Novell seeks to present evidence to the jury in the form of snippets of text selectively lifted from prior judicial opinions in this case. Novell claims these snippets would be used to rebut the factually correct assertion, made in SCO’s opening statement and the answer of one witness to a single question, that Novell’s claim of ownership of the UNIX and UnixWare copyrights continues to appear on Novell’s website “to this very day.” As with Novell’s previous attempts to introduce such evidence, the Court should reject this attempt to present the jury with judicial statements, not in context, that are not relevant to the claims and defenses presented here, but that would create jury confusion and be highly prejudicial to SCO.

So this is a campaign of slander, broadcast and repeated to the world that continues to this very day....

And to this day Novell, on their web site, continues to republish that slander.

Here are the two orders that the appeals court reviewed, Judge Dale Kimball's August 10, 2007 Memorandum and Order and the November 20, 2008 Final Judgment. Odds are always against the petitioner to the U.S. Supreme Court, of course, and the earliest it could be heard would be in April, we learned from a remark at Friday's trial in SCO v. Novell, so the trial will be over before this is heard, even if it beats the odds. Here are the rules [PDF] of the U.S. Supreme Court, and Rule 10 tells what kinds of cases they are more inclined to accept.

Nevertheless, it's an important document, because it raises an important question: how should copyright transfers be evidenced? US Copyright law requires a writing, but what should happen if the writing isn't clear about which copyrights, if any, were conveyed? Should it be up to a jury to decide and more or less make it up out of the memories of participants of yore?

You think I jest. Not at all. That is exactly what is happening in SCO v. Novell currently in the trial. How would you like to have your copyright ownership decided like that? Still want to if the memories relied upon are those of Darl McBride and his friends and allies?

Blake Stowell, then the PR guy for SCO, sent an email to Maureen O'Gara, saying "I need you to send a jab PJ's way," and then right afterwards she wrote that invasive so-called expose, in which she revealed, or at least intended to reveal, things like who I called on my phone. A la the HP scandal. She got fired for doing it the way she did, and the then-publisher apologized to me publicly, but she says in the deposition she's not sorry a bit.

We learn this by reading excerpts from her deposition, previously under seal, attached to a letter [PDF] SCO's attorney sent to the court. SCO doesn't want the part of her deposition video played where she talks about me and Groklaw. It's beyond eye-opening, however, despite her pretense, as I see it, that there is no connection between the two events.

They also don't want the part about an email she sent to SCO, subject line, "I want war pay," played. It's allegedly humor. Just chatter. But you know, she is on the list of people SCO owes money to, now that I think of it, filed in connection with the bankruptcy. I wonder for what?

SCO accused Novell in its opening argument four times of slander of title "to this very day". And in questioning Duff Thompson yesterday, the lawyer asked him if he saw evidence of slander of title to the present, and he said yes. It indicates a desire for damages covering the entire time period.

However, Novell points out that prior rulings by this court and the appeals court found that Novell was in fact the owner of the copyrights, among other things, and Novell thinks it is grossly unfair that it can't be allowed to mention those salient facts to the jury, if the judge is going to allow SCO to claim damages "to this day":

In view of the foregoing, the Court should permit Novell to introduce evidence that Novell’s representatives acted with knowledge of the following three facts:

1. Judge Kimball ruled on August 9, 2004, that “the APA did not transfer any copyrights” and “the agreements raise substantial doubt as to whether the APA as amended by Amendment No. 2 qualifies as a [17 U.S.C.] Section 204(a) writing”;

2. Judge Kimball ruled on August 7, 2007 that “Novell is the owner of the UNIX and UnixWare copyrights”; and

3. The Tenth Circuit recognized on August 24, 2009 that “Novell has powerful arguments to support its version of the transaction.”

SCO's attorney Stuart Singer may have gotten carried away with his theatrical indignation. And when a party slips like this, what lawyers call opening the door, it can indeed have consequences. Novell was just waiting for a moment like this.

Update 4: With all the reports now in, what happened today in court becomes clearer: SCO continued its presentation, with video depositions played, of Jack Messman, Doug Michaels, Burt Levine, Jim Wilt, Alok Mohan, and some live testimony by Bill Broderick. And the surprise witness looks like it will be one of the lawyers who drew up the APA, perhaps Aaron Alter, who you may recall worked on the same team as Tor Braham, but Braham was the lead attorney for Wilson Sonsini. He will be testifying for Novell. As you noticed in opening argument, Novell pointed out they had lawyers who drafted both the APA and Amendment 2, and SCO had no lawyers to testify for them. So I gather SCO would like to remedy that. However, it's not certain. One witness thinks the name mentioned was Troy Keller.

Update: I'm just learning that the two reporters scheduled for today couldn't go after all. Medical issues. So hit the Paypal button, y'all. We'll order a daily transcript so I can at least tell you about what happened. It'll take a while to get it, so stay tuned, but no need to refresh every ten minutes or anything.