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Novell Intends to Appeal to the US Supreme Court; Asks for 90-Day Stay to File Petition for Writ of Certiorari - Updated
Tuesday, October 27 2009 @ 09:15 PM EDT

Novell intends to file a petition for a writ of certiori, asking the Supreme Court to review the 10th Circuit Court of Appeal's ruling in SCO v. Novell, and it has filed a motion with the Appeals Court asking for a 90-day stay so it can file the cert petition with the Supreme Court:

10/27/2009 - Open Document - [9705604] Motion filed by Appellee Novell, Inc. for stay of the Mandate Pending the Filing of a Petition for a Writ of Certiorari in the Supreme Court of the United States. Served on: 10/27/2009. Manner of service: clerk.

A petition for certiorari means this:
A document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court. It includes a list of the parties, a statement of the facts of the case, the legal questions presented for review, and arguments as to why the Court should grant the writ.
Here's an example of one [PDF], and another one in a patent case [PDF], so you'll know what they look like. The Supreme Court can grant it or deny it, but Novell says it believes there is a very good chance it will be granted. It is asking the Appeals Court to grant the 90-day stay, so it can prepare its petition, but technically speaking, it can file the cert writ no matter what the appeals court says about the stay. But it would be difficult to do that and go back to Utah for the trial simultaneously. It would be weird for the court to deny the stay, in that normally courts don't like to see issues getting set up so that divergent rulings are possible in the same litigation.

The Supreme Court receives many more cert petitions than it grants, but this one seems very possible, since the ruling is so different from and even conflicts with other copyright rulings. Here's how Novell puts it:

This Court’s decision constitutes a departure from decisions of other federal courts of appeals that have confronted the important question of copyright law at issue in this case.
A departure isn't a big enough word, frankly. SCO opposes the stay, natch.

The law firm Mayer Brown held a series of teleconferences on federal appellate practice early this year, and the mp3s are all available. Here's the one on amicus briefs, and here is the one on considerations when deciding whether or not to ask for Supreme Court review. The description:
Petitioning the US Supreme Court for a writ of certiorari can be a time-consuming and expensive process. The first step in deciding to embark on that course should be determining whether the Court is likely to hear the case at all. Ken and Tim discussed how to judge if a case is "certworthy," the mechanics of filing, the do's and don'ts of writing a petition for certiorari, and the ins and outs of opposing a certiorari petition.
To tell you the truth, I wish Groklaw could file an amicus brief. I'm very satisfied that Novell is taking this step. I didn't see how they could not do it, after reading the ruling and the subsequent denial of reconsideration. The issue is much bigger than just SCO v. Novell, and it needs to be resolved, so everyone knows what the law is, regardless of where in the US one resides. You really can't have one federal law that is interpreted in wildly different ways depending on which circuit you happen to live in.

Update: You will not believe it, but the two remaining judges who originally ruled on the appeal, Justices Lucero and Baldock, have immediately denied Novell's request. Might that explain why Novell feels it would be wise to get outside that court's radar? Denying a request like this is weird:

10/28/2009 - Open Document - [9705975] Order filed by Judges Lucero and Baldock denying Attorney motion for stay filed by Appellee Novell, Inc.. Served on 10/28/2009.

There is a footnote saying McConnell has resigned, he being the third judge, but the two "considered the motion". Like, for five minutes?

*******************************

Appeal No. 08-4217

IN THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________

THE SCO GROUP, INC.,

Plaintiff-Appellant,

vs.

NOVELL, INC.,

Defendant-Appellee.

____________________

On Appeal from the United States District Court for the District of Utah
The Honorable Dale A. Kimball (Case No. 2:04-CV-00139-DAK)

________________

APPELLEE NOVELL, INC.'S MOTION TO STAY THE MANDATE
PENDING THE FILING OF A PETITION FOR A WRIT OF CERTIORARI
IN THE SUPREME COURT OF THE UNITED STATES

ANDERSON & KARRENBERG
Thomas R. Karrenberg
Heather M. Sneddon
[address, phone, fax]

MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
Grant L. Kim
David E. Melaugh

Pursuant to Federal Rule of Appellate Procedure 41(d)(2) and Tenth Circuit Rule 41(B), appellee Novell, Inc. respectfully requests this Court to stay its mandate until January 18, 2010, which is 90 days after entry of this Court's October 20, 2009 order denying Novell's petition for rehearing and rehearing en banc. A stay will provide Novell with time to prepare and file a petition for a writ of certiorari in the Supreme Court of the United States, which would be due on January 18, 2010. See Sup. Ct. R. 13.1.

Rule 41(d)(2)(a) provides that a court of appeals may grant a stay of a mandate for a period not to exceed 90 days "pending the filing of a petition for a writ of certiorari in the Supreme Court," so long as the movant shows "the certiorari petition would present a substantial question and there is good cause for a stay." Fed. R. App. P. 41(d)(2)(a); see also 10th Cir. R. 41.1(B) (requiring "a substantial possibility that a petition for writ of certiorari would be granted"). Both of those conditions are met here. This case presents a fundamental question of copyright law on which the circuits are in disagreement: whether the written-transfer requirement of the Copyright Act, 17 U.S.C. § 204(a), requires a writing that identifies with reasonable certainty the specific subject matter and the essential terms of the copyright transfer. Because resolution of that threshold legal question could entirely foreclose the copyright and related tort claims, thus significantly

2

reducing the issues for trial in this case (as well as in two other cases), a stay of the mandate pending a petition for certiorari is warranted.

1. Statement of the Case: In a published opinion issued on August 24, 2009, this Court held that an ambiguous contractual provision that did not specify which particular copyrights were being transferred could nonetheless satisfy the written-transfer requirement of the Copyright Act See 17 U.S.C. § 204(a) ("Section 204(a)"). The Court held that Section 204(a) requires only that the written instrument demonstrate an intent to convey some copyrights "as opposed to other categories of rights" so that, "when it is clear that the parties contemplated that copyrights transfer, * * * a linguistic ambiguity concerning which particular copyrights transferred" does not preclude the conveyance. Slip Op. 21. In adopting that standard, this Court recognized that the "paramount goal" of Section 204(a) is designed to "enhance[] predictability and certainty of ownership." Id. at 18 (quoting Konigsberg Int'l Inc. v. Rice, 16 F.3d 355, 357 (9th Cir. 1994)). Nevertheless, the Court adopted a view of the written-transfer requirement that it acknowledged will require juries to determine, many years after the fact, what precise copyrights an ambiguous agreement conveys based upon the "self-serving testimony offered by partisan witnesses whose recollection is hazy from the passage of time and colored by their conflicting interests."

3

Id. at 26 (quoting Trident Center v. Connecticut Gen. Life Ins. Co., 847 F.2d 564, 569 (9th Cir. 1988)).

The Court also expressly recognized that "some courts," by contrast, "have found that a writing is insufficient to transfer copyrights unless (1) it reasonably identifies the subject matter of the agreement, (2) is sufficient to indicate that the parties have come to an agreement, and (3) states with reasonable certainty the essential terms of the agreement." Slip Op. 19.

On September 8, 2009, Novell filed a petition for rehearing and rehearing en banc of this Court's August 24, 2009 opinion. On September 17, 2009, this Court ordered plaintiff-appellant SCO Group, Inc. ("SCO") to file a response, which SCO filed on October 1, 2009. On October 20, 2009, this Court denied Novell's petition for rehearing and rehearing en banc. A petition for a writ of certiorari to the Supreme Court of the United States would be due for filing in that Court on January 18, 2010. See Sup. Ct. R. 13.1.

2. There Is More Than A "Substantial Possibility" That A Petition For A Writ Of Certiorari Would Be Granted: In this case, there is a significant likelihood that the Supreme Court will grant certiorari. This Court's decision constitutes a departure from decisions of other federal

4

courts of appeals that have confronted the important question of copyright law at issue in this case.

In contrast to the ruling by this Court, the Fifth and Ninth Circuits, in construing Section 204(a), have required significant specificity in the written conveyance. See, e.g., Lyrick Studios, Inc. v. Big Idea Prods., Inc., 420 F.3d 388 (5th Cir. 2005), cert. denied, 547 U.S. 1054 (2006); Konigsberg Int'l, Inc. v. Rice, 16 F.3d 355 (9th Cir. 1994). As both the Fifth and Ninth Circuits have explained, a written instrument must be specific enough to "force[] a party who wants to use the copyrighted work to negotiate with the creator to determine precisely what rights are being transferred." Lyrick Studios, 420 F.3d at 392 (quoting Effects Assocs. Inc. v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990)) (emphasis added); Konigsberg, 16 F.3d at 357 (quoting same). The writing must contain sufficient information to "serve as a guidepost for the parties to resolve their disputes" so that the "parties need only look to the writing that sets out their respective rights," rather than resorting to the courts to resolve the disagreement. Konigsberg, 16 F.3d at 357 (emphasis added). If the standard articulated by the Fifth and Ninth Circuits were applied to this case, SCO could not prevail, because the writings at issue lack the specificity required by those courts to be a valid instrument of conveyance.

5

Moreover, that this Court found support for its ruling in the decisions of the Second and Seventh Circuits (Slip Op. 23) bolsters the likelihood that the Supreme Court will grant certiorari review. As this Court explained, the Seventh Circuit has held that "a written asset transfer agreement may satisfy Section 204(a) even when it 'does not mention the word "copyright" itself.'" Ibid. (quoting Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 413 (7th Cir. 1992)). Likewise, this Court cited the Second Circuit decision in Jasper v. Bovina Music, Inc., 314 F.3d 42 (2d Cir. 2002), for the proposition that, so long as there is a writing, the question of what is conveyed is a matter of contract interpretation. Slip Op. 20 (citing Jasper, 314 F.3d at 47); but see Playboy Enters., Inc. v. Dumas, 53 F.3d 549, 564 (2d Cir. 1995) (holding that document purporting to recognize prior "assignment * * * of all right[s], title and interest" is insufficient to transfer copyrights under 17 U.S.C. § 204(a)), cert. denied, 516 U.S. 1010 (1995). If, as this Court believed, its decision is in accord with the decisions of those circuits, the Supreme Court will likely grant review to reconcile the divergent decisions of the five federal courts of appeals that have addressed the written instrument requirement of Section 204(a). See S. Ct. R. 10(a). Indeed, the Supreme Court of Indiana has recently noted this conflict in the circuits, observing that "the federal circuits do not yet agree on the nuances" of what

6

is required to satisfy Section 204(a). Conwell v. Gray Loon Outdoor Mktg. Group, Inc., 906 N.E.2d 805, 816 (Ind. 2009). 1

Finally, this case raises an issue of exceptional importance under the Copyright Act, which will likely interest the Supreme Court. The current duration of copyright protection is extraordinarily long: the author's lifetime plus a term of 70 years, 17 U.S.C. § 302(a), or, for pseudonymous works or for works made for hire, a term of 95 years from first publication or 120 years from the year of creation, whichever comes first, id. § 302(c). A uniform standard throughout the United States is thus vital to ensure that Section 204(a) promotes Congress' "paramount goal" of "enhancing predictability and certainty of copyright ownership." Community for Creative Non-Violence v. Reid, 490 U.S. 730, 749 (1989) (citing H.R. Rep. No. 94-1476, at 129 (1976)). That goal is best served by a standard that requires that any transfer of copyright ownership be specified in a document that will survive long after memories have faded and witnesses have become

7

unavailable. Indeed, the Supreme Court recognizes the importance of nationwide uniformity in the interpretation of the Copyright Act, as demonstrated by its review this very Term of an issue regarding the enforceability of unregistered copyrights. See Reed Elsevier, Inc. v. Muchnick, No. 08-103 (U.S.). 2

3. There Is Good Cause For Granting a Stay: If the mandate is not stayed, this case will return to the district court for trial, even though a legal issue that could resolve completely the copyright and related tort claims would be pending on a petition for a writ of certiorari in the Supreme Court. That would cause a waste of judicial resources and would force the parties to litigate in two courts simultaneously. Indeed, good cause particularly exists here because, as SCO has acknowledged, an adverse ruling for SCO in this case will ultimately affect how two other federal district court actions concerning the same copyrights will proceed. Thus, absent a stay of the mandate, there is a significant possibility that those issues would unnecessarily proceed to trials in three separate actions if the Supreme Court reviews and reverses the decision of this Court.

8

4. Appellant Opposes The Stay: Pursuant to Tenth Circuit Rule 27.3(C), counsel for Novell contacted counsel for SCO regarding this motion and SCO's counsel has stated that SCO objects to a stay of the mandate.

CONCLUSION

For the foregoing reasons, this Court should grant a stay of its mandate until January 18, 2010, so that appellee Novell is allowed adequate time to prepare and file a petition for a writ of certiorari in the Supreme Court.

Respectfully submitted,

/s Michael A. Jacobs
MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
Grant L. Kim
David E. Melaugh
[address, phone, fax]

ANDERSON & KARRENBERG
Thomas R. Karrenberg
Heather M. Sneddon
[address, phone, fax]

Date: October 27, 2009

_________________

1 As a result of the circuit split over the proper interpretation of 17 U.S.C. § 204(a), federal district courts also are divided as to the specificity required for a written instrument to convey a copyright. Indeed, a number of district courts outside the five circuits that have addressed the issue have required significantly greater specificity under Section 204(a) than did the Court in this case. See, e.g., Forasté v. Brown Univ., 290 F. Supp. 2d 234, 239-240 (D.R.I. 2003); American Plastic Equip., Inc. v. Toytrackerz, LLC, No. 07-2253, 2009 U.S. Dist. LEXIS 27787, at *16-17 (D. Kan. Mar. 31, 2009); Morgan v. Hawthorne Homes, Inc., No. 04-1809, 2009 U.S. Dist. LEXIS 31456, at *47-50 (W.D. Pa. Apr. 14, 2009).

2 This Court's ruling has generated significant interest from a number of industry groups which depend upon UNIX or have interests in UNIX, and it is expected that many of those entities potentially affected by this Court's decision will file amicus briefs in support of Novell's petition, which will further increase the prospect for Supreme Court review.

9

CERTIFICATE OF SERVICE

I, Michael A. Jacobs, certify that on this 27th day of October, 2009, a true and correct copy of the foregoing APPELLEE NOVELL, INC.'S MOTION TO STAY THE MANDATE PENDING THE FILING OF A PETITION FOR A WRIT OF CERTIORARI IN THE SUPREME COURT OF THE UNITED STATES was served via electronic mail to the following recipients:

David Boies
Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, PC
[address]

Stuart Singer
BOIES, SCHILLER & FLEXNER LLP
[address]

Devan V. Padmanabhan
DORSEY & WHITNEY LLP

Counsel for Plaintiff-Appellant
The SCO Group, Inc.

Dated: October 27, 2009

s/ Michael A. Jacobs
MORRISON & FOERSTER LLP
[address, phone, fax, email]

10

CERTIFICATE OF DIGITAL SUBMISSION I, Michael A. Jacobs, certify that no privacy redactions were necessary for this filing. This APPELLEE NOVELL, INC.'S MOTION TO STAY THE MANDATE PENDING THE FILING OF A PETITION FOR A WRIT OF CERTIORARI IN THE SUPREME COURT OF THE UNITED STATES submitted in digital form is an exact copy of the written document filed with the Clerk. This digital submission has been scanned for viruses with the most recent version of a commercial virus-scanning program (using Symantec AntiVirus v.10.1.4.4, last updated April 4, 2009) and, according to the program, is free of viruses.

Dated: October 27, 2009

s/ Michael A. Jacobs
MORRISON & FOERSTER LLP
[address, phone, fax, email]

11


  


Novell Intends to Appeal to the US Supreme Court; Asks for 90-Day Stay to File Petition for Writ of Certiorari - Updated | 290 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topic thread
Authored by: SirHumphrey on Tuesday, October 27 2009 @ 09:20 PM EDT
Anything off-topic is fine. Anything on-topic is OFF(off-topic)

[ Reply to This | # ]

News Picks thread
Authored by: SirHumphrey on Tuesday, October 27 2009 @ 09:22 PM EDT
Title of News Pick is handy.
Clickies (links in html mode) are nice, unless the link might be a troll's lair

[ Reply to This | # ]

Corrections thread
Authored by: SirHumphrey on Tuesday, October 27 2009 @ 09:24 PM EDT
If needed.

co-wrekshuns -> corrections

[ Reply to This | # ]

Novell Will File Petition for a Writ of Certiorari in the US Supreme Court
Authored by: Gringo on Tuesday, October 27 2009 @ 09:24 PM EDT
Yea - Go Novel! I predicted this.

[ Reply to This | # ]

Novell Will File Petition for a Writ of Certiorari in the US Supreme Court
Authored by: cbc on Tuesday, October 27 2009 @ 09:33 PM EDT
The page generator said 4 words in the follow-up. I thought of 4 words. But
these I write: God be with you.

[ Reply to This | # ]

Novell Will File Petition for a Writ of Certiorari in the US Supreme Court
Authored by: Anonymous on Tuesday, October 27 2009 @ 09:34 PM EDT
This is good, very good.

We now get to see how things work for appeals to the US Supreme Court.

This is what Groklaw is all about.

Bill

[ Reply to This | # ]

Sigh of relief
Authored by: bbaston on Tuesday, October 27 2009 @ 09:56 PM EDT
Thank you Novell -- for sticking with it on this strange 10th circuit ruling. All facts and logic are on your side -- and despite your patent agreement with Microsoft, I am rooting for you on this one.

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

I actually clapped.
Authored by: Anonymous on Tuesday, October 27 2009 @ 10:12 PM EDT
Is it stupid to start clapping in your hotel room on the road for work when you
bring up groklaw and see this article headline?

I really have to think Novell is doing the right thing here. Even though they
know they arent getting anything back from SCO, they are making sure thier
interests are protected and making sure the issues are addressed instead of
taking the path of least immediate cost.

---
Clocks
"Ita erat quando hic adveni."

[ Reply to This | # ]

Novell Intends to Appeal to the US Supreme Court; Asks for 90-Day Stay to File Petition for Writ of Certiorari
Authored by: Anonymous on Tuesday, October 27 2009 @ 10:14 PM EDT
I am bothered by the idea that this whole farce would need to be considered by
the Supreme court. It would make sense that it be appealed, but really, in my
personal opinion the appeals court really fell down on the job. But I've
expected so many things that would seem to make sense happen in this thing, and
just the opposite has happened, that I no longer have any idea what our legal
system will do.

Hope to never be in court!!!!!

[ Reply to This | # ]

Novell to Appeal to the Limit; Asks for Stay from disagreeable Circuit
Authored by: webster on Tuesday, October 27 2009 @ 10:46 PM EDT
.

This is an essential step by Novell. It is easier to appeal this mandate than
appeal a mandate after a jury verdict requiring an appeal bond.

The odds are against this appeal being heard just as they were for the Circuit
rehearing. As bad as the odds are, they are the only ones Novell has at this
point on this issue, which is clear and actually has a rational appeal.

But those judges like to back each other up and you have to respect the court
and the process, right or wrong. Whatever they decide has to be right even if
it is wrong.

The Circuit should grant the stay. It would be a fine show of petulance if they
didn't. It would be even finer if then the new District Court judge granted a
stay of his trial to avoid possibly wasting a few months' work. Judge Gross and
Judge Cahn would also suffer some paralyzing curiosity.

Everybody could just stay and wait for the Supremes. Can Groklaw get a press
pass next spring? The Supremes are just a quick step past the Capitol.

~webster~

.

[ Reply to This | # ]

what about writ of mandamus?
Authored by: designerfx on Tuesday, October 27 2009 @ 10:56 PM EDT
I'm just wondering, would such a thing apply? I know Novell wants their case
reviewed (and with good reason), but couldn't they petition the superior courts
to do a writ of Mandamus? Or is that the next step?

[ Reply to This | # ]

Why can't Groklaw file an amicus brief?
Authored by: Totosplatz on Tuesday, October 27 2009 @ 11:36 PM EDT

PJ says

"To tell you the truth, I wish Groklaw could file an amicus brief."
My question is - why not?

---
Greetings from Zhuhai, Guangdong, China; or Portland, Oregon, USA (location varies).

All the best to one and all.

[ Reply to This | # ]

This Is Actually Hugely Interesting
Authored by: Anonymous on Tuesday, October 27 2009 @ 11:38 PM EDT
This is one of those times when we will see whether old people, raised on books,
AM radio, and VHF TV, can understand the dynamics of software development, and
can figure out what the actual protections of copyright should be (which is to
say, how explicit does something have to be in order to be explicit). If the
Supreme Court doesn't figure it out now, then the question is how long, and how
much damage will occur, before their successors get it right? This has the
potential to wreak havoc in all sorts of unrelated cases, because if it turns
out that explicit language doesn't qualify as explicit; that is, the plain
language may not mean what it says; then that means whenever I say something
means a particular thing, and then, if I privately change what I say it means
later; you, relying on your understanding of what I originally said I meant,
cannot challenge my change in meaning, even though I kept that change to myself.
In my opinion, this is the bigger deal with this appeal. At this point, I see
this more as a litmus test of the Supreme Court than anything to do with the SCO
litigation.

BTW, IANAL

[ Reply to This | # ]

Is this not all over whether or not it goes to trial?
Authored by: Anonymous on Wednesday, October 28 2009 @ 12:17 AM EDT
Let me get this straight: Novel is appealing a decision, not to award damages,
but merely to allow it to go to trial?
Is it really that likely that SCO will be able to lie badly enough before a jury
to get them to rule that 1 = 3? That a document that says "No copyrights
transfered", in as many words, actually unambiguously transfers copyrights?
Surely a jury trial would be over sooner than the appeals to prevent it?

[ Reply to This | # ]

Novell is playing the delaying game
Authored by: trevmar on Wednesday, October 28 2009 @ 12:33 AM EDT
Time is on Novell's side. Novell is playing the delaying game, IMO. The Trustee
will want to get to an endpoint on the litigation, probably without spending any
more money. A negotiated settlement might be necessary for him to do that within
a reasonable period of time.

(yes, I know that SCO's litigators were paid for, in advance)
(although maybe Novell has seen the contract and read the fine print)

[ Reply to This | # ]

Even if stay is granted, won't Novell still have to prepare for trial?
Authored by: Anonymous on Wednesday, October 28 2009 @ 12:38 AM EDT

Well, let's assume the stay is granted, and, come Jan. 19 (Jan. 18 is Martin
Luther King's birthday observance), it runs out. Then what?

If cert is denied, that's easy. But what if cert is granted? What happens to the
trial? Automatic stay? More motion practice?

[ Reply to This | # ]

Gonna be a lot of Amiscus Briefs...
Authored by: Anonymous on Wednesday, October 28 2009 @ 12:43 AM EDT
I would personally expect the authors guild, the MPAA, the recording industry
and a number of other organizations to file briefs. The entire business of these
companies and organizations are in danger by the SCO ruling if it's allowed to
stand.

Just imagine for a minute how many writers, producers, musicians and others
would love to go back and get a legitimate sale thrown out based on the utah
ruling or conversely the number of unethical organizations that would like to
take documents that don't transfer copyright and allege it did even though
section 204a documentation was never provided using evidence that wouldn't
normally be admissible because of section 204a requirements. Think how many
companies would like to take initial negotiations that weren't fulfilled and
claim that the original intent was what was consummated and that copyright
transferred even without the required sale documents even when there is an
explicit document saying it didn't.

The Utah ruling could cost a lot of people a lot of money in legal fee's and
time along with the potential to lose major assets. Because of this I expect a
significant number of organizations who's business is based in copyright will be
filing briefs to shoot down the SCO ruling because of the danger it represents.
The requirements in 204a are critical or there is going to be a LOT of
litigation on agreements where the contract/agreement is vague and there was
original intent to transfer (which for whatever reason didn't get finalized) but
there isn't 204a documentation making the transfer. Hundreds to thousands of
deals are made every year to transfer rights where there was original intent to
transfer copyright but it didn't happen (usually due to price). Every one of
those is now in danger of turning into an actual transfer.

[ Reply to This | # ]

Novell Intends to Appeal to the US Supreme Court
Authored by: Ian Al on Wednesday, October 28 2009 @ 05:47 AM EDT
I thought Novell should do this if only to protect Suse Linux from copyright
attack from the likes of SCOG. FUD like 'here's 100 people who all agreed that
Linus promised to transfer his copyrights in Linux to Microsoft. Here are
selected public statements and writings on the Interweb that form an adequate
writing of conveyance. See how dangerous it is to use Linux?'

The issue is as wide as protecting the copyright principle and affects the rest
of the world's willingness to trade with the US in important areas.

I did not expect them to do it. I thought they would allow SCOG to die an
unnatural death and Ed to have to reach a settlement. At the worst, they might
have to go to trial and take a chance on the jury saying no copyrights
transferred. When the Suse arbitration resumed, that would finally resolve the
threat to Linux (no red-necked jury to worry about in Switzerland).

I hope the Supremes do and say the right thing. However, it does not end the
trial. We still have the issue of whether Novell could waive the contract claims
against IBM. I notice that this motion asks for the trial to be stayed rather
than just the copyright issue. I wonder if the district court will do what Judge
Kimball did in the original case and just stay the issues being put to the
Supremes. I would welcome that since it is probably not really an issue for IBM
or Novell and the IBM counterclaims will deal with SCOG illegally withdrawing
IBM's perpetual and irrevocable licence.

I still have this twinge of regret. You see, I'm sure I remember Linus sending
me an email saying he would change all the copyright notices he held in Linux to
me. That would be a writing with specificity, wouldn't it? I can't find my copy
ATM, but it should be a straightforward matter of discovery related to all his
ISPs and all the computers he has owned and used over the last decade or so. My
parol evidence should be enough to get this in front of a jury. And, none of
this 'unenforceable naked promise' nonsense here. It's not a contract, it is an
agreement about licences and my consideration is that I have to worry about
copyright violation instead of Linus. If Novell get their way, all my parol
evidence will be worthless and I will never get my discovery proof.

---
Regards
Ian Al

Linux: Viri can't hear you in free space.

[ Reply to This | # ]

There's One Good Thing in All This
Authored by: DaveJakeman on Wednesday, October 28 2009 @ 09:53 AM EDT
4. Appellant Opposes The Stay: Pursuant to Tenth Circuit Rule 27.3(C), counsel for Novell contacted counsel for SCO regarding this motion and SCO's counsel has stated that SCO objects to a stay of the mandate.
SCO has been champing at the bit to overturn Kimball's ruling, ever since Kimball's ruling. They made statements about their confidence in the 10th Circuit Appeals Court to such an extent, we collectively wondered whether the fix was in prior to their ruling. After their ruling, this suspicion deepened.

But now SCO doesn't want this going to the Supreme Court. Change of reins aside, I hope this indicates the fix isn't in at the top level.

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Where They Went Into the Weeds
Authored by: Anonymous on Wednesday, October 28 2009 @ 02:34 PM EDT
OK, the appeals court blew it. In hindsight they blew it big time. Big enough
that Novell not getting cert would be a surprise.

But why?

My guess is this: There were actually TWO issues in their minds, and one trumped
the other.

The first issue was the statutory requirement for a writing.

The second and much more important issue to the Appeals Court was the
substitution of a Judge's summary judgment for a jury's trial judgment.

There is a constant temptation for judges to nullify the constitutional
requirement for jury trials. In the minds of professionally trained,
senate-confirmed large-egoed persons-in-black-robes there is always a good
reason to substitute their (better) judgment for that of twelve good and true
morons dragooned from who-knows-where. It is easy to read the Appeals Court
decision as a brush-back pitch to the District Court judges of the circuit. In
effect these judges were saying as a matter of judicial attitude:
"Everything goes to the jury"!

But that lost track of the other constitutional issue: Can you say that Congress
passed a law, if the judges don't pay attention to the words it it?

In this case the law is clear: ambiguity defaults to no transfer. In that sense,
ambiguity means there is no ambiguity. Thus there is no transfer, and thus no
fact for a jury to decide. In supporting the Jury, the Appeals Court dissed the
Congress. Oops.

The other way to read the Appeals Court is that it is saying that Congress
cannot make a law that prevents ambiguity (and thus jury trial) no matter how
Congress words the law. Double Oops.



IANAL, IDEPOOTV
JG


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I hope...
Authored by: Anonymous on Wednesday, October 28 2009 @ 02:40 PM EDT
Boise is just as successful for SCO as he was for Al Gore!

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ABSOLUTELY Novell Wants a Delay
Authored by: Anonymous on Wednesday, October 28 2009 @ 03:31 PM EDT
There's no question about it. Novell intends to drag this on as long as they
can in hopes of outlasting SCO's money. They've played this since day one.
Delay, delay, delay. And, they know that the SC isn't going to take a look at
this. It will be rejected without review. Just one more play in this game to
drag this saga out further. Then, we'll finally get a court date, SCO may win,
then there will be another 10th circuit appeal and then a SC appeal. This will
go on for 10 more years.

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Novell Intends to Appeal to the US Supreme Court; Asks for 90-Day Stay to File Petition for Writ of Certiorari
Authored by: Anonymous on Wednesday, October 28 2009 @ 05:19 PM EDT
I have to agree. I don't see that this is going to get Novell anything but a
desired delay.

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Novell Intends to Appeal to the US Supreme Court; Asks for 90-Day Stay to File Petition for Writ of Certiorari
Authored by: Anonymous on Wednesday, October 28 2009 @ 06:46 PM EDT
The Trustee Cahn has an opportunity to turn a nearly worthless asset into
several million. Since it is his job to maximize payments to the creditors,
isn't that just what he should do?

Novell won a few million that is now on appeal. Wouldn't the best for Novell,
SCO and the creditors if Novell were given all SCO rights to Darl's litigation
lotto, and agreed this settled all claims Novell has against SCO? SCO's
creditors would be big winners, and Novell would likely be happy.

Now there is the problem with IBM. Now walk this through.

If the suit with IBM were to go to completion, where would SCO get the money to
pay damages to IBM? Look at the cases, that is the most likely outcome.

However, with little hope of IBM actually collecting on damages, I believe they
would be willing to drop their claims against SCO. It is a win for everyone not
playing litigation lotto.

Wouldn't it be fiscally irresponsible for Cahn not to make this settlement?

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Rule of Four
Authored by: SpaceLifeForm on Wednesday, October 28 2009 @ 06:51 PM EDT
Link

The rule of four is a Supreme Court of the United States practice that permits four of the nine justices to grant a writ of certiorari. This is done specifically to prevent a majority of the court from controlling all the cases it agrees to hear.

The rule of four is not required by the Constitution, any law, or even the Supreme Court's own published rules. Rather, it is a custom that has been observed since the Court was given discretion over which appeals to hear by the Judiciary Act of 1891 and Judiciary Act of 1925.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

  • Rule of Four - Authored by: Anonymous on Saturday, October 31 2009 @ 01:38 PM EDT
10th Circuit Denies Novell's Stay
Authored by: Anonymous on Wednesday, October 28 2009 @ 06:58 PM EDT
The 10th Circuit has denied Novell's requested stay. Getting Pacer link.

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Maybe the idea of FOSS is on trial here
Authored by: jbb on Wednesday, October 28 2009 @ 07:35 PM EDT
I realize this might be way out there, but I'm trying to figure out why the legal system has been unable to efficiently deal with SCO even though we've known here pretty much from the get-go that SCO had no case and no evidence. There have been a lot of different explanations put forth:
  1. SCO hired the best tap-dancing lawyers in the business
  2. SCO's lawyers are gaming the system
  3. The legal system grinds exceedingly slow
  4. The fix is in
  5. The judges don't "get" the tech
  6. The judges bamboozle easily
  7. It is just a series of massive coincidences
  8. Etc.
None of these explanation is satisfying. Sure, SCO hired great lawyers but the lawyers for Novell and IBM are no slouches either. Even if SCO's lawyers are better I can't believe they are that much better.

If it was normal for the legal system to take six plus years to figure out that a plaintiff has no credible evidence then there would have been a revolution in the legal system years ago. It simply could not function with such inefficiency. Sometimes it does appear like the entire game is rigged. IANAL but I would guess that the odds of something like this happening would be like the odds of rolling snake-eyes six times in a row. But I don't believe the fix is in because after a few years Judge Kimball finally got it and after three years Judge Gross was starting to get it.

So the puzzle is: why does it take so long for the judges to catch on? I can't believe they are all slow learners and we are all smarter than they are. I've also been thinking about Rob Enderle's non-apology after he discovered that he had been spending years re-broadcasting SCO's lies and condemning as liars the people who were telling him the truth. It is easy to write him off as a person with serious issues, but even so, why did he come out so strongly against FOSS and not for FOSS? Why was he so easily misled?

I think the stumbling block has not been the tech per-se but rather the whole idea of Free and Open Source Software. SCO did a pretty good job at condemning FOSS as anti-American, etc. Others have made similar high profile attacks. Maybe the reason why we seem to see the SCO saga so differently from the way the judges see it (for their first couple of years) is because we grok FOSS and they don't.

I think this prejudices the judges (and Enderle, et al.) against FOSS and in favor of SCO. Perhaps the prejudice is completely subconscious. This would explain why SCO is constantly given the benefit of the doubt while their opponents never get that same benefit. But it goes even deeper because if someone doesn't grok FOSS then they will heavily discount the opinions of FOSS supporters. It is almost as if we are explaining things to them (here and in the media) in a language that they never heard before. Perhaps a part of their minds has categorized us as fanatics. It is a natural human tendency to be suspicious of things (and people) we don't understand. Our wholehearted support of FOSS makes us seem suspicious, perhaps belonging in the same category as people who illegally download and share copyrighted movies and music.

When a judge reaches a decision that makes no sense to us (which has been happening a lot) and we then say the judge was stupid or bamboozled then we are increasing the alienation and making it even more difficult to reach them. It is not that they are stupid it is just that they have a different reality. It's like we know calculus and they don't and we call them stupid because it takes them forever to do calculations we can do in an instant. They're not stupid, they just don't know calculus.

I think most (but not all) people are mostly good and are trying to do the right thing. When there is a large disagreement between groups it is most often because the groups have different shared experiences and thus have different realities. For us here, our reality is that FOSS is a "good thing". A very very good thing. But even if we had an immediate gut attraction to FOSS, it takes some time and thought and consideration to figure out what it really means and what the benefits and implications are. It's very easy to forget our own learning process because after we learn something, in order to use it, we have to erase all the hurdles we needed to jump over while we were learning. For me, teaching involves going back and remembering those hurdles.

Over the years, I've been really bothered by the great disparity between the conclusions and observations made here and the conclusions the judges reach (for their first two years or so). I came up with this idea because it seems to neatly explain this huge disparity. It also allows me to look more kindly on the judges who make decisions that make no sense to me. It relieves the tension. It might even be a useful thing to believe in even if it is not entirely true.


---
You just can't win with DRM.

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SCOTUS Granting Cert - The odds are stacked against
Authored by: SpaceLifeForm on Wednesday, October 28 2009 @ 08:37 PM EDT
Link

I have not read the entire 66 page report [PDF] that you can download at the above link, but it sure appears that a lot of 'filtering' happens at the Supreme Court before the Justices even decide to vote on granting cert.

The Court has several information-gathering tools at its disposal to aid in the disposition of a cert petition, the two most common of which are the subject of this Article. First, if a respondent has waived the right to file a brief in opposition then the Court may request (practically, require) him to file a brief. This process is known as a “call for response,” or simply a “CFR.” No formal vote is necessary and any single Justice may direct the Clerk of the Court to enter the appropriate order. The identity of the Justice who requested the response is not publicly revealed. The Court uses the practice frequently, calling for an average of just over 200 responses per Term. The Court will almost never grant plenary review in a case without a response on file. Second, the Court may invite the Department of Justice, through the Solicitor General of the United States (known as simply the “SG”), to file a brief analyzing the petition. This process is referred to as a “call for the views of the SG,” or “CVSG.” The Court requires a formal vote of the Justices to issue a CVSG and uses this practice in only about a dozen cases per Term.
[Footnotes removed, see original]

The Solicitor General of the United States is Elena Kagan.

---

You are being MICROattacked, from various angles, in a SOFT manner.

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Apparently some judges are happy with that
Authored by: Anonymous on Thursday, October 29 2009 @ 10:41 AM EDT

You really can't have one federal law that is interpreted in wildly different ways depending on which circuit you happen to live in.

Apparently you really can.

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My warped sense of humor...
Authored by: Anonymous on Thursday, October 29 2009 @ 12:28 PM EDT
... got a chuckle out of the last part:
Appellant Opposes The Stay: Pursuant to Tenth Circuit Rule 27.3(C), counsel for Novell contacted counsel for SCO regarding this motion and SCO's counsel has stated that SCO objects to a stay of the mandate.

CONCLUSION

For the foregoing reasons, this Court should grant a stay of its mandate until January 18, 2010, so that appellee Novell is allowed adequate time to prepare and file a petition for a writ of certiorari in the Supreme Court.
OK, I guess I just need more sleep...

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Why is Groklaw not reporting this?
Authored by: Anonymous on Thursday, October 29 2009 @ 01:29 PM EDT
It's been reported here by anonymous and on the SLTribune that Novell's motion
was denied. Why is there no story on Groklaw? I'm surprised that newspapers
are getting in analysis before Groklaw on this.

Here's the SLTribune's story: http://www.sltrib.com/business/ci_13662324

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denial
Authored by: nola on Thursday, October 29 2009 @ 03:57 PM EDT
I wonder if the denial could actually help Novell's chances. It makes it look
more
like the two judges are stacked against them. After all, why deny the stay after

all SCO's time-wasting?

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The big question now is ....
Authored by: Anonymous on Thursday, October 29 2009 @ 03:58 PM EDT
....whether Novell will still file.

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What will most likely happen
Authored by: Anonymous on Thursday, October 29 2009 @ 04:28 PM EDT

The most likely result of Novell's filing a petition with the SC is that the SC will ignore it.

Sorry to rain on everyone's parade - but, realistically, that is what the SC usually does, even when there is merit in the petition and (as here) different circuits have set contradictory precedents.

There are more meritorious petitions than the SC has time to deal with.

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