I assumed the SCOfolk would take us into the mud puddle before the summary judgment motions were done, and so they do. Here is the Declaration of Lee Johnson [PDF], purportedly a friend of David Bradford's, who has provided a declaration on Novell's side of the copyright ownership issue. It was Bradford who said:
The Asset Purchase Agreement means what it says: copyrights were not included as an asset; copyrights were specifically excluded from the asset transfer. The exclusion was intentional. Should any persons suggest otherwise, they are mistaken.
SCO would like to undermine this testimony, and they use Mr. Johnson for that purpose.
Mr. Johnson, who tells us, without specificity, that he has been a shareholder over the years in both SCO and Novell and wants them both to succeed, without telling us if he presently would gain if SCO won the lawsuit, relates that he and Bradford go way back, to 1987, and Bradford, he claims, has repeatedly told him that he wasn't that involved in the APA deal, he charged others with that task, and that he can't remember it. Johnson says he challenged Bradford about his declaration, and Bradford apparently left a voice message, which his "friend" retained for use in this lawsuit, apparently, stating that while he earlier said he couldn't remember "any of this," after reviewing the documents, he'd decided that it must have been the way he related it in his declaration.
This smarmy act of "friendship" -- what *is* in the water in Utah? -- is for the purpose of undermining Bradford's declaration by publicly implying he is a liar. However, if you remove the ugly twist on things, they say pretty much the same things. Twice Bradford has told this "pal", even by Johnson's own statement, that after reviewing the documents, which obviously is how one refreshes one's memory, he is now convinced that Novell retained the copyrights.
That happens in trials all the time. A witness may say something and the lawyer asking the questions may suggest that he review a document to refresh his memory. He hands him the document, the witness reads it, and then the lawyer will ask, "Does that refresh your memory?" And many times the witness will say that it did, and will go on to explain. The fact that the witness needed to refresh his memory isn't the same as saying that he needed to create one. And that refreshed memory will be accepted as being honest and as accurate as the witness can provide, unless there is other evidence to the contrary. My point is that refreshed memories are valid in any court. Obviously at one time Bradford had some involvement, because he was the executive in charge, the guy who hired the Wilson, Sonsini attorney, Tor Braham, and gave him instructions. Johnson says that from 2003 on, Bradford said he couldn't remember those long ago events. But after reading the APA, the wording is clear. And it refreshed his memory. That's how I take it, anyway. I wasn't involved in the deal, and I read the document and can see the intent.
I'd certainly love to hear Bradford's side of this story, and I doubt the friendship is quite what Johnson represents, but I also doubt the judge will care much. Bradford's chief testimony is in regard to the Novell board meeting the night before the APA was signed, and the notes of that meeting are extant, and the notes say that Novell would retain the copyrights, because Santa Cruz couldn't pay the full price, so even if you undermined his words, the document is still there confirming them. Bradford's declaration is very clear that he hired Tor Braham to do the actual drafting of the APA and gave instructions to Tor, who has provided a very strong declaration himself. So that is actually consistent with what Johnson says, just minus the ugly twist.
Now if some mole-"friend" of Tor Braham were to surface, I might wake up and take it more seriously, but this seems to be smarm for no gainful purpose, which doesn't, sadly, surprise me.