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| The Parties Tweak the Jury Instructions in SCO v. Novell |
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Wednesday, March 24 2010 @ 11:00 PM EDT
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On March 22, Judge Ted Stewart, presiding over the SCO v. Novell jury trial, gave the parties a final set of jury instructions, asking for their feedback. The parties have done so, each suggesting tweaks to the wording.
Here are the jury instructions from each party:
03/24/2010 - 826 - Proposed Jury Instructions by Novell, Inc.. (Brennan, Sterling) (Entered: 03/24/2010)
03/24/2010 - 827 - RESPONSE to Jury Instructions filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 03/24/2010)
SCO's are exactly what you'd expect. For example, where the wording says that with respect to who owns the copyrights the jury "may" consider extrinsic evidence of the intent of the parties, SCO wants that changed to "should". They claim that Novell lost the contrary argument on appeal. Novell is stressing more the slander of title elements, the damages calculations, and the extent the jury can consider the prior rulings, but it does want the jury to know that the Copyright Act does require a writing signed by the party conveying the copyrights in order to transfer copyrights. They want the jury to know that, lest they be confused by all the "we thought they transferred" testimony.
And they point out that since Darl McBride admitted that he didn't need the copyrights to run the software business because the company would still possess a license under the APA to operate it, the wording in the proposed jury instruction about an implied license should be struck as irrelevant. And it wants the jury instructed that if you write derivative works, you own the copyrights to what you wrote, but not to the underlying prior work, and that a copyright notice doesn't prove ownership, since a bad actor could just change the notices and then assert a claim based on their own changes, whether or not it was an honest change. And a copyright notice on a derivative work doesn't mean the party owns the copyrights on the original work on which the derivative is based, so it wants the jury to know that copyright notices don't affect ownership.
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| Authored by: elronxenu on Wednesday, March 24 2010 @ 11:07 PM EDT |
Please write your corrections in the title of your reply.
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| Authored by: ChrisP on Wednesday, March 24 2010 @ 11:07 PM EDT |
No on topoic posts here please.
(Did I get it right this time?)
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SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.[ Reply to This | # ]
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| Authored by: elronxenu on Wednesday, March 24 2010 @ 11:08 PM EDT |
Please post your news picks under here.
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| Authored by: Anonymous on Wednesday, March 24 2010 @ 11:25 PM EDT |
<blockquote>On March 22, Judge Ted Stewart, presiding over the SCO v.
Novell jury trial, gave the parties a final set of jury instructions, asking for
their feedback</blockquote>
Was this final set of jury instructions posted on the docket?[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 24 2010 @ 11:30 PM EDT |
Seems to me that Instruction 30 (section E in Novell's response) should be first
in the instructions. If the jury concurs with Novell, that Novell owns the
rights, everything else is mooted.
I hope the jury is smart enough to figure this out if the instructions about the
APA and transfer are buried down in a long list of instructions.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 24 2010 @ 11:32 PM EDT |
It is very nice of SCO to point out (with underlining) that the CoA
ruled:
The Tenth Circuit concluded that “extrinsic evidence
regarding the parties’ intent is relevant to our interpretation of the
combined
instrument.”
I suspect the Novell answer would be to
quote the exact piece of text, but underline a different
section:
The Tenth Circuit concluded that “extrinsic evidence
regarding the parties’ intent is relevant to our interpretation of the
combined
instrument.”
As Judge Stewart has pointed out on numerous
occasions (usually to SCO's benefit) you get to produce all the original
evidence to the jury, and they get to create their own opinion. It's the nature
of a trial...
I know this was a big issue in the combined jury instructions
they gave to Stewart last week - so you'd assume his choice of words here have
already been very carefully chosen. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 24 2010 @ 11:41 PM EDT |
Novell's filing (Dkt 826) begins with a preamble stating that the court
distributed jury instructions on Monday, March 22:
On March
22, 2010, the Court distributed to the parties a final set of jury instructions
and
requested that the parties respond with any comments, additions, or
objections by 8:00 a.m. on
March 24, 2010.
I haven't seen a
copy of those instructions. And I don't see them on PACER.
Am I correct
in believing that the Monday, March 22 instructions are not publicly
available?
[ Reply to This | # ]
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| Authored by: Haitch on Wednesday, March 24 2010 @ 11:50 PM EDT |
Licenses may be either exclusive or nonexclusive. [An
exclusive
license is one way of transferring copyright
ownership.] An exclusive license
must be in writing. An
exclusive licensee has the right to exclude others from
copying the work to the extent of the rights granted in the
license. An
exclusive licensee is also entitled to bring an
action for damages for
copyright infringement of the right
licensed.
Nonexclusive licenses, on the
other hand, do not transfer
copyright ownership and can be granted orally or
implied
from conduct. An implied license can only be nonexclusive.
An implied
nonexclusive licensee has a right to exclude
others who do not have a right to
copy the work. However, a
[A] nonexclusive licensee cannot bring suit to
enforce a
copyright.
Isn't this the terminal footgun moment?
From my
recollection, both SCO and Novell testified that SCO was
getting
rights to 32 bit UNIX, and Novell was working with
HP on 64 bit UNIX. Ergo -
the license to SCO was non-
exclusive, and therefore, copyrights did not
transfer.
H.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 24 2010 @ 11:57 PM EDT |
Start at the bottom few lines of page 15 of #826.
It sounds as if Novell's motion (Docket #823 presented earlier) to strike
testimony regarding evidence about losses after 2004 was granted.
This seems like a pretty big plus for Novell, as it would make the loss
estimates by SCO's 'experts' largely irrelevant.
Can anyone confirm the court's rulings on the Motion to Strike? Is there a
docket for the judge's ruling?[ Reply to This | # ]
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| Authored by: Gringo on Thursday, March 25 2010 @ 12:16 AM EDT |
From Novell's Proposed Jury Instructions we get a glimpse
into what the
Court distributed to the parties as a final
set of jury instructions. It
appears to me that the deck was
stacked against Novell! Most of the issues that
Novell
raised made it obvious even to a layman that the
instructions were
seriously, and illegally rigged against
Novell. Whatever was the judge thinking
when he wrote up his
proposal? He must know the law better then it appears. It
is
as if he was setting up Novell to take a dive. I can't
believe my eyes!
There is no excuse for this. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 25 2010 @ 12:22 AM EDT |
Novell seems to be (thankfully) much more thorough in reasoning about their
proposed changes... however the format of SCO's (the way they present the
correction in context, with new text visible and removed text strikken-through)
would be appealing.. I know that when I work on revising a document that's the
format I'd like most.
I wish Novell had done the same; I had to read some of their things twice to
figure out what they proposed exactly as new words.
Also a question; how much are arguments about such instructions normally done
involving arguing the case ? I mean, is it normal to reference witnesses from
THIS CASE for various arguments on these instructions? [ Reply to This | # ]
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| Authored by: skyisland on Thursday, March 25 2010 @ 12:53 AM EDT |
The burden is upon the party seeking damages to prove the existence
and amount of his damages and that his damages were caused by the acts
of the opposing party. You are not permitted to award speculative
damages.
SCO wants the highlighted phrase eliminated because it is
"redundant and potentially confusing".
Perhaps redundant, but hardly
confusing! Clear as day, I'd say. [ Reply to This | # ]
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| Authored by: SilverWave on Thursday, March 25 2010 @ 06:20 AM EDT |
.
---
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 | # ]
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| Authored by: Anonymous on Thursday, March 25 2010 @ 07:18 AM EDT |
...with respect to who owns the copyrights the jury "may" consider
extrinsic evidence of the intent of the parties, SCO wants that changed to
"should".
The jury should also consider hearsay, handwaving,
wookies and leprechauns.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 25 2010 @ 07:54 AM EDT |
In the SCO Group's “Response to Jury Instructions“ (Dkt.827), on
p.3 in Instruction 33 they propose to omit jury instructions regarding the
public display right for literary works.
(6) in the
case of literary, musical, dramatic, and choreographic works, pantomimes, and
pictorial, graphic, or sculptural works, including the individual images of a
motion picture or other audiovisual work, to display the copyrighted work
publicly; and
[...]
Argument
SCO
proposes two main revisions to this instruction. First, the foregoing revision
removes those portions of the model instruction that pertain to “literary,
musical, dramatic, and choreographic works, pantomines, and motion pictures and
other audiovisual works” and that (as SCO believes both parties agree) do not
pertain to the facts of this case. [...]
Computer source
code is classifed by the copyright office as a “literary work.” (I
can dig up a copyright office cite for that, if anyone needs
one.)
“Open sourcing” computer source code may implicate the
public display right. This is actually an unsettled area of law, but if you put
source code up on the web —perhaps through a browsable version control
system— there's a good argument that that's a “public
display”.
I've even heard arguments that putting source code on an
ftp server is a “public display”
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| Authored by: msfisher on Thursday, March 25 2010 @ 08:24 AM EDT |
As always, please correct my memory where necessary.
Whether the jury "may" or "should" consider extrinsic
evidence, there is one thing they MUST consider: What business existed at the
time the APA and Amendment 2 were executed?
I know, to Groklaw the answer is obvious: UNIX and UnixWare.
That's important! Why? Because, in Darl McBride's own words, the copyrights
were not necessary to those businesses!!
And what does Amendment 2 say? Only copyrights necessary to do business
transfer.
The copyrights weren't necessary, therefore they didn't transfer. Period.
So the INTENT (to use SCO's approach) was to transfer only copyrights necessary
for business AT THE TIME THE AGREEMENT AND AMENDMENT WERE EXECUTED. There's no
language regarding the future.
Paraphrasing Darl McBride's words, the copyrights only became necessary when
SCOsource was started -- seven (six, eight?) years AFTER the execution of the
APA and Amendment 2. I seriously doubt that any of the Novell or Caldera (NOT
SCO Group) lawyers could have foreseen SCOsource.
I'm no lawyer, but I think the Novell guys really need to emphasize this.
Also, as much as we hate (grin) car analogies, I think it might be useful to
compare the business Caldera bought to an auto dealer franchise. It's always
looked like one to me.[ Reply to This | # ]
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| Authored by: jacks4u on Thursday, March 25 2010 @ 03:11 PM EDT |
| I was just reading 827
and it occurred to me that Plaintiff SCO is and has been picking and choosing
between relevant Utah and California law, which ever has the more favourable
stance on the issue at hand.
Instruction #32 cites to California law as to
'Extrinsic evidence', yet instruction #39 arguments cite to Utah law.
Which is
it, SCO? Does, as the APA mandates, California law, control? Or is it Utah law?
I'm not sure SCO can sit on both sides of this fence.
It doesn't surprise me,
though. They've been forum shopping for the last 7 or so years... [ Reply to This | # ]
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