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Eyewitness Reports from Today's SCO v IBM Status Hearing - Updated 4Xs
SCO in its motion had asked that two of IBM's motions for summary judgment on some of SCO's claims, long on ice because of the SCO bankruptcy, be revived and allowed to go forward so SCO could pursue claims not affected, in SCO's view, by SCO's loss in the SCO v. Novell case. IBM, of course, opposed on several grounds. First, it makes no sense to go forward until SCO's appeal is decided. Second, IBM wasn't crazy about SCO's idea of being allowed to go forward piecemeal, with IBM standing there tied up, so to speak, while SCO gets to kick them in the shins. IBM's position as well is that all SCO's claims are off the table, due to its loss in the Novell case, so unless it wins on appeal, there's nothing to go forward on. What a waste of judicial resources.
Oddly, SCO, as it turned out, at the conference asked to proceed on only one of the motions, #782, IBM's Motion for Summary Judgment on SCO's Unfair Competition Claim (SCO's Sixth Cause of Action). Probably they read IBM's memorandum in opposition. Argument was heard, and the judge, the Hon. Tena Campbell, has taken it under advisement.
IBM's Memorandum in Opposition re Status Conference
There is no good argument for going forward piecemeal like that, IBM argues. The claims and counterclaims are too intertwined to do just those two motions without all of IBM's counterclaims, because they can't easily be untangled, and why do it now? It would be a waste of judicial resources:2. Now, before the Tenth Circuit has ruled on the appeal, SCO seeks to pursue several of its claims against IBM, while IBM's counterclaims against SCO remain stayed as a result of SCO's 2007 bankruptcy filing. SCO's claims in this case depend on the outcome of SCO's appeal in the Novell Litigation. If affirmed, Judge Stewart's judgment will foreclose them. Moreover, they are closely related to IBM's stayed counterclaims and should not be litigated in the absence of IBM's counterclaims. While IBM shares SCO's interest in the expeditious resolution of this case, it makes no sense to litigate the case piecemeal. Doing so would waste judicial and party resources and potentially result in inconsistent rulings. Proceeding as SCO proposes would require the Court and the parties to undertake considerable work (on highly-complex issues) that might not be required, and risk litigating the same issues multiple times before different fact finders, depending on the Tenth Circuit's ruling.
It speaks volumes that Judge Dale Kimball did not rule on these motions pending SCO's first appeal, IBM points out, and his wisdom in so doing should be informative of the right solution now. If SCO loses the appeal, it can't go forward on any of these claims. But for sure, if any of the claims are tried, they should all go forward together.
The Linux Foundation's Open Compliance Program - Updated: ForgeRock Joins OIN
There are some new tools, and they are open sourced too, and the program also includes "training, a standard format to report software licensing information, consulting and a self-assessment checklist that will help companies comply with open source licenses."
It's not hard to comply, certainly easier, I'd say, than with proprietary licenses, but anything new to you can feel harder, and this is designed help businesses easily and effectively incorporate open source tools into their products without friction.
I guess after this there really will be no excuse not to get it right. The press release has links to all the details.
SCO's Brief in Opposition to Novell's Petition to the US Supreme Court - Updated 2Xs
Old-timers here will notice that it looks a lot like SCO's opposition brief to Novell's petition [PDF] to the Tenth Circuit Court of Appeals last year, when Novell asked for a rehearing by the Tenth Circuit of its decision on SCO's first appeal. That decision is the same one Novell now is asking the Supreme Court to review. Compare the table of contents on each SCO filing, and you'll see that SCO is recycling. In fact, I was able to just copy and paste their Table of Authorities from the earlier filing, and the only change I needed to make was to the page numbers by one digit.
Don't take this case, SCO says to the Supreme Court. It's moot, because we lost in the trial the appeals court ordered and so Novell owns the UNIX and UnixWare copyrights at issue. We are appealing, but if we win, Novell can petition you then. And it doesn't involve a question of importance anyhow, SCO argues. Besides, the court of appeals was right, SCO goes on. The APA, once amended by Amendment 2, is a copyright transfer writing, because it showed an intent to transfer some copyrights.
This is exactly what the jury just decided was *not* the case.
Want to Buy SCO's Software Business?
"Additional Disclosure Schedules may be added Upon Finalization of Agreement," SCO says. Like... um... the buyer? Little details like that? I mean who'd want the business on these terms, I wonder? Ralph Yarro? Darl? Whoever it is, he or she is ready to roll:At the Trustee's request, OPA has begun the process of marketing the Debtors' business by preparing a due diligence room and marketing materials, identifying potential purchasers and engaging in preliminary discussions with certain interested parties. Immediately upon approval of this Motion, OPA is poised to commence the sale process without delay. So. An auction. Kind of like Jeapordy, though, with certain interested parties ready to hit the buzzer. But, you may say, what about Novell? It blocked SCO earlier from selling these same assets:14. Before the appointment of the Trustee, the Debtors attempted to sell their assets and were met with objections by Novell, based on, inter alia, the uncertainty of the Debtors' rights in the UNIX and UnixWare copyrights in light of the then pending Utah Litigation. Now that the 10th Circuit, the District Court on remand and the jury have ruled and the Debtors' interest in the Acquired Assets is clarified, the Trustee seeks to sell the Acquired Assets to maximize value for the estates. What about the appeal? Isn't SCO planning to win? What happens to the assets is SCO were to win? I guess then Novell can't get them to pay off their damages, as the assets transfer without encumbrances. Oh, say. Another smooth move from SCO. SCO wanted payment of the costs to Novell to wait for an appeal, but the assets it wants to transfer asap. SCO really doesn't want to pay Novell, I guess. It sees the handwriting on the wall, and it wants the software business off the table and in a friendly pocket. That's how it looks to me.
It also wants to hire a firm, King & McCleary, to do taxes for SCO. It believes SCO lacks the employees necessary to do the job. And the job is federal and state tax returns for *2008* and 2009: Based upon the status of these chapter 11 cases and the state of the Debtors' businesses, the Trustee believes that the engagement of King & McCleary is necessary in order to bring the Debtors into compliance with applicable non-bankruptcy law. Specifically, the Trustee does not believe that the Debtors have the necessary staff to perform the Tax Services internally. 2008? It proposes August 23rd be the date for a hearing on this motion. "Stalking Horse Identified, if any" on October 11, with the qualified bid deadline set for October 5. The documents says there could be one or more buyers. Then the auction on November 1 and a projected closing date of November 30.
SCO Motion for a Status Conference in SCO v. IBM - Updated 2Xs
That is a puzzling conclusion, in that Novell was ruled to have the unfettered right to waive any such alleged contract violations. And it did long ago do so.
The bankruptcy stay, SCO writes, applies only to litigation against SCO, not SCO suing "IBM and others". Note that "and others". So it would like the court to perhaps rule on SCO's summary judgment motions filed years ago, and to the extent IBM has motions regarding two of SCO's claims, regarding SCO's claims for Unfair Competition and for Tortious Interference, they can go forward to a decision. But not the rest of the IBM counterclaims. Here's a Groklaw chart of all the pending IBM and SCO summary judgment motions that were blocked by the SCO bankruptcy in 2007.
But, I hear you say, that's not fair. Well. I look at it this way: if SCO started to play fair, it might upset the balance in the universe in the butterfly's wings sense. So it's very careful never to be fair and to stay in character. And let's be real. The only way SCO can win is probably if no one else is allowed to say or do anything. That's the kind of playing field SCO would like.
The Notice of Hearing sets August 11 at 3:00 PM before Judge Tena Campbell as the day and time. So I hope some of you can attend. It should be fun. IBM will certainly have something to say about this latest oily move.
Eben Moglen's LibrePlanet 2010 Keynote on the State of Free Software and the Future
We try to know what is going on, and we try and respond to it as effectively as we can, and we try to build coalitions with industrial parties outside the limits of the free world, narrowly construed, in order to protect the free world's interests. He ends talking about privacy, and he sees a need to provide federated services and a free, compelling replacement for Facebook and then explain to people why they need such replacements.
A member of Groklaw, brooker, has done an unofficial transcript of the video. Enjoy! There are a few places where the audio was unclear, and we've left those without guessing. But if your ears are better than ours, and you can decipher the words, please let me know. We aim for perfection, while recognizing our limitations.
SCO v Novell Trial Transcripts as text, Day 4 - Messman, Levine, Mohan, Michels, Wilt, Broderick
I know. Lots of witnesses, but it's short snips from prior depositions mainly. Still, it feels like a long, long day.
This is still SCO presenting its case. Novell's turn comes later, and Novell's lawyer, Sterling Brennan, in his opening statement had asked the jury to wait for the rest of the story from Novell before reaching any conclusions during SCO's presentation. I have to say though that one inescapable conclusion from the day is that SCO didn't hit any solid home runs, but it definitely got hit in the head with a couple of fastballs. I think Fibers.com has a perfect T-shirt for SCO's Day 4 witnesses. It says: "I reject your reality and substitute my own". It's quite a stubborn performance by one and all. Novell shows them the APA and amendments, and witnesses say it's not what they meant, not what they had in mind.
BusyBox and the GPL Prevail Again - Updated 4Xs
Of course, to collect the money, the plaintiffs must apply to bankruptcy court as a creditor, and you know from watching the SCO case what can happen to creditors in a bankruptcy case, but if you are one of the other defendants, one thing you know for sure now: the GPL has teeth, it is enforceable in a court of law, and if you violate it, it can cost you. Remember when you are choosing a license, you want one that you know is enforceable in court.
SCO v. Novell Trial Transcripts, as text -- Day 3, Thompson and Chatlos
March 2010 M Tu W Th F 08 09 10 11 12 15 16 17 18 19 22 23 24 25 26
USPTO Asks for Comments on New Interim Guidance on Bilski
"A claim to an abstract idea is not a patent-eligible process," Bilski holds, they point out, but exactly where is the line? How do you know an abstract idea when you see it? So the USPTO is asking for public comment on what they came up with for their understanding. They want to hear from the public by September 27, and they provide some specific questions and a list of factors examiners are to consider when evaluating an application.
You know pro-patent companies' lawyers in droves will be telling them that their clients should be able to patent God's method and process for creating the heavens and the earth, so you may wish to comment yourself and let them know politely where you think the line should be drawn on the abstract idea exception to subject matter eligibility as set forth in Bilski, if this is a topic you care about. Otherwise, I can see it now, their report: We got 3,201 comments saying X and only 3 saying Y, so X carries the day.
What's the Latest in the Psystar Appeal?
What Psystar wants is nothing less than to overturn copyright law as we know it and create a new doctrine of per se copyright misuse any time a copyright owner restricts use of its software to particular hardware.
Wait. Isn't that kind of what TurboHercules is whining about too? Here's what TurboHercules told us it wants: "We simply want IBM to agree to allow legitimate paying customers of its z/OS mainframe operating system to deploy that software on the hardware platforms of their choice - including, should they so choose, on low-cost servers using Intel or AMD microprocessors and Hercules." Psystar and TurboHercules are going after different software, but they want exactly the same thing, to force the software creator to let them use it on hardware the owner doesn't want it used on. And of course, they are two noble hearts with no interest in the buckets of money they'd thereby gain, without having to do the hard work of actually creating their own software. Let Apple and IBM pay for all that, and then they swoop in and make sure the creators don't benefit from their labor, so that Psystar and TurboHercules can.
You know what I find so striking? This is just one of four cases trying to grab some measure of control or use of other people's software against the owners' will, starting with the SCO v. IBM case.
Novell Responds to SCO's Attempt to Avoid Paying Costs Now
Is SCO trying to lose this motion? Or just half-hearted? If it knows the court will not grant the motion, why file it? No. Really. Why? To keep things going as long as possible? They think Judge Ted Stewart will be more favorable to them than Judge Dale Kimball? Nothing else has changed.
When you are the paralegal, all you do is take the old document, change the dates to upgrade it, and hand it to your boss for him to add his touches, if any. I puzzle over why SCO is even bothering. But I'm thinking about that more and more. Why is SCO continuing when the outcome is so obvious?
Librarian of Congress Still Clueless About Linux; Groks Jailbreaking - Updated
"It's gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability," commented Electronic Frontier Foundation senior staff attorney, Corynne McSherry. Keep in mind that copyright infringement is separate from DMCA analysis, so you still have to be careful about staying within the fair use boundaries when making a documentary. But at least now you can legally access. And while you can jailbreak your iPhone with respect to the DMCA, there's remains the issue of breaking the warranty. Also, while it's not criminal, there is still a EULA to consider.
But Linux got bonked on the head again. They essentially ruled that if you want to access DVDs or streaming videos, like with Netflix's "Watch Instantly" service, you have to buy a PC or an Apple computer or a DVD player. I wonder why they don't see that this situation is identical to the jailbreaking a smartphone, or should be? What's the difference? Linux users want to view movies too, and all they want is interoperability so they can. I wonder how Hollywood would like it if the government told them that to make their movies they couldn't use Linux but instead had to use a Windows PC or an Apple computer? Hollywood uses Linux to make their movies, but they oppose letting us view their products on Linux? Why? If the government is going to regulate operating systems and compel citizens to buy certain vendors' products as opposed to the ones we want to use, I think it should at least be consistent. Actually, I don't think any government should compel use of any private company's products, and I wish that argument had been presented. Maybe next time.
I'll show you the relevant language in the document Determination of the Librarian of Congress and Text of the Regulation [PDF].
SCO Files Docketing Statement and We Find Out What Its Appeal Will Be About
What does SCO want? What it has always wanted, the UNIX copyrights. It wants the appeals court to rule that Judge Stewart erred in ruling that Novell had the right to waive. After SCO lost the jury trial, it filed some motions, essentially asking Judge Stewart to overrule the jury and grant SCO judgment as a matter of law that the copyrights did transfer in 1995, despite the jury's ruling otherwise, or alternatively SCO wanted a new trial. The judge didn't do either, and SCO now wants the appeals court to rule that was error on his part. Finally, if all that fails, SCO wants the appeals court to rule that SCO is entitled to specific performance, compelling Novell to hand over the copyrights now.
In short, they want to win. They thought the jury "just got it wrong", they asked Stewart to fix that, and he didn't, so now SCO is asking the appeals court to help them win something, one way or another. Why? It wants to sue Linux folks, I presume, and it can't without the copyrights. And it wants to sue IBM, too, and unless it can get the appeals court to rule that Novell has no right to waive and get the copyrights, SCO can't sue IBM. I guess it would be more accurate to say SCO wants to not lose. It's in quite a pickle as things stand. Think of IBM's counterclaims for just a minute, and you'll understand why SCO probably feels it has nothing to lose by trying.
SCO v. Novell Trial Transcripts - with line numbers - complete
March 2010 M Tu W Th F 08 09 10 11 12 15 16 17 18 19 22 23 24 25 26
You'll find a copy of this calendar on each page, so you can navigate any way you like. Enjoy!
SCO v Novell Trial Transcripts - Day 2, Part 1 as text -Opening Arguments, 1st Witness, Frankenberg - Updated
For SCO's side, Stuart Singer begins the opening argument, and then Brent Hatch finishes up the last part of it. For Novell, it's Sterling Brennan all the way. Then SCO puts on its first witness on the stand, Robert Frankenberg, formerly CEO at Novell, who is examined by SCO lawyer Stuart Singer of Boies Schiller, then on cross for Novell by Sterling Brennan, then Singer on redirect and Brennan on recross. Here's Groklaw's coverage of that day.
SCO v. Novell Trial Transcripts, as text -- Day 1, Jury Selection and Instructions - Updated 3Xs
This is technically not the trial itself, but jury selection and instructions to the jury from the judge, the Hon. Ted Stewart. The actual trial didn't start until the following day.
If SCO was hoping for a jury that was tech-challenged, they certainly did not get a jury pool like that. And the number of potential jurors who knew about Linux, had friends or relatives that used it, or who used it themselves was strikingly high. Either Utah loves freedom or someone has been seriously underestimating how many people in the U.S. use Linux. Maybe a little of both. Judge Stewart told SCO that he wasn't going to remove people from the jury just because they knew what Linux was or used it, but a couple of them got weeded out for other reasons.
The day begins with some initial judge/lawyer brainstorming, and then the jury pool is brought in, all 52 of them, and the process begins unfolding. The clerk was expecting 55, but there are always a few that don't show up due to illness or unforeseen occurrences. Judge Stewart tells them how grateful everyone is that they are willing to serve. He tells them that juries are necessary for the legal system in the US to work: If we did not have individuals such as you who are willing to take your time to be here to allow us to select a jury, and those of you 13 in number who will ultimately be asked to serve as jurors in this case, if they were not willing to serve, then our entire judicial system would collapse. And if we did not have an operating judicial system in this country, we would not have a country. That's true, by the way, not hyperbole. Juries do play a vital role. And the judge tells them that they'll get out usually by about 1:30 in the afternoon, so they can serve without it being unduly a hardship. So then each one tells a little bit about him or herself, answering a list of questions from the court. And the judge and the lawyers on both sides are listening and observing carefully. At least one jury consultant is present. They have to get from 52 down to 13.
SCO Bankruptcy: the Very Merry MORs of May
As I look quickly through them, it looks like at the end of May, SCO could have paid back the Yarro loan in full. I realize they had just got it in March, and that that wasn't the goal in May. And this is July, not May. They took the loan to be able to keep the litigation going. And going. And going.
Guess how much they've spent in professional fees since this bankruptcy started? $5,097,729 plus $321,753 in expenses, not counting May or bills outstanding. So, the Chapter 11 bankruptcy has pretty much wiped out what they had when they started it, all to lawyers and other professionals helping them. Helping them do what? No wonder they keep postponing meeting with the bankruptcy judge lately. And no wonder they can't pay any creditors. Anyone notice this Chapter 11 thingie doesn't seem to be pointing toward success?
The Transcripts from the SCO v. Novell Trial - Updated 2Xs
The trial began on March 8, 2010, a Monday, and ran for 15 days.