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| SCO Files Docketing Statement and We Find Out What Its Appeal Will Be About |
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Saturday, July 24 2010 @ 08:04 AM EDT
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The SCO Group has filed their docketing statement [PDF] in their appeal from the jury's decision and Judge Ted Stewart's rulings and findings in SCO v. Novell. And thus we find out what the appeal is going to be about. The PDF is a honking 323 pages, mostly exhibits. What does SCO want? What it has always wanted, the UNIX copyrights. It wants the appeals court to rule that Judge Stewart erred in ruling that Novell had the right to waive. After SCO lost the jury trial, it filed some motions, essentially asking Judge Stewart to overrule the jury and grant SCO judgment as a matter of law that the copyrights did transfer in 1995, despite the jury's ruling otherwise, or alternatively SCO wanted a new trial. The judge didn't do either, and SCO now wants the appeals court to rule that was error on his part. Finally, if all that fails, SCO wants the appeals court to rule that SCO is entitled to specific performance, compelling Novell to hand over the copyrights now. In short, they want to win. They thought the jury "just got it wrong", they asked Stewart to fix that, and he didn't, so now SCO is asking the appeals court to help them win something, one way or another. Why? It wants to sue Linux folks, I presume, and it can't without the copyrights. And it wants to sue IBM, too, and unless it can get the appeals court to rule that Novell has no right to waive and get the copyrights, SCO can't sue IBM. I guess it would be more accurate to say SCO wants to not lose. It's in quite a pickle as things stand. Think of IBM's counterclaims for just a minute, and you'll understand why SCO probably feels it has nothing to lose by trying.
The docketing statement itself, which is a form they fill out, occupies just the first 11 pages of the PDF, but there are five exhibits attached:
Exhibit 1 is the District Court docket.
Exhibit 2 is the Final Judgment.
Exhibit 3 are the orders regarding the basis for the appeal: - Memorandum Decision and Order Denying Without Prejudice SCO's Motion in Limine No. 1 to Preclude Misleading Statements or Evidence Concerning Language in the APA Removed by Amendment No. 2
- Memorandum Decision and Order Granting in Part and Denying in Part SCO's Motion in Limine No. 5 to Exclude Statements Made by Michael Anderer as an Independent Contractor for SCO
- Memorandum Decision and Order Taking Under Advisement SCO's Motion in Limine No. 4 to Exclude Litigation Commentary (about Groklaw et al)
- Memorandum Decision and Order on Novell's Motions in Limine 12 to 19 (about excluding various witnesses testimony)
- Memorandum Decision and order Granting Novell's Motion in Limine No. 4 to Preclude SCO from Contesting that Novell had an Objectively Reasonable, Good Faith Basis for its Statements Regarding Copyright Ownership
- Memorandum Decision and Order on Allocation of Issues for Bench and Jury Trial
- Memorandum and Decision and Order Granting Novell's Motion to Determine that First Amendment Defenses Apply to Slander of Title and Require Proof of Constitutional Malice
- Memorandum Decision and Order Limiting Use of Deposition Testimony During Opening Statements
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Special Verdict Form
-
Findings of Fact and Conclusions of Law
- Memorandum Decision and Order Denying SCO's Renewed Motion for Judgment As a Matter of Law or, in the Alternative, For a New Trial
- Final Judgment
Exhibit 4 is the Rule 50(b) briefing and order, meaning the SCO motions after the jury's ruling trying to overturn it or get a new trial which Judge Stewart denied:- SCO's Renewed Motion for Judgment as a Matter or Law or, in the Alternative, for a New Trial
- SCO's Memorandum in Support of its Renewed Motion for Judgment as a Matter of Law or, in the Alternative, For a New Trial
- Novell's Opposition to SCO's Renewed Motion for Judgment as a Matter of Law or a New Trial
- SCO's Reply Memorandum of Law in Support of its Renewed Motion for Judgment as a Matter of Law or, in the Alternative, For a New Trial
- Memorandum Decision and Order Denying SCO's Renewed Motion for Judgment as a Matter of Law or, in the Alternative, For a New Trial
Exhibit 5 is the Notice of Appeal. So there you have the materials from which SCO will craft its appeal brief. Groklaw has a chart showing all the motions in limine, the opposition to each, and how each motion in limine was eventually decided, so you can track everything that happened more fully. Text of the arguments in the motions in limine are here and oppositions here.
The final orders are what is being appealed, but you can get a clearer picture of what SCO is driving at by reading everything filed. For example, here's SCO's motion in limine 4 [PDF], the one about litigation commentary, meaning us at Groklaw, and Novell's opposition [PDF]. SCO asked that Groklaw and other "commentary" not be allowed to be mentioned by witnesses or anyone at trial: Plaintiff, The SCO Group, Inc. (“SCO”), respectfully moves for an order in limine to preclude reference by the parties to the various sources which have been providing publicly available commentary on this and related SCO litigation.
ARGUMENT
There are a number of websites and publications which have followed this litigation and related litigation invoking SCO. Such websites and publications and the commentary to be found there are not relevant under Rule 401 of the Federal Rules of Evidence. Rule 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988).
In addition, given the partisan nature of commentary, any probative value in such evidence would be substantially outweighed by the danger of unfair prejudice to SCO. Indeed, the nature of the claims at issue has led to highly polarized commentary. One example is the website Groklaw.com, on which a self-described former paralegal named Pamela Jones has published and continues to publish biased, anti-SCO coverage of all pleadings, hearings, and events relating to SCO’s pursuit of its claims and defenses. There are other similar sites and commentary, and the Court should not allow Novell or its counsel or witnesses to make any statements that might lead jurors to investigate such sources. (We do not suggest Novell’s counsel will intentionally do so, but witnesses should be so instructed. We understand Novell may not oppose this motion.)
Accordingly, SCO requests that the Court exercise its inherent power over the conduct of trials, and order Novell, its representatives, and its witnesses not to elicit or offer testimony respecting commentary on this case or related litigation, and not to make any references to such commentary or to the websites or publications devoted to such commentary. So nasty. Novell did oppose, by the way:
SCO’s request for an order precluding all references to “commentary on this
case or related litigation,” including the Groklaw website, should be denied.
Novell agrees that it would be improper for the jury to consult Groklaw or any
other external sources during the trial. But SCO’s motion seeks to conceal from
the jury a broad and largely undefined category of litigation commentary, much
of which is directly relevant to Novell’s defense to SCO’s slander of title
claim. Any prejudice SCO identifies can be prevented by instructing the jury not
to investigate any external sources during the trial.
I. ARGUMENT
SCO’s assertion that litigation commentary, including the Groklaw website,
is not relevant is simple wrong. SCO alleges that Novell has slandered its title
to the UNIX copyrights, and that SCO has incurred damages as a result. (Second
Am. Compl. ¶¶ 91-93, Dkt. No. 96.) The commentary relating to SCO’s dispute on
Groklaw and other sources is relevant to Novell’s defense to SCO’s slander of
title claim, including rebutting SCO’s damages theory.
In order to prove the special damages element of its slander of title
claim, SCO must show that harm “resulted from” Novell’s statements, “not from
other factors.” Macia v. Microsoft Corp., 152 F. Supp. 2d 535, 541 (D. Vt. 2001)
(internal quotations omitted). Novell’s evidence against SCO’s causation theory
includes information that was published on Groklaw and references to Groklaw.
Indeed, SCO’s CEO, Darl McBride, cited Groklaw itself as a cause for the poor
performance of the SCOsource initiative. (Ex. 4A (Novell Trial Ex. C30) at 3
[Mr. McBride is quoted as saying that Groklaw is “having a dampening effect” on
SCOSource].) In addition, when Mr. McBride wrote an open letter to Linux users
claiming license fees were owed, the open source community used Groklaw to
respond that it would “not accept your attempt to charge us a second time for a
product that we have already bought and paid for,” suggesting that Novell’s
statements were not the sole cause of SCOsource’s failure. (Ex. 4B
(Novell Trial Ex. Q20) at 3.) It will, therefore, be necessary for Novell to
reference Groklaw in defending against SCO’s damages claim.
Other litigation commentary, including publicity surrounding SCO’s suit
against IBM, is also necessary for the same reason. The SCOsource licensing
program, launched in January 2003, generated a great deal of negative publicity
that was in part responsible for the poor performance of SCOsource. (See
generally Mem. ISO Novell’s Motion for Summary Judgment on SCO’s First Claim for
Slander of Title Based on Failure to Establish Special Damages ¶¶ 14- 19, Dkt.
No. 288 (under seal).) Some of this publicity involved commentary on the IBM
litigation, including recommendations that Linux users not purchase a SCOsource
license. (See, e.g. Ex. 4C (Novell Trial Ex. T44) at 1 (“There is real doubt as
to whether end users should purchase a license from SCO.”); Ex. 4D (Novell Trial
Ex. D30) at 4 (advising Linux users not to contract or negotiate with SCO during
the litigation process with IBM).) This evidence shows that other factors
contributed to the poor performance of SCOsource; such evidence is directly
relevant to disproving SCO’s causation theory.
SCO’s motion seeks to preclude all testimony about, and reference to,
litigation commentary. The motion refers to “a number of websites and
publications which have followed this litigation and related litigation” (Mot.
at 1), but SCO presents no argument why this broad and largely undefined
category of evidence should be precluded. The prejudice SCO identifies relates
only to SCO’s narrower request that the Court should “not allow Novell or its
counsel or witnesses to make any statements that might lead jurors to
investigate” sources such as Groklaw. (Mot. at 1.) Novell agrees that it would
be improper for either party to direct jurors to public sources of commentary on
this litigation. However, because SCO’s request to preclude all references to
litigation commentary would risk the exclusion of highly relevant evidence,
SCO’s concern is properly addressed by instructing the jury not to investigate
external sources of information.
II. CONCLUSION
SCO’s request to preclude all testimony about, and reference to, litigation
commentary should therefore be denied. The judge essentially ruled that he'd decide as the trial went along, and indeed Groklaw was mentioned when it came time to play the Maureen O'Gara deposition, where she talked about Groklaw and the questioning included a reference to the
email from SCO's Brent Stowell to O'Gara asking her to send a jab my way. Here is the day Maureen O'Gara's deposition was entered into evidence, mentioning Groklaw, after the judge ruled it could be, subject to quite a few redactions. The funny part, to me, is that the judge asked SCO's lawyer Brent Hatch if he was happy with the eventual ruling, and Hatch said he was. He did go on to say he'd got a crumb, but he was happy with his crumb. Now, I gather SCO's not happy with that ruling after all. SCO would, I gather, like to trash talk Groklaw some more, this time to the appeals court, in order to appeal Groklaw being allowed to be mentioned at all. I can't figure out why they bother. Every time they do this, they make Groklaw more prominent, although with their unpleasantly biased remarks attached. I can't believe that's worth much to them now, but maybe they are hoping they'll actually be granted a new trial, one where in their dreams the jury will never know Groklaw even exists. Or maybe it's in the context of the defense to the slander of title claim. We will find out when SCO files its appeal brief. SCO is asking for oral argument, and the Tenth Circuit doesn't provide transcripts of that, if you recall, so it's time to start planning on a volunteer attending, if possible, or those arguments will fall into a black hole and we'll never know what was said. [ Update: The court has just announced a new policy (pdf) starting with the May 2010 oral argument term. We will be allowed to write to the court and ask for audio of the oral argument, telling the court what we want to use it for. They will then say yes or no, I guess. I don't think that harmonizes well with the fact that in the US, the public has the right to attend hearings, unless they are involving confidential matters. The default, though, is access. In a digital age, I would define access as access to the audio files. And if you wish to attend the hearing, you don't have to give a reason before they let you enter. The announcement includes where to write to the Clerk of the Court to provide any comments, if you should so desire. It's best, I think, to still send someone. We have one volunteer now, but we surely need a backup, if you can. I'd rather not rely on a permissions system.] It's very puzzling to me, SCO's fixation on Groklaw. They surely knew journalists would write about their very public media campaign and highly PR'd litigation. It wants to quote from news articles they like and keep out any reporting they don't enjoy. In its opening statement, for example, SCO wanted to show the jury a Wall Street Journal article it liked, but when Novell said, fine, as long as it could mention articles of its choosing too, SCO balked. It didn't want Novell's choice to be shown to the jury, where it called SCO a cornered rat, the most hated tech company, etc. That wasn't a Groklaw article, by the way. And, as another example, SCO chose to put O'Gara's deposition into the trial as testimony, but tried to excise even a mention of the name Groklaw. The deposition included the name of her website. Was that excised? Was SCO not worried that the jury might look up O'Gara's very pro-SCO litigation commentary on her website? No? Only *Groklaw's* reporting on the litigation is a problem? See what I mean? Speaking of bias. I haven't heard that O'Gara has won any awards for her SCO litigation coverage. But Groklaw has won plenty of them for exactly that. So if you could only pick one to mention, which would you think would be the most helpful? The least biased, according to the world's judgment? : ) I know. I'm making myself laugh. Logic isn't SCO's forte. That's just part of why it keeps losing.
It's like SCO wants to be the only one talking, the only one *allowed* to speak, perhaps because that's the only way it could possibly prevail. They even sued Novell for daring to say in public it owned the copyrights. They got sued for it, of all crazy things, for slander of title, and then the jury said Novell did in fact own the copyrights, just as Novell had claimed. Go figure. Like I say, SCO's way of thinking is bizarre to me. I would point out that two judges and one jury so far have now confirmed Groklaw's analysis of essential issues. So where's the bias if the whole world sees it Groklaw's way? Maybe SCO is the one with the bias, and SCO is the one that needs to work on itself and adjust its singular world view. Like that will happen. But when reality keeps slapping you in the face, telling you you're wrong, it might be wise to consider that it means you actually are. All that commentary could have been a helpful cluebat to SCO, if they'd wanted to measure the boundaries of reality from the evidence available. I write as if SCO actually believes what it says, but that presumes facts not in evidence, as lawyers put it. Anyway, whatever. Here we go again, y'all, this time to the Tenth Circuit Court of Appeals. Here's what SCO argued in its Motion in Limine No. 1, about the APA language: Plaintiff, The SCO Group, Inc. (“SCO”), moves in limine to preclude misleading statements concerning language in the Asset Purchase Agreement (“APA”) that was changed by Amendment No. 2 to that Agreement.
ARGUMENT
The APA was amended by Amendment No. 2 to replace the language regarding the exclusion of “all copyrights.” The Tenth Circuit’s decision makes clear that the APA is to be interpreted together with Amendment No. 2. The Court expressly stated that “Amendment No. 2 must be considered together with the APA as a unified document.” SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1211 (10th Cir. 2009). Amendment No. 2 was not “meant to substantively change the intent of the APA,” but “merely clarified or affirmed the intent of the APA.” Id. at 1214 n.2. As the Court of Appeals further noted: “Even if we considered the language of the APA and Amendment No. 2 to be mutually antagonistic, California law still dictates that we construe them together, following Amendment No. 2 wherever its language contradicts the APA.” Id.
Novell previously made extensive arguments to the Court referring to the language excluding “all copyrights” that was replaced by Amendment No. 2. That language is no longer in the APA and it would be misleading for Novel to make arguments in the presence of the jury that suggest the APA in fact still contains such language. SCO recognizes that in presenting extrinsic evidence it may be necessary to refer to the language that existed before Amendment No. 2 was adopted. In doing so, however, the parties should be clear that this is not the current state of the contractual language that is to be considered by the jury. I'd call that asking that reality be bent to suit SCO's purposes, myself. Here's what Novell argued:SCO’s request for an order in limine precluding “misleading statements”
concerning the copyright exclusion language in the APA should be denied.
Although the copyright exclusion language of the APA was subsequently amended,
SCO cannot dispute the obvious relevance of the original language to
understanding the intent behind the amendment. Novell’s percipient witnesses
will testify that the APA excluded UNIX copyrights from the assets sold to SCO
and that Amendment No. 2 was not intended to reverse that exclusion. This story
cannot be told without reference to the language of the APA itself—this includes
both the original language of the APA and Amendment No. 2.
I. ARGUMENT
“Amendment No. 2 must be considered together with the APA. . . .” SCO
Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1211 (10th Cir. 2009). The Tenth
Circuit acknowledged that the copyright exclusion language of the original APA
was perfectly clear, but found that the language of Amendment No. 2 was
ambiguous. Id. at 1210. Based on this, the court held that “extrinsic evidence
regarding the parties’ intent is relevant to [the] interpretation of the
combined instrument.” Id. at 1211. Because, as the Tenth Circuit stated,
Amendment No. 2 “merely clarified or affirmed the original intent of the
transaction” (id. at 1214, n.2), the presentation of evidence will by necessity
refer to the original language of the APA.
SCO does not contest that it “may be necessary” for Novell to refer to the
copyright exclusion language in the APA in the course of presenting its
evidence. (Mot. at 1.) Novell’s witnesses will necessarily reference the APA in
explaining their understanding of the original deal and the intent behind
Amendment No. 2. For example, Novell plans to present the testimony of Allison
Amadia to explain the negotiation and drafting of Amendment No. 2. Ms. Amadia
was Novell’s legal representative in the negotiations with Santa Cruz that led
to Amendment No. 2. (Decl. of Allison Amadia ¶ 4, Dkt. No. 278.) She will
testify that when she was approached by Santa Cruz with a proposal to amend the
APA to give Santa Cruz rights to
copyrights in UNIX and UnixWare, she first read the language of the APA to
confirm that it contained a copyright exclusion. (Id. at ¶ 7.) She will further
testify that “Amendment No. 2 was not intended to alter the Original APA’s
copyright ownership exclusion,” but rather “affirmed that Santa Cruz had a
license under the Original APA to use Novell’s UNIX and UnixWare copyrighted
works in its business.” (Id. at ¶ 14.) The copyright exclusion language in the
APA therefore is central to Ms. Amadia’s testimony[1]. Similar testimony will be
offered by other Novell witnesses. There is no basis for excluding or limiting
any of this highly relevant testimony.
The original language of the APA is also relevant to Novell’s defense
against SCO’s slander of title claim, specifically to show that Novell had a
reasonable basis for its May 28, 2003 statement challenging SCO’s claim of
ownership. (Ex. 1A (Novell Trial Ex. J15) at 2.) Novell’s interpretation at that
time was based on its reading of the copyright exclusion language in the
original APA. (Ex. 1B (Novell Trial Ex. Y15) at 2.) Novell’s subsequent press
releases must also be understood by reference to the original language of the
APA. For example, Novell’s letter of August 4, 2003, first sets forth the
general exclusion of copyright from the transferred assets, and then discusses
the exception in Amendment No. 2. (Ex. 1C (Novell Trial Ex. D18.) Argument and
testimony about the original language in the APA should be admitted for this
purpose.
SCO contends the jury would be misled by statements that suggest that the
APA still contains its original copyright exclusion language. (Mot. at 1.) But
SCO fails to identify precisely what statements it would like the Court to
preclude. If by its motion SCO seeks to prohibit arguments or testimony that
Amendment No. 2 never occurred, Novell and its witnesses will acknowledge at
trial that the APA has been amended. However, given the undisputed relevance of
the original language of the APA, SCO’s request for an order precluding some
undefined category of “misleading statements” should be denied.
II. CONCLUSION
SCO’s request to preclude “misleading statements” concerning the copyright
exclusion language of the original APA should therefore be denied. Do you see how we can discern what the appeal will be about by reading all of this?
SCO tells the history of the case, as it sees it, on page 4. I say as it sees it because it says that the jury ruled that the UNIX copyrights didn't transfer from Novell to SCO. But it has attached the verdict form, which clearly says that the jury ruled that both the UNIX and the UnixWare copyrights didn't transfer.
The questions on appeal can be found starting on page 5 of the PDF, so now we know what SCO is after.
Here are the five questions, as SCO phrases them:
(1) Did the district court err in denying SCO’s motion and renewed motion for judgment as a matter of law on the question whether the copyrights to the UNIX operating system were transferred to SCO’s precedessor-in-interest in 1995?
(2) Did the district court err in denying SCO’s alternative motion for a new trial on the question whether the copyrights to the UNIX operating system were transferred to SCO’s precedessor-in-interest in 1995?
(3) Did the district court err in concluding that SCO was not entitled to specific performance, requiring transfer of those copyrights now, if they were not transferred to SCO’s predecessor-in-interest in 1995?
(4) Did the district court err in concluding that Novell is entitled to waive SCO’s rights under contracts concerning SVRX?
(5) Did the district court err in concluding that Novell properly waived SCO’s rights under contracts concerning SVRX? Those are the big picture questions, but you can see from the exhibits to the docketing statement that we can expect many more subsidiary matters to come into this.
Here's an updated docket list (text) from the Tenth Circuit PACER site:
07/09/2010 - Open Document
100 pg, 551.37 KB [9777924] Civil case docketed. Preliminary record filed. DATE RECEIVED: 07/08/2010. Docketing statement due 07/23/2010 for SCO Group. Transcript order form due 07/23/2010 for Brent O. Hatch. Notice of appearance due on 07/23/2010 for Novell, Inc. and SCO Group.
07/21/2010 - [9781102] Notice of appearance submitted by Edward Normand for Appellant SCO Group for court review. Certificate of Interested Parties: Yes. Served on 07/21/2010. Manner of Service: email.--[Edited 07/21/2010 by LAB to remove PDF from entry as pleading has been filed as of 7/21/10]
07/21/2010 - [9781107] Notice of appearance submitted by Stuart H. Singer for Appellant SCO Group for court review. Certificate of Interested Parties: Yes. Served on 07/21/2010. Manner of Service: email.
07/21/2010 - [9781111] Notice of appearance submitted by Brent O. Hatch and Mark F. James for Appellant SCO Group for court review. Certificate of Interested Parties: Yes. - interested parties already listed.--[Edited 07/21/2010 by BV - To add the text - interested parties already liested] Served on 07/21/2010. Manner of Service: email.--[Edited 07/21/2010 by BV - To remove the PDF from the docket entry as pleading has been filed as of 7/21/2010.]
07/21/2010 - Open Document
3 pg, 20.88 KB [9781115] Notice filed that the transcript is already on file in the district court filed by Mr. Edward Normand, Esq. for SCO Group. Served on: 07/21/2010. Manner of Service: email.
07/21/2010 - Open Document
323 pg, 1.78 MB [9781125] Docketing statement filed by SCO Group. Served on 07/21/2010. Manner of Service: email.
07/21/2010 - [9781138] Minute order filed - Notice due that record is complete by 08/16/2010 for D. Mark Jones, Clerk of Court. (Text Only - No Attachment).
07/21/2010 - Open Document
4 pg, 22.07 KB [9781146] Notice of appearance filed by Mr. Edward Normand, Esq. for SCO Group. CERT. OF INTERESTED PARTIES: y. Served on 07/21/2010. Manner of Service: email.
07/21/2010 - Open Document
1 pg, 112.08 KB [9781155] Filed notice record is complete. Served on 07/21/2010. Appellant's brief and appendix due on 08/30/2010 for SCO Group.
07/21/2010 - Open Document
4 pg, 21.33 KB [9781158] Notice of appearance filed by Mr. Stuart H. Singer for SCO Group. CERT. OF INTERESTED PARTIES: y. Served on 07/21/2010. Manner of Service: email.
07/21/2010 - Open Document
4 pg, 23.81 KB [9781234] Notice of appearance filed by Mr. Brent O. Hatch and Mr. Mark F. James for SCO Group. CERT. OF INTERESTED PARTIES: y. - interested parties already listed as attorney and non parties. Served on 07/21/2010. Manner of Service: ECF/NDA
07/23/2010 - Open Document
3 pg, 227.33 KB [9782105] Notice of appearance submitted by Sterling A. Brennan, David R. Wright, L. Rex Sears, Cara J. Baldwin for Appellee Novell, Inc. for court review. Certificate of Interested Parties: Yes. Served on 07/23/2010. Manner of Service: ECF/NDA, US mail.
07/23/2010 - Open Document
4 pg, 228.75 KB [9782108] Notice of appearance submitted by Michael A. Jacobs, Deanne E. Maynard, Brian R. Matsui, Daniel P. Muino, Nathan B. Sabri for Appellee Novell, Inc. for court review. Certificate of Interested Parties: Yes. Served on 07/23/2010. Manner of Service: ECF/NDA, US mail.
So that's our cast of characters. All the usual suspects have been rounded up, I see. And SCO has until August 30th to file its appeal brief.
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| Authored by: jplatt39 on Saturday, July 24 2010 @ 08:11 AM EDT |
Make links clickable. Note the instructions just below the post mode choice.
Read the Important Stuff at the bottom.
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| Authored by: jplatt39 on Saturday, July 24 2010 @ 08:12 AM EDT |
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| Authored by: jplatt39 on Saturday, July 24 2010 @ 08:15 AM EDT |
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| Authored by: jplatt39 on Saturday, July 24 2010 @ 08:16 AM EDT |
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| Authored by: kh on Saturday, July 24 2010 @ 08:33 AM EDT |
Except other people's money?
How is this a Chapter 11 activity?[ Reply to This | # ]
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| Authored by: Stumbles on Saturday, July 24 2010 @ 08:35 AM EDT |
"It's very puzzling to me, SCO's fixation on
Groklaw."
PJ, you know the answer to that. Sure SCO knew there
would be press coverage. They also knew this press coverage would be fleeting,
intermittent and most of all, it would just swallow whatever SCO had to say with
next to no in depth research. In short, SCO was expecting to manipulate the
press.
What they did not expect was a lone blogger, a paralegal at that to
make the effort to follow up on everything they said and did. And not just
follow up, but provide concrete evidence to show just how wrong they were at
historical revisionism. ---
You can tuna piano but you can't tune a fish. [ Reply to This | # ]
|
| |
| Authored by: sk43 on Saturday, July 24 2010 @ 09:14 AM EDT |
Docket 761, filed Mar. 5, is titled "Memorandum Decision and Order on
Allocation of Issues for Bench and Jury Trial." In brief, this order
determined that the Slander of Title claims would be decided by the Jury and all
other claims would be decided by the Court. It is one of the Orders begin
challenged by SCO.
Why would SCO challenge this order? Nearly everything in it was already
stipulated by both parties. Two requests by Novell for an advisory judgement
were opposed by SCO and denied by Stewart. The only thing SCO lost was whether
Novell could even assert a defense of "unclean hands". In the event,
Novell never did assert such a defense, so Stewart waived it in his Finding and
Conclusion (Docket 876). Otherwise, SCO was granted everything it asked for
Mysterious.[ Reply to This | # ]
|
| |
| Authored by: nola on Saturday, July 24 2010 @ 09:20 AM EDT |
| WHen do we start down the track of sanctions for the "Trustee" ?? [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, July 24 2010 @ 10:38 AM EDT |
It's a little frustrating as a scientist/engineer based in a non-US country, to
observe this non-resolution of a squabble amongst accountants and lawyers in the
USA.
The main problem it's causing is in the education system. It's obvious to all
that 'open cores' are the way of the future; Apple are sitting on BSD Unix which
is open source; most of the 'professional services' businesses are perfectly
happy with Linux underneath things if their clients want it that way.
And this 'money squabble' in the USA is preventing schools from teaching it.
What's more, we don't even use dollars here, so even if some US court ordered
some to be handed over, I would be entirely correct to say 'I do not have
any'.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, July 24 2010 @ 10:45 AM EDT |
"...you'll understand why SCO probably feels it has nothing to lose by
trying."
But we're still talking about a former judge whose job it is to set the company
on a course of sound profitability and not risk destroying what's left of its
public relations, image and reputation on a legal dice roll.
It's good that Cahn's fees, if I understand correctly, are to be paid from
proceeds of the company and not with my tax dollars, but I am very, very, very
upset that any of my hard earned money has been spent on this seven years long
legal tragedy and someone who has been hand picked to turn things around is
doing his utmost to destroy what is left of this company. Cahn is past the point
where he can blame this ignorant and abusive legal campaign on the Boyz. He
either calls the shots or he doesn't.[ Reply to This | # ]
|
| |
| Authored by: sproggit on Saturday, July 24 2010 @ 11:21 AM EDT |
This is pretty much a rhetorical question, but I'd be grateful if anyone can
explain it in any more detail. Whilst I understand that the financial deal with
BSF essentially means that SCO do not have to pay for legal support through to
the end of this appeal, the fact that they are getting that *legal action*
"pre-paid" does not make the decision to go to another appeal an
automatic one.
For starters, SCO have now had two bites at the legal cherry: we had the bench
trial before Judge Kimball and we've had the jury trial before Judge Stewart.
We've also had the first appeal to the Tenth Circuit that resulted in the jury
trial.
So a few silly questions:
1. Can anyone give a view as to whether or not BSF are going to continue to
provide their services as "paid in advance"? Can anyone explain when
BSF will be said to have discharged their obligations under the (amended) fees
arrangement?
2. Is it acceptable for SCO to file an appeal against this judgment without
first going back to the bankruptcy court and essentially saying, "Look, we
know we spent a bundle of cash on a case we've just lost, and we know that the
grounds for our appeal amount essentially to claiming specific performance and
forcing Novell to hand over copyrights that 2 courts have already found we
didn't get and haven't paid for, but, pretty please, can we continue to spend
money on this?" Surely if no additional authority from the Bankruptcy Court
is necessary, SCO and Cahn could just keep on appealing indefinitely, until such
time as Judge Gross woke up and did something? Surely, they *must* get
permission first, "out of an abundance of caution"? OK, so we know
that Judge Gross will just roll over and let Judge Cahn tickle his tummy, but
surely they have to ask?
3. Bearing in mind that (I believe - happy to be corrected) that Novell are
still a creditor of SCO's, could they file a motion with the bankruptcy court to
try and block SCO's legal appeal on the grounds that it is highly unlikely to
succeed and therefore further diminishes the likelihood that SCO will continue
to survive or to be able to pay out the monies they owe?
4. Bearing in mind that SCO have been in bankruptcy since Q4, 2007 (going on 3
years) and that to the best of my knowledge they have not paid a cent to any
creditor, at what point in time is Judge Gross required to ask them to do so? At
what point in time is a reasonable judge required to ask the Chapter 11 company
when their reorganisation plan is going to kick in and commence restitution?
I ask this because, if we believe that Judge Cahn has done as he claimed and SCO
is now no longer trading at a loss, then if we were also to remove the legal
fees being paid to Blank Rome, then surely they are trading at a profit? If that
is so, then doesn't that mean that they can exit Chapter 11 and start paying
back the money that they owe?
5. Or is that it? Is it the case that the moment they stop the litigation
circus, Judge Gross is going to spot that SCO are actually making a profit -
albeit a small one - and that since they are operating at a profit then they can
start paying their creditors? Is that the point at which Judges Gross and Cahn
will be forced to accept that the litigation strategy is dead and stop any more
wasteful spending on it.
If this is so - if SCO would be profitable but for the litigation - then at what
point can someone point out that Judge Gross may be derelict in his duty of care
to the creditors and have him replaced?
I do realize that we have long since left the sublime, passed through the
ridiculous and are presently drifting serenely through the stark, staring
insane, but when is a stakeholder in this case going to point out that fact? [ Reply to This | # ]
|
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| Authored by: Anonymous on Saturday, July 24 2010 @ 11:36 AM EDT |
One example is the website Groklaw.com, on which a self-described
former paralegal named Pamela Jones has published and continues to publish
biased, anti-SCO coverage of all pleadings, hearings, and events
relating to SCO’s pursuit of its claims and defenses. (emphasis
added)
"Continues to publish ... coverage of all pleadings,
hearings, and events". Isn't that a bit unusual? Usually people (journalists)
just publish confused summaries of events after they are over. Won't the judge
realize that he's under a magnifying glass in this case, and want to be extra
careful (which is not something that would normally favour SCO's case). Things
are not going well for you if people are relying on facts in their
arguments against you.
[ Reply to This | # ]
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| Authored by: Barbie on Saturday, July 24 2010 @ 11:42 AM EDT |
It must really irk SCO and Co to have to admit - in a legal filing, no less -
that you actually exist as a human being and not a fictive pseudonymous front.
"One example is the website Groklaw.com, on which a self-described former
paralegal named Pamela Jones has published and continues to publish biased,
anti-SCO coverage of all pleadings, hearings, and events relating to SCO’s
pursuit of its claims and defenses"
Of course, SCO's current problem is that reality is also biased. And so is
truth. (ain't THAT the truth :-)[ Reply to This | # ]
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| Authored by: Griffin3 on Saturday, July 24 2010 @ 11:45 AM EDT |
Just out of curiosity, what would happen if Novell did
not argue its case in
the appeals court? Or, in a more
likely case, say, if a small business won
verdicts in the
the trial and first appeal, but, at some point, ran out of
money to pursue the seemingly endless appeals that the
plaintiff seems capable
of?
If the defendant filed a notice saying "Look ... we
argued all this
already, all our past arguments are still
valid, but we no longer have the
financial ability to pay
our lawyers," would the appeals
court:
- enter a default judgement for the plaintiff,
or
- rely on everything the plaintiff filed as "new" as
undisputed, and
most likely render a judgement for the
plaintiff, or
- try to come to a
reasonable judgement between the new
claims, and the existing claims, and tend
to rely on the
judgement of the lower courts?
Novell isn't going
to run out of money, or will. But a
guy running a website is a distinct
disadvantage: do they
have any recourse against this sort of 'litigation
treadmill'? [ Reply to This | # ]
|
- there is no recourse - Authored by: Anonymous on Saturday, July 24 2010 @ 01:50 PM EDT
- The flaw - Authored by: Anonymous on Saturday, July 24 2010 @ 02:14 PM EDT
- The flaw - Authored by: PJ on Saturday, July 24 2010 @ 03:39 PM EDT
| |
| Authored by: Anonymous on Saturday, July 24 2010 @ 12:00 PM EDT |
Doesn't Novell still have an appeal on file with SCOTUS in regards to this
case?
If so, could that just put an end to all of this, bypassing the 10th CoA?[ Reply to This | # ]
|
| |
| Authored by: overshoot on Saturday, July 24 2010 @ 12:11 PM EDT |
| Didn't they argue on the first time around that the contract could not be
decided as a matter of law but required a jury trial? I seem to recall them
prevailing with regard to that point on appeal.
Now they want to argue the
opposite: that the terms should, indeed, have been decided as a matter of law.
No jury required.
Somewhere back in my dim and dusty memories, I seem to
recall that there's a rather basic principle to the effect that you can't argue
for a position, benefit from that position, and then argue the opposite. In
other words, the question of whether this issue should have been decided by a
jury is now the law of the case: SCOXQ.pk is trying to appeal a point that
they prevailed on!
I realize that the term "frivolous" has been worn to
death here and no skin off of Boise, Schiller -- but isn't this a new low even
for them?
Is is just remotely possible that the Tenth will take the
Clue Bat Of Enlightenment to lawyers who had the chutzpah to file this? [ Reply to This | # ]
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| Authored by: SilverWave on Saturday, July 24 2010 @ 12:28 PM EDT |
D'oh!
---
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: Guil Rarey on Saturday, July 24 2010 @ 12:38 PM EDT |
They. Can't. Win.
Last time up before the appellate court, bending over backwards and creating
really lousy precedent, was only able to give them a trial because the ambiguity
of Amendment 2 was a matter of fact appropriate for jury trial, not summary
judgment.
Tried; lost. Still litigating.
Why is this continuing? IBM's counterclaims are nothing to fear in the sense
that there's nothing left of SCO to win judgment from.
1) What information is IBM going to put on the record in the trial that has
someone or everyone so scared?
2) What is the potential for IBM to pierce the corporate veil and, having done
so, who can they go after? How many layers back in the scheming can they go?
Can they get to the major (*cough*Microsoft*cough*) players, or can they not
reach that far under the Lanham act and other doctrines.
---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, July 24 2010 @ 01:22 PM EDT |
Im there, PJ, again.
---
Clocks
"Ita erat quando hic adveni."[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, July 24 2010 @ 01:55 PM EDT |
seriously, will PJ finally get her 15 minutes of fame in this
case and be called to testify?
given all the banter about Groklaw, it seems to be a real
possibility.
now, perhaps another question, will she wear red on the stand?[ Reply to This | # ]
|
- Huh? - Authored by: Anonymous on Saturday, July 24 2010 @ 02:21 PM EDT
- Huh? - Authored by: Anonymous on Sunday, July 25 2010 @ 12:24 AM EDT
- Huh? - Authored by: Anonymous on Monday, July 26 2010 @ 01:52 PM EDT
- No. - Authored by: Anonymous on Saturday, July 24 2010 @ 02:58 PM EDT
- And Besides - Authored by: joef on Saturday, July 24 2010 @ 03:18 PM EDT
- No. - Authored by: Anonymous on Saturday, July 24 2010 @ 04:38 PM EDT
- Will PJ be called to testify? n/t - Authored by: PJ on Saturday, July 24 2010 @ 03:49 PM EDT
- Will PJ be called to testify? n/t - Authored by: Anonymous on Sunday, July 25 2010 @ 07:18 AM EDT
| |
| Authored by: Tyro on Saturday, July 24 2010 @ 02:41 PM EDT |
When someone repeatedly does something that appears, to you, stupid, and keeps
getting hurt badly by it, perhaps they aren't really doing what it appears that
they are doing.
I don't think that you can take anything done by SCOx or its lawyers at face
value. I may not be able to determine with any certainty just what they are
trying to accomplish, but I feel rather certain that it isn't what they are
claiming. Most of the alternatives that come to mind are even more
discreditable than what appears to be attempted.[ Reply to This | # ]
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| |
| Authored by: riodeg242 on Saturday, July 24 2010 @ 03:25 PM EDT |
I wish I had time to read as well as research. I've only just skimmed the last
articles to try to get an idea where things are...
But a question comes to mind. What doest the APA/Amendments say as to the
mechanics of transferring the copyrights? I think I remember something saying
they aren't transfered unless shown to be necessary. What happens when they are
shown to be necessary?
Or am I just not remembering anything correctly? :-)[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, July 24 2010 @ 05:04 PM EDT |
Way back in 2003 (I think it was 2003) when all this started, it quickly
became clear that SCO's lawsuits were just an end in themselves. Microsoft paid
them to spin out lawsuits against Linux for as long as possible. They did that.
They're still doing it.
SCO has been completely consistent from Day 1.
They were paid to do a job, and they've been doing it, better than most people
could have imagined, considering that they had no facts on their side at
all.
Expressions of amazement, comments that SCO's appeal is ridiculous,
etc simply miss the point. [ Reply to This | # ]
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| Authored by: webster on Saturday, July 24 2010 @ 05:14 PM EDT |
Declared Issues:
* Memorandum Decision and
Order Denying Without Prejudice SCO's Motion in Limine No. 1 to Preclude
Misleading Statements or Evidence Concerning Language in the APA Removed by
Amendment No. 2
This is a key item. It was clearly a big deal in just
the first witness' testimony, Frankenberg. It is an encapsulation of the whole
SCO canondrum. It is deceitful, dishonest, untrue and essential to SCO. It is
a bootstrap argument. IT BEGS THE QUESTION: They say don't mislead the jury
with the APA part that was removed by Amendment 2. But that is exactly what SCO
has to prove--that amendment 2 was removed. It is a lie to present this
argument. They will have to show undue prejudice which might be apparent from
Frankenberg's testimony. But he was only a piece of the puzzle which SCO blew
up with their own resistant antics. A difficult issue for SCO but one of the
better ones they have.
* Memorandum Decision and Order
Granting in Part and Denying in Part SCO's Motion in Limine No. 5 to Exclude
Statements Made by Michael Anderer as an Independent Contractor for SCO
This might be the PIPE Fairy commission statements that totally recast the trial
from Lil' Ole SCO v Novell to SCO and the Monopoly v Novell and Linux. This is
a factual issue requiring court discretion. They can only reverse by an abuse
of discretion. It is also a small part of the trial not even tangent to the
copyright decision. At best "harmless error" not earning a reversal.
* Memorandum Decision and Order Taking Under Advisement SCO's Motion in
Limine No. 4 to Exclude Litigation Commentary (about Groklaw et al)
SCO
will have a hard time with this issue since were so public themselves.
Litigation Commentary and particularly Groklaw did become a factor since it was
a factor in the failure of SCOSource [and FUD]. Having O'Gara send a jab at PJ
confounds their argument. What ever prejudice they suffered was due them.
[This might be moot. See 'Waste of Time' below. It does not relate to copyright
ownership. That is as far as the jury got.]
* Memorandum
Decision and Order on Novell's Motions in Limine 12 to 19 (about excluding
various witnesses testimony)
[No time to look up and comment on
this.]
* Memorandum Decision and order Granting Novell's
Motion in Limine No. 4 to Preclude SCO from Contesting that Novell had an
Objectively Reasonable, Good Faith Basis for its Statements Regarding Copyright
Ownership
This is merely argumentative. Again a motion, like the first
above, that begs the question. SCO couldn't say that Novell was unreasonable in
claiming the disputed copyrights. SCO reasoning is dishonest: It is
unreasonable for Novell to claim the copyrights because they are ours. It
presumes the proof yet to be decided. So what is SCO going to say to the
Circuit? "We could only argue the evidence." [This too might be mooted as not
relating to copyright ownership, the only issue dealt with by the jury.]
* Memorandum Decision and Order on Allocation of Issues for Bench and
Jury Trial
This is almost unassailable. SCO agreed to much of this.
Whatever they didn't get they can appeal. They certainly agreed to let the jury
decide the APA as directed by the Circuit.
* Memorandum and
Decision and Order Granting Novell's Motion to Determine that First Amendment
Defenses Apply to Slander of Title and Require Proof of Constitutional
Malice
It is a total waste of time to note this since the jury
never got to it. The jury never got past copyrights so SCO will have to argue
that this evidence somehow relates to copyright ownership, "the slander of which
would have proved they were ours." It's never simple or understandable for SCO.
* Memorandum Decision and Order Limiting Use of Deposition
Testimony During Opening Statements
Another waste of time. If at the
end of three weeks it matters if they saw the deposition once or twice, at the
opening and/or during testimony is hardly going to be prejudicial, especially
when the juror could have looked at whatever the evidence during deliberation.
Whatever it was made a lasting impression and rocketed the jury to their
expeditious decision.
* Special Verdict Form
Maybe
there was a typo.
* Findings of Fact and Conclusions of
Law
This is very difficult for anyone let alone SCO. Findings of fact
are for the judge or jury that sees and hears the witness and evidence. The
conclusions of law follow therefrom-- Ya-no-wadam-sayin?
*
Memorandum Decision and Order Denying SCO's Renewed Motion for Judgment As a
Matter of Law or, in the Alternative, For a New Trial
This goes nowhere
without what PJ calls a subsidiary issue, some of which may be on this list. It
is a factual issue for the judge or jury only. It will only be disturbed by a
showing of no factual basis or an abuse of discretion, both extremely high
standards. [Remember the Court of Appeals noted that there was a factual basis
for a jury trial as weak as it was. They were right.]
*
Final Judgment
* SCO's Renewed Motion for Judgment as a Matter
or Law or, in the Alternative, for a New Trial
* SCO's
Memorandum in Support of its Renewed Motion for Judgment as a Matter of Law or,
in the Alternative, For a New Trial
* Novell's Opposition to SCO's
Renewed Motion for Judgment as a Matter of Law or a New Trial
*
SCO's Reply Memorandum of Law in Support of its Renewed Motion for Judgment as a
Matter of Law or, in the Alternative, For a New Trial
*
Memorandum Decision and Order Denying SCO's Renewed Motion for Judgment as a
Matter of Law or, in the Alternative, For a New Trial
These last six are
pro forma dealing with factual determinations shunned by appellate
courts. SCO will have to find errors of law within them, subsidiarial ones as
we now say.
~webster~
[ Reply to This | # ]
|
| |
| Authored by: Khym Chanur on Saturday, July 24 2010 @ 06:36 PM EDT |
Is SCO presenting any new arguments or flights of fancy, or is it just
retreading old arguments? ---
Give a man a match, and he'll be warm for
a minute, but set him on fire, and he'll be warm for the rest of his life.
(Paraphrased from Terry Pratchett) [ Reply to This | # ]
|
- Anything new? - Authored by: PJ on Saturday, July 24 2010 @ 07:02 PM EDT
- Lack Of - Authored by: sproggit on Sunday, July 25 2010 @ 04:02 AM EDT
- Lack Of - Authored by: proceng on Sunday, July 25 2010 @ 08:44 AM EDT
- Lack Of - Authored by: Anonymous on Sunday, July 25 2010 @ 09:13 AM EDT
- Lack Of - Authored by: Gringo on Sunday, July 25 2010 @ 09:54 AM EDT
| |
| Authored by: darrellb on Sunday, July 25 2010 @ 09:19 AM EDT |
I'm not sure of the terminology, but isn't it likely that Novell will
"cross-appeal" in the event that the COA rules in SCO's facor and
grants a new trial?
After quick review of the Motions in Limine, I see some that Novell might
appeal:
MOTION in Limine No. 1 to Exclude Evidence and Argument Concerning Claims Not
Included in SCO's Appeal or the Tenth Circuit's Limited Mandate
MOTION in Limine No. 11 to Exclude Evidence of Substantial Performance
MOTION IN LIMINE NO. 5 TO EXCLUDE STATEMENTS MADE BY MICHAEL ANDERER AS AN
INDEPENDENT CONTRACTOR FOR SCO
Also, trial decisions that could be appealed include the "to this day"
dispute in which the Court allowed evidence of damages to this day but limited
Novell in presenting evidence of events to this day.
I'm sure there are others.
---
darrellB[ Reply to This | # ]
|
| |
| Authored by: dwheeler on Sunday, July 25 2010 @ 12:25 PM EDT |
This shouldn't be surprising. SCO has bet the company on this nonsense set
of lawsuits. Having put in so much money on the main litigation, filing an
appeal is relatively cheap. Like a hail Mary pass, they can hope that somehow,
against all odds (and against all facts), they'll win anyway. I suspect this
appeal will be denied, frankly; SCO has gotten an absurd number of chances to
come up with actual evidence that would hold up in court, and they've still
failed to do so.
At this point, there are so many delays that "justice delayed
is justice denied" applies to this case, particularly to the many innocent
people hurt by SCO management's legal shenanigans.
[ Reply to This | # ]
|
- Vamos a ver. - Authored by: Anonymous on Sunday, July 25 2010 @ 12:52 PM EDT
| |
| Authored by: pem on Sunday, July 25 2010 @ 12:51 PM EDT |
| It's not in Utah, but perhaps it gives hope. The parallels between the actions
of SCO and the "Maxwell" of Maxwell v KPMG are uncanny. A few selected tidbits
from the Seventh Circuit ruling (with emphasis added):
An
immediate problem, unremarked by the parties,
is that the principal
beneficiaries should the trustee
prevail in this suit would be the former
shareholders
of US Web...
A necessary condition
is a sine qua non, but it is rarely
a “cause” in any meaningful sense of the
word. No one
would say that Whittman-Hart’s demise was “caused” by
the invention
of the Internet, though had it not been
invented and enticed US Web,
Whittman-Hart would, if the
trustee is correct, be
fine.
Also, it is bad policy to
encourage people
harmed in some natural or financial
disaster to cast about for someone on whom
to lay off the
consequences who had, however, committed only a
technical breach
of duty. The legal system is busy enough
without shouldering the burden of
providing insurance
against business risks.
As if
this were not bad enough, the evidence that the
trustee presented to prove
damages was outlandish. The
plaintiff’s expert, a financial analyst named Paul
Marcus,
testified that had it not been for the acquisition of US
Web,
Whittman-Hart would have had a “fair market value”
(whatever exactly that means)
of $535 million on the day
that instead marchFIRST declared
bankruptcy.
The extreme weakness of the trustee’s
case, both on
liability and on damages, invites consideration of the
exercise of
litigation judgment by a Chapter 7 trustee.
The filing of lawsuits by a going
concern is properly
inhibited by concern for future relations with
suppliers,
customers, creditors, and other persons with whom the
firm deals
(including government) and by the cost of
litigation. The trustee of a
defunct enterprise does not
have the same inhibitions. A related point is that
while
the management of a going concern has many other
duties besides bringing
lawsuits, the trustee of a defunct
business has little to do besides filing
claims that if resisted he may decide to sue to enforce. Judges must
therefore
be vigilant in policing the litigation judgment
exercised by trustees in
bankruptcy, and in an appropriate
case must give consideration to imposing
sanctions for
the filing of a frivolous suit. The Bankruptcy Code
forbids
reimbursing trustees for expenses incurred in actions not
“reasonably
likely to benefit the debtor’s estate,” and authorizes an “appropriate sanction”
against parties who file such a claim. Not “reasonably likely to benefit the
debtor’s estate” may well be a correct description of this
suit.
We are particularly disturbed by the
damages claim. It
is not only groundless, as we have seen; it is
intimidating,
because of its size. Nor is it a good plea that yes,
the
damages claim of $626 million is preposterous, but suppose that
therefore the probability of its succeeding is
only 1 in 1000; well, .001 ×
$626 million is $626,000, and
that “expected value” of suing may exceed
the cost of the
suit to the bankrupt estate. There is something wrong
with this
reasoning. For if .001 is too high an estimate,
the trustee can up his damages
claim to $6.26 billion—the
probability of success will be even lower, but
even if it is
only 1 in 10,000 (and how exactly would one demonstrate
that it is
less?), the expected value of suing will still be
$626,000. A frivolous
appeal has some chance of success:
lightning may strike, or the law may
change while the
appeal is pending; and a trustee who succeeds in obtaining a
judgment will share in it.
But frivolous suits
are forbidden. So frivolousness must
depend not on the net expected value of a
suit in relation
to the cost of suing, but on the probability of the
suit’s
succeeding. If that probability is very low, the suit is
frivolous;
really that is all that most courts, including
ours, mean by the word. By
that
standard, this suit may well be frivolous. We note, therefore, that the
defendant can file a motion in the district
court for an award of reasonable
attorney’s fees, (of course to be paid by the trustee personally, not by the
bankrupt estate),
and a corresponding motion in this court under Fed.
R.
App. P. 38. We do not, however, prejudge the outcome
of either type of
motion.
I would think this case would be useful not just for
IBM, but also for Novell. After all, the lawsuit was still for "slander of
title" and it would be hard to expect a good outcome for that based on what both
Kimball and the appeals court said -- it was obviously "frivolous" in that
respect.
[ Reply to This | # ]
|
| |
| Authored by: sproggit on Sunday, July 25 2010 @ 02:57 PM EDT |
I have no evidence for the following theory. It's just a theory.
When the original case against IBM was brought, it didn't take us long, as a
community, to figure that it was an un-disguised attempt at a shake-down, a play
to impose a "tax" on Linux implementations, in the same sense that we
see or hear the expression "Windows Tax" in relation to new machines.
But the potential and suspected players here are nothing if not flexible and
adaptable.
When Novell stepped into the SCO vs IBM dispute, the case against IBM and Linux
was quickly and significantly weakened. (Fatally, judging by the outcome of SCO
vs Novell.
But the parties directly involved - and those who stood to gain indirectly from
the dispute - will have continued to adapt their strategy. So this is purely
hypothetical and I have no evidence to suggest that any of this happened,
but...
If the monies that Microsoft paid to SCO to license "Unix" code for
Microsoft's "Windows Services for Unix" were actually intended to
encourage SCO to progress their litigation, then we've certainly see Microsoft
get their money's worth.
Is that particularly true of the case against Novell? The way I see it, Novell
are still a direct competitor against Microsoft. NDS - Novell Directory Services
- must still have quite a significant footprint and is a direct competitor to
Active Directory. ZenWorks is a powerful desktop management suite and would be a
direct competitor to Microsoft's SMS Server.
Is it possible that Microsoft would take an holistic look at the landscape of
this legal conflict and decide that any aggravation or harm that they could
throw at Novell could only be a good thing? This isn't just a question of the
financial cost to Novell for the continued legal work, it's also a reputational
risk in the marketplace.
Imagine that you're a salesman for a very large software company that competes
with Novell. You go to see an executive for an existing Novell customer, and
mention that Novell seems unusually embroiled in litigation these days. You
wonder if they have taken their eye off the technology ball? You wonder if they
lose the copyright ownership to the Unix technologies, what it might do to that
"nice little earner" revenue stream they've had since they sold the
business to SCO. There are all sorts of ways that competitors to Novell - anyone
- could make mischief with the news surrounding the court case (well, perhaps up
to the jury verdict that is).
Are all of the pieces in this chess game in play yet?
Are they even all on the board?
There's more going on here than meets the eye...[ Reply to This | # ]
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| Authored by: Anonymous on Monday, July 26 2010 @ 07:10 AM EDT |
PJ
In case anyone hasn't told you recently, you are truly amazing, and
fantastic. To mush through this stuff, year after year, keeping the focus and
continue your in depth, apparently accurate reporting is really an awesome
thing. Your extraordinary standards has absolutely made a difference that
should go down in history on the same level as the invention of the personal
computer, that being the device before it became a brand name.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, July 26 2010 @ 12:56 PM EDT |
If I remember right, SantaCruz Op sold the UNIX business to Caldera in 2001 and
changed its name to Tarantella. Later sometine in 2005 Tarantella was takenover
by Sun. Knowing the deals that Sun did with the new SCO they would have hidden
away the old board papers.
Now that Oracle has taken over Sun, maybe there is a chance for these papers to
surface if they are still there. Who knows we may get some interesting stuff in
them.
rgds
Gopal
[ Reply to This | # ]
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