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Novell's Daubert Motions: We Finally Get to Read 3 of SCO's Experts' Reports
Sunday, February 14 2010 @ 07:18 AM EST

We finally get to read SCO's experts' reports, three of them, the ones from Dr. Christine A. Botosan, Dr. Gary Pisano, and G. Gervaise Davis III, because Novell has attached them as Exhibit A to each memorandum in support of their three motions for Daubert hearings, seeking to disqualify each expert's testimony. I say finally because the reports were written in 2007. Haven't I always told you that sooner or later, it all comes to light? It's what I love about litigation.

I don't know if I should describe the reports as absurdly fascinating or fascinatingly absurd. Their version of UNIX history and the history of SCO's litigation is an alternate universe far from any I know or think of as reality. If I may paraphrase the first Magistrate Judge in the SCO v. IBM litigation so many years ago, is this all SCO's got?

If you have forgotten what a Daubert hearing is, here you go. The short explanation is that it's a hearing to decide if an expert can testify, if he or she is qualified to do so and/or if the methods used are appropriate or admissible.

Novell objects to Dr. Botosan's methods, claims her proposed testimony is inadmissible, that she cherry picked the highest projections on damages for Novell's alleged slander of title, and says she is "a mere conduit for opinion testimony". She writes that she relied upon Dr. Gary Pisano's report, which I believe would be a mistake. What a story he tells. He claims that if Novell hadn't spoken out about its claim of copyright ownership, SCO would have sold between approximately 1 1/2 to 3 1/4 million SCOsource licenses. Is 'ridiculous' too small a word?

He also says Computer Associates sought out a SCOsource license. That's not what Computer Associates said happened at the time:

CA senior VP of product development Mark Barrenechea says that Bench’s claim is nonsense. CA has not paid SCO any Linux taxes, he said.

Drawing up short of calling SCO a liar, Barrenechea claims that SCO has twisted a $40 million breach-of-contract settlement that CA paid last summer to the Canopy Group, SCO’s biggest stockholder, and Center 7, another Canopy company, and has turned it into a purported Linux license.

As a "small part" of that settlement, Barrenechea said, CA got a bunch of UnixWare licenses that it needed to support its UnixWare customers. SCO, he said, had just attached a transparent Linux indemnification to all UnixWare licenses and that is how SCO comes off calling CA a Linux licensee.

Barrenechea said that SCO was dropping CA’s name to associate itself with the "third-largest software company in the world" and build support for its "lost cause."

But according to Barrenechea, not only are SCO’s IP ambitions doomed, but its Unix interests are a "trailing negative" on the road to dropping from 10% of the market to 3%-5% in a few years and then "SCO will be irrelevant," he said.

Does Dr. Pisano not know that? Shouldn't he? I mean, shouldn't he at least mention it, for accuracy's sake? Yet he writes this, on page 17:
37. On August 5, 2003, SCOsource formally announced the availability of the SCO Intellectual Property License for Linux, and that SCO would be meeting with commercial Linux users to present the details of this "right to use" ("RTU") license. The run-time license permits the use of SCO's intellectual property in binary form as contained in Linux. Within weeks of this announcement, a Fortune 100 company, Computer Associates, requested from SCO and purchased a SCO RTU license.
His report reads to me like he just took dictation from SCO, without doing any research to find out if what SCO told him was true. It is like a rehash of everything SCO has been saying since 2003, as if there were no answers to SCO's stories. He also relies on such folks as Laura DiDio and Daniel Lyons. I rest my case. Small world, though, isn't it?

As for Davis, he says something to the effect that he's never run into an implied license like Novell is claiming SCO got, and so he therefore believes SCO must have gotten the copyrights. I believe one of SCO's witnesses already said if they didn't get the copyrights, they'd have had an implied license, didn't he? But in any case, Novell says both that issue and the interpretation of the APA is for the jury, so Davis should not be permitted to give his opinion on the legal meaning of the contract or whether there was or was not an implied license. He also is not an expert, Novell points out, in running a software business, so he shouldn't be allowed to testify as to what is or isn't required to run such a business.

Hey, somebody get me a gig as an expert will you? If this stuff qualifies as expertise, I'd like some of that easy money, please. Or is there no market for simple truth?

Well, I'll tell you the truth anyway, as I see it. Let me tell you very simply three reasons off the top of my head why I believe SCO could not have sold millions and millions of SCOsource licenses, even if Novell had said nothing:

1. The first reason is because the SCOsource license conflicted with the GPL, the license on Linux. So people felt right away that SCO's demand was improper, at a minimum. I know for sure that was my reaction. SCO was asking us, as we saw it, to violate the copyrights of all the authors of the GPL'd code that makes up Linux. Groklaw even published an open letter to SCO in September of 2003, which it also mailed, telling them that, among other things.

The SCOsource license was purportedly a right to use SCO's alleged code, but if you paid for a SCOsource license, it blocked you from legally continuing to use the GPL'd Linux code that SCO definitely didn't own, and that would have meant that SCOsource licensees couldn't run Linux any more if they took a SCOsource license without risk of being sued by the GPL authors and copyright owners for copyright infringement. If you violate the GPL, you can't use the code any more, and if you do, you can be sued for copyright infringement, as SCO has learned in the SCO v. IBM litigation. It was a business proposition that made no sense from day one, to put it kindly. If I were a GPL author, I'd have also sued SCO for inducing copyright infringement, I think, if SCOsource had ever really taken off.

Besides, as soon as SCO announced the license, Eben Moglen said Linux users had no reason to fear and could rely on the GPL. He also said SCO's claims about the GPL were "moonshine". The thing is, you can't add terms on top of the GPL without violating the GPL. That is foundational, and it was stunning that SCO's lawyers didn't seem to know that. Would they deliberately try to get people to violate the GPL authors' copyrights? I can't imagine that. So I racked it up to cluelessness about the GPL. But considering that the GPL is part of the SCO v. IBM litigation, as one of IBM's counterclaims, how can an expert ignore that aspect of SCO's chances with SCOsource?

2. Here's a second reason I don't believe SCO could sell millions of SCOsource licenses: because copyrights are not patents. You can force people to license patented code, but it doesn't happen like that with copyrights. They may have to pay you for prior infringement, but there is no mechanism to force you to pay going forward. The remedy is to get the infringer to stop infringing, not to pay forever for code it didn't know about and doesn't want. Here are the remedies for copyright infringement, § 504. Remedies for infringement: Damages and profits.

When SCO first made its claims public, everyone asked SCO to tell the world what code was infringed, because if it were true, it would be removed. Groklaw's letter asked too. So did Linus and Richard Stallman and Moglen and Jon "maddog" Hall. Nobody in the Linux community wanted their code, if it were truly there in Linux. At the beginning we didn't know it was all a weirdly mean fantasy, so the initial reaction was, please show us the code you claim is infringing, because if it exists, we don't want it and we'd like to remove it. SCO *refused* to identify the code. And that's when the world figured out that this wasn't normal. It felt more like extortion, with SCO insisting on keeping the allegedly infringed code a mystery, right where it was, so any infringement couldn't be cured, with the only apparent goal being to force people to pay SCO to use Linux. Here's just one example of an attorney, Anupam Chander, Professor of Law at the University of California, Davis, School of Law, back in July of 2003, writing publicly that it was important for IBM to prevail over SCO's derivative code claims:

The final policy argument in favor of open source software is, of course, societal. At some point, information that is widely studied in universities, reprinted in college textbooks, and advanced through academic scholarship must be considered public domain.

For this reason, SCO's claims that its intellectual property rights extend to basic computing features of large operating systems cannot be allowed to stand. Otherwise, there will be no such thing as truly open, free software - and as a consequence, there will effectively be an economy-dragging tax on information technology.

In short, the overall feeling was that this was not a normal IP case, and people despised SCO for even thinking up SCOsource licenses for Linux. It surely wasn't Novell that created that righteous indignation.

3. Here's another reason I don't think SCO could sell millions of SCOsource licenses: because when SCO showed examples of allegedly infringing code, it turned out it wasn't their code. It was worse than a joke. Why would anyone pay SCO for code that turned out to be in the public domain or code belonging to other people? Yet I don't see, on my first quick reading of Pisano's report, any mention of this code-showing fiasco as a factor in people's reluctance to take a SCOsource license. But it surely was one. How can he ignore it? It was a huge, huge element in the world at large deciding that Linus was correct when he said that SCO was "full of it." Moglen responded immediately after the showing:

SCO's legal situation contains an inherent contradiction. SCO claims, in the letters it has sent to large corporate users of free software and in public statements demanding that that users of recent versions of the kernel take licenses, that the Linux program contains material over which SCO holds copyright. It also has brought trade secret claims against IBM, alleging that IBM contributed material covered by non-disclosure licenses or agreements to the Linux kernel. But it has distributed and continues to distribute Linux under GPL. It has therefore published its supposed trade secrets and copyrighted material, under a license that gives everyone permission to copy, modify, and redistribute. If the GPL means what it says, SCO loses its trade secret lawsuit against IBM, and cannot carry out its threats against users of the Linux kernel.

But if the GPL is not a valid and effective copyright permission, by what right is SCO distributing the copyrighted works of Linux's contributors, and the authors of all the other copyrighted software it currently purports to distribute under GPL? IBM's counterclaim against SCO raises that question with respect to IBM's contributions to the Linux kernel. Under GPL section 6, no redistributor of GPL'd code can add any terms to the license; SCO has demanded that parties using the Linux kernel buy an additional license from it, and conform to additional terms. Under GPL section 4, anyone who violates GPL automatically loses the right to distribute the work as to which it is violating. IBM therefore rightly claims that SCO has no permission to distribute the kernel, and is infringing not only its copyrights, but those of all kernel contributors. Unless SCO can show that the GPL is a valid form of permission, and that it has never violated that permission's terms, it loses the counterclaim, and should be answerable in damages not only to IBM but to all kernel contributors.

The GPL simply dooms SCO's claims, as far as I can see, and I thought so from day one. How could an expert not address this issue? It's the elephant in the room. Surely in trying to figure out "damages", one would have to at least touch on the fact that SCO, after making its public claims, continued to distribute the very same code under the GPL, which allows for copying, modification, and redistribution. So why would you take a SCOsource license, when you already have a better license for free? Can you sue people for doing what you told them they could do? You can, but you'll surely lose, which is exactly what Novell says everyone expects to happen, that SCO will lose. When SCO continued to distribute, it was telling us by its actions, as I understood them, that we could choose between a SCOsource license or the GPL, at our election, and if we chose the GPL, we were not infringing anything. I don't see Pisano addressing the GPL at all, but it played a major role, I would opine, in reluctance to take a SCOsource license.

Pisano also says that when Novell on May 28, 2003 said it owned the Unix copyrights, it was "the first public indication that there was any question regarding SCO's ownership of the UNIX copyrights." That may or may not be so. But it was not the first indication in public that people thought SCO was "full of it". The universal reaction in the Linux community was never fear. It was to answer SCO's slander point by point, and to laugh at them, frankly. I was laughing at SCO's claims publicly with a curled lip before Novell said a word, because of the GPL. And I still am, by the way.

That's the implied fourth reason, I guess, namely, that people aren't as stupid as SCO needs them to be.

If anyone has time to help with OCRing or doing a text version of any of the three Exhibit A's, please sing out. I think we should take them one at a time, and just answer *all* the mistakes in a methodical, geeky way. Are you with me? If so, let's get a text version of them, so everyone can work together. I'd like to start with Pisano's, so if someone could claim that one, that'd be great.

You know, I used to worry about these experts' reports. Because we couldn't read them, I imagined them differently than this. What if, I'd think, what if they know something we don't, some secret something that alters the picture in any significant way?

But no. They're just a rehash of all SCO's tall tales through the years, every one of which we have answered long ago.

Because we now have the exhibits as well as the motions and memoranda in support, I'll repeat the docket here, so you can easily check the PDFs, if you are so inclined. There are more exhibits now in the original article about Novell's motions in limine too, so swing by there and you'll enjoy getting the more complete picture.

Here are the filings:

655 - Filed & Entered: 02/08/2010
Motion for Daubert Hearing
Docket Text: MOTION for Daubert Hearing to Disqualify Dr. Christine A. Botosan filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order)(Brennan, Sterling)

656 - Filed & Entered: 02/08/2010
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [655] MOTION for Daubert Hearing to Disqualify Dr. Christine A. Botosan filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C-Part1, # (4) Exhibit C-Part 2, # (5) Exhibit D, # (6) Exhibit E, # (7) Exhibit F, # (8) Exhibit G, # (9) Exhibit H, # (10) Exhibit I)(Brennan, Sterling)

657 - Filed & Entered: 02/08/2010
Motion for Daubert Hearing
Docket Text: MOTION for Daubert Hearing to Disqualify Dr. Gary Pisano filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order)(Brennan, Sterling)

658 - Filed & Entered: 02/08/2010
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [657] MOTION for Daubert Hearing to Disqualify Dr. Gary Pisano filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D)(Brennan, Sterling)

659 - Filed & Entered: 02/08/2010
Motion for Daubert Hearing
Docket Text: MOTION for Daubert Hearing to Disqualify G. Gervaise Davis III filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order)(Brennan, Sterling)

660 - Filed & Entered: 02/08/2010
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [659] MOTION for Daubert Hearing to Disqualify G. Gervaise Davis III filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A)(Brennan, Sterling)

661 - Filed & Entered: 02/08/2010
Docket Text: OBJECTIONS to [625] Exhibit List(Proposed) Second Amended Supplemental Rule 26(a)(3) Pretrial Disclosures filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A)(Brennan, Sterling)

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