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The Transcripts from the SCO v. Novell Trial - Updated 2Xs
Monday, July 19 2010 @ 06:47 PM EDT

We have the daily transcripts from the recent SCO v. Novell trial, at last. I haven't read them yet myself, but I wanted to share them immediately as soon as the court made them available. We can read them together. I can't wait to read the closing arguments, personally.

The trial began on March 8, 2010, a Monday, and ran for 15 days.

Here they are, all PDFs, and note that 854 and 855 are for the same opening day, 855 being a corrected transcript; for all the others days, there's more than one part to the transcripts:

Update: Another puzzling note on the docket:
07/20/2010 - Deadlines terminated. Transcript deadlines terminated for docket entry 855. Original transcript will remain restricted. A corrected version was added and has been released. (rks) (Entered: 07/20/2010)
I think it means that what we have is the corrected version, but I'm not positive.

Update 2: The mystery about #855 is now solved. They had mistakenly provided a duplicate of #854. Here's 855 now. So I have replaced it in the list of PDFs.


  


The Transcripts from the SCO v. Novell Trial - Updated 2Xs | 339 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
corrections
Authored by: jsoulejr on Monday, July 19 2010 @ 06:51 PM EDT
You know the drill.

[ Reply to This | # ]

Off Topic
Authored by: jsoulejr on Monday, July 19 2010 @ 06:53 PM EDT
Off topic

[ Reply to This | # ]

News Picks
Authored by: jsoulejr on Monday, July 19 2010 @ 06:54 PM EDT
here

[ Reply to This | # ]

All things COMES
Authored by: jsoulejr on Monday, July 19 2010 @ 06:56 PM EDT
here

[ Reply to This | # ]

SCO v. Novell Reruns by Transcript
Authored by: webster on Monday, July 19 2010 @ 08:11 PM EDT
.
Oh, No! Just when one was getting to deal with GL in a more reasonable time,
something irresistible pops up. One wants to read it all to see how SCO managed
to repel a jury to the extent that not one juror, if any, held out for them
longer than one meal. Let's hope it is readable on an android while waiting in
court. That might beat printing it all out.
.
~webster~
.

[ Reply to This | # ]

The Transcripts from the SCO v. Novell Trial 869 (1) as text.
Authored by: Waterman on Monday, July 19 2010 @ 08:21 PM EDT
1 IN THE UNITED STATES DISTRICT COURT
2 DISTRICT OF UTAH, CENTRAL DIVISION
3
4 THE SCO GROUP, INC., a Delaware )
5 corporation, )
6 Plaintiff, )
7 vs. ) Case No. 2:04-CV-139TS
8 NOVELL, INC., a Delaware )
9 corporation, )
10 Defendant. )
11 _________________________________)
12 AND RELATED COUNTERCLAIMS. )
13 _________________________________)
14
15 BEFORE THE HONORABLE TED STEWART
16 ---------------------------------
17 March 26, 2010
18 Jury Trial
19
20
21
22
23
24 REPORTED BY: Patti Walker, CSR, RPR, CP
25 REDACTED
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 1 of 76
2597
1 A P P E A R A N C E S
2
3
4 For Plaintiff: Brent Hatch
HATCH JAMES & DODGE
5 REDACTED
6
7 Stuart Singer
BOIES SCHILLER & FLEXNER
8 REDACTED
9
10 Edward Normand
BOIES SCHILLER & FLEXNER
11 REDACTED
12
13
For Defendant: Sterling Brennan
14 WORKMAN NYDEGGER
15 REDACTED
16
Eric Acker
17 Michael Jacobs
MORRISON & FOERSTER
18 REDACTED
19
20
21
22
23
24
25
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 2 of 76
2598
1 SALT LAKE CITY, UTAH; FRIDAY, MARCH 26, 2010; 8:30 A.M.
2 PROCEEDINGS
3 THE COURT: Good morning.
4 Let me ask, first of all, whether or not you have
5 any disputes over closing argument demonstratives or slides,
6 or whatever else?
7 MR. BRENNAN: Your Honor, we had a chance to look
8 at one another's. I think with some modifications that were
9 just made, we should be in agreement, at least in terms of
10 presentation of the material.
11 THE COURT: I'm not sure that I understand what
12 you mean at least in regards to the presentation of
13 materials.
14 MR. BRENNAN: We don't have an objection to the
15 use of the demonstratives.
16 THE COURT: Do you have an objection to any of Mr.
17 Brennan's?
18 MR. SINGER: No, Your Honor.
19 THE COURT: SCO today filed a motion regarding
20 three issues about closing, and I would agree with their
21 request. I am going to assume the first one is no longer
22 relevant because the parties have agreed as to the
23 demonstratives.
24 MR. SINGER: That's correct.
25 THE COURT: The second is SCO objects to any
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 3 of 76
2599
1 attempt by Novell to argue to the jury that Novell's
2 assertion to ownership applied only to UNIX and not to
3 UnixWare copyrights. Do you wish to address that, Mr.
4 Jacobs?
5 MR. JACOBS: We do not quarrel with that in the
6 context of the closings, Your Honor, but we will be making
7 clear the delineation between the pre-APA UnixWare and
8 post-APA UnixWare.
9 THE COURT: I think the jury instruction now
10 reflects that better than it did before as well.
11 The third has to do with an attempt, frankly, by
12 either side to argue something contrary to law. My
13 assumption is that neither of you will have done that in any
14 event; is that correct?
15 MR. JACOBS: That is correct. Just to avoid
16 confusion during the openings themselves, SCO's motion is
17 drawn to section 204(a) of the Copyright Act, which was the
18 subject of the Tenth Circuit ruling. The Tenth Circuit
19 ruling was that there is no per say requirement under 204(a)
20 of the Copyright Act for something that represents
21 specifically or in substance a bill of sale. We're not
22 arguing that issue under the Copyright Act. We will be
23 arguing that the asset purchase agreement was a promise to a
24 assign, not an assignment, that Amendment No. 2 is dated
25 October 26th, I think, 1996, and that as a matter of
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 4 of 76
2600
1 contract law, just as in the purchase and sale of a house,
2 there was no subsequent evidence of an actual transfer. So
3 we'll be arguing it as a matter of contract law, which the
4 Tenth Circuit did not address.
5 MR. SINGER: Your Honor, this is exactly the type
6 of argument that we filed this motion because we were
7 concerned they might make. The Tenth Circuit specifically
8 held they didn't see anything to this date issue. I think
9 it's expressly in one of the footnotes on this section when
10 this argument was made. There is no difference between
11 making this argument in the context of the Copyright Act or
12 making it in the contract section. The Court of Appeals
13 specifically ruled that Amendment 2 would be sufficient to
14 transfer title, that that was the intent of the parties.
15 So I think, with all due respect, Mr. Jacobs is in
16 the teeth of that decision.
17 THE COURT: Mr. Jacobs.
18 MR. JACOBS: Your Honor, footnote 2 is the
19 footnote I think Mr. Singer is referring to and it's a
20 footnote in the context of the discussion of section 204(a),
21 it is not a holding that the contract could not be
22 interpreted in the way that we're proposing to interpret it.
23 There was no such briefing or argument before the Tenth
24 Circuit. The footnote itself is not definitive at all on
25 the question that we propose to argue as a matter of
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 5 of 76
2601
1 contract interpretation. I could hand it to Your Honor if
2 it would be convenient, you could look yourself.
3 THE COURT: I probably need to look at it.
4 MR. SINGER: We would also submit that this would
5 just be confusing to the jury because there's been no
6 evidence here that they would be drawing any conclusions
7 from that.
8 THE COURT: Mr. Singer, I think that is probably
9 your best argument, that this ought to be handled by you in
10 your reply. But I do want to look at the footnote.
11 MR. JACOBS: Sure. Just for the avoidance of
12 doubt, Ms. Amadia did say had she intended to transfer,
13 there would have been additional documents that would have
14 been required.
15 May I, Your Honor?
16 THE COURT: Yes.
17 If you are not arguing a pure legal issue about
18 the bill of sale or something akin to it but rather the
19 intent of the parties, I believe that footnote would not
20 preclude you from doing so.
21 MR. JACOBS: Thank you, Your Honor.
22 THE COURT: Counsel, let me again remind you, it
23 would be my intent to dismiss juror 13 as the alternate.
24 MR. SINGER: We understand, Your Honor.
25 THE COURT: I am going to hold you to your one
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 6 of 76
2602
1 hour and 15 minutes. My intent will be to instruct the jury
2 and then to have your initial presentation and closing.
3 Will that be by you, Mr. Singer, or Mr. Hatch, or
4 will you be splitting it?
5 MR. SINGER: We will be splitting it, but I plan
6 to reserve 15 minutes for rebuttal.
7 THE COURT: Who will go first.
8 MR. SINGER: I will be going first, Mr. Hatch will
9 be taking over at about the 45-minute mark.
10 THE COURT: All right.
11 Mr. Brennan, will you making the closing?
12 MR. BRENNAN: Yes, I will, Your Honor.
13 THE COURT: Again, after your initial hour, then
14 we'll take a break and come back to Mr. Brennan, and then
15 your rebuttal.
16 MR. SINGER: Would it be possible to have a few
17 minutes break after the reading of the instructions just to
18 set up?
19 THE COURT: Certainly.
20 MR. SINGER: One final question, given that the
21 Court has granted SCO's 50(a) motion and dismissed Novell's
22 counterclaim, and that's been raised in opening and
23 otherwise, will the Court make some mention of that?
24 THE COURT: There is a specific jury instruction
25 that will state, and I'll read it to you, if you've not seen
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 7 of 76
2603
1 it, the claim of Novell that SCO slandered Novell's title is
2 no longer before you and will not be decided by you. Do not
3 concern yourselves with this development and do not
4 speculate about it.
5 MR. SINGER: Thank you.
6 THE COURT: Counsel, let me remind you that the
7 Court will expect proposed findings of facts and conclusions
8 of law as to those issues reserved for the Court on the 16th
9 of April, which is 20 days plus. Okay.
10 All right. Is there anything else before we bring
11 the jury in?
12 MR. BRENNAN: Not from Novell, Your Honor.
13 MR. SINGER: Not from SCO.
14 THE COURT: Ms. Malley.
15 (Jury present)
16 THE COURT: Good morning, ladies and gentlemen.
17 Let me begin by reassuring you that a copy of the
18 instructions that I'm about to read to you will go with you
19 into the jury room, so I do not expect you to memorize this
20 as I go through it. All right.
21 Members of the jury, now that you have heard the
22 evidence, it becomes my duty to give you the instructions of
23 the Court as to the law applicable to this case.
24 It is your duty as jurors to follow the law as
25 stated in the instructions of the Court, and to apply the
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 8 of 76
2604
1 rules of law to the facts as you find them from the evidence
2 in the case.
3 You are not to single out one instruction alone as
4 stating the law, but must consider the instructions as a
5 whole.
6 Neither are you to be concerned with the wisdom of
7 any rule of law stated by the Court. Regardless of any
8 opinion you may have as to what the law ought to be, it
9 would be a violation of your sworn duty to base a verdict
10 upon any other view of the law than that given in the
11 instructions of the Court; just as it would be a violation
12 of your sworn duty, as judges of the facts, to base a
13 verdict upon anything but the evidence of the case.
14 You are to disregard any evidence offered at trial
15 and rejected by the Court. You are not to consider
16 questions of counsel as evidence. You are not to consider
17 the opening statements and the arguments of counsel as
18 evidence. Their purpose is merely to assist you in
19 analyzing and considering the evidence presented at trial.
20 The Court did not by any words uttered during the
21 trial or in these instructions give or intimate, or wish to
22 be understood by you as giving or intimating, any opinions
23 as to what has or has not been proven in the case or as to
24 what are or are not the facts of the case.
25 The claim of Novell that SCO slandered Novell's
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 9 of 76
2605
1 title is no longer before you and will not be decided by
2 you. Do not concern yourselves with this development and do
3 not speculate about it.
4 SCO has the burden of proving its claim by a
5 preponderance of the evidence.
6 To prove by a preponderance of the evidence means
7 to prove something is more likely so than not so. It does
8 not mean the greater number of witnesses or exhibits. It
9 means the evidence that has the more convincing force when
10 taken on a whole compared to the evidence opposed to it. It
11 means the evidence that leads you the jury to find that the
12 existence of the disputed fact is more likely true than not
13 true.
14 Any finding of fact you make must be based on
15 probabilities, not possibilities. A finding of fact must
16 not be based on speculation or conjecture.
17 When I say in these instructions that the party
18 has the burden of proof on any proposition or use the
19 expression if you find or if you determine, I mean that you
20 must be persuaded, considering all the evidence in the case,
21 that the proposition is more probably true than not true.
22 In determining whether any disputed fact has been
23 proven by a preponderance of the evidence you may, unless
24 otherwise instructed, consider the testimony of all
25 witnesses, regardless of who may have called them, and all
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 10 of 76
2606
1 exhibits.
2 If a party fails to meet this burden of proof, or
3 if the evidence weighs so evenly that you are unable to say
4 that there is a preponderance on either side, you must
5 resolve the question against the party who has the burden of
6 proof on that issue and in favor of the opposing party.
7 In this particular civil case, one of the elements
8 of the claim made by SCO, the showing of constitutional
9 malice, has a different burden of proof called clear and
10 convincing evidence. That means that SCO has a higher
11 burden than preponderance of the evidence, but it does not
12 require proof beyond a reasonable doubt. Clear and
13 convincing evidence is evidence that shows it is highly
14 probable that what is claimed is true. It is evidence that
15 produces in your mind a firm belief as to the fact at issue.
16 For such evidence to be clear and convincing, it must at
17 least have reached a point where there remains no
18 substantial doubt as to the truth or correctness of the
19 claim based upon the evidence.
20 You have been chosen and sworn as jurors in this
21 case to try the issues of fact presented by the allegations
22 of the complaint of SCO, and the answer thereto of Novell.
23 You are to perform this duty without bias or prejudice as to
24 any party. Our system of law does not permit jurors to be
25 governed by sympathy, prejudice, or public opinion. Both
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 11 of 76
2607
1 the parties and the public expect that you will carefully
2 and impartially consider all the evidence in the case,
3 follow the law stated by the Court, and reach a just
4 verdict, regardless of the consequences.
5 During the trial I have permitted you to take
6 notes. Many courts do not permit note-taking by jurors.
7 And as instructed at the beginning of trial, a word of
8 caution is in order. There is always a tendency to attach
9 undue importance to matters which one has written down.
10 Some testimony which is considered unimportant at the time
11 presented, and thus not written down, takes on greater
12 importance later in the trial in light of all the evidence
13 presented. Therefore, you are instructed that your notes
14 are only a tool to aid your own individual memory and you
15 should not compare your notes with other jurors in
16 determining the content of any testimony or in evaluating
17 the importance of any evidence. Your notes are not
18 evidence, and are by no means a complete outline of the
19 proceeding or list of the highlights of the trial. Above
20 all, your memory should be your greatest asset when it comes
21 to deliberating and rendering a decision in this case.
22 Both SCO and Novell are corporations and, as such,
23 can act only through their officers and employees, and
24 others designated by them as their agents.
25 Any act or omission of any officer, employee or
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 12 of 76
2608
1 agent of a corporation, in the performance of the duties or
2 within the scope of the authority of the officer, employee
3 or agent, is the act or omission of the corporation.
4 Unless you are otherwise instructed, the evidence
5 in this case consists of the sworn testimony of the
6 witnesses, regardless of who may have called them; and all
7 exhibits received in evidence, regardless of who may have
8 produced them; and all facts which may have been admitted or
9 stipulated; and all facts and events which may have been
10 judicially noticed.
11 Any evidence as to which an objection was
12 sustained by the Court, and any evidence ordered stricken by
13 the Court, must be entirely disregarded.
14 Unless you are otherwise instructed, anything you
15 may have seen or heard outside of the courtroom is not
16 evidence and must be entirely disregarded.
17 There are, generally speaking, two types of
18 evidence from which a jury may properly find the truth as to
19 the facts of a case. One is direct evidence, such as the
20 testimony of an eyewitness. The other is indirect or
21 circumstantial evidence, the proof of a chain of
22 circumstances pointing to the existence or nonexistence of
23 certain facts.
24 As a general rule, the law makes no distinction
25 between direct and circumstantial evidence, but simply
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 13 of 76
2609
1 requires that the jury find the facts in accordance with the
2 burden of proof in the case, both direct and circumstantial.
3 You, as jurors, are the sole judges of the
4 credibility of witnesses and the weight their testimony
5 deserves. You may be guided by the appearance and conduct
6 of the witnesses, or by the manner in which the witness
7 testifies, or by the character of the testimony given, or by
8 evidence to the contrary of the testimony given.
9 You should carefully scrutinize all the testimony
10 given, the circumstances under which each witness has
11 testified, and every matter in evidence which tends to show
12 whether a witness is worthy of belief. Consider each
13 witness's intelligence, motive and state of mind, and
14 demeanor and manner while on the stand. Consider the
15 witness's ability to observe matters as to which he or she
16 has testified, and whether he or she impresses you as having
17 an accurate recollection of these matters. Consider also
18 any relation each witness may bear to either side of the
19 case; the manner in which each witness might be affected by
20 the verdict; and the extent to which, if at all, each
21 witness is either supported or contradicted by other
22 evidence in the case.
23 Inconsistencies or discrepancies in the testimony
24 of a witness, or between the testimony of different
25 witnesses, may or may not cause you to discredit such
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 14 of 76
2610
1 testimony. Two or more persons witnessing an incident or a
2 transaction may simply see or hear it differently and
3 innocent misrecollection, like failure of recollection, is
4 not an uncommon experience. In weighing the effect of a
5 discrepancy, always consider whether it pertains to a matter
6 of importance or an unimportant detail, and whether the
7 discrepancy results from innocent error or intentional
8 falsehood.
9 After making your own judgment, you will give the
10 testimony of each witness such weight, if any, as you may
11 think it deserves.
12 Witnesses who, by education, study and experience,
13 have become expert in some art, science, profession or
14 calling, may state opinions as to any such matter in which
15 that witness is qualified as an expert, so long as it is
16 material and relevant to the case. You should consider such
17 expert opinion and the reasons, if any, given for it. You
18 are not bound by such an opinion. Give it the weight you
19 think it deserves. If you should decide that the opinions
20 of an expert witness are not based upon sufficient education
21 and experience, or if you should conclude that the reasons
22 given in support of the opinions are not sound, or that such
23 opinions are outweighed by other evidence, you may disregard
24 the opinion entirely.
25 In resolving any conflict that may exist in the
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 15 of 76
2611
1 testimony of experts, you may compare and weigh the opinion
2 of one against that of another. In doing this, you may
3 consider the qualifications and credibility of each, as well
4 as the reasons for each opinion and the facts on which the
5 opinions are based.
6 In determining the weight to be given to an
7 opinion expressed by any witness who did not testify as an
8 expert witness, you should consider his or her credibility,
9 the extent of his other her opportunity to perceive the
10 matters upon which his or her opinion is based and the
11 reasons, if any, given for it. You are not required to
12 accept such an opinion but should give it the weight to
13 which you find it entitled.
14 During the trial of this case, certain testimony
15 has been presented to you by way of a deposition, consisting
16 of sworn recorded answers to questions asked of the witness
17 in advance of the trial by one or more of the attorneys for
18 the parties to the case. The testimony of a witness who,
19 for some reason, cannot be present to testify from the
20 witness stand may be presented in writing under oath or on a
21 videotape. Such testimony is entitled the same
22 consideration, and is to be judged as to credibility, and
23 weighed, and otherwise considered by the jury, insofar as
24 possible, in the same way as if the witness had been present
25 and had testified from the witness stand.
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 16 of 76
2612
1 Certain charts, graphs and illustrations have been
2 shown to you. Those charts, graphs and illustrations are
3 used for convenience and to help explain the facts of the
4 case. They are not themselves evidence or proof of any
5 facts.
6 You have heard evidence that there were earlier
7 rulings by this Court concerning the ownership of the UNIX
8 and the UNIX copyrights existent as of the date of the asset
9 purchase agreement. In making these rulings, the Court did
10 not have the benefit of the evidence that you have now
11 heard. These prior rulings have been reversed in a
12 unanimous ruling by the Court of Appeals, which is why these
13 issues are being presented to you in this trial. You must
14 decide this case solely on the evidence presented to you in
15 this trial. The earlier rulings should have no bearing on
16 your determination of which party owns the copyrights at
17 issue in this case. However, the existence of these prior
18 rulings may be considered by you in your determination of
19 special damages and punitive damages, if any.
20 You heard reference to a SCO Group bankruptcy.
21 That is a reorganization proceeding which is pending in
22 another court. SCO continues to operate its business in
23 reorganization and the existence of that proceeding should
24 have no bearing on your consideration of this case.
25 You have also heard reference to a trial involving
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 17 of 76
2613
1 SCO and Novell in 2008. That trial concerned other issues
2 that are not before you.
3 In this case, SCO has alleged that Novell has
4 slandered its title regarding ownership of copyrights over
5 the UNIX and UnixWare computer operating systems.
6 Slander of title requires you to find that:
7 First, there was a publication of a statement disparaging
8 SCO's title; second, the statement was false; third, the
9 statement was made with constitutional malice; and, fourth,
10 the statement caused special damages. I will now explain
11 these four elements in more detail.
12 The first element requires SCO to prove that
13 Novell published a statement that disparaged SCO's title or
14 ownership of the UNIX or UnixWare copyrights existent as of
15 the date of the asset purchase agreement. SCO alleges that
16 Novell made several slanderous statements in 2003 and 2004.
17 The allegedly slanderous statements do not include
18 statements made in pleadings and filings made by Novell in
19 connection with this litigation, which began in January
20 2004. Novell may not be held liable for making such
21 statements made in pleadings and filings.
22 For the statement to have been published, it must
23 have been communicated to someone other than SCO.
24 A statement is not slanderous if the context makes
25 clear that the speaker is expressing a subjective view or an
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 18 of 76
2614
1 interpretation or theory, rather than an objectively
2 verifiable fact. You may determine, however, that the
3 speaker intended to convey a statement of fact even if the
4 speaker has couched its statements in the form of an opinion
5 or belief.
6 In deciding whether a publication disparaged SCO's
7 title, you should not view individual words or sentences in
8 isolation. Rather, each statement must be considered in the
9 context in which it was made, giving the words their most
10 common and accepted meaning. You should also consider the
11 surrounding circumstances of the statement and how the
12 intended audience would have understood the statement in
13 view of those circumstances.
14 The second element of a claim for slander of title
15 is falsity of the statement that disparages title. False
16 means that the statement is either directly untrue or that
17 an untrue inference can be drawn from the statement. You
18 are to determine the truth or falsity of the statement
19 according to the facts as they existed at the time the
20 statement was made.
21 The statement, to be true, need not be absolutely,
22 totally, or literally true, but must be substantially true.
23 A statement is considered to be true if it is substantially
24 true or the gist of the statement is true.
25 In order to determine whether the statements at
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 19 of 76
2615
1 issue were true or false, you must determine which party
2 owned the UNIX and UnixWare copyrights, existent as of the
3 date of the asset purchase agreement, at the time the
4 statements were made.
5 To determine which party owned the UNIX and
6 UnixWare copyrights, existent as of the date of the asset
7 purchase agreement, you should consider the asset purchase
8 agreement and the amendments thereto. I will now provide
9 you instructions on how you should interpret these
10 agreements.
11 Several contracts relating to the same matters,
12 between the same parties, and made as parts of substantially
13 one transaction, are to be taken together. The contracts
14 need not have been executed on the same day to be parts of
15 substantially one transaction.
16 Where contracts are made at different times, but
17 where the later contract is not intended to entirely
18 supersede the first, but only modify it in certain
19 particulars, the two are to be construed as parts of one
20 contract, the later superseding the earlier one where it is
21 inconsistent with the earlier.
22 Here, the amendments, including Amendment No. 2,
23 must be considered together with the asset purchase
24 agreement as a single document. The language of the
25 amendments, including Amendment No. 2, controls whenever its
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 20 of 76
2616
1 language contradicts the asset purchase agreement.
2 In deciding what the terms of a contract mean, you
3 must decide what the parties intended at the time the
4 contract was created. You may consider the usual and
5 ordinary meaning of the language used in the contract as
6 well as the circumstances surrounding the making of the
7 contract.
8 With respect to your consideration of the
9 agreements at issue here, where contract terms are clear,
10 they should be given their plain and ordinary meanings.
11 In deciding what the words of a contract meant to
12 the parties, you should consider the whole contract, not
13 just isolated parts. You should use each part to help you
14 interpret the others, so that all the parts makes sense when
15 taken together.
16 You should assume that the parties intended the
17 words in their contract to have their usual and ordinary
18 meaning unless you decide that the parties intended the
19 words to have a special meaning.
20 With respect to who owns the copyrights at issue,
21 you may consider what is called the extrinsic evidence of
22 the intent of the parties to the amended asset purchase
23 agreement. Extrinsic evidence is the evidence of what
24 parties to a contract intended apart from the language they
25 used in the contract.
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 21 of 76
2617
1 One type of extrinsic evidence is testimony or
2 documents showing what the people who were negotiating the
3 contract said or did or understood at the time of the
4 transaction.
5 Another type of extrinsic evidence is called the
6 parties course of performance. Course of performance is how
7 the parties interpreted and applied the terms of the
8 contract after the contract was created but before any
9 disagreement between the parties arose.
10 In determining which party owns the property at
11 issue, and your consideration of the amended asset purchase
12 agreement, you may consider the nature of a copyright.
13 Copyright is the exclusive right to copy. The
14 owner of a copyright has the exclusive right to do and to
15 authorize the following: One, to reproduce the copyrighted
16 work in copies; two, to prepare derivative works based upon
17 the copyrighted work; three, to distribute copies of the
18 copyrighted work to the public by sale or other transfer of
19 ownership, or by rental, lease or lending.
20 The term owner includes the author of the work, an
21 assignee, or an exclusive licensee. In general, copyright
22 law protects against production, adaptation, distribution,
23 performance, or display of substantially similar copies of
24 the owner's copyrighted work without the owner's permission.
25 A copyright owner may enforce these rights to
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 22 of 76
2618
1 exclude others in an action for copyright infringement.
2 Even though one may acquire a copy of a copyrighted work,
3 the copyright owner retains rights and control of that copy,
4 including uses that may result in additional copies or
5 alterations of the work.
6 Possession of certificates of copyright
7 registrations is immaterial to ownership of the copyrights,
8 but may be considered for other purposes, such as the intent
9 of the parties.
10 A copyright owner may transfer, sell, or convey to
11 another person all or part of the copyright owner's property
12 interest in the copyright. A property interest in a
13 copyright includes the right to exclude others from
14 reproducing, preparing a derivative work, distributing,
15 performing, displaying, or using the copyrighted work.
16 To be valid, the transfer, sell, or conveyance
17 must be in writing. The person to whom a right is
18 transferred is called the assignee. The assignee may
19 enforce this right to exclude others in an action for a
20 copyright infringement.
21 The copyright owner may also transfer, sell, or
22 convey to another person any of the exclusive rights
23 included in the copyright. To be valid, the transfer, sell,
24 or conveyance must be in writing. The person to whom this
25 right is transferred is called an exclusive licensee. An
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 23 of 76
2619
1 exclusive licensee has the right to exclude others from
2 copying the work to the extent of the rights granted in the
3 license and may bring an action for damages for copyright
4 infringement.
5 Nonexclusive licenses, on the other hand, do not
6 transfer copyright ownership and can be granted orally or
7 implied from conduct. An implied license can only be
8 nonexclusive. A nonexclusive licensee cannot bring suit to
9 enforce a copyright.
10 An implied nonexclusive license may arise when,
11 one, a person, the licensee, requests the creation of the
12 work, two, the creator, the licensor, makes the particular
13 work and delivers it to the licensee who requested it, and,
14 three, the licensor intends that the licensee-requestor copy
15 or distribute his work.
16 The third element of slander of title requires SCO
17 to prove by clear and convincing evidence that Novell's
18 statement disparaging the ownership of the UNIX and UnixWare
19 copyrights, existent as of the date of the asset purchase
20 agreement, was made with constitutional malice. That is,
21 SCO must prove that the statement was published with: One,
22 knowledge that it was false; or, two, reckless disregard of
23 whether it was true or false, which means that Novell made
24 the statement with a high degree of awareness of the
25 probable falsity of the statement, or that, at the time the
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2620
1 statement was transmitted Novell had serious doubts that the
2 statement was true. Clear and convincing evidence leaves no
3 substantial doubt in your mind that the constitutional
4 malice is highly probable, as previously explained in
5 Instruction No. 13.
6 In determining whether Novell published the
7 statement knowing the statement to be false or with reckless
8 disregard for the truth, you should take into account all
9 the facts and circumstances. You should consider whether
10 the statement was fabricated or the product of the party's
11 imagination. You may also consider whether the party knew
12 about the source of the information and whether there were
13 reasons for the party to doubt the informant's veracity,
14 whether the information was inherently improbable, or if
15 there were other reasons for the party to doubt the accuracy
16 of the information.
17 In determining whether there was knowing falsehood
18 or reckless disregard for the truth, however, it is not
19 enough for you to find that the party acted negligently,
20 carelessly, sloppily or did not exercise good judgment in
21 researching, writing, editing, or publishing the statement.
22 An extreme departure from the standards of investigating and
23 reporting ordinarily adhered to by responsible publishers
24 does not, standing alone, constitute knowledge of falsity or
25 reckless disregard for the truth. The reliance on one
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2621
1 source standing alone does not constitute knowing falsehood
2 or reckless disregard for the truth, even if other sources
3 would be readily available, and even if, in applying
4 reasonable reporting of care, you believe those other
5 sources should have been contacted.
6 Spite, ill will, hatred, bad faith, evil purpose
7 or intent to harm does not alone support a finding of
8 constitutional malice.
9 The mere fact that a mistake may occur is not
10 evidence of knowing falsehood or reckless disregard for the
11 truth. Reckless disregard for the truth or falsity requires
12 a finding that the person making the statement had a high
13 degree of awareness that the statement was probably false,
14 but went ahead and published the statement anyway. The test
15 is not whether the person acted as a responsible publisher
16 under the circumstances. While exceptional caution and
17 skill are to be admired and encouraged, the law does not
18 demand them as a standard of conduct in this matter.
19 Unless you find by clear and convincing evidence,
20 under all the circumstances, that Novell acted knowing the
21 statement to be false or with a high degree of awareness of
22 its probable falsity, there can be no liability.
23 The final element of a claim for slander of title
24 requires a showing that the statement disparaging SCO's
25 ownership of the UNIX of UnixWare copyrights, existent as of
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 26 of 76
2622
1 the date of the asset purchase agreement, caused special
2 damages to SCO.
3 This requires SCO to establish an economic loss
4 that has been realized or liquidated, as in the case of lost
5 sales. Special damages are ordinarily proved in a slander
6 of title action by evidence of a lost sale or the loss of
7 some other economic advantage. Absent a specific monetary
8 loss flowing from a slander affecting the salability or use
9 of the property, there is no damage. It is not sufficient
10 to show that the property's value has dropped on the market,
11 as this is not a realized or liquidated loss. The law does
12 not presume special damages.
13 Special damages in the form of lost sales may be
14 shown in two ways: A, proof of the conduct of specific
15 persons or, b, proof that the loss has resulted from the
16 conduct of a number of persons whom it is impossible to
17 identify. There is a separate test you must apply for each.
18 First, when the loss of a specific sale is relied
19 on to establish special damages, SCO must prove that the
20 publication of the disparaging statement was a substantial
21 factor influencing the specific, identified purchaser in his
22 decision not to buy.
23 In order for the disparaging statement to be a
24 substantial factor in determining the conduct of an
25 intending or potential purchaser, it is not necessary that
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 27 of 76
2623
1 the conduct should be determined exclusively or even
2 predominantly by the publication of the statement. It is
3 enough that the disparagement is a factor in determining his
4 decision, even though he is influenced by other factors
5 without which he would not decide to act as he does. Thus
6 many considerations may combine to make an intending
7 purchaser decide to break a contract or to withdraw or
8 refrain from making an offer. If, however, the publication
9 of the disparaging matter is one of the considerations that
10 has substantial weight, the publication of the disparaging
11 matter is a substantial factor in preventing the sale and
12 thus bringing financial loss upon the owner of the thing in
13 question.
14 The extent of the loss caused by the prevention of
15 a sale is determined by the difference between the price
16 that would have been realized by it and the salable value of
17 the thing in question after there has been a sufficient time
18 following the frustration of the sale to permit its
19 marketing.
20 Second, in the case of a widely disseminated
21 disparaging statement, SCO need not identify a specific
22 purchaser and recovery is permitted for loss of the market.
23 This may be proved by circumstantial evidence showing that
24 the loss has in fact occurred and eliminating other causes.
25 A decline in stock price is not an appropriate
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2624
1 claim for special damages.
2 You are entitled to award punitive damages if you
3 deem them to be appropriate.
4 Before any award of punitive damages can be
5 considered, SCO must prove by clear and convincing evidence
6 that Novell published a false statement knowing it was false
7 or in reckless disregard whether it was true or false, and
8 that Novell acted with hatred or ill will towards SCO, or
9 with an intent to injure SCO, or acted willfully or
10 maliciously towards SCO.
11 If you find that SCO has presented such proof, you
12 may award, if you deem it proper to do so, such sum as in
13 your judgment would be reasonable and proper as a punishment
14 to Novell for such wrongs, and as a wholesome warning to
15 others not to offend in a like manner. If such punitive
16 damages are given, you should award them with caution and
17 you should keep in mind they are only for the purpose just
18 mentioned and are not the measure of actual damage.
19 The fact that I have instructed you on damages
20 does not mean that I am indicating that you should award
21 any. That is entirely for you, the jury, to decide.
22 Any damages you award must have a reasonable basis
23 in the evidence. They need not be mathematically exact, but
24 there must be enough evidence for you to make a reasonable
25 estimate of damages without speculation or guess work.
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2625
1 The burden is upon the party seeking damages to
2 prove the existence and amount of its damages and that its
3 damages were caused by the acts of the opposing party. You
4 are not permitted to award speculative damages.
5 You have heard evidence concerning specifics about
6 the parties' rights and obligations under section 4.16 of
7 the amended asset purchase agreement. You are instructed
8 that those issues of specific rights and obligations under
9 section 4.16 are for the Court to decide and you are not to
10 concern yourself with them. You may consider section 4.16,
11 as well as all other provisions, in interpreting the amended
12 asset purchase agreement.
13 It is the duty of the attorney on each side of the
14 case to object when the other side offers testimony or other
15 evidence which the attorney believes is not properly
16 admissible. You should not show prejudice against any
17 attorney or his or her client because the attorney has made
18 an objection.
19 Upon allowing testimony or other evidence to be
20 introduced over the objection of any attorney, the Court
21 does not, unless expressly stated, indicate any opinion as
22 to the weight or effect of any such evidence. As stated
23 before, the jurors are the sole judges of the credibility of
24 all witnesses and the weight and effect of all evidence.
25 When the Court has sustained an objection to a
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2626
1 question addressed to a witness, the jury must disregard the
2 question entirely, and may draw no inference from the
3 wording of it or speculate as to what the witness would have
4 said if he or she had been permitted to answer any question.
5 During the course of the trial, I may have
6 occasionally asked questions of a witness, in order to bring
7 out facts not then fully covered in the testimony. Do not
8 assume that I hold any opinion on the matters to which my
9 questions may have related.
10 A copy of these instructions will also accompany
11 you to the jury room. Do not write on the instructions.
12 You will notice during are deliberations that
13 there may be gaps in the numbering of the instructions. The
14 instruction numbers are for the convenience of the Court and
15 the parties, and you are not to be concerned by them.
16 Upon retiring to the jury room, you must select
17 one of your members to act as your foreperson. The
18 foreperson will preside over your deliberations and will be
19 your spokesperson here in court.
20 The verdict must represent the collective judgment
21 of the jury. In order to return a verdict, it is necessary
22 that each juror agree to it. Your verdict must be
23 unanimous.
24 It is your duty, as jurors, to consult with one
25 another and to deliberate with a view to reaching an
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 31 of 76
2627
1 agreement if you can do so without violence to individual
2 judgment. Each of you must decide the case for yourself,
3 but do so only after an impartial consideration of the
4 evidence in the case with your fellow jurors. In the course
5 of your deliberations, do not hesitate to reexamine your own
6 views and change your opinion if convinced it is erroneous.
7 But do not surrender your honest conviction as to the weight
8 or effect of evidence solely because of the opinion of your
9 fellow jurors for the mere purpose of returning a unanimous
10 verdict.
11 Remember at all times, you are not partisans. You
12 are judges, judges of the facts. Your sole interest is to
13 seek the truth from the evidence in the case.
14 Your verdict must be based solely upon the
15 evidence received in the case. Nothing you have seen or
16 heard outside of court may be considered. Nothing that I
17 have said or done during the course of this trial is
18 intended in any way to somehow suggest to you what I think
19 your verdict should be. Nothing said in these instructions
20 and nothing in any form of verdict prepared for your
21 convenience is to suggest or convey to you in any way or
22 manner any intimation as to what verdict I think you should
23 return. What the verdict shall be is the exclusive duty and
24 responsibility of the jury. As I have told you many times,
25 you are the sole judges of the facts.
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2628
1 The Court has prepared a verdict form for your
2 convenience. You are instructed that your answers to the
3 interrogatories on the verdict form must be consistent with
4 the instructions I have given you and with each other.
5 When you have reached a unanimous agreement as to
6 your verdict, your foreperson will fill in, date and sign
7 the verdict form upon which you have unanimously agreed.
8 When you have reached unanimous agreement as to your
9 verdict, the foreperson shall inform the bailiff and you
10 shall return to the courtroom.
11 If it becomes necessary during your deliberations
12 to communicate with the Court, you may send a note by the
13 bailiff. But bear in mind that you are not to reveal to the
14 Court or to any person how the jury stands, numerically or
15 otherwise, on the question before you, until after you have
16 reached a unanimous verdict or agreement.
17 The attitude and conduct of jurors at the outset
18 of their deliberations are matters of considerable
19 importance. It is rarely productive or good for a juror,
20 upon entering the jury room, to make an emphatic expression
21 of his or her opinion on the case or to announce a
22 determination to stand for a certain verdict. When one does
23 that at the outset, his or her sense of pride may be
24 aroused, and he or she may hesitate to recede from an
25 announced position if shown that it is wrong.
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2629
1 During your deliberations, you are able as a group
2 to set your own schedule for deliberations. You may
3 deliberate as late as you wish or recess at an appropriate
4 time set by yourselves. You may set your own schedule for
5 lunch and dinner breaks.
6 However, I do ask that you notify the Court by a
7 note when you plan to recess for the evening.
8 You have now been instructed on the law, ladies
9 and gentlemen. Again, a copy of the instructions, what I
10 just read to you, will accompany you to the jury room.
11 It is now time for closing statements, and we'll
12 begin with SCO. And because SCO is the plaintiff in the
13 case and, as I just instructed you, has certain burdens to
14 carry by way of the weight of evidence and such, the
15 plaintiffs have the opportunity to go both first and last in
16 their closing statements, meaning that SCO will go ahead now
17 with part of its closing. We'll then hear from Novell, and
18 then SCO will be given the last word.
19 Mr. Singer, if you would like to proceed.
20 MR. SINGER: Thank you, Your Honor.
21 Ladies and gentlemen, it's been a long three weeks
22 and we appreciate your close attention to this case. I know
23 it's not been the most exciting case at times, but I assure
24 you it's a very important case. It's very important to SCO,
25 it very important to individuals like Bill Broderick, John
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 34 of 76
2630
1 Maciaszek, and Andy Nagle, men who have been with the
2 company for 20 years, going all the way back to AT&T, and
3 they are still there at SCO turning out UnixWare, providing
4 products for companies all over the country and the world,
5 and trying in a difficult situation to have the company
6 proceed.
7 These individuals and the customers, and some of
8 these have been long time or current customers, McDonald's,
9 NASDAQ, BMW, that business depends on the copyrights,
10 depends on having ownership of intellectual property that is
11 at the heart of their business.
12 You are going to be asked in this case two basic
13 important questions. It will be your responsibility to
14 decide, first, to declare that the UNIX, UnixWare copyrights
15 that existed back at the time of this transaction went with
16 the rest of the business, except for this royalty stream,
17 and belonged to SCO. That is very important and critical on
18 its own. And, second, you will be asked to determine, if
19 you agree with us, that there's been a slander on SCO's
20 title, to determine that and award a reasonable amount of
21 damages to compensate SCO in connection with that slander.
22 Now as the Court has instructed you, you are the
23 judges of the facts and, in doing so, you must determine
24 credibility. And credibility is, in part, a question of the
25 consistency of witnesses with one another. And I would like
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 35 of 76
2631
1 to give you an example of one of the things you can look at.
2 You'll recall Mr. Stone when he was testifying
3 here about whether or not when they waived rights of SCO
4 that benefited IMB, whether that was done unilaterally or
5 whether it was done at IBM's request. Mr. Stone answered
6 no, it wasn't at IBM's request. We acted on our own. No
7 input from IBM at all.
8 Then a few days later you heard from Mr. LaSala,
9 the former general counsel of Novell who admitted on the
10 stand that, in fact, Mr. Marriot, a lawyer for IBM,
11 specifically asked Novell to assert those rights to waive
12 SCO's claims; in fact, said it was urgent. You also learned
13 that even internally, with Mr. LaSala's testimony, there was
14 an inconsistency because when he was first asked about that
15 in February 2007, he denied it. Only later in May, when we
16 pursued the issue, he admitted it. That's credibility.
17 That's an issue you can consider in determining who to
18 believe in this case.
19 Another example, Mr. Stone again, on a basic
20 point. This is not something people can be confused about.
21 Were you asked to leave the company. Yes, I was. I asked
22 Mr. Messman the same question, was Mr. Stone asked to leave
23 Novell. Answer, no. Someone is not telling the truth.
24 Now the questions that you will need to answer in
25 this case will be set out in the verdict form that you will
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 36 of 76
2632
1 receive along with a copy of the instructions and the
2 evidence, and the very first question will be did the
3 amended asset purchase agreement transfer to UNIX and
4 UnixWare copyrights from Novell to SCO. I would like to
5 address that question at the outset.
6 Amendment No. 2, we submit, is the key to
7 answering that question. Amendment No. 2 replaced the
8 language that was inconsistent with what was the intent of
9 the transaction, the intent of the parties who put this deal
10 together that those copyrights would be transferred with the
11 UNIX and the UnixWare business. Amendment 2 replaces the
12 old language, which is gone, and that is the operative
13 language.
14 Now Judge Stewart read you an important
15 instruction that makes that clear, which is the instruction
16 I have on the screen, and it makes clear that it is the
17 language of the amendments, including Amendment No. 2,
18 controls wherever its language contradicts the asset
19 purchase agreement.
20 Of course you knew that from the face of it, that
21 it says it replaces the old language. It took out this
22 copyright exclusion and put in language that, we submit to
23 you, is consistent with what the parties intended, that the
24 copyrights required for the business were now part of what
25 were the included assets.
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2633
1 Now you might remember about three weeks ago
2 Novell's counsel telling you that it was important to listen
3 for the rest of the story. I think he invoked Paul Harvey.
4 I was thinking about that statement all during the first
5 week of this trial, and I was doing that because it seemed
6 that all during that week Novell was focused on this
7 language in the schedule of excluded assets, excluding
8 copyrights, when the rest of the story was that language
9 didn't exist anymore. That language was replaced by
10 Amendment No. 2. So the language that they have spent more
11 hours in this trial on than anything else is simply not in
12 the agreement and hasn't been in there since 1996. That's
13 really the rest of the story on this because under the plain
14 language of the asset purchase agreement with Amendment 2,
15 it is very clear that the assets, the copyrights
16 transferred.
17 You have a schedule of included assets, which
18 you've seen many times and you will be able to look at when
19 you deliberate, it says, all rights and ownership of UNIX
20 and UnixWare on all these products, including the UnixWare
21 products, and you haven't heard any evidence there are any
22 products on there that -- products missing from that list.
23 This includes what we're talking about, that all rights and
24 ownership of UNIX and UnixWare are transferred.
25 And then you had the old language that excluded
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 38 of 76
2634
1 copyrights and trademarks. Now you have the current
2 language replaced by Amendment 2 which says that Novell gets
3 to keep copyrights, except for the copyrights and trademarks
4 owned by Novell as of the date of the agreement required for
5 SCO to exercise its rights with respect to the acquisition
6 of UNIX and UnixWare technologies. That really is the heart
7 of this case. With Amendment No. 2, it is clear that those
8 copyrights were transferred.
9 Now I would submit to you that Novell has admitted
10 the fact that SCO, in light of Amendment No. 2, owns those
11 copyrights, and they did that on two occasions. The first
12 occasion that that was admitted goes back to June 6th of
13 2003 when Novell issued the press release, when they -- of
14 course, you've heard about Amendment No. 2 when they said
15 they didn't have it and it turns out they did have it. They
16 didn't know it was signed. They claimed they had a signed
17 copy in the files. But the important point here on
18 copyright ownership is their recognition that it appears to
19 support SCO's claim that ownership for certain copyrights of
20 UNIX did transfer to SCO in 1996. So that's the first time.
21 The second time that that was admitted was in
22 front of you a few days ago on March 23rd, and that was when
23 Allison Amadia admitted -- and certainly she started out in
24 her testimony being adverse to SCO and in favor of Novell.
25 Then under Mr. Normand's cross-examination, listen to what
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 39 of 76
2635
1 she said. She was asked, now you agree that under the plain
2 language of Amendment 2 Novell has included in the transfer
3 of assets the copyrights required for SCO to exercise its
4 rights in UNIX and UnixWare. Her answer was, the way I
5 wrote and intended Amendment No. 2 to be read is that this
6 language was saying that whatever copyright rights Santa
7 Cruz needed in order to exercise the rights it was given,
8 then they would have those rights.
9 Then a little bit later near the end of her
10 cross-examination she was asked, so if there are copyrights
11 that are required for SCO to exercise its rights, like the
12 UNIX and UnixWare trademarks, they were transferred,
13 correct. Her answer was yes.
14 Now there is no real dispute, ladies and
15 gentlemen, that the copyrights are required for the UNIX and
16 UnixWare business. You have heard a lot of evidence on
17 that. It has included Bob Frankenberg, the Novell president
18 and CEO, who said it was ludicrous to think about selling
19 software without selling the copyrights.
20 Doug Michels, the SCO founder and vice president,
21 equated it to breathing oxygen, that it's so essential.
22 There is no way this deal would have happened without
23 getting the copyrights.
24 Jim Wilt, who was the lead negotiator for Santa
25 Cruz, says that, you know, when you walk out the door, I
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 40 of 76
2636
1 assume your head goes with you. That's how he equated it.
2 And, of course, the copyrights have to go with the company.
3 Steve Sabbath was asked, if you didn't own the
4 copyrights, how could you go after somebody that's pirating
5 your software, how could you enforce your rights to the
6 technology.
7 Bill Broderick said, if we couldn't protect our
8 software, we'd be out of business. This is how you protect
9 your software.
10 Now with Amendment No. 2, the APA makes sense.
11 Without it, the agreement doesn't make sense. The software
12 business without the copyrights, well, I would suggest to
13 you that's like a car without an engine, or maybe a house
14 without a roof, or maybe even suggest that it's an ice cream
15 sundae where you only get the cherry and not the ice cream,
16 as Mr. Braham suggested a couple days ago. It doesn't make
17 any sense.
18 Now with Amendment No. 2 all of the things fit
19 together and makes sense, beginning with the very recital at
20 the beginning of the document that says that this is the
21 sale of a business, the UNIX and UnixWare business, the
22 support of those products, all of that is what it being
23 sold. It is the intent that all of the business relating to
24 that be transferred. So it's consistent with the overall
25 intent of the deal.
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 41 of 76
2637
1 There's been some discussion about the
2 consideration received. I suggest to you that it makes
3 sense because of the amount of money which Novell received.
4 Back in the opening you might remember seeing this slide
5 from Novell, the first one on the left-hand side, where it
6 suggests the purchase price was just the stock. The stock
7 itself was worth a lot of money, 40, $50 million. You
8 wouldn't even receive that if you weren't transferring the
9 copyrights. But if you look at the entirety of that section
10 of the asset purchase agreement, you see that there was
11 another part to the payments which included the royalty
12 stream that would occur in the future, both from the
13 existing UNIX products and the UnixWare products.
14 If you look at Mr. Bradford's memo to the board
15 right before Novell approved this transaction, he identified
16 those four royalty streams, which turn into a lot of money.
17 The stock is worth about 40, $50 million, $50 million a year
18 in the UNIX royalties, the estimated present value of
19 $60 million or so in the UnixWare royalties. So this was a
20 sale of a business. This wasn't simply serving as an agent,
21 as Mr. Braham suggested, to collect for someone else.
22 For instance, you've got here all the title to the
23 UNIX licenses. If you have a real estate agent handle your
24 house, you don't give them title to sell it. I don't know
25 of any real estate agents who would pay me something like
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 42 of 76
2638
1 $100 million to handle a transaction. This agency was very
2 limited to the collection of royalties that Novell was going
3 to keep, and the rest of this was the sale of a business.
4 Now Amendment 2 also is needed to make sense of
5 something you've heard me refer to and my colleagues refer
6 to throughout the trial, the license back provision, and
7 that's because -- and Novell has never been able to explain
8 this, it makes no sense for Novell to have kept the
9 copyrights and then the license back right to use them. If
10 they kept them, they wouldn't need the license back. That
11 is clear evidence that this was intended to be a sale of the
12 copyrights.
13 The license back of assets appears right in the
14 asset purchase agreement in section 1.6. Now Novell tries
15 to say, well, it only applied to the new products, so that's
16 why you had the license back. But the plain language of the
17 license back says, all of the technology included in the
18 assets, which means they are getting a license back to the
19 assets being sold. They wouldn't need a license to use that
20 if it wasn't for the fact they were selling the copyrights.
21 And, in fact, if you look at the technology
22 license agreement, it says specifically, as between Novell
23 and SCO, ownership of licensed technology shall reside in
24 SCO. We think that makes it very clear, and you have heard
25 a lot of witnesses say when I asked them or Mr. Normand
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 43 of 76
2639
1 asked them that does it make any sense to have a license
2 back if you retained the copyrights, and everyone agreed
3 with that.
4 Now Amendment 2 -- with Amendment 2, the agreement
5 also makes sense in light of -- let's see, there we are.
6 With Amendment 2, the agreement also makes sense in light of
7 the testimony of the witnesses that you've heard. Now I
8 told you a few weeks ago in the opening, pointing to this
9 chart, that you would hear from ten witnesses drawn from
10 both the Santa Cruz and the Novell side of the transaction
11 who would agree that it was intended that the copyrights
12 were sold. All ten of those witnesses, either through video
13 deposition or through live testimony here, have so
14 testified.
15 I would like to start with the Santa Cruz side
16 because there's been a lot of attention here paid to what
17 Novell intended and what was going on at Novell's board
18 meeting. That's really not the issue before you. The issue
19 before you is what the two parties to a contract intended.
20 So you have to look at both parties' intent and how they
21 expressed that to each other. And there is no confusion at
22 all on the Santa Cruz side there. All of these executives
23 and negotiators testified consistently that this deal
24 required the transfer of the copyrights.
25 You remember Doug Michels. I think that was
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 44 of 76
2640
1 pretty memorable videotaped testimony, wasn't it? He was
2 perplexed that anyone could even raise the issue.
3 Copyrights are like breathing oxygen. I'm going to read you
4 a little bit of his testimony. He says, I guarantee you, we
5 put copyright notices in every document we wrote. How could
6 we do that if we didn't own the copyrights? We put
7 copyright notices in every module of source code we wrote.
8 They all said we own the copyrights. We own the
9 intellectual property, and every action we took represents
10 that. I don't do a very good imitation of him.
11 THE COURT: Mr. Singer, remember, if you read too
12 fast, the court reporter will have difficulty.
13 MR. SINGER: I will try to read slower as well.
14 Michels also said, we took over the business. We
15 were in the business of selling intellectual property. We
16 were in the business of supporting the intellectual
17 property. We were in the business of providing marketing
18 materials. We couldn't do any of that without owning the
19 copyrights.
20 He was asked if any attorney from Santa Cruz ever
21 told him that Novell was asking for -- that he had to go to
22 Novell and ask them for the copyrights. He said, I think I
23 would have laughed them out my office.
24 Now you recall that you also heard testimony from
25 Steve Sabbath who said, when we bought the UNIX business
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 45 of 76
2641
1 from Novell, all copyrights came with the product and
2 Amendment No. 2 was meant to confirm that, and he testified
3 to that.
4 In addition, you had Kimberlee Madsen. Ms. Madsen
5 has no interest in this litigation. She works for Apple.
6 She came here and testified clearly to you that the
7 copyrights were going with the assets. She was asked, do
8 you have a view, as you sit here, as to whether the parties
9 intended that the copyrights would be retained by Novell.
10 Answer, no. The intent was clearly to be that the
11 copyrights for the UNIX and UnixWare were to be transferred
12 to The Santa Cruz Operation.
13 And you heard Mr. Mohan, Mr. Wilt also. So there
14 is no question on the Santa Cruz side of the equation that
15 everyone agrees that the copyrights were part of the deal.
16 Now in a typical case you would expect to see the
17 Santa Cruz executives and attorneys saying one thing and the
18 Novell executives and lawyers saying something completely
19 different. The incredible thing about this case is that you
20 have numerous senior executives and lawyers who were with
21 Novell at the time who agree with Santa Cruz, who agree that
22 the copyrights were intended to be sold.
23 Now you have heard from Robert Frankenberg, the
24 chief executive officer at the time, on the first day and
25 again on the last day of testimony. I think he's probably
Case 2:04-cv-00139-TS Document 869 Filed 04/19/10 Page 46 of 76
2642
1 the most important witness in this trial. Ladies and
2 gentlemen, in the future, when I think of a stand-up guy,
3 I'm going to be thinking of Bob Frankenberg. He has no
4 financial or other interest in this. A lot of CEOs would
5 simply duck something like this and say they don't remember,
6 it's a long time ago. He didn't do that. He has given you
7 forthright testimony, both on the first day of trial and
8 yesterday, that this was a deal to sell the copyrights along
9 with the rest of the business.
10 He acknowledged that he missed that line item in
11 one part -- one word in a

[ Reply to This | # ]

Broderick Spills The Beans
Authored by: sk43 on Monday, July 19 2010 @ 09:09 PM EDT
At the Feb 25, pre-trial conference [Novell-725], the GL observers reported that
Stewart did not want any mention during the trial that SCO was in bankruptcy:
http://groklaw.net/article.php?story=20100225153726923

"Along the same lines, niether party is to mention that SCO is in
BANKRUPTCY ..."

So, what happens? Here comes Broderick [Novell-859main], answering a question
about his stock options:

Q. "And do you have any equity interest in the company?

A. "... I have a number of options that are -- I think because we're in
CHAPTER 11 are frozen."

Ooops.

[ Reply to This | # ]

Survey of who started where
Authored by: gumnos on Monday, July 19 2010 @ 09:39 PM EDT
Just curious how folks started reading these. Which method did you use:
  1. Read them from start to finish
  2. Read them in the order of interest: most interesting witnesses first
  3. Read them in the reverse order of interest: saving the most interesting witnesses for dessert
  4. Started with the closing arguments and then chose one of the above after that

-gumnos



[ Reply to This | # ]

854 and 855
Authored by: pajamian on Monday, July 19 2010 @ 10:52 PM EDT
Anyone spot the difference between 854 and 855 (other than the document number
in the header of each page)? I ran both through pdftotext and then diffed them
and they come out otherwise identical.


---
Windows is a bonfire, Linux is the sun. Linux only looks smaller if you lack
perspective.

[ Reply to This | # ]

Brennan able to say "protection rackets"
Authored by: Anonymous on Tuesday, July 20 2010 @ 01:15 AM EDT
Brennan managed to use the term "protection rackets" to the jury in
his closing statement, saying that was old SCO's characterization of what new
SCO was doing. Nice.

Brennan also formally implicated Microsoft, which I was surprised he would be
allowed to do, but I'm not a lawyer.

In addition to mentioning Kimblall's ruling.

So, the jury got the full program of what we've been seeing for 7 years. I was
afraid they wouldn't get to hear all of it.

[ Reply to This | # ]

Mr. Normand goes to school
Authored by: Anonymous on Tuesday, July 20 2010 @ 01:53 AM EDT
I just had to laugh. (866 part 3 testimony of Amadia page 26 of 59)


9 Q. And you don't clarify that someone has obtained a
10 license by amending an asset transfer provision; correct?
11 A. We did. Do you want to know why?
12 Q. Your counsel can ask you why, and I've heard you
13 speak to why.
14 A. Okay.
15 Q. But you didn't use the word "license"; correct?
16 A. No.
17 Q. You could have signed something that said
18 Santa Cruz has a license, and you didn't sign something that
19 says that; correct?
20 A. Correct.
21 Q. So your testimony that Paragraph A of
22 Amendment 2 which does not use the word "license" affirms that
23 Santa Cruz had a license under the asset purchase agreement,
24 which also does not use the word "license"; is that right?
25 A. Several licenses under the APA, yeah.
2154
Case 2:04-cv-00139-TS Document 866-2 Filed 04/19/10 Page 25 of 59
1 Q. So let me make sure I understood that. Amendment
2 Number 2 Paragraph A clarifies that Santa Cruz had several
3 licenses?
4 A. Uh-huh (affirmative).
5 Q. But it also doesn't use the phrase, several
6 licenses; correct?
7 A. Correct.
8 Q. And you know that Santa Cruz agreed to give Novell
9 over $100 million in payments under the asset purchase
10 agreement; correct?
11 A. I believe so.
12 Q. So your testimony is that Santa Cruz agreed to give
13 Novell over $100 million in payments for an unwritten and
14 implied license to use the copyrights; is that right?
15 A. No, that's not right.
16 Q. Your testimony is that they paid over $100 million
17 in payments, and part of the rights that they received was an
18 implied, unwritten license to use the copyrights; correct?
19 A. No.
20 Q. What's incorrect?
21 A. It's not an implied license. It was expressed. It
22 was very clear what they were getting the rights to do in my
23 mind.
24 Q. So it was an expressed license, but it doesn't use
25 the word "license." How is that possible?
2155
Case 2:04-cv-00139-TS Document 866-2 Filed 04/19/10 Page 26 of 59
1 A. It was an expressed right to do something --
2 Q. Okay.
3 A. -- which had a value.

[ Reply to This | # ]

The Transcripts from the SCO v. Novell Trial
Authored by: Jimbob0i0 on Tuesday, July 20 2010 @ 04:20 AM EDT
Have I got a corrupted download or is 856 part 1 missing the opening
arguements? Incidentally that was the first time I got to read jury
selection - most interesting! And as suspected SCO tried to remove
anyone who had the most passing familiarity with it... even if they had
only heard part of their company may use it!

[ Reply to This | # ]

Conspicuous Empty Chairs
Authored by: DaveJakeman on Tuesday, July 20 2010 @ 09:19 AM EDT
Brennan:
Now, there were some people that you did not hear from in this trial. I wonder if you were curious about them. You heard that Novell's in-house counsel, David Bradford, working with Jim Tolonen, the chief financial officer, worked with outside counsel of Novell to prepare this asset purchase agreement. Santa Cruz Operation was not without its representatives. In fact, they hired a very talented set of lawyers from a very large law firm, a prominent law firm at the time, the Brobeck Phleger firm. You heard about Ed Leonard, this very experienced senior partner, Jeff Higgins and Scott Lester who worked with them, and none of them appeared in this case. None of them appeared by deposition testimony. Those are empty chairs.
I always wondered why Novell didn't haul those guys in as witnesses, but perhaps pointing to their empty chairs was the next best thing.

[ Reply to This | # ]

Lurking in the Background
Authored by: DaveJakeman on Tuesday, July 20 2010 @ 10:33 AM EDT
Brennan:
The Linux market was growing and developing, and it presented a market challenge to Microsoft's operating system. Who would be a chief beneficiary of the failure of Linux? Microsoft.
Good to see that as part of Brennan's summing up, now an indelible piece of the record.

[ Reply to This | # ]

Jury selection and the jury room
Authored by: bastiaan on Tuesday, July 20 2010 @ 03:45 PM EDT
The judge gives the distinct impression that the interviews conducted in the
jury room are private, but as they are part of the public record. Any jury
members expecting their privacy safe, were misled.

[ Reply to This | # ]

Judge Stewart appears to have a sense of humor...
Authored by: Anonymous on Tuesday, July 20 2010 @ 03:53 PM EDT

Document 855, page 129:

THE CLERK: But you can't do your causes until I come back.
THE COURT: If there's any doubt who runs things around here.

RAS

[ Reply to This | # ]

Tor Braham Testimony vrs. SCO Appeal "theme"
Authored by: Anonymous on Tuesday, July 20 2010 @ 04:42 PM EDT
Reading Braham's testimony, which was absolutely fatal to SCO's case, it was
wonderful to read how he described the various cross-motives and self-motives of
the team of SCO witness/insiders, pointing out that, not surprisingly in deals
such as this, some employees (including mgmt) might be expected to become more
mindful of who (SCO) they were moving to more than who they worked for in the
moment.

Braham calmly explained to the jury how, in an acquisition deal where execs are
going to be re-badged, their allegiances will tend to reverse. He pointed out
that he was expressly warned about Ty Mattingly's motives, for instance.
Clearly, the jury heard this and nodded -- as this explained why SCO was able to
produce former-Novell witnesses who were lined up on SCO's side. You could
almost hear the air fluttering out of SCO's balloon.

Braham neatly punctured BSF's theory that having MORE witnesses on a point
somehow makes their theory more compelling. And so -- what is SCO's theory for
the appeal? They said it in the opening sentence of their motion for a new
trial: "The jury simply got it wrong" is their theory, and the
argument to support it is "we had eight witnesses, they only had two".
But we can now see from the transcript just how silly and shallow that argument
is in substance.

The court on appeal will give great deference to the jury -- and we can see from
Braham's testimony that the jury had a very solid witness to rely on in Braham,
and they did.

LEXLAW

[ Reply to This | # ]

Singer objected to keeping a juror ..
Authored by: nsomos on Tuesday, July 20 2010 @ 05:30 PM EDT
From page 135 of the Novell-854transcript.pdf
They are talking about Juror 23
----------------------------------------------------
THE COURT ...
9 I'm surprised both of you aren't saying let's kick
10 him off to make certain. If you're going to argue against
11 it, I'm going to keep him on. He was very sincere in saying
12 he has no prejudice, no bias, and I'm just going to have to
13 deny your request. Okay.
14 MR. SINGER: Lodge an objection to that.
15 THE COURT: Your objection is certainly noted.
------------------------------------------------------
This might be one of the things SCO will use to find
grounds for appeal. (Weak, pointless and fruitless
that it might be)

[ Reply to This | # ]

Has anyone interviewed the Jury?
Authored by: hopbine on Tuesday, July 20 2010 @ 05:54 PM EDT
On TV at least- a news-person always asked a jury member about what went on in
the jury room. I don't follow local newspapers, so does anyone know?

[ Reply to This | # ]

Amusing typo/slip
Authored by: Anonymous on Tuesday, July 20 2010 @ 06:45 PM EDT
I had a little chuckle on 863 part 1, page 5, line 13. Re: Groklaw, I presume.
MR. SINGER. We have insidiously followed the Court's ruling that we not talk about the Internet site...

[ Reply to This | # ]

No matter what else might be said...
Authored by: Anonymous on Tuesday, July 20 2010 @ 06:46 PM EDT
No matter what else might be said about the position and
laywering of SCO, these transcripts represent some
spectacular courtroom hijinks in this case. As I have said
time and time again, Singer is an incredible tap dancer, and
he demonstrated it over and over; no where better than in
his closing statement.

Filing 896, page 41 of the PDF, lines 3 to 9 for example.
He dances in with a question posed to one witness and then
answers that question immediately with testimony from a
DIFFERENT, more pro-SCO witness.

In this case, unlike my impression having attended oral
argument at the [first?] appeal, I think Novell just had
more on thier side and did a much better job in closing.



There are a number of not really nice things that can be
said for the morals and ethics of the way this case has
proceeded, including many points in these transcripts. But
one thing you cannot avoid is that the performance of the
attorneys on both sides of this case has been spectacular.

---
Clocks
"Ita erat quando hic adveni."

[ Reply to This | # ]

Singer's closing statement,: "why don't you take a jab at PJ"
Authored by: Anonymous on Tuesday, July 20 2010 @ 07:01 PM EDT
I thought the Jury wasn't supposed to know what/who Groklaw
and PJ were so how does this add up?

869 page 64:

That is before you even get to Maureen O'Gara's
14 testimony that Chris Stone admitted to her that the press
15 release was timed for May 28th to damage SCO's stock
price.
16 Sure, the PR people at SCO, they had one journalist who
was
17 willing to take on some of this community hate, said why
18 don't you take a jab at PJ and things like that, but
there
19 is no reason to believe she invented this.

[ Reply to This | # ]

The Transcripts from the SCO v. Novell Trial
Authored by: hopbine on Tuesday, July 20 2010 @ 08:29 PM EDT
Thanks mms2 for replying.Also thanks for attending the trial.

[ Reply to This | # ]

Fantastick!
Authored by: Anonymous on Tuesday, July 20 2010 @ 09:00 PM EDT
Thanks for the these. I threw in a few bucks some months back, and now I'm so glad I did!

Absolutely fascinating. I've served on a jury once before (a car accident case), but nothing near as interesting as this. I haven't read all the transcripts (yet), but what I've read (which so far has focused on Novel's crosses) has been terrific. Compares very favorably with courtroom dramas (e.g. "The Rainmaker", or even "My Cousin Vinny"!); drama shines through the rather dry transcripts loud and clear. Kudos to the jury, too, for seeing through the BS.

Anyway, this is going to take me a few more days to go through property. Can't wait for the closings. This would make a great movie.

[ Reply to This | # ]

  • Oh yeah, I forgot - Authored by: Anonymous on Tuesday, July 20 2010 @ 09:03 PM EDT
  • Fantastick! - Authored by: PJ on Tuesday, July 20 2010 @ 09:45 PM EDT
Day One - Picking the Jury
Authored by: webster on Wednesday, July 21 2010 @ 12:54 AM EDT

This case involves a dispute between the plaintiff and the defendant over the ownership of an open-source computer program known as UNIX.
P. 5. Oh, my. Either the Judge or this reader has a gross misperception of UNIX. If it is open source, they shouldn't be doing this. Singer immediately reacts to this. PJ is right. The courts don't get the tech. It will take a long time. It's just fighting over money using copyrights.

THE COURT: Do I understand, Mr. Brennan, you will want to make your statement immediately after the plaintiff, you will not want to wait until they have presented their case?

MR. BRENNAN: That would be our preference, Your Honor.

P. 8-9. The defendant has the choice of making his opening statement immediately after the plaintiff or waiting until after the plaintiff puts on his case, witnesses and all. There are advantages and disadvantages to either choice. If there are two defendants, they can "sorround" the plaintiff by one opening with the plaintiff and the other opening after the plaintiff rests. If the defendant opens with the plaintiff it won't look so much as if the defendant is making it up as he goes along which sometimes he does. If the defendant waits, he knows where to concentrate, he is fresher before the jury, and he can argue a bit against what they have already heard from the plaintiff. Brennan chooses to open after plaintiff's opening. After years of preparation he has a plan and an idea of what he is going to say.

The Judge informs the parties of another procedural point that is refreshingly rare:

THE COURT: Let me make you aware now, though it is a long way away, I intend to instruct the jury with jury instructions before your closings so you will have the opportunity of referring to the jury instructions in your closing statements.
P. 9. Most judges give their final instructions after arguments. It puts jurors to sleep just after they have been fascinated by the attorneys' closing arguments. It is a long dull reading causing visible yawn-stifling. Since the practice now is to also give the jury a copy of the instructions, having the judge read it just before deliberations is no longer so sacramental. It is better for a lawyer to argue what the judge just said as opposed to what the judge is going to say if the juror can stay awake. The lawyer can also point to the instructions and re-read a line or two himself.

Preliminary Matters: Much of the discussion relates to unresolved matters. Some of them relate to the Motions in limine. [This etymological digression notes that "in limine" is "at the threshold" so "preliminary" must be "before the threshold." The trial formally starts when the jury of 13 has been sworn.] The judge asks for any remaining issues. The lawyers Singer and Brennan have them at their tongue tips. They are even revisiting decided issues looking for advantage in their opening. The last thing the Judge wants is people popping up and objecting from the hip at matters that should have been raised and settled before trial. So he asks and the lawyers respond. They better not bring up anything new and omitted in the middle of trial. No one should willy-nilly delay the Stewart Express. Object now or forever hold your peace. To p. 31.

Picking the Jury: This is surprisingly fascinating. One has to put an instinctual notation by jurors that strike one as favorable to one side or another. One doubles that notation if it is someone that should be stricken. A lawyer will try and strike an unfavorable juror for cause first. If that doesn't work, he uses a peremptory strike. A juror can be unfavorable because she can be perceived as extremely favorable to your opponent, or hostile to the lawyer's client. At first blush 18 of the 52 jurors appeared favorable to SCO, 13 to Novell. The rest gave no vibes. This is not rocket science; it is subjective. The lawyer wants people he can talk to. If he has a rational argument, he wants rational jurors. If he is selling a dream, he wants dreamers.

The jury panel had to declare prior jury experience and if it was "favorable." Most that declared experience indicated a criminal case with a guilty finding. The experience was almost invariably "favorable." This "favor-ability" experience indicates a possible fractious jury experience. Someone would say the experience was not favorable if they were in the minority, or alone, and the majority was beating on them. A lawyer would want someone like this on a jury if the burden of proof was on the other side. A majority juror might also have had an unfavorable experience from some uncrackable nut hanging a perfectly good trial. Follow up might clearly be indicated with an unfavorable response.

The Exclusionary Rule. Brennan brings up the fact that people could follow the testimony on online blogs. [Which did he have in mind?] The judge and Singer agree. Witnesses are not to prep online or with knowledgeable informants. Given prior trial revelations, Brennan's fears are well-founded.

The only way to read the transcript is in the order it was transcribed. This is the way the lawyers chose to present it and it is the way the jury absorbed it. Read the testimony first and imagine what should be argued and in what order. Then read the closings to see if you hit on the same points and in what order and emphasis. In other words think like the lawyers and take their steps. Some can't help but do this.

Unfortunately, after following the first day's transcript, we are hung out to dry with the change from using juror numbers to using X-ed out names. After keeping notes on every juror, we are denied knowledge of those seated. Peremptory strikes were done silently in writing. btw it was fascinating to see the varying exposure to Linux admitted by jurors. It was significant. In the course of the voir dire some jurors changed in their appeal to the respective parties. Some changed, some strengthened, and as usual, some took themselves out of the running.

With 13 to be seated after 3 strikes by each party, 19 made the cut: 1, 3, 5, 6, 7, 8, 9, 12, 13, 14, 16, 19, and 20, the first 13; then up to 6 more to replace peremptory strikes by the lawyers: 23, 24, 25, 27, 28, 29. Twenty-three even googled SCO v Novell and the judge would not strike for cause at Hatch's request. That would have been SCO's second peremptory. Up to six of these could be stricken unless both sides passed. We don't know who made the final cut. Of initial group 4 favored SCO, 4 favored Novell. One Novell candidate showed extra favor, 14. He knew Linux as a web developer. SCO would strike him for cause. Of the replacement group 3 favored Novell and 1 SCO. Someone will have to write the lawyers for the numbers, but this may be confidential. Although one obsesses on jurors, it is an over-rated part of the exercise. The judge struck many for cause to avoid controversy.


~webster~

[ Reply to This | # ]

The Transcripts from the SCO v. Novell Trial
Authored by: Anonymous on Wednesday, July 21 2010 @ 12:22 PM EDT
I was there, and I had tears.

[ Reply to This | # ]

Frankenberg as lead witness?
Authored by: YurtGuppy on Wednesday, July 21 2010 @ 01:56 PM EDT
Reading Mr. Frankenberg's testimony, two things so far:

One is that SCO indicated Mr. Frankenberg was a very important witness. But
then SCO gets tied into a knot because Novell is able to talk to him about the
original APA as a subject of the BoD's approval, but avoid the text of Amendment
#2 because Frankenberg wasn't there for Amendment #2. It doesn't seem very
convincing to me to have led off with Mr. Frankenberg.

Second, Mr Frankenberg says that the royalty stream (95%) coming from SCO to
Novell on SVRX licenses was part of the payment for the whole transaction. That
doesn't make any sense. Without the transaction Novell would have received 100%
of that money. 5% is stays with SCO as an administrative cost. Where is the
increase to Novell? Is he saying that SCO would have been more efficient than
Novell at collecting the regular royalties? I don't see how that makes any
sense.

Again, I think Mr. Frankenberg as a lead off witness was muddled at best. They
didn't start off with their best stuff.


---

just swimming round and round

[ Reply to This | # ]

compared 854 and 855 ...
Authored by: nsomos on Wednesday, July 21 2010 @ 02:37 PM EDT
Using pdftotext and diff, I have compared the 854 and 855
documents, and the only difference between them is the lines
for each page that have ....

< Case 2:04-cv-00139-TS Document 854-1
---
> Case 2:04-cv-00139-TS Document 855-1

There were no other differences than these which were
consistent across all pages.

[ Reply to This | # ]

Interesting language.
Authored by: rfrazier on Thursday, July 22 2010 @ 02:59 AM EDT
In the Braham testimony.

He doesn't change jobs, or areas, he *transitions*. (2326) (awful)

When speaking about why Novell wanted to seel the Unix business after
recently acquiring it, he said that Novell thought that "we can't put all
the
wood behind this arrow ourselves". (2337) (lovely)

Best wishes,
Bob

[ Reply to This | # ]

The Transcripts from the SCO v. Novell Trial - Updated
Authored by: DeepBlue on Friday, July 23 2010 @ 01:58 PM EDT
I understand that the correct version of 855 is now available from the Court and
includes the opening statements.

No doubt PJ will want to check this info with the court.

---
All that matters is whether they can show ownership, they haven't and they
can't, or whether they can show substantial similarity, they haven't and they
can't.

[ Reply to This | # ]

PJ, could you use some help with the other transcipts?
Authored by: Anonymous on Friday, July 23 2010 @ 03:41 PM EDT
I could probably do a few (perhaps 3) as html.

[ Reply to This | # ]

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