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Dancing at a Deposition with Kim Madsen
Thursday, April 12 2007 @ 12:53 AM EDT

If you'd like to see a truly great lawyer at work in a deposition, take a look at the snips from the deposition of Kim Madsen, Exhibit 22, with Novell lawyer Kenneth Brakebill asking the questions. It is one of the many exhibits attached to the Declaration of Edward Normand, all in support of SCO's Motion for Partial Summary Judgment on its First, Second and Fifth Causes of Action and for summary judgment on Novell's First Counterclaim in SCO v. Novell.

The Declaration

The setting is that Madsen, who was the manager in the legal department at Santa Cruz under Steve Sabbath, had provided SCO a declaration some two or three months prior, in December of 2006, which you can read as Exhibit 21 in the same bundle with her deposition, stating that it was Madsen's belief that the UNIX copyrights did transfer from Novell to Santa Cruz. The deposition is happening in February of 2007. Here's what the declaration says in pertinent part:

3. In 1995, I was employed as a Manager in the Law and Corporate Affairs group at The Santa Cruz Operation, Inc. ("Santa Cruz"). I worked with substantially with Steve Sabbath, the General Counsel for Santa Cruz.

4. As I explained in my previous Declaration, I participated in the negotiation of Santa Cruz's acquisition of the UNIX and UnixWare business from Novell, Inc. ("Novell") as support Santa Cruz's legal team. I worked with and participated in several meetings and teleconferences with the lead negotiators and others on both sides of the transaction.

5. In this Declaration I explain Novell's retained interest in royalties paid under certain existing agreements under the Asset Purchase Agreement ("APA) dated September 19, 1995, and Amendment No. 1 thereto dated December 6, 1995. The negotiations and drafting of the APA occurred under a compressed time schedule. To avoid delay, the parties executed the APA with the intent to clarify it, as necessary, through an amendment to be executed on the closing date. That amendment was Amendment No. 1 to the APA.

6. Santa Cruz's intent and agreement under the APA and Amendment No. 1 was for Novell to transfer the entire UNIX business, including the UNIX source code and copyrights, to Santa Cruz except for binary royalties paid under the existing agreements pursuant to which UNIX System V (or "SVRX") licensees were paying such royalties, and which Novell conveyed to Santa Cruz under the APA as part of the UNIX business. Santa Cruz also intended and agreed that it would pay part of its revenues earned from the ongoing UnixWare business if Santa Cruz hit certain annual distribution or sales benchmarks through December 2002. Santa Cruz did not intend or agree to remit any other fees, royalties, or amounts under any other existing or prospective agreements.

7. This binary royalty interest that Novell retained was simply a means to lower the purchase price to SCO. My understanding was that Novell had no interest in continuing in the UNIX business at all, and if Santa Cruz could have paid the full purchase price originally proposed by Novell, Novell would not have retained the binary royalty stream or any rights to protect that royalty stream. That context makes it clear that it was the intent of the APA and Amendment No. 1 that Novell retained rights to protect that existing binary royalty stream, but there was no reason or interest for Novell to have broader rights relative the UNIX business and assets it sold Santa Cruz.

8. The language of the APA and Amendment No. 1 reflects the foregoing intent and agreement. Section 1.3(a)(i) of the APA states: "It is the intent of parties hereto that all of the Business and all of Seller's backlog, if any, relating to the Business be transferred to Buyer." Section 1.2(b) of the APA provides that Santa Cruz will pass through 100% of the "SVRX Royalties" as defined and described in Section 4.16(a), and Novell will pay Santa Cruz an administrative fee of 5%. Section 4.16(a), in turn, defines "SVRX Royalties" by reference to the SVRX Licenses listed in the Schedule to the APA listing the assets transferred, Schedule 1.1 (a).

Indeed, Section 1.2(b) specifies: "Seller and Buyer further acknowledge and agree that Seller is retaining all rights to the SVRX Royalties notwithstanding the transfer of SVRX Licenses to Buyer pursuant hereto, and that Buyer only has a legal title and not an equitable title in such royalties within the meaning of Section 541 (d) of the Bankruptcy Code.'' (Emphasis added.) These provisions reflect Santa Cruz's intent that it would remit only the Royalties paid under the licenses transferred, not Royalties from future licenses not yet in existence (and thus not transferred).

9. Section 4.16(a) includes this language: "Following the Closing, Buyer shall administer the collection of all royalties, fees and other amounts due under the SVRX Licenses (as listed in detail under Item VI of Schedule 1.1 (a) hereof and referred to herein as 'SVRX Royalties')." Schedule 1.1 (a) identifies the "SVRX Licenses" by product name and release, which reflected Santa Cruz's intent to refer to the specific product supplements that identified the licensed product and source code right-to-use fees, sublicensing fees, and per-copy distribution fees that applied to the licensed product, which fees were not identified in any other agreement signed by the licensee.

10. As to the reference in Section 4.16(a) to "all royalties, fees and other amounts due under the SVRX Licenses," the parties addressed that part of Section 4.16(a) in Amendment No. 1, which added Section 1.2(e) to the APA. Section 1.2(e) clarified the four categories of fees that Santa Cruz retained notwithstanding Novell's right to receive the binary royalties due under the transferred SVRX Licenses:

  • Sections 1.2(e)(i) and 1.2(e)(iv). Santa Cruz would not remit future revenues from contracts to provide support or maintenance to existing SVRX licensees, nor the binary royalties due under Santa Cruz's own SVRX licenses.
  • Section 1.2(e)(ii). Santa Cruz would not remit source code fees paid under any amendment to an SVRX License granting an additional copy of the SVRX product or the right to use it on an additional CPU.
  • Section 1.2(e)(iii). Santa Cruz would not remit source code fees paid under new SVRX licenses approved by Novell pursuant to Section 4.16(b) of the APA.

Novell had the right to approve new SVRX licenses solely to protect Novell's interest in the existing SVRX binary royalty stream, such as where Santa Cruz might have sold an SVRX licensee a new version of the product (not a UnixWare license) and thereby extinguished the binary royalties due to Novell. If there were any ambiguity on that meaning of Section 1.2(e)(iii), Amendment No. 2 made clear, referring to the APA, that "Novell may not prevent SCO from exercising its rights with respect to SVRX source code in accordance with the Agreement."

11. Amendment No. 1 made clear that Santa Cruz was not prohibited from amending or entering into new SVRX licenses as an incidental part of licensing UnixWare. UnixWare products are built on the prior versions of the UNIX technology. Accordingly, when Novell and its predecessors licensed a UnixWare product, they also licensed all prior products as an incidental part the license. Amendment No. 1 reflected the parties' intent and understanding that Santa Cruz would continue to license the prior UnixWare and SVRX products with its UnixWare licenses without additional approvals from Novell and without remitting any payments to Novell. This was simply consistent with the reality of licensing UnixWare.

12. The APA and Amendments thereto thus reflect Santa Cruz's intent in entering into the APA: Santa Cruz was obligated to remit to Novell only the binary royalties that were then being paid and that would continue to be paid under the existing agreements pursuant to which UNIX System V licensees were paying such royalties, and which Novell conveyed to Santa Cruz under the APA as part of the UNIX business.

13. Novell's rights under the APA and Amendment No. 1 either to approve SVRX licenses or to require SCO to waive or take other actions relative to those licenses related solely to the existing licensees who were paying binary royalties that Santa Cruz would pass through to Novell. Novell had no right to direct SCO to do anything regarding licenses or the UNIX business Novell sold to SCO except to protect the licensing stream that was in place in September 1 995.

14. I understand that Novell also takes the position that the interests it was granted in the APA and amendments thereto to protect the royalty stream it retained gave Novell protection from competition with respect to competitors such as Sun and Microsoft. The APA and its amendments were never intended to afford Novell any such prospective protections. There was never any discussion or agreement of any kind regarding any such competitive protections. In fact, the only non-compete provision in the APA imposed restrictions on Novell to the benefit of Santa Cruz.

15. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed: December 1 1,2006

[signature]
Kimberlee Madsen

The Deposition

So that is the starting point, and it sounds pretty strong and impressive, but by the end, as you'll see, Brakebill's gotten the witness to admit that in fact no one ever said a word about copyrights one way or another. It was just assumed, according to this witness, that they would transfer, and everyone on the Santa Cruz negotiation team just assumed it in unspoken ways. And the witness is simply unable to replicate what she said in the declaration in her deposition, leaving the impression, at least in my mind, that it was written for her by the SCO lawyers, and that she was used as a handy vessel to say what they needed someone to say.

Of course the witness seems to have no clue that saying there were no conversations at all about copyrights means the copyrights didn't transfer, or more accurately it means her testimony doesn't help show that they did. But Brakebill knows it, and I've little doubt that SCO's attorney in attendance, Edward Normand, was chewing on Tums for his tummy.

Joke. Joke. Assumes facts not in evidence.

But in the movie about this case, that's what I see him doing about midway through the deposition. You'll see him objecting quite a lot. The witness never seems to catch on, however. But when your lawyer is popping up and down, objecting like this, it might just mean you should take a little time to ponder before you answer and that maybe he thinks you are entering deep waters.

If you wish to compare with the APA itself, you'll find it and all the amendments on our permanent Contracts page. The entire deposition segment is well worth reading for the subtleties, but here are the pertinent bits, with my comments interspersed in colored text:

Brakebill: Why don't you turn to Exhibit 51, which is your declaration, and I'll ask you to look at whatever you feel comfortable to look at, but I believe that paragraphs 8 -- 8 through 12 related to your beliefs concerning UNIX ownership.

Madsen: Yes.

Normand: Objection to form.

Madsen: I don't know. I don't remember which specific provisions. And I'd be happy to take the time to review this document if you want me to do that.

Brakebill: I'll give you the opportunity in due course. I'm trying to test your memory aside from having the document in front of you right now. You gave the declaration on UNIX ownership two months ago, is that right?

Normand: Asked and answered.

PJ: Note that Normand already sees where Brakebill is going, and he's trying to send the deponent a clue that the question is setting up to demonstrate that she certainly can't retain info very long, not two months even, so how does she recall what happened in the mid-90s? Also, if she says something like, I think it was three months, or I can't remember exactly, that helps him too.

Madsen: November 4th.

PJ: The cluetrain didn't reach the station. And as you can see on the declaration, it was December 11.

Brakebill: In the last two to three months you gave a declaration in which it was your personal belief that UNIX copyrights did transfer from Novell to Santa Cruz as part of the asset purchase agreement, correct?

Madsen: Correct.

Brakebill: And what provisions, if any, were you relying upon for your personal belief that the UNIX copyrights did transfer?

PJ: Methinks he suspects that the complex legal language in her declaration didn't spring from her own thoughts and personal beliefs, but maybe from SCO's lawyers.

Madsen: Well, I relied on the description of the business in 1.1(a) and the recital A. I don't recall which other provisions I may have relied on, but I also relied on my recollection of the transaction and the negotiations surrounding the transaction, the conversations with Novell as to what they were conveying and the internal conversations as to what we believed we were buying.

PJ: First, read the declaration again very carefully. Do you see a description of the business in "1.1(a) and recital A" as the provisions the declaration was based on? Note also that this answer opens a door, one that Brakebill had not asked her about. The question was, what *provisions* in the document did you rely on. The answer is, I forget but I do remember *conversations*, so watch as he walks right through that volunteered open door.

Brakebill: So to make sure that I understand your testimony...

PJ: When you hear that, run for the hills. Any time a lawyer tries to get you to say the same thing a different way, he is hoping you goof and contradict yourself. Or he hopes to close the opportunity for you to say you mispoke, if you don't. It's a sign he thinks you've said something useful to him, not you.

Brakebill continued: ...the provisions that you right now can point to in support of your belief that UNIX copyrights did transfer from Novell to Santa Cruz are recital A in section 1.1(a) of the asset purchase agreement, is that correct?

PJ: First, he's making her state firmly that this is the provision, even though the declaration mentions others instead. He would naturally like her to stand firmly on this new dime. You didn't have any other provisions to base your testimony on, he's asking? The declaration, as you've seen, is quite a bit more elaborate and mentions other sections, but not 1.1(a), only Schedule 1.1(a). Note Normand steps in instantly.

Normand: Objection to form.

Madsen: The provisions that I can point to in the absence of reading the agreement afresh, yes.

PJ: So there's the first admission of weakness. She can't remember much, she definitely doesn't recall what she wrote and signed under penalty of perjury two months prior as being the basis for her belief the copyrights transferred, yet she is testifying as to what happened a decade ago and what all the clauses in the declaration meant. Further, it's now pretty clear she didn't come up with the thoughts in the declaration herself. It might have been wise to refresh her recollection by rereading the document; if in fact she did that, then for sure the lawyers came up with the contents.

Brakebill: And how, if at all, do you believe that recital A and section 1.1(a) of the asset purchase agreement...

PJ: You see a killer at work. He does not quote from the declaration, or tell her, "but in your declaration you mentioned the following sections instead" and not that one. He asks her to explain the current thin dime on which she has precariously perched herself.

Madsen: And schedule 1.1(a), which is referenced in section 1.1(a).

Brakebill: How do you believe that recital A, section 1.1(a), and section 1.1(a) influenced your personal belief that UNIX copyrights did transfer from Novell to Santa Cruz?

PJ: Having gotten one admission that this is her only basis, this one part of the agreement, and gotten her to repeat it as being the basis for her belief, and at least referencing one section she did in fact cite in the declaration, now he moves the pawn one square forward, asking for an explanation of the meaning of the language relied upon. Here is the language of the section I believe she now is claiming she is relying on, Recital A, then section 1.1(a), followed by the schedule section 1.1(a) referenced:

RECITALS

A. Seller is engaged in the business of developing a line of software products currently known as Unix and UnixWare, the sale of binary and source code licenses to various versions of Unix and UnixWare, the support of such products and the sale of other products which are directly related to Unix and UnixWare (collectively, the "Business").

Next Section 1.1(a):

1.1 Purchase of Assets

(a) Purchase and Sale of Assets. On the terms and subject to the conditions set forth in this Agreement, Seller will sell, convey, transfer, assign and deliver to Buyer and Buyer will purchase and acquire from Seller on the Closing Date (as defined in Section 1.7), all of Seller's right, title and interest in and to the assets and properties of Seller relating to the Business (collectively the "Assets") identified on Schedule 1.1 (a) hereto. Notwithstanding the foregoing, the Assets to be so purchased shall not include those assets (the "Excluded Assets") set forth on Schedule 1.1 (b):

And Schedule 1.1(a) reads like this:

Schedule 1.1(a) Assets (Page 1 of 4)

1. All rights and ownership of UNIX and UnixWare, including but not limited to all versions of UNIX and UnixWare and all copies of UNIX and UnixWare (including revisions and updates in process), and all technical, design, development, installation, operation and maintenance information concerning UNIX and UnixWare, including source code, source documentation, source listings and annotation, appropriate engineering, notebooks, test data and test results, as well as all reference manuals and support materials normally distributed by Seller to end-users and potential end-users in connection with the distribution of UNIX and UnixWare, such assets to include without limitation the following:...

V. Intellectual property - Trademarks UNIX and UnixWare as and to the extent held by Seller (excluding any compensation Seller receives with respect of the license granted to X/Open regarding the UNIX trademark).

The list includes licenses, claims, binaries, etc. but in the Intellectual Property category, no copyrights are listed as transferring.

Madsen: Because all right, title, and interest... let me get the language here, in and to the assets relating to the business, which is UNIX and UnixWare, were being conveyed to SCO. And included in that would have, of course, been the copyrights.

PJ: This is SCO's theory in a nutshell, that of course all assets means all assets, and that would have to include copyrights. There is no "of course" for Mr. Brakebill, however. So having pinned her to just this one portion of the agreement, and the *assumption* that it must mean copyrights, if it said "all assets", although it doesn't list copyrights, he is ready to advance another square.

Brakebill: And did you understand that in section 1.1(a) of the asset purchase agreement that ... I'll refer you to the last sentence, that notwithstanding schedule 1.1(a) the assets to be so purchased shall not include the assets set forth on the schedule 1.1(b)?

PJ: Uh oh. Iceberg ahead. The wording of Schedule 1.1(b) includes this language:

Schedule 1.1(b) Excluded Assets (Page 2 of 2)

V. Intellectual Property:

A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.

B. All Patents

The witness already said that only 1.1(a) formed the basis of her belief, and here is Mr. Brakebill pointing out 1.1(b), referenced in 1.1(a), which specifically says excluded assets were IP, both all copyrights and trademarks except for UNIX and UnixWare, the language we saw in the board meeting resolution, and all patents. And here, up stands Mr. Normand.

Normand: Objection to form.

Madsen: Yes.

Brakebill: And notwithstanding the excluded assets provision from section 1.1(a), is it still your personal belief that the UNIX copyrights did transfer?

Madsen: Yes.

Brakebill: From Novell to Santa Cruz?

Madsen: Yes.

PJ: This, of course, makes no sense, which is why he asked her to say it twice. Brakebill sees an opportunity.

Brakebill: And why is that?

PJ: Of course, there is no sensible way to explain why this plain language means the opposite of what it says. Here's Normand. He sees what the witness apparently does not. In any case, the witness appears to be like a deer in headlights.

Normand: Objection to form, asked and answered.

Madsen: Because it's clear ...

Brakebill: Let me put it this way. Aside from recital A...

Madsen: Yes.

Brakebill: ... aside from section 1.1(a) in schedule 1.1(a), is there any other reason for why you believe that the assets to be so purchased shall not include the assets set forth in schedule 1.1.(b)?

PJ: Here, I believe he's asking a trick question. If she goes along with his thought, she'll say the excluded assets were indeed excluded. And in any case, he is opening the door to get the witness to talk about what conversations there were by asking if there is any *other* basis, and he's also letting the witness reiterate her incomprehensible position, if she wishes, despite 1.1(b) being indeed clear and quite contradictory.

Madsen: I didn't understand the question.

PJ: Either that or the witness now realizes that she will step into quicksand no matter what she says and wishes to think a while. If you are not a lawyer, no matter how much you've been around lawyers, they will always think over your head. This is what you are watching in this deposition. The relentless Mr. Brakebill continues calmly forward.

Brakebill: Aside from recital A, aside from section 1.1(a), and aside from schedule 1.1(a), is there any other basis for your opinion that schedule 1.1(b) does not operate -- that schedule 1.1(b) does not exclude UNIX copyrights from the assets to be sold?

Normand: Objection to form, asked and answered.

Madsen: Yes. As I said before, I also recall the conversations and discussions with Novell as to what the intent of the transaction was, what they intended to convey, what SCO intended to purchase.

Brakebill: And what did Novell convey to you regarding what was going to be conveyed to Santa Cruz with regard specifically to UNIX copyrights?

Normand: Objection to form.

Madsen: I do not recall a specific conversation regarding copyrights, but Novell conveyed that they were clearly divesting themselves of the UNIX business. They had no interest in the UNIX business in retaining any interest in the UNIX business except to the extent that it related to Netware.

And they were very clear about what they were not conveying, which were the patents. And they were clear about a transaction that they had entered into with X/Open regarding the trademark so at no point did they say, "Oh, by the way, we're not giving you the copyrights."

PJ: The witness may think this is helpful. But the only parts that matter are the sections I marked in red. Not a word about copyrights was spoken, so that means SCO must have a writing to prove the transfer, since oral testimony from this witness is useless. And the witness just testified that all assets transferred, yet here the same witness says patents and some trademarks did not. So the hole just got deeper. If others now claim that there *were* conversations about copyrights to buttress SCO's claim, her testimony stands in their way. She says there weren't any. So Brakebill decides to dig a bit deeper.

Brakebill: At any point in time did Novell, anyone from Novell, say to you, "We're going to transfer the UNIX copyrights to Santa Cruz"?

Madsen: No, I don't recall that. It was assumed by everyone that, of course, the copyrights were accompanying.

Brakebill: There were no express words from anyone from Novell to you saying Novell is going to transfer the UNIX copyrights to Santa Cruz, correct?

Normand: Objection, asked and answered.

Madsen: That's correct.

PJ: Imagine how Brakebill is now feeling. This declaration is now truly undone, nay, SCO's entire theory on this point. No one ever even discussed copyrights, so how will SCO now prove intent, even if the judge thinks the agreement is so unclear he wants to listen to testimony about what they intended? (He'll go by the writings alone, unless they are not clear, in which case he will ask those who were there what they intended, and now she says they all just assumed but never actually discussed copyrights.) How do you know anyone's intent, if it was unspoken? You might have forgotten to write something down, but how can SCO explain not even talking about it?

Brakebill: Now, you mentioned patents. If you could turn to schedule 1.1(b) of Exhibit 1 and look at Roman V on Exhibit 2. Roman V(b) says "all patents." Do you see that? Is it your understanding that that relates to all UNIX patents?

Normand: Objection to form.

Madsen: I don't remember which patents there were. I remember a conversation with Ed Chatlos and I believe Burt Levine that they would not be transferring any patents....And some of the patents had been retained by AT&T, the original owner of the UNIX technology, so they weren't Novell's to transfer.

PJ: Holy Batcave, this is interesting. So, Novell didn't get all the assets from AT&T, then? Hmm. It makes a girl wonder if there is anything else that AT&T retained. And it clarifies that buying all the assets or the whole business, as Novell was described as having done, doesn't necessarily mean all of the IP, which tells us that it is possible to run a software business without owning all of the IP, which is one of the main arguments SCO has been trying to make in opposition to that idea. Do you see now why volunteering information to a lawyer deposing you isn't a good idea?

Brakebill: Do you believe that Novell had no rights in UNIX patents at the time it was entered into the Novell-Santa Cruz transaction?

Normand: Objection to form.

Madsen: I don't know. I know that some were retained by AT&T but I don't know that some may have been transferred to Novell. I don't recall that.

Brakebill: But it is your understanding that no UNIX patents were being transferred from Novell to Santa Cruz?

Normand: Objection to form, mischaracterizes her testimony.

PJ: Actually, I don't think it does, because the testimony was that Novell had no patents to transfer, but I guess he's referring to the later statement that maybe Novell got some from AT&T.

Madsen: I'm not sure what you mean by patents. No patents relating to specific areas of the UNIX technology. There is no, to my knowledge no broad patent over all of UNIX. It wouldn't be patentable, I don't believe, but there were no patents relating to the UNIX assets being transferred, being conveyed to SCO.

PJ: So, it's all set up nicely for him now, and Brakebill goes in for the closing piece.

Brakebill: If someone were to make a statement that Novell transferred all UNIX intellectual property to Santa Cruz, is it your understanding that that statement would be incorrect?

Madsen: I'm sorry?

PJ: The cluetrain just arrived at the station, and the witness realizes, apparently, that without patents, *all* UNIX intellectual property couldn't have transferred, which brings the witness back to the original basis for belief that copyrights must have been conveyed because they must have, since *all* assets were conveyed. But all assets were not transferred. Uh oh. Mommy, mommy! He asks her again.

Brakebill: If someone were to make the statement that Novell transferred all UNIX intellectual property to Santa Cruz, would that be an incorrect statement?

Normand: Objection to form, calls for speculation.

Madsen: I don't understand the question.

PJ: Heh heh. Right.

Brakebill: If someone were to say that Novell transferred all intellectual property relating to UNIX to Santa Cruz, do you have a view as to whether or not the statement would be correct?

PJ: This is a question you can't answer and win. If she says no, I have no view, then it contradicts what this witness already said was her view. If you say yes, I have a view, what in the world can the witness say now that won't contradict what she said before, and thus destroy all basis for the claim that the copyrights had to have been conveyed? Yes. Mr. Brakebill knows that. As does Mr. Normand.

Normand: Objection to form, calls for speculation.

Madsen: I don't think I can answer that question. I don't know which patents there may have been. So if you're including that in your definition of intellectual property, then that would have been excluded. But I believe Novell also, we licensed back to them certain rights. So I don't know if that fits into your definition of conveyance of intellectual property. So I'm sorry. I can't answer that.

PJ: I think a better answer would have been to stop after the first sentence, and let the lawyer ask why not. Here the witness has introduced another angle, the license back to the company that the witness claims had said had no further interest in UNIX or in having a UNIX business any more.

Brakebill: Is it your understanding that the business that was being sold was a UNIX business?

Madsen: Yes.

...[Brakebill shows the witness attachment D of Exhibit 1, "Seller's Patents and Patent Applications Affecting the Business?"]...

Brakebill: I take it you would agree that none of these patents were transferred to Santa Cruz as part of the deal?

Normand: Objection to form.

Madsen: I believe that's correct.

Brakebill: Now in your declaration which is on Exhibit 51...

Madsen: Uh huh.

Brakebill: ... in paragraph 8 you say, "It was never agreed or even discussed that Novell would be retaining any copyrights to UNIX." Do you see that?

Madsen: Yes.

Brakebill: Again, you didn't have any discussions with anyone at Novell where they told you that UNIX copyrights were being transferred, correct?

Normand: Objection to form and asked and answered.

PJ: Normand, of course, knows what the next line of question will be, namely if they ever had any conversations that said that they would be conveyed.

Madsen: I don't recall any conversations with Novell pertaining to copyrights.

PJ: Bingo! They can all go home now. A master at work. Of course, it continues, as Brakebill twists the knife.

Brakebill: Were you part of any conversation between Santa Cruz representatives and Novell representatives where Santa Cruz put the question to Novell, "Can you transfer the UNIX copyrights to us?"

Normand: Objection to form.

Madsen: No, I don't recall that.

Brakebill: Are you aware of any conversations that may have taken place between Santa Cruz representatives and Novell representatives where anyone from Santa Cruz asked Novell to give them the UNIX copyrights as part of this deal?

Normand: Objection to form.

Madsen: No, I do not recall any conversation regarding the copyrights. It was assumed that the copyrights came with the business, but I do not have any specific recollection about a conversation regarding copyrights.

Brakebill: So it's fair to say that you were assuming that the UNIX copyrights were being transferred?

Normand: Objection to form.

Madsen: I don't believe that was my assumption alone, but yes, I was assuming that.

PJ: Again, the witness says too much, volunteers a piece that can only hurt that side, that others too were merely assuming. Of course, Brakebill doesn't miss this new opportunity. The better answer would have been, "yes". Skip the flowers. Skip the helpful explanations. It doesn't matter what the attorney thinks of you, only what you say.

Brakebill: And I take it it's your view that other members of the Santa Cruz negotiating team were assuming that the UNIX copyrights were being transferred to Santa Cruz, is that correct?

Normand: Objection to form, calls for speculation.

Madsen: I believe it was the understanding of SCO and Novell that the copyrights would follow with the business.

Brakebill: I'm just asking about Santa Cruz right now, okay? Is it fair to say that it's your view that other members of the Santa Cruz negotiation team were assuming that the UNIX copyrights were being transferred to Santa Cruz?

Madsen: Yes, that's my understanding.

See what I mean? This witness has just stated on the record that nobody had a clue, nobody even talked about copyrights. That certainly doesn't help SCO, and I'm truly mystified why it attached this deposition to its summary judgment motion.

Brakebill asks more questions, and one of them includes the information that prior to the APA, Santa Cruz had no SVRX license with Novell, and hence had no rights relating to UNIX System V. The deposition cuts off at that point, so I can't figure out what that is about, but I highlight it because some of you may see the significance even if I don't.

My comments are not to make fun of the deponent. I would probably do no better. There really is no way to outthink a brilliant lawyer. It's what they do for a living: outthink the rest of us.


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