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SCO gets more time to file appeal brief regarding its loss to Novell
Wednesday, September 01 2010 @ 03:07 AM EDT

SCO filed a motion asking for more time to file its appeal brief with the Tenth Circuit Court of Appeals. They needed 10 more days, and Novell agreed to it, so the clerk signed off on it the same day the motion was filed, and the new date for SCO to file its brief will be September 9.

SCO's argument asking for more time is interesting, because we learn that Novell asked to -- and SCO agreed they could -- attach 60 more documents to the Appendix. And Stuart Singer, who takes credit in his bio on Boies Schiller's website for representing SCO as lead counsel at this same court of appeals the last time SCO appealed, is busy with another case, working on a preliminary injunction proceeding. Well. Almost. It doesn't say the "SCO" word:

Won appellate decision from Tenth Circuit (August 2009) regarding ownership of copyrights and contract rights for the UNIX operating system.
Heh heh. They are incorrigible. Not exactly the whole story, eh? What he won was a jury trial to *determine* the ownership of UNIX and UnixWare copyrights and contract rights, but the jury at the trial said Novell retained ownership of the copyrights for UNIX and UnixWare in 1995-6, and the judge ruled that Novell had the right to waive contractual violations, so SCO lost completely, despite the Court of Appeals granting SCO that extra bite of the apple with a jury trial. Which, I must point out, reached exactly the same conclusion that the first judge had on summary judgment way back in August of 2007. Singer's bio makes it sound like SCO prevailed. No wonder Bloomberg got it so wrong today [see News Picks]. That's the trouble with fibs and spin. They detach your mind from reality. Over time, that can't be good for anybody's mental health.

Preliminary injunctions are very, very hard to win, because one of the things you have to demonstrate early in the case, meaning before you've done discovery, is that you probably will win in the end, so it's a legitimate excuse this time. But what might those extra 60 documents be, I wonder?

Because the News Picks items scroll off the page quickly, I'll repeat here my corrections to Bloomberg's account about the sale of assets in SCO's bankruptcy. Bloomberg's words are in regular text, and mine are in blue:

At a hearing last week, the bankruptcy judge in Delaware approved sale procedures where bids are due Oct. 15.

The procedure approved at the recent hearing included the order[PDF], which says bids are due Oct. 5. And from Groklaw's report on the hearing:

"Item 2. Motion to sell the business - Ms. Fatell began by asking that the judge approve the procedures. She spoke briefly about how the judgment had gone against them in both the jury trial and the rulings from the judge afterward. She pointed out that an appeal had already been filed. Judge Gross nodded and mentioned he was aware of the rulings."

No buyer is yet under contract. The hearing for approval of the sale will take place Nov. 8.

The bankruptcy judge called for a Chapter 11 trustee in August 2009, about one month before the U.S. Court of Appeals in Denver ruled in the company’s favor after six years of litigation with Waltham, Massachusetts-based Novell Inc.

Actually, the Chapter 11 trustee was appointed more or less at the same time. He was appointed on August 25th; the Court of Appeals ruling was on August 24. [Update: Since Bloomberg wrote that a trustee was "called for", a reader points out that it is true that the judge issued an order saying that there would be a Chapter 11 trustee appointed, and that order was dated August 5. That's almost a month, speaking loosely.]

The appeals court ruled partly in SCO's favor, in that it decided that a jury trial was required on copyright issues; however it upheld the lower court on the damages owed to Novell regarding the Sun license. And it specifically stated that it was not ruling in SCO's favor with regard to ownership of the copyrights. It took no stand on that at all, except to say that Novell had strong arguments, which later, of course, resulted in Novell's victory.

Here's one paragraph from the appeals court ruling:

This case, involving a complicated, multi-million dollar business transaction involving ambiguous language about which the parties offer dramatically different explanations, is particularly ill-suited to summary judgment. We recognize that Novell has powerful arguments to support its version of the transaction, and that, as the district court suggested, there may be reasons to discount the credibility, relevance, or persuasiveness of the extrinsic evidence that SCO presents. Moreover, we appreciate the difficulties that follow when the resolution of ambiguous language in a ten-year-old contract is left to trial. At trial in a case like this, the intention of the parties often 'must be divined from self-serving testimony offered by partisan witnesses whose recollection is hazy from passage of time and colored by their conflicting interests.'..

We take no position on which party ultimately owns the UNIX copyrights or which copyrights were "required" for Santa Cruz to exercise its rights under the agreement. Such matters are for the finder of fact on remand.

The case went back to the district court, where the judge and jury further clarified SCO’s rights in certain Unix software incorporated in software for network systems.

That's one way to put it, if you mean clarified them downward. What the jury did was decide SCO didn't own any of the copyrights in dispute and the judge ruled Novell had the right to waive any actions SCO might wish to take against IBM or others regarding contract violations.

With the property interest clarified, the trustee is now selling the assets.

That actually depends on what happens at the sale hearing. SCO has the right to look for bidders at the auction, and to choose one, but then there will be a hearing where any objections to the particular sale will be argued.

After bankruptcy in September 2007, SCO and an affiliate filed schedules listing combined assets of $14.2 million and debt totaling $5.2 million.

Close but no cigar. It listed assets at $14,800,000 and debts at $7,500,000. You can find their latest Monthly Operating Reports, not that they are current, here, and to my reading, they are totally broke. They spent everything while in bankruptcy protection, sold off their "mobility assets" to Darl McBride, took out a $2 million loan recently from Ralph Yarro and friends, which was approved by the bankruptcy court with some later-filed changes, and it hasn't been paid back, it seems, although you can't be sure without more recent MORS or an SEC filing on the finances of this public company, but it must be repaid or the assets go pretty much to the folks who made the loan, as I read the terms. SCO also has not paid the creditors. So that's a more current view than the assets and liabilities in September of 2007.

*Now* aren't you glad there is a Groklaw?

Here's the motion and then the order granting it:

08/27/2010 - Open Document - [9792495] Motion filed by Appellant SCO Group to extend time to file appellant/petitioner's brief until 09/09/2010. Served on: 08/27/2010. Manner of service: ECF/NDA.

08/27/2010 - Open Document - [9792523] Order filed by Clerk of the Court granting Attorney motion to extend time to file apet brief. Appellant's brief and appendix due on 09/09/2010 for SCO Group. Served on 08/27/2010.

Here is SCO's motion, minus certificate of service for the sake of time:

**********************

No. 10-4122

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

THE SCO GROUP, INC.,

Plaintiff-Appellant,

v.

NOVELL, INC.,

Defendant-Appellee.

On Appeal from the United States District Court for the District of Utah
Hon. Ted Stewart, Presiding
No. 2:04-CV-00139-TS

____________________

APPELLANT’S REQUEST FOR
EXTENSION OF TIME TO FILE OPENING BRIEF

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, PC
[address, phone, fax]

Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stuart Singer
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Appellant The SCO Group Inc. (“SCO”), pursuant to Fed. R. App. P. 27 and 10th Cir R. 27.4, hereby moves for an enlargement of ten days time in which to file its Opening Brief, and states in support the following:

1. This is an appeal from a final judgment, following a lengthy jury trial and non-jury determinations. The notice of appeal was timely filed on July 7, 2010. Appellants brief is currently due to be filed on Monday, August 30th. No prior enlargement of time has been sought.

2. A brief 10-day extension of time is required for the following reasons:

A. Lead counsel for Appellants, Stuart Singer, has been involved in a preliminary injunction proceeding over the past thirty days, including the submission of proposed findings of fact and conclusions of law on Wednesday, August 25, 2010.

B. Appellee Novell, Inc. requested on August 25, 2010, to include over 60 additional documents in the Appendix. SCO does not oppose the request, but consideration of the additional documents and proper citation to such materials, as required, will require additional time.

3. Because the work required on the aforementioned preliminary injunction and the request to enlarge the appendix arose within the last week, SCO respectfully requests to be excused for not having provided five days notice to this request.

4. Counsel for Novell, Inc. has represented that it does not oppose this request. SCO therefore moves for a 10-day enlargement of time for filing its Opening Brief from August 30, 2010 to September 9, 2010.

DATED this 27th day of August, 2010.

By: /s/ Edward Normand
BOIES, SCHILLER & FLEXNER LLP
Stuart H. Singer
Edward Normand

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

Counsel for Plaintiff-Appellant
The SCO Group, Inc


  


SCO gets more time to file appeal brief regarding its loss to Novell | 207 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO gets more time to file appeal brief regarding its loss to Novell
Authored by: Anonymous on Wednesday, September 01 2010 @ 03:24 AM EDT
I have often wondered what happens when you have multiple cases and they all
need immediate attention NOW!

[ Reply to This | # ]

Off-topic goes here please!
Authored by: perpetualLurker on Wednesday, September 01 2010 @ 03:30 AM EDT

Thank you!

---
"Love is a snowmobile racing across the tundra and then suddenly it flips over,
pinning you underneath. At night, the ice weasels come." -- Matt Groening

[ Reply to This | # ]

News Pick commentaries anyone?
Authored by: perpetualLurker on Wednesday, September 01 2010 @ 03:31 AM EDT

Please provide a link!


.......pL........


---
"Love is a snowmobile racing across the tundra and then suddenly it flips over,
pinning you underneath. At night, the ice weasels come." -- Matt Groening

[ Reply to This | # ]

All things Comes go here, please!
Authored by: perpetualLurker on Wednesday, September 01 2010 @ 03:32 AM EDT

And thank you for your help with this!

.........pL........


---
"Love is a snowmobile racing across the tundra and then suddenly it flips over,
pinning you underneath. At night, the ice weasels come." -- Matt Groening

[ Reply to This | # ]

Corrections Here, please!
Authored by: perpetualLurker on Wednesday, September 01 2010 @ 03:33 AM EDT


[Although I didn't see anything... ]

........pL.......

---
"Love is a snowmobile racing across the tundra and then suddenly it flips over,
pinning you underneath. At night, the ice weasels come." -- Matt Groening

[ Reply to This | # ]

Bloomberg sloppiness shocking
Authored by: Anonymous on Wednesday, September 01 2010 @ 05:02 AM EDT

Bloomberg's sloppiness shocked me. They say SCO "won", when in fact all they "won" was another trial, at which they lost everything of importance that was at issue.

Bloomberg sells "proprietary news and business intelligence", at a pretty high price. After seeing this sample of their diligence, I'll never buy their service.

[ Reply to This | # ]

SCO gets more time to file appeal brief regarding its loss to Novell
Authored by: Anonymous on Wednesday, September 01 2010 @ 05:20 AM EDT
Is one of the listed assets 'Goodwill'?

I'm wondering if the $14.8m is an overvaluation.

[ Reply to This | # ]

SCO gets more time to file appeal brief regarding its loss to Novell
Authored by: eggplant37 on Wednesday, September 01 2010 @ 05:25 AM EDT
Just sent a few seconds ago to wrochelle@bloomberg.net:

<p>Hi Bill,

<p>I have to call you out on this one, sir. The facts you reported
regarding <a
href=http://www.bloomberg.com/news/2010-08-30/bear-island-paper-spheris-fairpoin
t-national-envelope-bankruptcy.html>SCO Group v Novell</a> are
completely wrong. Can you do the world a favor, please? Have a read of
Groklaw.net, particularly <a
href=http://www.groklaw.net/article.php?story=20100901013538161>this article
there</a>, then go back, retract what you wrote, and correct it with
something resembling the truth.

<p>If this Bloomberg story is any indicator of your journalistic skills,
one would have to question the truth behind any article you write as a result.

<p>Thanks,

[ Reply to This | # ]

Picking on Bloomberg
Authored by: The Mad Hatter r on Wednesday, September 01 2010 @ 10:36 AM EDT

I feel somewhat sorry for Bloomberg, just as I feel somewhat sorry for an
inexperienced carpenter who hits their thumb with a hammer. You know that
someone who is inexperienced is going to make mistakes. You don't like to see
them hurting themselves, or their reputation doing it, especially when the
correct information is freely available here.

Of course part of the problem is the inaccurate term 'Intellectual Property.'
Copyrights, Trademarks, and Patents are not property, and mistaking them for
property is a bad mistake.


---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

SCO gets more time to file appeal brief regarding its loss to Novell
Authored by: Anonymous on Wednesday, September 01 2010 @ 11:19 AM EDT

That intervention on behalf of SCO happened on this occasion seems likely given that Bloomberg has been more or less accurate in the past, e.g. upon their announcement of the jury trial outcome.

[ Reply to This | # ]

SCO found Blepps briefcase . It was behind the water cooler!!
Authored by: Anonymous on Wednesday, September 01 2010 @ 11:57 AM EDT
Lotsa sekret stuff there.
SSSSSHHHHH.

[ Reply to This | # ]

Validation and Anticipation
Authored by: Anonymous on Wednesday, September 01 2010 @ 12:10 PM EDT
Stuart Singer was pretty much the ONLY lawyer for them
speaking / answering at oral in front of the panel.

They brought thier usual panel but he was the only one to
talk, however he was quite effective and there were a few
other cases that went first that day which I sat through as
well to see a little bit of how things work there.

The way the judges question the attorneys, in the one other
case with a commercial client (a bank on one side, a
bankrupt former business on the other), it was pretty much a
standard practice to have a single person speaking and
answering.

I actually kind of don't like the appeals format. The
attorneys may be allowed to get only a minute or two into their presentation to
the judges before the judges take the
hearing anyway they want it to go. THe down side is that
when one of the judges has a preconceived direction, there
is little ability to counter it at oral.

This is what ended up happening in SCO/Novell the first time
around. McConnell pretty much asked all the questions and
Baldock / Lucero just had a handful each.

Ill be there again this time, if this appeal gets that far.

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

[ Reply to This | # ]

SCO gets more time to file appeal brief regarding its loss to Novell
Authored by: Anonymous on Wednesday, September 01 2010 @ 12:45 PM EDT
Perhaps Bloomberg just copied SCO's spiel word for word. Actually I think Mr
Singer deserves all the credit he gets. He did persuade a lot of people such as
Bloomberg that you could make a silk purse out of a sow's ear. Bloomberg seems
to still believe it!

[ Reply to This | # ]

Plugging the sale
Authored by: YurtGuppy on Wednesday, September 01 2010 @ 01:36 PM EDT

Sounds like a nice story to come out on the eve of a sale.
It beats "nothing left to sell."



---

just swimming round and round

[ Reply to This | # ]

SCO gets more time to file appeal brief regarding its loss to Novell
Authored by: tedavids on Wednesday, September 01 2010 @ 01:41 PM EDT
Am I missing something? I see the request, but not an order granting the
request.

Tom

[ Reply to This | # ]

60 More Documents... In my minds eye
Authored by: GriffMG on Wednesday, September 01 2010 @ 02:37 PM EDT
I see a kind of Bob Dylan approach...
not so much 60 new documents as 60 sheets
of card with a cunning rhyming poemy thing...




---
Keep B-) ing

[ Reply to This | # ]

MORs and Sale
Authored by: kh on Wednesday, September 01 2010 @ 06:38 PM EDT
If SCO was going to seriously sell its assets, shouldn't it file a current
Monthly Operating Report? So everyone knows what's there and how much it's
worth?

[ Reply to This | # ]

the trustee is now selling the assets.
Authored by: Anonymous on Wednesday, September 01 2010 @ 11:31 PM EDT

>> the trustee is now selling the assets.

As I understand the situation it is not selling 'the assets', it is selling part
of the assets. SCOg has apparently excluded from sale the litigation rights
(worth beellions! allegedly) and the Novell collection agency business.

As the agency business is the only bit that has assured income without needing a
development and support team then this is probably more valuable than the
UnixWare business.

Anyway SCOg seems to want to keep the agency business so that it can collect the
royalties and _not_ pass them on to Novell. What's Novell gonna do about that ?



[ Reply to This | # ]

prior art????
Authored by: Anonymous on Thursday, September 02 2010 @ 11:25 AM EDT
What about obviousness - ye gods!!!

[ Reply to This | # ]

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