Headlines:- Week 2, Day 9 of SCO v. Novell Trial - Jury Hears About Kimball's Rulings, 02:49 PM
- New Proposed Jury Instructions and Novell Tries Again on Prior Ct. Rulings, 09:56 AM
- Week 2, Day 8 of SCO v. Novell Trial - McBride's Admission and Pisano - Updated, 08:53 PM
- SCO's Motion to Allow Testimony, Wednesday 02:42 PM
- Novell Anticipates Objections to SCO's Experts' Testimonies - The TK-7 Case, Wednesday 12:38 PM
- Week 2, Day 7 of SCO v. Novell Trial - More McBride and Botosan Opens a Door - Updated, Tuesday 08:20 PM
- Novell files Offer of Proof Re Prior Inconsistent Declaration of Sabbath, Tuesday 07:49 AM
- Week 2, Day 6 of SCO v. Novell Trial - The Mistrial Motion, Kim Madsen, Steve Sabbath, Darl McBride - Updated, Monday 09:44 PM
- Judge Denies 2 Novell Motions: for Mistrial and to Allow Evidence, Monday 08:12 PM
- SCO Responds to Novell's Motion to Allow Evidence, Monday 12:58 PM
| Week 2, Day 9 of SCO v. Novell Trial - Jury Hears About Kimball's Rulings |
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Thursday, March 18 2010 @ 02:49 PM EDT
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Chris Brown's first report of the day is in, filed by phone during an extended break in the court session. The jury got to hear today about Judge Dale Kimball's earlier court rulings. We have all the important rulings in a new, special section on Groklaw's Novell Timeline page, so you can follow along. But for speed, here's the 2004 ruling and the 2007 ruling that his report references and that the jury heard excerpts from or a summary about today.
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| New Proposed Jury Instructions and Novell Tries Again on Prior Ct. Rulings |
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Thursday, March 18 2010 @ 09:56 AM EDT
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The parties in SCO v. Novell have, as promised, filed their proposed jury instructions. And SCO has filed a proposed Jury Verdict form. And Novell has filed a new motion regarding letting the jury know about prior court rulings. SCO has, Novell says, once again crossed the line, despite the court's admonition not to do so. In its examination of Dr. Gary Pisano, it again elicited damages information all the way to 2007, long after there were favorable, to Novell, court rulings. As a result, Novell should be allowed to defend itself by telling the jury about them. Dr. Christine Botosan also calculated her figures into 2007, and Novell in its cross examination should be allowed to ask her about events that happened during that time period. "The prejudice to Novell is palpable," Novell points out.
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| Week 2, Day 8 of SCO v. Novell Trial - McBride's Admission and Pisano - Updated |
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Wednesday, March 17 2010 @ 08:53 PM EDT
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Our reporter from the courtroom in the SCO v. Novell jury trial, Chris Brown, has now filed his first reports for today, and I'll add to them as his further reports arrive. Today saw the finishing up of Darl McBride's testimony and the judge issued rulings on the various motions filed by the parties. But the big news is that Darl McBride has now admitted on the stand that SCO didn't need copyrights to run their Unix business. They need them only to run SCOsource. That is a huge admission, one which undercuts one of SCO's experts, and particularly undercuts SCO's interpretation of
the APA and Amendment 2. Why? Because in 1995 and 1996, when those two documents were negotiated and executed, there was no such SCOsource program nor any thought of ever having one. He may be called back to the stand. We also learn from an exhibit that HP decided not to take a SCOsource license in part because purchasing a license would be the equivalent of supporting terrorism. And then the SCO experts began to testify, beginning with Dr. Gary Pisano. Also, note that the final report from
yesterday's session is now posted there.
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| SCO's Motion to Allow Testimony |
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Wednesday, March 17 2010 @ 02:42 PM EDT
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Yesterday, there was a sidebar discussion about allowing in material regarding why customers chose not to sign up for SCOsource. The judge found a case that he thought was definitive, so it was not allowed in. Today, SCO has filed a motion to allow the testimony that the judge ruled inadmissible, and there is also a letter from Brent Hatch, with the testimony SCO wishes to show the jury attached.
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| Novell Anticipates Objections to SCO's Experts' Testimonies - The TK-7 Case |
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Wednesday, March 17 2010 @ 12:38 PM EDT
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Novell anticipates certain questions SCO is likely to ask two of its experts, and rather than having long sidebars, which the judge has already said he doesn't like, they have filed objections they figure they'll be raising, along with a new case that supports their position, TK-7 Corp. v. Estate of Barbouti. This way things can be hashed out in advance. Novell has found this 10th Circuit case, TK-7, that indicates that Dr. Gary Pisano ought not to be allowed to use the Yankee Group study's numbers as the basis for his opinions, since he didn't look into the methodology. And yes, on the basis of this new case, Novell respectfully says that Judge Ted Stewart's denial of Novell's earlier Daubert motion was in error: The Yankee Group survey is hearsay, and SCO should not be permitted to dress it up and introduce it as Dr. Pisano's unexamined and untestable opinion. They have, in short, painted the judge into a corner, and he will either have to follow case law, or he'll have to find a newer case that contradicts the one Novell has found. Judges are supposed to be bound by case law, with a bit of wiggle room. The judge denied the motion without the benefit of this case, which Novell says, "requires a different result." This case is dynamite. Whoever found it fell asleep grinning.
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| Week 2, Day 7 of SCO v. Novell Trial - More McBride and Botosan Opens a Door - Updated |
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Tuesday, March 16 2010 @ 08:20 PM EDT
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Chris Brown was in the courtroom for us today. It was all Darl McBride today, and there also was some sparring over SCO expert, Christine Botosan, he reports. It looks like the jury will be hearing about Judge Dale Kimball's ruling after all, because Novell intends to ask her about what happened to the stock when he issued his rulings. And there will be more Darl tomorrow. Also Novell has filed its opposition to SCO introducing IBM materials, as they asked to yesterday.
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| Novell files Offer of Proof Re Prior Inconsistent Declaration of Sabbath |
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Tuesday, March 16 2010 @ 07:49 AM EDT
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Novell has filed a Notice of Filing of Offer of Proof Regarding Prior Inconsistent Declaration of Steven Sabbath. It is making a record that SCO was allowed to present testimony in direct examination that Novell knew was contradicted by deposition testimony, but then Novell couldn't tell the jury about it, because of rulings by the judge. I gather Novell has noticed what you have, that the judge's ruling was not fair to Novell.So they are making a record, listing very thoroughly why the deposition is allowable under the rules, how they would have used it to rebut SCO's witnesses, and precisely how the materials are contradictory. This may be related to the discussion we heard about yesterday, where it was discussed if Ms. Madsen would have to return. It surely will be part of any appeal, should it prove necessary. But the judge can simply change his ruling, solving the issue.
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| Week 2, Day 6 of SCO v. Novell Trial - The Mistrial Motion, Kim Madsen, Steve Sabbath, Darl McBride - Updated |
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Monday, March 15 2010 @ 09:44 PM EDT
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Chris Brown attended the jury trial today for us in SCO v. Novell, and he has the details about the mistrial motion, the denial of the motion to allow evidence, and there was testimony today from Kim Madsen and Darl McBride and a deposition played of Steven Sabbath. The mistrial was related to the denial of Novell's motion to allow evidence. The judge said what SCO told the jury was inappropriate, and he merely warned SCO not to go "close to the line again." I'm sure SCO will mend its ways immediately.
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| Judge Denies 2 Novell Motions: for Mistrial and to Allow Evidence |
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Monday, March 15 2010 @ 08:12 PM EDT
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It seems Novell moved for mistrial on March 15 at the trial in SCO v. Novell. And there has been a decision on Novell's motion to allow evidence. The docket doesn't yet reflect the order on the motion to allow evidence, but you can see that it happened in this, the full text of the order on the oral motion by Novell for a mistrial:This matter is before the Court on Defendant’s Motion for Mistrial, made orally on March 15, 2010. For the same reasons stated in denying Defendant’s Motion to Allow Evidence Responding to SCO’s Allegation that Novell’s Slander Continues “To This Very Day,” Defendant’s Motion for Mistrial is DENIED. As soon as we have the order providing "the same reasons, I'll update this article.
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| SCO Responds to Novell's Motion to Allow Evidence |
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Monday, March 15 2010 @ 12:58 PM EDT
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On Friday, at the trial in SCO v. Novell, SCO told the judge that they'd file their response to Novell's Motion to Allow Evidence on Monday. And so they have: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. Wait. That's not how we remember it. We remember SCO saying not just that the claim of *ownership* continued to this day; they said that the *slander* continued to this very day. From the transcript [PDF]:
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. You gotta watch the Boies Boyz, my friends, with a very close eye. They could talk a bird out of a tree before he realizes there is no worm.
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SCO's 8-K About the Yarro Loan
As of March 5, 2010, The SCO Group, Inc., (the “Company”) obtained funding for $2.0 million in postpetition financing (the “Loan”) in the form of a secured super-priority credit agreement (the “Secured Credit Agreement”), from a group of private lenders including Seung Ni Capital Partners, LLC, Jan Loeb, Leap Tide Capital Management, Inc., Steven Shin, Henry C. Beinstein, Stanley A. Beinstein, Neil J. Gagnon, Robert Dyson, WBS LLC, Ne Obliviscaris, Ltd., Darcy Mott, Clemons F. Walker and Herbert W. Jackson (collectively, the “Lenders”). Other than WBS LLC and Robert Dyson, all of the other Lenders listed above are direct or indirect shareholders of the Company. Proceeds from the financing will be used to fund the Company’s operating and administrative expenses, as well as litigation-related expenses. In order to document this financing arrangement, the Company entered into a separate Secured Credit Agreement, Stock Pledge Agreement and Security and Pledge Agreement in favor of each Lender. The Secured Credit Agreement and related documents, described below, which were entered into by the Company in connection with the $2.0 million financing were approved by order of the U.S. Bankruptcy Court on March 5, 2010 (the “Bankruptcy Court”). [PJ: So now we know the list of names. It's that same ole gang of SCOfolk.] - SEC.gov
Microsoft Sees a Window in Google’s China Woes
In an interview published Thursday in the state-run China Daily, Microsoft’s chief research and strategy officer, Craig Mundie, chides Google for its impetuous behavior, and suggests that it should take a more mature approach to China. ...
Over the years, foreign executives have frequently made the mistake of copying the way that Chinese officials deal with their superiors. The approach is best summed up in the Chinese phrase “pai ma pi” – “slapping the horse’s rear”. The problem with sycophancy isn’t so much that it’s offensive to watch, but that it’s a lousy business strategy. China may enjoy the kowtow, but it doesn’t respect it. - Wall St. Journal
It Ain’t 2007, But at Cravath, Revenues are Back on the Upswing
But what’s perhaps most intriguing to us is that, in what will likely go down as one of the worst economic years in U.S. history, revenues were up at some firms. And not just up a little, but up significantly.
That brings us to Cravath, Swaine & Moore.- WSJ Law Blog
Supreme Court Unveils New Web Site Design
The Supreme Court's long-awaited Web site redesign was unveiled this morning at supremecourt.gov, bringing the site into the 21st century only a few years late....
"Visitors will find that the Supreme Court Web site has an updated and more user-friendly design. The site continues to provide online access to the Court's slip opinions, orders, oral argument transcripts, schedules, Court rules, bar admission forms, and other familiar information. But it also has several new features, including enhanced search capabilities, an interactive argument calendar, improved graphics, and additional historic information. The Court plans to continue to update and expand the site's features over time. The process of launching the new design may occur over several hours, but the new version of the Web site should be available to all users by the end of the day."
[PJ: Here's their new
transcripts of oral argument page.] - BLT
Facebook Users Targeted in Massive Spam Run
Facebook's 400 million users have been targeted by a spam run that could infect their computers with malicious software designed to steals passwords and other data, according to security researchers at McAfee. - Jeremy Kirk, PC World
Hacker Disables More Than 100 Cars Remotely
More than 100 drivers in Austin, Texas found their cars disabled or the horns honking out of control, after an intruder ran amok in a web-based vehicle-immobilization system normally used to get the attention of consumers delinquent in their auto payments. - Wired
HTC Vows to Defend Against Apple Patent Suit
HTC has responded to Apple's patent suit to give notice that it intends to vigorously defend itself against allegations of patent infringement. Unlike other ongoing suits--such as the dispute between Nokia and Apple--HTC is not launching a countersuit accusing Apple of also infringing on its patents, but it isn't planning on going down without a fight. - Tony Bradley, PCWorld
Is Microsoft About to Declare Patent War on Linux?
Taking legal action against *all* companies producing software stacks for smartphones would allow Microsoft to claim with some semblance of plausibility that it was not specifically targeting Linux this time (unlike its previous sabre-rattling statements about patent infringement that were specifically aimed at Linux). But the net effect would be that Linux would be the chief victim of such an approach, since any companies using it in their smartphones are likely to end up doing deals with Microsoft – and hence implicitly accepting its claims – whatever the open source community might think or want. It would be like Novell's pact with Microsoft, writ large and much worse.
As the final line of Gutierrez's piece puts it: Apple v. HTC was not the beginning of this process, and it isn’t the end of the story either. - Glyn Moody, ComputerWorld
FCC Broadband Plan Calls For Enhanced Cyber Defenses
Additionally, the plan suggests that policy makers make a concerted effort to clarify -- and possibly separate -- the relationship between users and their online profiles to drive user privacy.
Among other things, the plan recommends that any organization collecting personal information would be required to allow consumers to be aware of what information was being collected and give them the option of consenting or declining to such collection, while enabling them to control the disclosure of personal information to any third party at their discretion. - Channel Web
Microsoft to appeal $106 million VirnetX patent verdict
VirnetX, a software corporation founded in 2005, has prevailed in a patent-infringement lawsuit accusing Microsoft of willfully infringing on two patents for automatic and secure Virtual Private Network (VPN) technology. The Texas jury recommended an award of $105.75 million, which is less than half of the $242 million that VirtnetX asked for. Still, the verdict was a very positive one for VirtnetX. "Our clients are very happy with today's verdict," said VirnetX counsel Douglas Cawley in a statement. "We hope this decision sends a clear message to patent infringers everywhere that they will be held responsible for wrongly profiting off the hard work of others." - ars technica
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