Lisbon). She has a law degree and is currently an independent legal consultant specializing in technology licensing and lectures at the University of Santa Clara.

She worked for Novell from 1995 to 1997 as in-house counsel in San Jose. She said she became familiar with the APA through working on the agreement regarding IBM, Novell, and Santa Cruz known as Amendment X. She said this disagreement is what led to Amendment 2.

She testified that she was the lead negotiator and drafts-person for Amendment 2 and that it would be fair to say she wrote it.

She described how Steve Sabbath had sent his draft version of Amendment 2 and that Novell had rejected its language since Santa Cruz had not obtained the copyrights. She recounted that she'd contacted Tor Braham who told her the copyright exclusion was intentional and to not change it.

Ms. Amadia also testified she has no financial intrest in the outcome of the trial.

She was exceptionally credible. If parol evidence is what counts, her testimony was perfect for Novell with regard to Amendment 2.

SCO's Mr. Hatch cross-examined and tried to undermine her expertise in licensing through the wording of the Amendment 2 and also attempted to elicit that the APA, if it conveyed a license, would have been an implied license (she averred it was an explicit grant of rights, just not using the word "license"). Mr. Hatch was trying to show that had it been an implied license, Santa Cruz would have been unable to protect itself by making infringement claims against others.

There were lots of questioning on meanings of various language and phrases used in both the APA and Amendment 2. Mr. Hatch referred to the language of Amendment 2 where it might be read that should Santa Cruz "require" a copyright, that a process would be triggered to obtain it. Ms. Amadia testified that was never her intent in drafting that language. On examination about why Amendment 2 can be read as ambiguous, she said that in a perfect world she would have drafted it from "whole cloth," but that in negotiations some ambiguity must be accepted to "get the deal done." She said that knowing Steve Sabbath (whom she'd described earlier as a bit of a "screamer"), he wouldn't have accepted a complete change of his language (from his draft).

Mr. Brennan, on redirect, asked why the word "license" was not used in Amendment 2. She'd replied that it was based on the framing of the APA. She'd reported that Tor Braham had explained to her that the original deal started as an APA and morphed a bit since Santa Cruz didn't have enough money. That it started as a full asset purchase and was then modified since it didn't work out that way.

Mr. Brennan says he has no further questions. Judge Stewart recesses for the day. The jury departs.

Judge Stewart reminds counsel that objections to jury instructions are due by 8:30am, then asked about the time. Novell's Mr. Brennan says that both parties need to sit down and do some calculations.

Mr. Brennen asks Judge Stewart, If it looks like SCO has more time, uh, hypothetically, if SCO has more time, on the last day, they'd be out of time? Judge Stewart smiles and responds, I think they've been warned.

Court was recessed.

Update: Here are the minutes from PACER:

03/24/2010 - 840 - Minute Entry for proceedings held before Judge Ted Stewart: Jury Trial held on 3/24/2010. Trial continues. Testimony heard, exhibits admitted. Jury released until tomorrow 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: various. (slm) (Entered: 03/30/2010)


  


Week 3, Day 12 in SCO v. Novell - Tolonen, Amadia | 517 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: Anonymous on Wednesday, March 24 2010 @ 12:28 PM EDT
If any...

[ Reply to This | # ]

Non-Anonymous Corrections Here
Authored by: DaveJakeman on Wednesday, March 24 2010 @ 12:33 PM EDT
So everyone can see them.

[ Reply to This | # ]

Non-Anonymous Off-topic here
Authored by: red floyd on Wednesday, March 24 2010 @ 12:34 PM EDT
Please don't start the canonical threads as Anonymous

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Comes Goes Here
Authored by: DaveJakeman on Wednesday, March 24 2010 @ 12:36 PM EDT
A grateful alternative to habitually clicking the "Refresh" button.

[ Reply to This | # ]

Non-anonymous Newspics here
Authored by: red floyd on Wednesday, March 24 2010 @ 12:37 PM EDT
Please don't start the canonical threads as Anonymous

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Court Reporter Thankyou Thread
Authored by: DaveJakeman on Wednesday, March 24 2010 @ 12:40 PM EDT
Let me be the first.

Many thanks.

[ Reply to This | # ]

Super, As Usual, Chris -- Thanks!
Authored by: lnuss on Wednesday, March 24 2010 @ 12:44 PM EDT
Your usual thorough job, very much appreciated.


---
Larry N.

[ Reply to This | # ]

the contrast is amazing
Authored by: Anonymous on Wednesday, March 24 2010 @ 12:49 PM EDT
Two weeks of teenage tantrum followed by one and one half days of adult
conversation.

[ Reply to This | # ]

Out of Time?
Authored by: Anonymous on Wednesday, March 24 2010 @ 12:59 PM EDT
Mr. Brennen asks Judge Stewart, If it looks like SCO has more time, uh, hypothetically, if SCO has more time, on the last day, they'd be out of time? Judge Stewart smiles and responds, I think they've been warned.

What is this all about? Concern by Novell that SCO may be able to (re)call a witness and Novell would not be allowed to cross-examine?

And does they refer to Novell or SCO in this statement?

[ Reply to This | # ]

Novell sold ..."a subset"?
Authored by: Anonymous on Wednesday, March 24 2010 @ 01:01 PM EDT
Could Mr. Tolonen be more precise?

[ Reply to This | # ]

Week 3, Day 12 in SCO v. Novell - Tolonen, Amadia
Authored by: Anonymous on Wednesday, March 24 2010 @ 01:01 PM EDT
"Mr. Brennen asks Judge Stewart, If it looks like SCO has more time, uh,
hypothetically, if SCO has more time, on the last day, they'd be out of time?
Judge Stewart smiles and responds, I think they've been warned."

This part seems interesting to me. Correct me if I am wrong but it seems like
SCO isn't taking as much time in the cross examination, and the judge is pretty
much telling them to use it now or lose it?

[ Reply to This | # ]

Doesn't seem like enough for a whole day
Authored by: Anonymous on Wednesday, March 24 2010 @ 01:09 PM EDT
First, I want to say thanks to Chris for supplying this wonderful account of the
trial.

Second, I have an observation. The examinations, cross examinations and
redirects of these 2 witnesses as described above seems way too short to have
taken the entire day in court.

Third, a question. I know that the days have been ending at about 1:30 in the
afternoon, so they have definitely not been full 8 hour days in court, but why
does this account of a day in court seem so much shorter than some of the other
days?

[ Reply to This | # ]

Whole Cloth
Authored by: DaveJakeman on Wednesday, March 24 2010 @ 01:13 PM EDT
Making something from "Whole cloth" means it having no basis in fact
or reality. I wonder if Allison really meant that?

[ Reply to This | # ]

What does that tell me?
Authored by: Ed L. on Wednesday, March 24 2010 @ 01:14 PM EDT
Troy Keller, on as a witness, and they got the judge to order a deposition, which happened yesterday we learn, but afterwards SCO decided they would not use him after all in their case in chief. What does that tell you?
Er, ah... that Novell would like to call Mr. Keller instead?

Joke. Keller would corraborate SCO's story straight down the line. SCO just plum done run out of time to call him, is all.

:-)

---
Once they have you asking the wrong questions, they don't have to worry about the answers - Slothrop's Third Proverb

[ Reply to This | # ]

Week 3, Day 12 in SCO v. Novell - Tolonen, Amadia
Authored by: Anonymous on Wednesday, March 24 2010 @ 01:17 PM EDT

This sounds like the core person with direct knowledge. Likely the most
credible to speak about the amendment more than any one else. If I were the
jury I would be using her testimony as a starting point of discussion for this
case. She wrote it and answered why it was in there and why it wasn't removed.

No other witnesses to my knowledge can take her place. She wrote it for goodness
sakes. EVeryone else is just speculating.

[ Reply to This | # ]

Week 3, Day 12 in SCO v. Novell - Tolonen, Amadia
Authored by: Anonymous on Wednesday, March 24 2010 @ 01:18 PM EDT
What does case in chief mean? Does this mean that SCO will use Keller or not?

[ Reply to This | # ]

Week 3, Day 12 in SCO v. Novell - Tolonen, Amadia
Authored by: Anonymous on Wednesday, March 24 2010 @ 01:51 PM EDT
Interesting that there weren't any objections mentioned for either side. Any
reason that both sides seemed to tone it down compared to previous days?

[ Reply to This | # ]

Time to hit the paypal button
Authored by: mossc on Wednesday, March 24 2010 @ 02:43 PM EDT

Many thanks to everyone who has taken their personal time and money to provide
this coverage.

I just realized I have not donated to Groklaw in a long time. While there may
not be any specific costs needing coverage many people (PJ especially) have had
many lost billable hours and some out of pocket expenses. Any worry about
expenses takes away from their time/focus on providing coverage for the rest of
us.

Any donation I make can be used as PJ decides.

Hopefully soon we can spend some money on Champagne.

[ Reply to This | # ]

  • Not yet - Authored by: Anonymous on Wednesday, March 24 2010 @ 03:13 PM EDT
    • Not yet - Authored by: Anonymous on Wednesday, March 24 2010 @ 03:38 PM EDT
      • Not yet - Authored by: Anonymous on Wednesday, March 24 2010 @ 04:00 PM EDT
        • Not yet - Authored by: benw on Wednesday, March 24 2010 @ 05:15 PM EDT
        • The BSF Deal - Authored by: Anonymous on Wednesday, March 24 2010 @ 05:56 PM EDT
    • Not yet - Authored by: mossc on Wednesday, March 24 2010 @ 03:58 PM EDT
  • Time to hit the paypal button - Authored by: Steve Martin on Wednesday, March 24 2010 @ 06:02 PM EDT
I feel calmer now...
Authored by: Gringo on Wednesday, March 24 2010 @ 02:50 PM EDT

...that finally we are getting down to the truth of the matter.

I was so outraged that SCO was allowed to go on and on and about the millions of dollars of damages caused by Novell's supposed slander, when the judge knew beyond the shadow of doubt that there was no malicious slander. I will never forgive him for that, even if some of you clever people find a rationalization for the injustice he thus rendered.

The jury hears that SCO was seriously harmed, and that was connected directly to Novell's actions. The jury may be thinking - with so much smoke, there must be a fire - somewhere. As far as everything else goes, what do they know about "IP", or "copyrights" or "patents" (same things, aren't they? - they think), and what the heck is "source code", or even, a "binary"? Normal, every day, well educated people have no idea what these things are. Yet this jury has been pumped to the brime with such talk for two weeks now, until their brains are so numb they may not be even hearing the simple truth being spoken by Novel's latest witnesses.

As was pointed out by others, why didn't the judge first simply resolve the question of copyrights, and then go on to determine damages? Perhaps that would make it too easy for the jury? Now as I contemplate this, I think I'd better quit thinking along those lines before I start running off like Chicken Little shouting "The fix is in, the fix is in!", so I will stop now before I say such a stupid thing.

[ Reply to This | # ]

No Financial Interest
Authored by: Anonymous on Wednesday, March 24 2010 @ 03:08 PM EDT
SCO's witnesses: "I have (or have options on) thousands of shares of SCO
stock."

Novell's witnesses: "I have no financial interest in outcome of this
case."

That has to affect credibility, eh?

[ Reply to This | # ]

Amadia's Wording of Amendment 2
Authored by: WWWombat on Wednesday, March 24 2010 @ 03:18 PM EDT
I have been looking forward to getting hold of Amadia's testimony in this trial, so I'm really pleased it is here.

First off, it is nice to get something of an explanation about how it has come to be considered ambiguous - and that being down to the process, and the person on the other side. It is still a shame to see that it comes down to personalities though.

I'd really like to know whether the various contributors to Amendment 2 really considered the other half of the amendment to be the key part - the one that was the cause of the problem between oldSCO, Novell and IBM - and the copyright section was just thrown in as an extra.

However, the parts that nicely caught my eye reading ChrisB's (excellent) account were these:

Mr. Hatch referred to the language of Amendment 2 where it might be read that should Santa Cruz "require" a copyright, that a process would be triggered to obtain it. Ms. Amadia testified that was never her intent in drafting that language.
That closes off one avenue of thinking for us watchers. It means that, amendment 2 was a statement intended to allow SCO to keep the rights have are already documented within the rest of the APA. It is not meant to transfer anything by itself - it is merely an "enabler" for the rest of the APA. It also fits in with my thoughts that if you actively wanted to transfer something, you'd amend section 1.1(a) instead of relying on an exclusion of an exclusion.

The other interesting quote follows this path:

(she averred it was an explicit grant of rights, just not using the word "license"). Mr. Hatch was trying to show that had it been an implied license...
Finally:
She was exceptionally credible. If parol evidence is what counts, her testimony was perfect for Novell with regard to Amendment 2.
I think Allison Amadia's credibility is more important than that. If her testimony comes off particularly well, then it will be this that means *no* parol evidence needs to be considered. If she has persuaded the "12 good men" of the meaning of amendment 2, then those words will be sufficient.

I wonder whether Judge Kimball will be casting a gaze over this, to rate the testimony against how he saw the situation back in 2007. I know I'd be intrigued to see whether I got it right after all.

[ Reply to This | # ]

Stricken testimony on damages
Authored by: PolR on Wednesday, March 24 2010 @ 03:23 PM EDT
This is the court telling the jury that some of what they heard from SCO is
garbage. please don't listen to it.

What are the odds it will leave the jurors thinking Hmmmm? What else is
garbage?

This can't be good for SCO. This is a case where the jury must decide who is the
liar. Everything else follows from there.

[ Reply to This | # ]

Impeachment
Authored by: maroberts on Wednesday, March 24 2010 @ 03:37 PM EDT
I thought impeachment of witnesses would occur as and when they gave evidence,
is this not the case?

[ Reply to This | # ]

Help please! what does she mean with: "he was, she says, a bit of a screamer"
Authored by: SilverWave on Wednesday, March 24 2010 @ 03:55 PM EDT
1. Is this normal usage?
2. Am I correct in thinking that the meaning is, that the person referred to is,
A bully? A prima donna?

It really threw me as the first thing that pops to mind is entirely
inappropriate.

May be a cultural idiom?



---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Week 3, Day 12 in SCO v. Novell - Tolonen, Amadia
Authored by: Anonymous on Wednesday, March 24 2010 @ 04:02 PM EDT
Yup, I suspect it is the "B" word. Somehow I don't think this advert (originally from NZ) would be screened in the US. David

[ Reply to This | # ]

Tolonen and Amadia Destroy SCO.
Authored by: SilverWave on Wednesday, March 24 2010 @ 04:13 PM EDT
That's it man, game over man, game over!

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

What will the jury be asked to decide?
Authored by: xview on Wednesday, March 24 2010 @ 04:24 PM EDT
There's a common-law axiom that "the parties are bound by their
pleadings" in a lawsuit. SCO chose to sue Novell for "slander of
title"; to succeed, SCO must already own those copyrights "lock, stock
and barrel". After all, if they have no title, it can't be slandered.

SCO have also asked for the *alternative* equitable relief of compelling Novell
to transfer "the UNIX copyrights" to SCO. But that's a different (and
inconsistent) pleading to their slander claim... and one this jury may not have
to answer.

Novell filed its "RESPONSE TO COURTíS JURY INSTRUCTIONS" [827] on
Pacer earlier today, where they say: "Novell believes that there is no need
for a separate question about copyright ownership, because this is relevant to
this case only as to the element of falsity, which is part of the verdict
form."

SCO's original decisions about how to plead and present its case may end up
putting them into a very tight spot. The show is about to reach its dramatic
climax.

[ Reply to This | # ]

Today's court drama brought to you by
Authored by: overshoot on Wednesday, March 24 2010 @ 04:40 PM EDT
The numbers "$300 million" and "$50 million."

Novell bought the Unix business for $300 million, and a couple of years later sold something to Santa Cruz for $50 million. SCOX would have the jury believe that they got everything that Novell had for one-sixth the price paid a couple of years earlier.

[ Reply to This | # ]

Testimony on Amendment 2
Authored by: Anonymous on Wednesday, March 24 2010 @ 04:42 PM EDT
While we all appreciate the efforts of the Groklaw reporters, the report on day
12 is frustrating. This was absolutely crucial testimony from Novell's two
witnesses on the intent of the amended APA, and I'm not sure what happened. We
need someone with access to the daily transcripts to help us out.

Thank you!

[ Reply to This | # ]

Week 3, Day 12 in SCO v. Novell - Tolonen, Amadia
Authored by: Glenn on Wednesday, March 24 2010 @ 05:45 PM EDT
"SCO had said they might want to put another lawyer, Troy Keller, on as a
witness, and they got the judge to order a deposition, which happened yesterday
we learn, but afterwards SCO decided they would not use him after all in their
case in chief. What does that tell you?"

Maybe that Troy Keller does not have any financial interest in SCO and thus his
deposition di not go the way that the SCOG wished?

Glenn

[ Reply to This | # ]

What will they print in Salt Lake City Tribune?
Authored by: zman58 on Wednesday, March 24 2010 @ 07:20 PM EDT
I wonder what SLT reporter Mr. Harvey will have to report on this one. Should be
an interesting read. It would take some serious spit to spin this one SCOX's
way.

[ Reply to This | # ]

Hypothetically speaking...
Authored by: GriffMG on Wednesday, March 24 2010 @ 07:58 PM EDT
If Novell's laser beam lawyering, and jolly good case (I'm English) leads to
something of a success in this round.

Will SCOs legal team, or the Trustee, actually see the light of a grim,
hopeless, day where they can't really win?
and admit defeat.

Here's hoping...

---
Keep B-) ing

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A general question about juries
Authored by: Anonymous on Wednesday, March 24 2010 @ 08:25 PM EDT
Is the jury (as a whole or individual members) allowed to ask a witness or
counsel for one side or the other a question ? Suppose they feel like they want
something explaining further to help with their deliberations, is there a
procedure for this, or is it simply a matter of - well, one side or the other
should have made that point ?

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Does anyone know when zero hour is?
Authored by: Anonymous on Wednesday, March 24 2010 @ 09:27 PM EDT
I've noticed that the judge and the lawyers have been adding up the time used,
but I don't remember if I've read what the magic sum is. The closing arguments
and jury instructions are going to take somewhere between 3 hours and 15 minutes
and 3 hours and 45 minutes, so that is off the books. Is the fifteen days of the
trial supposed to include a reasonable amount of time for jury deliberations?
So, exactly how much time is left for testimony?

The one and only,
THE Anonymous Bob

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SCOsource obstacle course-lotsa hurdles
Authored by: wvhillbilly on Thursday, March 25 2010 @ 12:14 AM EDT
SCOsource is based on the premise that IBM stole SCO's copyrighted code and put
it in Linux, therefore Linux infringes SCO's copyrights. So SCO's first and
biggest hurdle is to prove it owns the copyrights to the code allegedly copied
into Linux. But even if the jury decides that SCO owns the UNIX copyrights, it
has at least three more hurdles to clear before it can get any traction on
SCOsource.

1) There have been, I believe, two independent inspections of Linux code
comparing it with SCO's code, which found *no* infringing code in Linux. One of
those was done by one of SCO's own engineering staff, who told SCO point blank
there was *no* infringing code in Linux, it was squeaky clean.

2) Even with the entire IBM AIX and Dynix/PTX database at its disposal, SCO only
came up with some 300 lines of cherry picked code they said was infringing, and
the court whittled even that down by nearly half as being non-copyrightable. To
be infringing there has to be substantial copying of the work infringed, not
just a few hundred lines out of millions or billions, found here, there and
wherever.

3) What SCO code is in Linux was put there by SCO itself, and it was distributed
under the GPL. This means anyone receiving it has a license to do any to all of
the things permitted by the GPL, and SCO has no right to sue.

SCO to this day has not been able to show any credible evidence that Linux
infringes its UNIX code, copyrights or no copyrights, only a lot of wild,
unsubstantiated claims made mostly to the press.
---
IANAL, but I know when somebody is trying to pull a fast one.

---
"It is written." always trumps, "Um, ah, well, I thought..."

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Week 3, Day 12 in SCO v. Novell - Tolonen, Amadia
Authored by: Anonymous on Thursday, March 25 2010 @ 12:24 AM EDT
What do you use as a monitor?
Seriously the basic setup of the old Commodore 64 was with a TV. I can see this
thing working with a HDTV.

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Got it; why SCO begged Novell for copyright
Authored by: Anonymous on Thursday, March 25 2010 @ 03:13 AM EDT

In Excluded assets of the SCO/Caldrea deal, there is this phrase: "then neither this Agreement nor such Ancillary Agreements shall constitute an assignment or transfer (or an attempted assignment or transfer) thereof until such consent, approval or waiver of such party or parties has been duly obtained." This is why SCO pestered Novell for copyrights. They knew they didn't have them and couldn't sue without.

I've been wonder for years why they asked for the rights, before they started to sue. They knew they didn't have the rights and their transfer docs said so. They were attempting to get them but Novell said no. SCO didn't even offer to pay for the goodies! Cheap bastards.

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