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The Parties Tweak the Jury Instructions in SCO v. Novell
Wednesday, March 24 2010 @ 11:00 PM EDT

On March 22, Judge Ted Stewart, presiding over the SCO v. Novell jury trial, gave the parties a final set of jury instructions, asking for their feedback. The parties have done so, each suggesting tweaks to the wording.

Here are the jury instructions from each party:

03/24/2010 - 826 - Proposed Jury Instructions by Novell, Inc.. (Brennan, Sterling) (Entered: 03/24/2010)

03/24/2010 - 827 - RESPONSE to Jury Instructions filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 03/24/2010)

SCO's are exactly what you'd expect. For example, where the wording says that with respect to who owns the copyrights the jury "may" consider extrinsic evidence of the intent of the parties, SCO wants that changed to "should". They claim that Novell lost the contrary argument on appeal.

Novell is stressing more the slander of title elements, the damages calculations, and the extent the jury can consider the prior rulings, but it does want the jury to know that the Copyright Act does require a writing signed by the party conveying the copyrights in order to transfer copyrights. They want the jury to know that, lest they be confused by all the "we thought they transferred" testimony.

And they point out that since Darl McBride admitted that he didn't need the copyrights to run the software business because the company would still possess a license under the APA to operate it, the wording in the proposed jury instruction about an implied license should be struck as irrelevant.

And it wants the jury instructed that if you write derivative works, you own the copyrights to what you wrote, but not to the underlying prior work, and that a copyright notice doesn't prove ownership, since a bad actor could just change the notices and then assert a claim based on their own changes, whether or not it was an honest change. And a copyright notice on a derivative work doesn't mean the party owns the copyrights on the original work on which the derivative is based, so it wants the jury to know that copyright notices don't affect ownership.


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