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Judges, Date Chosen for SCO v. Novell Appeal: Jan. 20th
Monday, January 10 2011 @ 06:16 PM EST

The Tenth Circuit Court of Appeals has announced its schedule [PDF] of cases and judges assigned for the January 2011 term of the court. Page 11 shows that the SCO v. Novell appeal oral argument is scheduled for Thursday, January 20th in Courtroom IV before Justices O'Brien, Seymour and Holmes.

Synchronize your watches, and if you need to book a flight, now you know the day to arrange for. SCO is listed last for that day, but call the court if you plan to attend to verify closer to the date.

I'm assuming that O'Brien, Seymour & Holmes would be:

Judge Terrence L. O'Brien

Senior Judge Stephanie K. Seymour

Judge Jerome A. Holmes

So none of the three judges who heard the first appeal, Justices Lucero, Baldock and McConnell, will hear this one.

If you go, please be sure to take copious notes. If there are several of you in attendance, assign one person to watch interactions, facial expressions, general tone and theme, while others take the more detailed notes. Be sure you know the local rules about what can and can't go into the courtroom and obey the rules, please. This oral argument is very important to cover, because the 10th Circuit doesn't normally release transcripts.


Judges, Date Chosen for SCO v. Novell Appeal: Jan. 20th | 188 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: The Mad Hatter r on Monday, January 10 2011 @ 06:36 PM EST

The SCO Group is the gift that keeps on giving. Unfortunately.


[ Reply to This | # ]

Short Notice?
Authored by: rsteinmetz70112 on Monday, January 10 2011 @ 06:37 PM EST
This seems like awfully short notice for the Judges to get up to speed on this

While they may have known for some time it still seems like a lot of record to
review in a short time, plus they all have other cases to prepare for as well.

Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Off Topic threads
Authored by: The Mad Hatter r on Monday, January 10 2011 @ 06:38 PM EST

Please stay off topic in these threads. Remember to put something in the Title
box to indicate your topic. Use HTML Formatted mode to make your interesting
links clickable.


[ Reply to This | # ]

Corrections Thread
Authored by: The Mad Hatter r on Monday, January 10 2011 @ 06:39 PM EST

Please summarize in the Title box error->correction or s/error/correction/ to
make it easy to scan the list of errors that have already been noted.


[ Reply to This | # ]

News Picks Thread
Authored by: The Mad Hatter r on Monday, January 10 2011 @ 06:40 PM EST

Talk about New Picks articles here. Remember to put the title of the News Pick
in the Title box and include a clickable HTML link to the article in your
comment for the convenience of the reader once the article has scrolled off the
News Picks sidebar.


[ Reply to This | # ]

None of them from Utah
Authored by: Anonymous on Monday, January 10 2011 @ 06:42 PM EST
Why do I feel a certain comfort from that?

[ Reply to This | # ]

Comes goes here
Authored by: The Mad Hatter r on Monday, January 10 2011 @ 06:42 PM EST

Keep those COMES transcripts and summaries coming. Please post the transcript in
Plain Old Text mode but with the HTML code embedded in it to make it easy for PJ
to copy and paste.


[ Reply to This | # ]

10th Circuit doesn't normally release transcripts. ... hmmm
Authored by: SilverWave on Monday, January 10 2011 @ 06:54 PM EST

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 | # ]

This isn't news
Authored by: Anonymous on Monday, January 10 2011 @ 07:38 PM EST
Isn't this just confirmation of the date we were already given on 23 Nov 2010
(see Novell Appeals in the menu on the left)?

[ Reply to This | # ]

Time limits?
Authored by: Anonymous on Monday, January 10 2011 @ 08:08 PM EST
If they're trying to handle five appeals that day (that morning?), they almost
have to set some time limits on how long each side can blather. How long does
each side have?


[ Reply to This | # ]

How Many More?
Authored by: Anonymous on Tuesday, January 11 2011 @ 02:47 AM EST
When this court gives SCOx a new trial and SCOx loses again,
how many more times can SCOx do this?

[ Reply to This | # ]

Microsoft, Apple, Oracle, EMC consortium plan withdrawn By Jennifer Baker
Authored by: SilverWave on Tuesday, January 11 2011 @ 02:33 PM EST
Microsoft, Apple, Oracle, EMC consortium plan withdrawn By Jennifer Baker

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 | # ]

Can they now agree the appeal is without merit?
Authored by: Oliver on Tuesday, January 11 2011 @ 03:11 PM EST
Now there are judges assigned, can they sit down and decide
that they don't need an oral hearing? Or have we already
passed that point? As I recall it had to be unanimous.

[ Reply to This | # ]

Judges, Date Chosen for SCO v. Novell Appeal: Jan. 20th
Authored by: Anonymous on Thursday, January 20 2011 @ 04:42 PM EST
I'm putting together a report from this morning's argument.


[ Reply to This | # ]

Judges, Date Chosen for SCO v. Novell Appeal: Jan. 20th
Authored by: SPQR on Thursday, January 20 2011 @ 04:55 PM EST
Since I was in Federal Court earlier that morning, I was able to walk over to
the 10th Circuit for oral argument.

The Panel was Senior Judge Seymour, Judge Terrence O'Brien and Judge Jerome

Judge O'Brien appeared to be the Presiding Judge of the panel.

I had arrived for the 9AM start of the panel's oral argument calendar. The
first three arguments on the calendar were criminal appeals. I only mention
this because it gave me a chance to watch the panel as it heard argument.
During the three earlier arguments, Senior Judge Seymour and Judge O'Brien would
make few comments or questions, and their comments or questions seemed to
indicate pretty clearly their thinking on the appeal in front of them. (With
the caveat that you can't necessarily rely upon those impressions at oral
argument). Judge Holmes was by far the most aggressive questioner of the panel
on the earlier arguments. Further, it would ask pointed, barbed questions of
both sides of each panel and never gave me a clue which side of each appeal had
his favor during oral argument. All of the panel were courteous to the counsel
arguing before them, gave nearly all a comfortable amount of time after time was
technically expired and were the kind of polite judges I enjoy appearing in
front of myself.

That said, when SCO v. Novell was called, after putting his appearance for SCO
Group on the record, Stuart Singer started to make an opening argument that I
could not clearly hear, when Judge O'Brien rebuked him in the middle of his
opening sentence. I missed exactly what he was being rebuked for saying, but
Judge O'Brien sharply told him not to pursue it. Throughout Singer's time,
Judge Seymour kept reducing his arguments to being of an argument about a
factual dispute, versus a legal issue, and getting him to concede such. Judge
Seymour seemed to be telegraphing that she saw no legal issue per se in SCO's

Stuart tried to claim that the triable issue at trial was solely exactly what
copyrights were “required” to operate the UNIX business, that the previous 10th
Circuit opinion stated that the trial was only about that and that there was no
evidence at trial that separated out individual copyrights – therefore SCO was
entitled to them all. The panel queried him sharply on each of the prongs of
his argument. Singer's quotation of the opinion in support of his claim that
that was the 10th Circuit's previous holding was disputed by Judge Seymour who
appeared to not appreciate how Singer was quoting the case. She quoted from the
opinion pointing out that what Singer had cited was in fact the previous panel
characterizing SCO's argument. This did not seem to endear Singer to her if not
the rest of the panel.

Singer's argument that all of the copyrights were required for operating the
UNIX business depended on his skipping to “defending” the IP as essential to the
operating the business. The panel challenged that argument as well. Both Judge
Seymour and Judge Holmes got Singer to admit that SCO could sue for infringement
of the code that SCO added to SVRX. Judge Holmes specifically got Singer to
admit that SCO's “flavor” of Unix was licensable with the rights they had
obtained without owning the copyrights themselves.

Novell's Michael Jacobs got a far friendlier reception by the panel even
including Judge Holmes. He made the point that SCO's argument depended on
“overreaching” of the earlier panel decision and that SCO had not attempted to
limit the trial to just what copyrights were “required” to operate the business
but had opened up the entire trial to whether or not copyrights in total were
transferred. Jacobs also reinforced Judge Seymour's concerns with how Singer
was quoting the earlier decision, pointing out that the sections he quoted were
really in context of the earlier decision discussion of whether or not the APA
met the requirements of section 204a of the Copyright Act (a writing being
required to transfer – the Copyright Act's version of the statute of frauds ).

Jacobs reinforced the panel's own observations about the SCO's issues being
reduced to factual disputes – again with the inference that such were not
properly appellate issues.

Somewhere, a reference to the APA referring to the transfer of “seller's legal
claims” popped up ( I missed where), Jacobs pointed out that SCO had amended its
complaint to allege that Novell itself had infringed SCO's copyright and that
such an act was inconsistent with relying upon the assertion that the APA had
transferred Novell's “legal claims” since it had no claim of infringement
against itself.

Overall, the entire panel seemed very well prepared for the argument and seemed
to very clearly understand the distinction between UNIXWARE and SVRX and would
challenge Singer when he conflated them. Judge Holmes was less active in
proportion to his contributions in earlier arguments with Judge Seymour
questioning more in proportion to her earlier contributions of the day. Coming
out of the argument, Michael Jacobs was in a good mood and Stuart Singer was
less pleased.

[ Reply to This | # ]

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