At last! First word arrives. I have quick notes from Chris Brown, one of our eyewitnesses, and there is the following court entry on PACER:
#530 Bench Trial - Begun
Minute Entry for proceedings held before Judge Dale A. Kimball: Bench Trial held on 4/29/2008. Trial opened at 8:30 AM with all parties present. Both parties invoked the witness exclusion rule. Opening statements were made by Mr. Jacobs and Mr. Singer. Testimony of witnesses was heard and evidence rec'd. Depositions of Joseph LaSala and Christopher Sontag were published. Court recessed at 2:08 PM. Attorneys for Plaintiff: Stuart Singer, Edward Normand, Brent Hatch, Jason Cyrulnik; Attorneys for Defendant: Michael Jacobs, Eric Acker, David Melaugh. Court Reporter: Becky Janke/Kelly Hicken. (kmj)
So, no David Boies.
From Chris Brown:
Opening statements by both sides, a couple of witnesses, a couple of breaks, and a LONG day. I'm going to put some stuff together for you though. I took a LOT of notes, but if they're doing dailies you can get the details tomorrow.
Today's witnesses were Novell's Mr. Joseph LaSala and SCO's Chris Sontag. Poor Chris Sontag spent half the day on the stand. He was visibly worn out by the end of the day. And yet, he'll be back in the morning.
So, stay tuned. Lots more to come, first from our eyewitnesses, and then, if I've understood Chris correctly, then from daily transcripts. Yay!
Update: We have another first-hand report from an eyewitness for whom this was the first visit to this courtroom. This is what particularly stood out:
The courtroom is small compared to other courtrooms I have previously been in. There are only four small rows in the public area. One row was mostly filled with boxes and AV equipment. The public area had 20 to 25 people in it and was mostly filled. Court went from 8:30 AM to about 2:10 PM with two 15-minute breaks and no lunch. Michael Jacobs and Eric Acker argued for Novel, and Stuart Singer and Edward Normand argued for SCO.
The Novell legal team was very polished and clear. They knew what they wanted to say and had their exhibits well-organized. Their AV support person was very quick with the on-screen documents and video clips. He was very quick displaying documents when redirect was happening too. I enjoyed watching Michael Jacobs and Eric Acker lay out their case. They were a delight to watch. The Novell team was very focused on what was happening in court and did not talk much among themselves.
The SCO legal team were somewhat late in getting everyone in to the courtroom. One of the SCO team kept running out to the hall to get binders and documents from a large pile of boxes. On the first break they brought in 10 or so boxes. When leaving there was still a pile of boxes in the hall. All of them might not have been SCO's.
The SCO team was not as polished or as structured in their arguments. There was also a lot of talking/whispering among the SCO legal team. Stuart Singer and Edward Normand performed their duty fine, but both were impeded in their presentation while documents were hunted for and/or delayed in being displayed on the AV system.
Judge Kimball was mostly all business. He did not say much. There was some confusion about entering exhibits into evidence. There was an agreement to waive objections to the admission of exhibits listed on Attachment A in the First Amended Joint Pretrial Stipulation. Then there was one exhibit that Mr. Jacobs felt Mr. Singer might object to, which Mr. Singer then agreed to enter into evidence. This set up an exchange between Judge Kimball asking Mr. Jacobs on almost all other exhibits if he wanted to enter it into evidence. Mr. Jacobs did not let it interrupt his presentation.
Only two witnesses, Joseph LaSala and Chris Sontag, appeared. Mr. LaSala was very businesslike talking about various letters sent between SCO and Novell concerning SCOsource and auditing SCO's licensing. Chris Sontag was somewhat combative. He resisted answering yes or no questions. Mr. Acker had to repeat and/or restate most of his questions just to get a suitable answer so he could move on to the next question. Mr. Sontag looked to be worn down by the end of the day.
I was worn out myself and had to take a long break before writing this report.
Update 2: Here's Chris's longer report. He took 19 pages of notes for us, and here's the distillation:
I'd normally start by saying I'd just returned from the courthouse...
but no, I left the courthouse about an hour an a half ago in possession
of 19 pages of notes, and just a little "burned out". It was a long
day, very few surprises, but some nice tidbits of information from
First, what does Novell want? $19,979,561.00. Yeah, that precise,
and they'll show us the numbers for it. SCO? They want to keep it, or
only give Novell a "de minimis" amount.
In accordance with the agreement between the parties, and for the
purposes of this trial, Novell is the plaintiff and SCO the defendant.
Seating and order of arguments were in accord.
Michael Jacobs made the opening comments for Novell stating that they
seek the recovery of $19,979,561 from SCO based on its licenses to
Microsoft, Sun, and others. He focused on four points, that SCOsource
is SVRX, SCOsource licenses convey substantial SVRX rights, Unix
licensing practices do not help SCO, and that SCO, as Novell's
fiduciary, has failed to apportion revenue to Novell. He said he will
prove SVRX rights were substantial and that we can learn from history
what incidental SVRX licensing looks like.
Unlike previous hearings, the AV media system was set up for both
sides to use the same projection screen with multiple monitors for
Novell, SCO, Judge Kimball, and witnesses. During the day it was used
extensively to display charts, documents, and deposition video clips.
For the first point, Mr. Jacobs put up a slide depicting Unix variants
in the form of a tree. Branches showed variously SGI, AIX, HPUX,
Solaris, UnixWare, OpenServer, etc. The trunk was labeled (as if from
SCO's perspective) as "SCO IP (Unix)" and made clear this was the
legacy code base. He described how the SCOsource campaign is to "Mine
Displayed next was SCO's May 12th, 2003 letter to Fortune 1000
companies and it was described as having as its purpose to scare or frighten the Linux
user base. However, (displaying the tree again) SCO now claims all the
value is in the branches.
In reviewing the SCO's May 25th, 2007 final expert report, T. Cargill
only identified SVR4 code as having been infringed.
Novell claims to own pre-APA SVRX copyrights. He covers some history
of the case and tells how SCO sued Novell for slander of title and how
SCO alleges Novell's claim to own the SVRX copyrights has caused $300
million in damages to SCO. However, SCO has told the SUSE Arbitral
Panel that it's pointless to continue, because all copyrights relevant
to SUSE's purported infringement have been held to be owned by Novell
and that thus arbitration need not continue. Mr. Jacobs summarized this as
demonstrating SCOsource was all about SVRX, not the branches.
On point 2 he claimed that SCOsource licenses would convey broad SVRX
rights. He described sections 2 through 4 of the Microsoft Agreement.
He expressed that Novell should be apportioned the Section 2 revenue as it releases
Microsoft of existing general claims, releases any claims of SVRX
infringement against Microsoft, and it provides intellectual
property licensing to current Microsoft products and services. Section
3, which should be apportioned to SCO ($7 million), provides the option
to purchase UnixWare licenses, but that it only grants licenses to SCO
UnixWare 7.1.3. However Novell should be apportioned the $8.25 million
revenue from Section 4 which provides Microsoft the option to purchase
licenses to other SCO assets. Mr. Jacobs described this section as a
"fire sale" to SVRX rights.
He showed the 2003 Sun Agreement and gave some background from the
1994 agreement. He said that in 1994 Sun bought out of their royalty
remittance obligations for their Solaris branch. However Sun's
confidentiality obligations were left intact. He said the agreement
covers Unix through SVR4. The 2003 agreement modifies the 1994
agreement (something SCO cannot do without Novell's permission). It's
about a buy out. It relaxed the licensing restrictions, imposing
virtually no restrictions on Sun's rights. In its Section 8.1 it reads
that Sun may release the software under "any licensing model now known
or developed hereafter in Sun's sole discretion" and "shall mean such
technology or derivative matter thereof is not confidential
information." And so Solaris can now be licensed under open source
licenses. Mr. Jacobs says this is "not a trivial license." OpenSolaris
is derived from the SVR4 code base, and as a result of the agreement may
now be downloaded over the Internet. He shows a slide of OpenSolaris
code and says it is "littered" with "copyright 1984, 1986, 1989, etc
AT&T." This is SVRX code.
In Mr. Jacobs' third point he states that the Unix licensing
practices do not help SCO. SCO knows what incidental licensing of SVRX
means. He shows a slide of Unix timeline and terms to describe the
releases. He says that SVRX is up to SVR4.2MP/UnixWare 2.0, then the
APA was executed, then after that SCO UnixWare 2.1 through 7.1.4.
He shows NCR's 1997 Agreement Supplement #112 for UnixWare 2.1
source. He says that each time there was a new release NCR would
execute an additional supplement for the most recent release (with all
previous releases enumerated which "they had already paid for on
previous supplements". He says this is an example of incidental
licensing of SVRX. He contrasted this to the Sun 2003 Agreement
granting broad new rights.
In Mr. Jacobs' fourth point he says that SCO is Novell's fiduciary and that
this places a heavy weight on Novell's side of the scale. He
provides an example in real estate where perhaps Novell owns the land
but SCO builds the house. When SCO sells the property the money is
commingled (as it's sold for one price for the whole property). However
in this case it's possible to determine each party's apportionment
through appraisals for the land or homes. Here SCO claims the "trunk"
of the tree is valueless.
Mr. Jacobs summarized his points and asks that judgment be entered in
Novell's favor for $19,979,561.
Next Stuart Singer presented SCO's opening comments. He opined it's
interesting that Novell now has an exact dollar value when just a few
days ago Novell said it would not claim 80% of this license or such.
Mr. Singer presented a series of early SCO press releases and
highlighted the wording in each saying "UnixWare",
"Unix libraries", "shared libraries",
& etc. Included were a December 2002 press release, a January 2003
announcement, and a February 2003 sales guide.
He said that UnixWare *IS* SVRX technology, it is SVR4.2 MP
technology. It is an advanced SVR5 SMP OS. Novell's own documents
demonstrate UnixWare has within it the critical SVRX technology.
Technologies licensed by SCO for UnixWare include technology from SVRX.
It is in UnixWare, but it may have originated in certain SVRX releases.
He briefly presented a slide saying there are three principal issues
for the court. First is, which components of the Microsoft and Sun
agreement are SVRX licenses and what value to attribute to them. He
refers to the Microsoft Agreement section 2.1 where SCO released any
claims *SCO* has, not Novell has. Therefore it cannot relate to
Novell's rights. Section 3 is an option Novell does not make claims
to. Mr. Singer presented section 4, but I failed to document the
He refers to the Sun Agreement, Section 4, where it provides a
license to UnixWare and previous SVRX as well as drivers for UnixWare
and OpenServer. In Section 10, SCO provides indemnification for SUN from
*SCO* (not Novell).
Mr. Singer presented a slide apparently showing per-release sales
volume plotted against time. He demonstrated how previous release sales
demand fell off with release of the next version. He stated that there
is no demand for prior version products. He claimed Novell did not
seek, or expect, any "royalties" for any System V prior products. He
said that the minor "SVRX license" in the Microsoft agreement has no
He said that OpenServer sales represent 2/3 of SCO's revenue and that
Novell has no rights to OpenServer as it was developed by Santa Cruz.
Mr. Singer claims in the Sun agreement the UnixWare license is very
valuable. The licenses to OpenServer drivers are very valuable.
Mr. Singer continued with his second issue for the court to consider:
that SCO owns, and may release, all claims it is entitled to bring
relating to SCO's IP. SCO releases *only* those rights it had the
right to release, not any claims of Novell. SCOsource agreements
started with SCO's exclusive rights to UnixWare and OpenServer. He
claimed the SCOsource licenses were not related to royalty-bearing SVRX
His third issue was that the APA's Amendment 2 did not prevent SCO from
entering into the 2003 agreement with Sun. Novell's position conflicts
with paragraph B.5 of Amendment 2.
Mr. Singer summarized that SVRX licenses were only incidental.
Next Mr. Jacobs called his first witness, Mr. Joseph LaSala, Novell's
former General Counsel. Like SCO's Chris Sontag later, Mr. LaSala was
outside the courtroom, in keeping with the witness exclusion rule
previously invoked by the parties. Mr. LaSala stated that among other
things he was responsible for Novell's communications with SCO
regarding compliance with the APA.
Under Mr. Jacobs' interrogatories Mr. LaSala cited a June 2003 letter
from him to Mr. McBride to request SCO provide copies of licenses with
Microsoft and an unnamed party. This was in response to a public
announcement by SCO and Novell's belief they may implicate certain
rights Novell may have. He cited a July 11, 2003 letter from Mr. Brady
to Michael Bench at SCO which said that it had been more than 6 months since there were any
royalty payments or reports, and that in accordance with their rights
under the APA they demanded an audit of SCO's activities.
Following this I have two pages of notes relating details of
correspondence Mr. LaSala related of Novell's frustrated attempts to
get an accounting of SCO's Unix activities and copies of the Microsoft
and Sun agreements. By the time of a November 17, 2004 letter from LaSala
to SCO counsel Ryan Tibbets, Novell had learned of Sun's plan to open
source Solaris. He reminded SCO of Novell's rights and demanded again a
copy of the Sun agreement by December 2004. In this letter, Novell cc'd Sun's
general counsel, putting Sun on notice of potential issues that their
UNIX license and open source plans may bring up.
Next, Mr. Singer cross-examined, asking if Mr. LaSala was aware of
conversations in late 2002 between SCO and Novell to license UNIX
rights, to which he said he was. In response to a question, Mr. LaSala
replied that he did not state to SCO that Novell has rights to revenue
from licensing. On further questioning Mr. LaSala replied that he did
not use the term "Novell repudiates SCO's agreement" with Sun. Nor did
he for another (Microsoft?) agreement.
Mr. LaSala agreed with his declaration in the IBM case that Novell has
no rights to Sun's derivative works. Mr. LaSala agreed Solaris is a
derivative of UNIX.
Next, Mr. Singer began questioning Mr. LaSala on points related to
Novell's auditing of SCO. Mr. Jacobs objected that the questioning exceeds
direct, where followed discussion, and Judge Kimball's overruling, saying that it's
better to proceed now rather than call the witness back to the stand at
Mr. Singer asked, regarding Novell's pursuit of the audit, if Novell
was prejudiced in their ability to determine allocation of money by not
having the agreements earlier. Mr. LaSala said, regarding allocation,
that they were not.
Mr. Jacobs then questioned Mr. LaSala on redirect. He referred to
SCO asking about Mr. LaSala's declaration in the IBM case, where Mr.
LaSala confirmed it was Sun's derivative code he referred to (rather
than the SVRX source). Mr. Jacobs asked what he knows of SCO's
financial condition since the agreements were signed to which Mr.
LaSala stated that he's aware SCO suffered a precipitous financial
decline. Mr. Jacobs asked, in light of this decline, if Novell was
prejudiced by SCOs delay regarding Novell's recovery of money from SCO,
to which Mr. LaSala said they certainly were.
The court then had its first of two 15-minute breaks.
Next Erik Acker called Christopher S. Sontag as a
witness. Mr. Sontag began his employment at SCO in 2002 and was responsible for
the SCOsource program since its inception. Under questioning, Mr. Sontag
said that SCO was not profitable the year he was hired, nor has it been
at any other time he was there, with the exception of the time of the
agreements. When he was hired, the SCOsource program had not yet started,
but there were certainly discussions of evaluating the Unix assets, he testified. Mr.
Sontag agreed with the characterization that the SCOsource revenue was
envisioned as potentially worth billions of dollars.
Mr. Acker referred to a SCO (draft?) press release regarding SCOTech
(an earlier name for SCOsource) which stated the program would monetize
They reviewed the APA schedule 1.1A list of assets and what versions
of SVRX income were to flow back to Novell. Mr. Sontag seemed to say items on
this list were assets that transferred to SCO. Mr. Acker asked Mr.
Sontag if he often used the name System V to refer to all Unix, which
he did. Mr. Sontag claims SVR4 and UnixWare means the same thing to him.
Mr. Acker displayed a presentation slide from 2002 reading "SCO is
concerned about violations of our software license copyrights. SVR4
Libraries. OSR5 Libraries". Mr. Acker pointed out that SCO's concern is
SVR4, not UnixWare.
Mr. Acker cites a SCO press release, "SCO's patents, copyrights and
core technology date back to 1969 when Bell Laboratories created the
original Unix source code. SCOsource will manage this software
technology to customers and vendors." Mr. Acker asked if *this* is the
technology that SCOsource is licensing to which Mr. Sontag responded
not just this, but the most recent versions. Mr. Sontag further
clarified that these were the runtime libraries to allow Linux users to
use SCO's libraries to run OpenServer or UnixWare applications on Linux.
Mr. Acker read from the May 12th, 2003 letter from Darl McBride to
the Fortune 1000 companies. "SCO holds the rights to the Unix OS...",
Paragraph 5: "Many Linux contributers were originally Unix developers who had
access to Unix source code distributed by AT&T." Mr. Acker points
out Darl cited software going back to AT&T as the software of
interest. Chris Sontag characterized the letter to be about SCO's broad IP
rights... The intent is SCO's entire portfolio not just the original
SYSV code Darl identifies.
Mr. Acker asks, since the letter refers to the IBM suit, if the
basis of the letter is the same as the IBM case. He cites Cargill's
report where only SVR4 was listed as infringed. Chris Sontag said that he
didn't read the expert report and that Novell would have to ask him.
Mr. Acker showed a presentation slide from the SCO Forum 2003 "SCOsource
Update" presentation given by Chris Sontag (and Mark Heise). It
contained a side-by-side comparison of a portion of the malloc code
from SVR 4.2 and Linux. Mr. Acker asked about it only being 4.2. Chris
says he's not aware of any examples from UnixWare. He stated that the
malloc code is substantially the same (in 4.2 as it is in UnixWare).
Mr. Acker showed a letter dated December 19, 2003 to Lehman Brothers with a
list of software (allegedly infringed). In the letter, Ryan Tibbits
stated the code was also part of the UC Berkeley settlement (1994).
Mr. Acker asks "isn't it right that no-one at SCO has stated that
anyone has taken code from UnixWare and placed it in Linux?" Chris
Sontag answered that when they refer to Unix IP, they mean UnixWare
Mr. Acker played back deposition testimony where Mr. Sontag agreed
with the statement. Mr. Sontag repeated that he includes UnixWare in all
Acker then showed the 2003 Sun Agreement which Chris Sontag confirmed he
signed for SCO. He further agreed that it is a SCOsource license. Eric
cites language in the agreement which states that this new agreement
amends and restates the original 1994 agreement. Chris wouldn't agree
with whether the verbiage was accurate or not, but said that the agreement
does more than that.
They spent some time discussing whether or not page 1 of attachment 1
of the two agreements contained the identical list of software (which
it was settled that they were (barring letter-by-letter comparisons).
In the 2003 Sun license page 2 adds 7 items (3 versions of SVR 4.1, 2
of 4.2, SVR5 (UnixWare 7.0+), and OpenUnix). Mr. Acker drew a line above
the last two and identified those items above (including all 30+ on
page 1) as pre-APA. Mr. Acker referred back to the 1994 agreement,
showing a page from it entitled "Deliberately Omitted Software" which
called out SVR4.1 as being omitted (this item appearing as SCO licensing
to them in 2003).
Mr. Acker pointed to language in the 1994 agreement which does not
permit Sun to publicly display the source code and in fact requires
Sun to protect the code as they would their own code.
He spent some time showing that Sun wanted a broader license to allow
it to open source Solaris. Chris Sontag agreed that as a result of
the 2003 agreement, Sun was able to open source Solaris.
Eric Acker confirmed that SCO received just under $9 million for this
from Sun, of which not one penny went to Novell. Further Sontag confirmed
that SCO neither notified Novell nor sought Novell's agreement. Sontag
further stated that he didn't believe they needed to, that the
agreement (with Sun) was primarily about UnixWare.
Sontag admitted that SCO was aware at the time of SCO's requirements under
the APA for Novell's agreement, but disagreed that it applied to the
Mr. Acker reviewed several letters between SCO and Novell in 1996
that restate the understanding that Novell's permission is required to
change or amend any agreements *relating to* Unix System V.
He cited a proposed term sheet with Microsoft. On it were identified
"Unix System V, UnixWare, and OpenServer" and pointed out that Unix
System V was called out separately from UnixWare. Mr. Acker further played sections of
deposition testimony where Chris Sontag stated/agreed with the
assertion that Microsoft wanted an agreement not just to UnixWare, but
also to older Unix core technology. He further confirmed not a penny of
the license fees flowed to Novell, nor did SCO seek Novell's agreement.
Mr. Acker showed the Microsoft Agreement and demonstrated Microsoft
did not have existing licenses for SVRX 4.1 or 4.2, that this license
granted this to Microsoft .
He also discussed SCO's website page on the "SCO Intellectual Property License" which
defines SCO IP as "Unix System V *or* UnixWare". Chris Sontag stated
less than 20 or 30 licenses were purchased online. He confirmed that
purchasers obtained rights to both System V *and* UnixWare.
The court then took its second 15-minute break, after which Eric
Acker continued his questioning of Chris Sontag, reviewing the terms of
various licenses and wording using "Unix System V *or* UnixWare" and
"Unix System V *and/or* UnixWare."
Specific contracts called out were those for Questar Gas, Lane
Furniture, OCE Printing Systems GmbH, CDM, Computer Associates,
Cymphonix Corp, Everyone's Internet, and HEB Grocery Co LP as well as
the amounts they paid.
An email was shown from Jeff Hunsaker (Sr. VP of Worldwide Sales in
2003) to Darl McBride, Chris Sontag, and others which read in part
"There is no connection between UnixWare/OpenServer and the SCO Unix
IP License whatsoever; they are independant. Simply put this license
allows users of Linux to run legally."
Mr. Acker then concluded his examination of Chris Sontag whereupon
Mr. Normand for SCO began his questioning.
Mr. Normand asked Sontag if he used UnixWare and System V
interchangeably during his tenure, to which Mr. Sontag agreed and
further explained it was because SCO was considering changing the name
to System V.
They discussed various definitions including that libraries "are a part
of an operating system to allow an application to talk to the OS."
In discussing SCOsource, Sontag seemed to be claiming that its
point is *solely* as runtime libraries (rather than SVRX code in Linux
They quoted T. Cargil that "overall Linux is a substantial copy of the
SVR4 OS" and one "could equally say Linux is a substantial copy of the
Mentioned malloc code from many releases and substantially similar to
releases over 10 or 20 years.
Regarding the Lehman Brothers letter, they say it was only referring
to what code SCO has rights to (rather than Novell).
Regarding the 2003 Sun Agreement and a fall 2002 meeting with SCO and
Sun engineers, they said they discussed joint marketing possibilities; that at the
time Solaris only ran on SPARC hardware, and they wanted to run on PC
hardware; that Sun wanted licenses (from SCO) to develop a 386 version
of the OS. He further says that drivers were an important part of the
deal. Asked "UnixWare or older", Sontag replied UnixWare --
older wouldn't make sense.
Chris Sontag characterized Sun's agreement prior to 2003 as already
having more rights than any other licensee, including source sublicense
rights though they still had the 1994 confidentiality provisions. In
2003 Sun argued that most (of the confidentiality provisions) had been
subverted over the years including by things like Lion's book. Sun
wanted to loosen confidentiality restrictions. The 2003 agreement
required a "for-value" license which would not allow GPL. SCO did not
want a wholesale dump of Unix into Linux.
Mr. Normand highlighted lots of the latest versions of software
licensed in various agreements, particularly OpenServer 8/UnixWare 7.x
and noted they are not listed in APA Schedule 1.
He claimed that the 1994 Sun Agreement already gave Sun broad source
code right-to-use permissions.
He discussed Sontag's understanding that SCO had the right to
license SVRX when incidental to UnixWare sales.
He highlighted parts of a 1994 letter on Novell letterhead to Sun
that uses language indicating Novell had transferred ownership of
System V Unix to SCO (I did not hear the authorship).
Discussing the Microsoft agreement, SCO stated they did not release
Novell claims. SCO did not claim rights that belong to Novell.
With regard to the Microsoft Term Sheet (where Unix System V was called
out separately from UnixWare), Sontag explained it by saying it was just a list
(in no particular order) of product talking points and that Microsoft
might be more familiar with the term "Unix System V" than UnixWare.
OpenServer source code had never been licensed before. Microsoft was
the first to license it. OpenServer represents 2/3rds of SCO's
revenue. This gave Microsoft access to SCO's OpenServer customer base
Sontag stated that Microsoft had no interest in selling
stand-alone versions of older Unix products, that in using the code for
development, they would want the newest version.
Sontag continued with clarification of Sun's 2003 Agreement
saying that Sun wanted to make sure they had all the UnixWare and
OpenServer drivers. He claimed drivers were very important to them and
further that they did not request drivers for older Unix versions.
Regarding SCOsource licenses, he explained they were basically a
release of claims, not to sue, and a UnixWare license. SCO did not
purport to license anyone else's rights, only SCO's rights.
He stated that in discussions with Novell in 2002, SCO sought
clarification of the APA excluded assets. Novell was interested in
SCO's involvement in United Linux. Sontag never asked Novell to
partner with SCOsource, he claimed, and Novell never suggested that they could
limit SCO or that money would have to be due Novell under SCOsource.
Regarding Sun's agreement, Sontag said that in 1994 Sun bought
out of paying royalty payments; thus in 2003 the agreement did not
modify that -- they had already bought out. They already had most rights
and the 2003 agreement only gave them Intel ability.
Mr. Normand finished his examination. Judge Kimball opined that
Novell would likely want to spend more than 15 minutes on redirect to
which Mr. Acker replied that that is the case. Judge Kimball then said
the court would continue the next morning.
LaSala is no longer with Novell and Sontag is no longer with SCO, by the way. To help you visualize what Novell's attorney was talking about, here's a graphic from a SCO talk at SCOForum 2004, showing the trunk as UNIX and UnixWare as one of the branches:
And I just happened across this article today in Heise Online, from back in 2003, November 11, 2003, when Darl McBride gave his speech about "There's No Free Lunch or Free Linux" at Jupitermedia's cdXpo. The article is in German, but all you have to do is look for System V. You'll find it, even if you can't read German:
SCO-Chef Darl McBride ist nach dem juristischen Vorgehen von SCO gegen IBM und die Linux-Community wegen angeblich geklauten Unix-System-V-Codes im Linux-Kernel Anfeindungen gewohnt.
Now search for "UnixWare". Nope. Not there. And note it doesn't just say UNIX. It says Unix System V code in the Linux kernel. That's not the only place:
Seine Kernaussagen fasste McBride in fünf kurzen Sätzen zusammen: SCO
* besitzt demnach sämtlichen Unix System-V-Code,
* besitzt alle dazu zugehörigen Urheberrechte,
* besitzt alle Lizenzvereinbarungen, die Lizenzen von Unix System V betreffen,
* kontrolliert alle abgeleiteten Entwicklungen aus Unix System V und
* besitzt sämtliche Ansprüche aus Urheberrechtsverletzungen.
I have a personal opinion about all this, which is buttressed by the testimony of Sontag saying that they were aware of the requirements under the APA, presumably meaning the need to pay Novell for SVRX and mostly not for UnixWare. I think they may have deliberately set it up so that when they offered the SCOsource licenses to EV1 types, they definitely mentioned System V code as being what was infringed, but cleverly called it SVRX code as found in UnixWare, so as to take the money and run. That gloss was the legal hop, skip and a jump away from having to pay Novell, I've come to believe. That's the only explanation that makes any sense to me. Certainly nothing SCO says makes any sense to me if I listen and take it at face value, because I know UnixWare and UNIX System V are not the same thing. UnixWare is a derivative, as you can see in the graphic, meaning you'll likely find System V code in it, along with NetWare, which SCO doesn't even own, and various other code pieces. The pretense, in other words, as I see it, is that by pointing to the SYS V code in UnixWare and pretending it didn't come from UNIX, that somehow it got divorced from System V once it was put in UnixWare, SCO can contend that it owes Novell nothing.