|
|
| More darts - SCO's opposition to Daubert hearings and to Chatlos, Michels testimony |
 |
|
Saturday, February 20 2010 @ 03:18 PM EST
|
Can you believe there's more? Five more, to be exact. SCO has filed two more oppositions to Novell's motions in limine, specifically their motion to exclude testimony from Ed Chatlos, Burt Levine, Kim Madsen, and Doug Michels, and they also filed their opposition to Novell's motions for Daubert hearings to disqualify SCO's experts Christine Botosan, Dr. Gary Pisano, and G. Gervaise Davis III. This is SCO's side of the story, and they in essence say over and over that their experts are wonderfully qualified, and that their witnesses were cited by the appeals court, so they must be able to present their stories to the jury. It's true the appeals court did cite folks like Ed Chatlos, but it never mentioned he wasn't working for the company at the time the APA's Amendment 2 was signed. So did the appeals court make a mistake in not even addressing that issue? SCO claims that "at the time of the APA" Chatlos was the Novell Senior Director for UNIX Strategic Partnerships and Business Development. I wonder what they mean by "at the time". Maybe it's vague, like saying "in Noah's day". I would like to see some substantiation that he was with the company when all the APA documents were signed. Since, as I mentioned in the previous article, the Novell board minutes [PDF] the day before it was signed explicitly say copyrights would not transfer, should he not have to be there at that very day and the next, when the APA was signed to have his testimony be relevant, particularly since the appeals court said the APA was not ambiguous, and it definitely excluded copyrights? I note the minutes tell us who attended that meeting, and no Ed Chatlos. If he was the lead negotiator, why wasn't he invited? I'm sure we'll hear more on this point eventually.
That's only part of why Novell would like to appeal their decision, of course, I would guess. Meanwhile, SCO is acting like the decision was written on stone tablets and brought down the mountain by Moses himself.
Here's what Judge Dale Kimball wrote about Ed Chatlos in his August 2007 order:
Ed Chatlos, Novell's Senior Director for UNIX Strategic Partnerships and Business Development, was a primary negotiator for Novell during the business negotiation of the deal. Chatlos' Declaration states that he left Novell voluntarily in 1996, but it does not indicate his current employment. Decl. Mark James Ex. 12 ("Chatlos Decl.") at ¶ 4. He did disclose in his deposition, however, that his wife has been employed by SCO since the time of the APA in 1995. Decl. Mark James Ex. 13 ("Chatlos Dep.") at 49. During the business negotiations of the APA, Chatlos recalled disputes over the price because SCO could not pay the full purchase price as
contemplated by Novell. Id. at 36. He testified that the royalty payments were used as a resolution to bridge the gap. Id. Chatlos also testified that there was no discussion about excluding or including copyrights because he believes it was implicit in the deal that the copyrights would be transferred. Id. at 122-24. He testified that he was not involved in any discussions with Novell's negotiation team regarding concerns of a potential bankruptcy by Santa Cruz. However, he also testified that he believes that the APA reflects the intent of the agreement. Id. at 130. Although he continued to review drafts of the agreement, his deposition testimony reflects that he had little recollection of the work done by Novell's legal team. Id. at 105. He could not recollect David Bradford's role in the deal or the names of the attorneys at Wilson Sonsini who worked on the APA. Id. at 37, 80.
The bit about his wife is interesting, eh?
And, if, as he says, there were no discussions about copyrights transferring, and the APA says copyrights were excluded, did they transfer? I mean, seriously? Is it *that* easy to lose your copyrights? What a world that would be, if every time someone entered a marketing agreement, they had to worry about witnesses testifying a decade or so later to what they heard at the water cooler and how it led to an impression that the copyrights were supposed to transfer. Chatlos does confirm that SCO lacked the money to pay for everything it at first wanted, which is why the Novell board notes matter. What protection was there for Novell if it transferred all the copyrights and only had a contract for royalty payments with no way to enforce it, if SCO reneged on the deal or went bankrupt? Companies don't always honor contracts, as SCO Group so vividly demonstrated. How naive would Novell have had to be to turn over everything on a wing and a prayer, when they knew, and the minutes reflect it, that they had concerns about Santa Cruz's viability? Tor Braham, who drafted the APA for Novell, testified to that also in his Declaration. Braham was at Wison Sonsini at the time. Larry Sonsini is listed as being present at that Novell board meeting the day before the APA was signed, incidentally. Here's part of what Braham says about Novell's concerns:
7. The APA was not a straight up asset purchase. The contract took on a more complex form due to various issues that arose in the course of negotiations. For example, Santa Cruz did not have the cash to buy both the UNIX assets that Novell had purchased from USL in 1993 plus Novell's UnixWare business. SCO's financial health also raised serious concerns about Santa Cruz's viability as a company. Further, once the form of consideration for the deal became Santa Cruz stock, it became necessary to structure the deal so that Novell would receive less than 20% of Santa Cruz stock. This structuring enabled Santa Cruz to complete the deal more quickly without the delay of seeking shareholder approval. However, the value of the Santa Cruz stock that Novell received — or approximately 16.7% — was approximately $50 million, or far less than the $300 million that Novell paid to USL in 1993 and far less than what Novell believed the USL assets were worth. With these issues in mind, we negotiated specific
provisions in the contract whereby Novell's business and legal interests were protected through contractual mechanisms.
8. The APA was primarily a forward-looking deal. The common goal of both Novell and Santa Cruz was for Santa Cruz to take Novell's UnixWare operating system, to enhance and innovate it, and to proliferate it as a low-cost UNIX competitor to Microsoft's Windows NT product for use on personal computers. To that end, the parties specifically contemplated that Santa Cruz would develop a product called, in the APA, the "Merged Product" to run on computers powered by 32-bit Intel x86 chips. Novell, on the other hand, would focus its business on its networking operating system, called NetWare, as well as related products, including NetWare Directory Services. It was not in Novell's interest to have a homogeneous operating system environment in the PC world dominated by Microsoft. Novell would benefit from a heterogeneous computing environment that included Santa Cruz's successful proliferation of an enhanced UnixWare or Merged Product.
A marketing deal, I'd call it, and I think that would be fair.
Here's where you can find Ed Chatlos's declaration and some information our research dug up on his time at Novell and when he left to join AT&T, publicly reported to have happened in January of 1996. Amendment 2, by the way was dated October of 1996, so he surely can't testify about that. But notice SCO's Memorandum in Opposition in 2004 to Novell's earlier motion to dismiss, which mentions Mr. Chatlos. It says that Mr. Chatlos "held day-to-day responsibility for the potential deal and acted as the principal interface with SCO on the business negotiations for Novell. During the Novell-SCO negotiations, Mr. Chatlos met regularly with SCO representatives, sometimes several times a week, from June to September 1995." OK. The APA was signed on September 19, 1995. But APA's Amendment 1 was signed in December of 1995. Was he there? So, my point is that he clearly, by SCO's own admission, wasn't involved in the whole APA story, from soup to nuts, since everything pivots on Amendment 2, definitely after he had left, and what can he testify about that? The SCO Memorandum in Opposition also says that Mr. Chatlos will testify to the following: Given my central role in the negotiations, I believe I would have known if the parties had agreed that Novell would retain any UNIX copyrights. Well, perhaps if he'd attended that board meeting, he'd have heard the news. What can he say in the face of that writing? Maybe he can testify to what led up to the deal, but if he wasn't there for that pivotal decision the day before, what does it all mean? Maybe that he wasn't informed of the final decision. You think a reasonable jury might reach that conclusion?
Here are the filings:
02/19/2010 - 698 - MEMORANDUM in Opposition re 644 MOTION in Limine No. 18 to Exclude Certain Testimony from Douglas Michels for Lack of Personal Knowledge and Violation of Parol Evidence Rule filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Hatch, Brent) (Entered: 02/19/2010)
02/19/2010 - 699 - MEMORANDUM in Opposition re 648 MOTION in Limine No.19 to Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen for Lack of Personal Knowledge filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Hatch, Brent) (Entered: 02/19/2010)
02/19/2010 - 700 - MEMORANDUM in Opposition re 659 MOTION for Daubert Hearing to Disqualify G. Gervaise Davis III filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A, # 2 Appendix of Unpublished Cases)(Hatch, Brent) (Entered: 02/19/2010)
02/19/2010 - 701 - MEMORANDUM in Opposition re 655 MOTION for Daubert Hearing to Disqualify Dr. Christine A. Botosan filed by Plaintiff SCO Group. (Attachments: # 1 Expert Report of Christine Botosan - FILED UNDER SEAL, # 2 Rebuttal Report of Christine Botosan - FILED UNDER SEAL, # 3 Declaration of Christine Botosan - FILED UNDER SEAL, # 4 Appendix of Unpublished Cases)(Hatch, Brent) (Entered: 02/19/2010)
02/19/2010 - 702 - MEMORANDUM in Opposition re 657 MOTION for Daubert Hearing to Disqualify Dr. Gary Pisano filed by Plaintiff SCO Group. (Attachments: # 1 Expert Report of Dr. Gary Pisano - FILED UNDER SEAL, # 2 Rebuttal Report of Dr. Gary Pisano - FILED UNDER SEAL, # 3 Appendix of Unpublished Cases)(Hatch, Brent) (Entered: 02/19/2010)
|
|
|
|
| Authored by: Ed L. on Saturday, February 20 2010 @ 03:31 PM EST |
Please cue the correction in your comment's title. Thanks!
---
Once they have you asking the wrong questions, they don't have to worry about
the answers - Slothrop's Third Proverb
[ Reply to This | # ]
|
| |
| Authored by: Ed L. on Saturday, February 20 2010 @ 03:33 PM EST |
| Please provide HTML links where appropriate, and a few sentences of context.
Thanks!
---
Once they have you asking the wrong questions, they don't
have to worry about the answers - Slothrop's Third Proverb
[ Reply to This | # ]
|
| |
| Authored by: Ed L. on Saturday, February 20 2010 @ 03:35 PM EST |
| Please keep it topically off, and in accord with PJ's Comments Policy.
Thanks!
---
Once they have you asking the wrong questions, they don't
have to worry about the answers - Slothrop's Third Proverb
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, February 20 2010 @ 03:35 PM EST |
This is a paragraph from the Huffington Post's account of the ongoing Drew
Peterson murder trial.
The hearing, which has brought testimony
from nearly 70 witnesses, will determine what hearsay evidence Judge Stephen
White will allow a jury to hear.
Say what?
I'm getting real
confused now about the admissibility of hearsay evidence. Apparently there are
circumstances where it's allowed?
[ Reply to This | # ]
|
| |
| Authored by: Ed L. on Saturday, February 20 2010 @ 03:38 PM EST |
| Please put the exhibit number in your title, let PJ know what you are working
on, and what you have completed. Tremendous thanks!
---
Once they have
you asking the wrong questions, they don't have to worry about the answers -
Slothrop's Third Proverb
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, February 20 2010 @ 03:51 PM EST |
| The Botosan estimate of "damages" uses Brian Skiba's $45 call option
pricing.
Catching up on Skiba, I notice he has changed jobs again.
His most
recent interview has an interesting opinion:
You are also the
CFO of CatMacArt Corporation. Can you tell us a little more about it?
My wife
has started a website (a social network) with about 100,000 artists in about 120
countries. I help her in the technical side and she has got a development team
in Hyderabad. It’s all about Linux, Apache, Tomcat etc. I do all the
architecture design and management of the development staff in India. That’s in
between sleeping if you will. I have spent a lot of time in Bangalore and
Hyderabad with Deutsche Bank. So, I have built a lot of connections and help her
to find answers to IT problems.
[ Reply to This | # ]
|
| |
| Authored by: Silurian on Saturday, February 20 2010 @ 04:34 PM EST |
Strikes me that in this situation - there was a bench trial, an appeal, and now
there will be jury trial - so much of the lawyer work would be about convering
the bases. If party X thinks that thing Z of party Y might be grounds for appeal
in the future, then Z had better object to Z, to file a motion in limine. Then,
since X objected to Z, Y had better object to the object ion, file a response to
a motion in limine.
If so, the default position of the judge would - seems to me - have to be like
"ah, yeah, here we go the motions in limine, denied, denied, deined
...".
IANAL, or a para legal, or nothing - just someone who writes stoftware for love
and a living (mortgage, family, usual thing). What's the perspective, of the
legal system insiders?
Thanks!
[ Reply to This | # ]
|
- Lay perspctve? - Authored by: Anonymous on Saturday, February 20 2010 @ 04:53 PM EST
| |
| Authored by: Gringo on Saturday, February 20 2010 @ 04:40 PM EST |
After reading all the oppositions by SCO to Novel's limines, I
am left
feeling rather worried. What if the judge allows all these
experts to testify
on behalf of SCO in spite of Novell's
objections? Since Novell so thoroughly
detailed their weakness and
failings, Novell will have nothing left to surprise
them with on
the witness stand. By the time the trial gets under way, all the
experts will be thoroughly coached and prepared by SCO, who will
train them
well to evade Novell's questions on the key points that
Novell was so kind to
lay out in its limines.
So I have concluded that issuing limines is a
calculated risk,
and Novell must have felt that taking the risk of exposing
their
strategy to impeach witness was worth the chance that the limines
may be
accepted by the judge. Perhaps they had a reasonable belief
that those same
limines would easily be found acceptable by the
judge before he started coming
out with all the unfair rulings, and now
are seriously regretting having filed
these limines? [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, February 20 2010 @ 05:10 PM EST |
>[Chatios] did disclose in his deposition, however, that his wife has
> been employed by SCO since the time of the APA in 1995.
Both SCOs? The one that signed the APA, and the new, different
one standing before Judge Stewart? And what does the Judge
understand about the chain between these two of any putative
title to copyrights? Mrs Chatios' employment contract may have
been passed unbroken through the sale to Caldera, so is SCO
now going to claim she carried the copyrights in her handbag?
[ Reply to This | # ]
|
- Caesar's wife - Authored by: Anonymous on Saturday, February 20 2010 @ 08:56 PM EST
| |
| Authored by: SLi on Saturday, February 20 2010 @ 06:51 PM EST |
Why not have some fun.
My lottery numbers for the in Limine motions.
Rules: This only the initial disposition of the motions, not possible reversals
on appeal or even reconsiderations by the same judge. Note that this is a guess,
I claim no wisdom at all (although I did a bit more than toss
coin).
Novell #1 - (already DENIED)
--------- real guesses
---------
Novell #2 - Determine that 1st Amendment defenses apply to
slander of title - DENIED w/o prejudice to consideration wrt jury
instructions
Novell #3 - Determine that SCO is a Limited Purpose
Public Figure - DENIED w/o prejudice to consideration wrt jury
instructions
Novell #4 - Preclude SCO from Contesting that Novell had
an Objectively Reasonable, Good Faith Basis for its Statements Regarding
Copyright Ownership - GRANTED
Novell #5 - Preclude SCO from
Relying on Novell's June and August 2003 Statements as Factual Assertions of
Copyright Ownership - DENIED
Novell #6 - Preclude Reliance on
Statements in December 2003 and March 2004 that do not Constitute Factual
Assertions of Copyright Ownership - DENIED
Novell #7 -
Determine that Common Law Privileges Apply to Allegedly Defamatory Publications
- DENIED, w/o prejudice wrt jury instructions
Novell #8 -
Preclude SCO from Relying on Novell's Applications for Copyright Registration -
GRANTED
Novell #9 - Preclude SCO from Contesting that
Agreements that Post-Date the APA May Constitute SVRX Licenses - GRANTED
in part, DENIED in part, as per SCO's reasoning
Novell #10 -
Preclude SCO from Presenting Argument Relating to Issues Stayed Pending
Arbitration - GRANTED
Novell #11 - Exclude Evidence of
Substantial Performance - GRANTED
Novell #12 - Exclude Certain
Testimony from William Broderick - GRANTED
Novell #13 -
Exclude Certain Testimony from Lawrence Bouffard - GRANTED
Novell
#14 - Exclude Certain Testimony from Jean Acheson -
GRANTED
Novell #15 - Exclude Certain Testimony from Robert
Frankenberg - DENIED
Novell #16 - Exclude Certain Testimony
from R. Duff Thompson - DENIED
Novell #17 - Exclude Certain
Testimony from Ty Mattingly - DENIED
Novell #18 - Exclude
Certain Testimony from Douglas Michels - GRANTED
Novell #19 -
Exclude Certain Testimony from Edward Chatlos, Burt Levine, and Kim Madsen -
DENIED
Novell 655 - Daubert Hearing to Disqualify Dr.
Christine A. Botosan - GRANTED
Novell 657 - Daubert Hearing to
Disqualify Dr. Gary Pisano - GRANTED
Novell 659 - Daubert
Hearing to Disqualify G. Gervaise Davis III - GRANTED
SCO
#1 - Preclude Misleading Statements or Evidence Concerning Language in APA
Removed by Amendment No. 2 - DENIED
SCO #2 - re Reversed
Rulings - GRANTED
SCO #3 - re Novell's Monetary Judgment
Against SCO - DENIED
SCO #4 - Exclude Reference to Litigation
Commentary - DENIED
SCO #5 - Exclude Statements Made by
Michael Anderer as an Independent Contractor for SCO - DENIED
[ Reply to This | # ]
|
| |
| Authored by: The Mad Hatter r on Saturday, February 20 2010 @ 07:16 PM EST |
|
But I'm rather enjoying this. It's gotten exciting again. We have Ralphie
coming out of hiding, motions flying like bullets, etc., etc.
All we
need now is for Darl to sue for Wrongful Dismissal to
make my week.
For those new to Groklaw, we know that Darl is a regular, and yes,
I'm twitting him.
---
Wayne
http://madhatter.ca/ [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, February 20 2010 @ 08:38 PM EST |
I can't hold back any longer. I have to say that, as a US taxpayer, a citizen
educated in the US public school system and (I like to believe) an ethical human
being, as this case goes on I am more and more appalled at the behavior of a
former United States federal judge and current court appointed US bankruptcy
trustee.
No amount of legal system apologists can explain the type of behavior I'm seeing
in this case since Cahn took over the decision making at SCO. I'm disgusted and,
frankly, angry at the deceptive and scurrilous decisions being made here.
Edward Cahn can blame it on the legal team, the lawyers, things set in motion by
the previous management, apologists for the legal system can blame it on the way
the bankruptcy system works, how it is supposed to be Cahn's job to protect SCO,
but deception is deception, whether its a legal technicality or not.
I am dismayed and disappointed that any of my tax money would be spent on this
type of dishonesty. My God, I haven't seen this kind of corruption and unethical
in years, with a representative of the US government(Cahn) at the center of it.
We have no right to criticise the likes of Mohammad Kharzi when we have this
kind of goings on happening in our own country. JHMO.[ Reply to This | # ]
|
| |
| Authored by: wvhillbilly on Saturday, February 20 2010 @ 08:47 PM EST |
Some excerpts from Douglas Michel's testimony (deposition?)
In
connection with the 1995 purchase from Novell, the parties
agreed that (as is
accurately explained by both Mr. Wilt and Ms.
Madsen) Novell could retain the
existing binary royalty stream
even though the entire UNIX business, source
code and related
assets, including copyrights, were transferred to Santa
Cruz.
Q. To the extent that you did, what did you mean by that?
A. Well,
I meant that the only way that I know of, and anyone on
my team knew of to buy
a software business is to buy the
copyrights, and there’s no way we would have
ever done a deal to
buy a software business where we didn’t get the copyrights
and all
the other intellectual property. That’s what you’re buying. And
especially in the case of UNIX, with its convoluted intellectual
property
history, and whatnot, to not get that stuff would be to not
do the deal. And so
it was implicit in everything we did,
everything we thought. Every single
person on my team
understood that. The lawyers understood. The
business
development people understood it. The people at Novell
understood
it.
I mean, it – it’s just so essential. It’s -- you know, it’s like
breathing oxygen, you know, I mean, you just – there’s no way
that deal could
have happened without getting the copyrights.
* * *
*
A. I know that everybody involved in this negotiation knew the
copyrights were being transferred. I know that.
Q. How do you know
that?
A. Because I was there and I know it. That’s -- I -- I know what --
I
know there were discussions. I know there was shared vision. I
know we all
understood what it meant to buy a software company.
You know, I’ve known these
people for many years. It -- it just
wasn’t ambiguous. It wasn’t something that
was ambiguous.
So he just knows, eh? Apparently he never read
the APA, which plainly and explicitly states that all copyrights are
excluded. Even Amendment 2 restates that all copyrights are excluded, then makes
an exception for those copyrights necessary for SCO (Santa Cruz) to exercise its
rights in acquiring the Unix business. Since Santa Cruz got along fine without
any of the copyrights, apparently they didn't need them to exercise their rights
in acquiring Novell's Unix business.
Yet Mr. Michels just
knows that SCO got the copyrights.
What on earth kind of
testimony is that to be allowed in a court of law? It's all pure speculation
and wishful thinking.
---
Trusted computing:
It's not about, "Can you trust your computer?"
It's all about, "Can your computer trust you?" [ Reply to This | # ]
|
| |
| Authored by: ailuromancy on Saturday, February 20 2010 @ 11:51 PM EST |
I live on your farm. I pay you most of the eggs
laid by your chickens. After
an unspecified number of
eggs, I own the farm.
Now look at SCO's
witnesses idea for buying Novell's
copyrights with the royalties from Novell's
copyrights.
If Judge Stuart cannot spot the problem with this,
then I want to
rent out his house. I will give him
most of the rent I collect, and after an
unspecified
amount of rent, I own the house.
[ Reply to This | # ]
|
| |
| Authored by: ChrisP on Sunday, February 21 2010 @ 01:04 AM EST |
In #684, SCO's opposition to Novell's MiL 4, on page 2 SCO states:
"Novell cites Judge Kimball’s statement that he would have reached his
conclusion even if he had “ruled in SCO’s favor on the copyright issue,” but the
Court did not say that Novell’s reading was objectively reasonable even if (i)
the APA had to be read together with Amendment No. 2, (ii) extrinsic evidence
needed to be considered, or (iii) the APA could not be read as an implied
license – the three conclusions that the Tenth Circuit has now established as
law of the case on remand."
Whereas the Court of Appeals (CoA) order can be read as asserting points (i) and
(ii) above, I think SCO are dead wrong about point (iii). Let's see what the
order says.
Page 25. " We recognize that Novell has powerful arguments to support its
version of the transaction, and that, as the district court suggested, there may
be reasons to discount the credibility, relevance, or persuasiveness of the
extrinsic evidence that SCO presents."
Page 35. "We take no position on which party ultimately owns the UNIX
copyrights or which copyrights were "required" for Santa Cruz to
exercise its rights under the agreement. Such matters are for the finder of fact
on remand."
If the jury decides that Novell owns the copyrights as contemplated by the CoA,
what right has Santa Cruz and SCO had over the past 15 years to copy, make
derivative works of and distribute SVRx and Unixware? Are SCO suggesting that,
if they lose on the copyright issue, they have been abusing Novell's copyrights
for a long time? For SCO to argue the reverse, that they must have got the
copyrights because the APA is not a license, is logically invalid though it may
fool some jurors.
What does the CoA order say about implied licenses, apart from referencing
various position statements by Novell and SCO? The only reference I could find
is on page 29.
"As an initial matter, we are skeptical of Novell's interpretation of the
Amendment. Whatever the Amendment means, it refers to the ownership of
copyrights, not to licenses."
To argue from that to "(iii) the APA could not be read as an implied
license" is the law of the case seems a long stretch given what the CoA
said on page 25 about Novell's powerful arguments.
---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.[ Reply to This | # ]
|
| |
| Authored by: sproggit on Sunday, February 21 2010 @ 05:36 AM EST |
To be honest, I don't see anything new in any of these recent filings. Unless,
of course, you wish to concede that SCO has had the benefit of hearing all of
Novell's objections to it's arguments, will have prepared better, and hope to
bamboozle a jury. But at the end of the day it's just fancy footwork - legal
dirty dancing of the worst kind.
They insist - with indignation - that because noone in their right mind would
have purchased a software business without the software copyrights, then surely
they *must* have purchased them. There was lots of talk - no irrefutable proof
mind - and because they heard someone, somewhere say it, so it must be true.
No doubt when it comes to court their view will be that the copyrights
transferred unless Novell can prove otherwise. I'll enjoy seeing the instrument
of conveyance they produce to support *that* argument.
But, alas, their reasoning is flawed. SCO would have you believe that it is not
possible to run a software distribution and licensing business without ownership
of the underlying copyrights.
So let me give you a parallel example that shows just why SCO are utterly wrong
on this point.
Consider a book publishing company and an author. The author writes a novell,
let's call it, "The Mystery of the Missing Copyrights and Other
Silliness". The author - perhaps through an agent - signs a deal with a
publishing house to have the book published and distributed. The book goes in to
print.
Who owns the copyright to the works? [ The book ]. The publisher or the author?
Well, consider it very simply, in this way. Suppose that another write decided
to copy a large section of the "Mystery" novel and use it in a work of
their own. There were large sections of blatant, verbatim copying.
Restitution is required, but who calls foul? Is it the publishing house - the
supplier of the printed books with their nice shiny covers. Or is it the author,
the originator of the initial work?
In case you're wondering, think about the case in which J K Rowling sued another
author [ in April 2008 in New York ] when her work was plagiarized.
There are more parallels with this example, too. In the event that the book is
turned into a screenplay and a movie, the author receives dues as film rights.
Also, even though the publisher receives the bulk of the income from the sale of
books, the author still gets royalties. So even though the publisher runs the
printing and distribution, the author owns the rights.
Thus it is entirely possible - nay practical - for a business that duplicates
and distributes intellectual property, to have a complete split between
ownership of the copyrights and of the distribution business.
This is why SCO has to provide Novell with 95% of the monies raised from
licensing to existing customers. *Because Novell owns the rights*.
Frankly, I'm amazed that SCO have managed to obfuscate this point so
successfully.[ Reply to This | # ]
|
- Dirty Dancing - Authored by: Anonymous on Sunday, February 21 2010 @ 10:32 AM EST
- Dirty Dancing - Authored by: Gringo on Sunday, February 21 2010 @ 10:55 AM EST
| |
| Authored by: ChrisP on Sunday, February 21 2010 @ 07:24 AM EST |
Not much.
Dr. Botosan starts off:
"I have been asked to calculate damages to seo resulting from Novell's
slander of title, unfair competition and breach of contract.} I have been
instructed that the proper measurement of these damages is seo's lost profits
due to Novell's public claims that seo does not own the copyrights to the UNIX
source code associated with the UNIX and UnixWare businesses."
Dr. Pisano starts off:
"I have been retained to estimate the market demand for and number of
SeOsource Intellectual Property Licenses for Linux (also known as a "right
to use" or "RTU" license) that the seo Group would have sold had
that business not been damaged by Novell's alleged slander of title, breach of
contract, and unfair competition."
Breach of contract is not in this trial as it is stayed by the arbitration.
Unfair competition is not being pursued by SCO as it was dismissed on grounds
other than copyright ownership and not appealed.
That just leaves Slander of Title (SoT) for which SCO claimed four classes of
special damages:
1. Lost Sales
2. Stock Price
3. Attorney's Fees and Costs
4. Researching Copyright Registrations.
2 and 4 were dropped by SCO and 3 is for Boies Schiller's accounting team. That
just leaves Lost Sales. We can look at Judge Stewart's order on Novell's Motion
for Summary Judgement (SJ) on the Slander of Title issue recently issued for
guidance on what the Judge expects to be presented at trial,
The order starts by citing several SCO witness depositions. In every cite a
specific company is mentioned though there does seem to be some confusion as to
which Wall Street financial institution was contacted. None of the cites or
Judge Stewart's commentary on them suggests that SCO has presented evidence of
specific monetary losses associated with those companies. Then there are a
couple of extracts from the reports as to the possible reason for the lost
SCOSource sales.
Then the Judge writes on page 9:
"The parties have both submitted numerous letters sent by various companies
to SCO in response to the SCOSource Initiative. Those letters provide some
support for those statements made by those involved with the SCOSource
Initiative. Many of those letters mention the ongoing dispute between SCO and
Novell concerning the ownership of the UNIX and UnixWare copyrights. Though, as
Defendant points out, many of those letters also leave open the possibility of
further discussion once the dispute between the parties is resolved."
If further discussion is possible then the damage is not liquidated.
Page 11:
' "To prove slander of title, a claimant must prove that (1) there was a
publication of a slanderous statement disparaging claimant's title, (2) the
statement was false, (3) the statement was made with malice, and (4) the
statement caused actual or special damages."
A slander of title action requires proof of actual or special damages, presumed
or general damages are insufficient.
The special damage rule requires the plaintiff to establish pecuniary loss that
has been realized or liquidated, as in the case of specific lost sales. This
means that general, implied or presumed damages of the kind formerly available
in cases of personal defamation are not sufficient as a ground for recovery in a
disparagement claim.'
So the experts' reports estimating damages of $100 million and up for lost sales
based on market share in the 2003 to 2007 time frame just won't do. Is there
anything specific? In Dr. Pisano's report on page 53 I see:
"SCON0023874 - 8. Release of Claims and Agreement between Hewlett Packard
and The SCO Group.
SCOI604204-8. Release of Unix Claims and Agreement between Hewlett Packard and
The SCO Group."
I see nothing similar in Dr. Botosan's report though not all referenced
documents are annotated as to content.
So, the Judge has made it clear what he wants from SCO, and the expert reports
do not provide that evidence. The failed HP Agreement would be presented
separately.
---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.[ Reply to This | # ]
|
| |
| Authored by: john-from-ct on Sunday, February 21 2010 @ 09:35 AM EST |
I may be misreading something, but I thought that CA law was the governing
jusrisdiction. In reading the opposition to Daubert Hearing to Disqualify Dr.
Gary Pisano, there's a lot of mention of Utah law.
John
---
Just another greybeard geek![ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, February 21 2010 @ 05:21 PM EST |
What a world that would be, if every time someone entered a marketing
agreement, they had to worry about witnesses testifying a decade or so later to
what they heard at the water cooler and how it led to an impression that the
copyrights were supposed to transfer.
Quite so. It's hard to do
business under uncertainty like that. Which is probably why the law says that a
copyright transfer, to be valid, has to be in writing. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, February 21 2010 @ 06:44 PM EST |
An old serpent has provided me with stone tablets bearing a miraculous
advance transcript of day 2 of the SCO-Novell trial. In this excerpt, one of
SCO's star witnesses, Doug Michels, has just finished testifying on direct
examination. Novell is up.
THE COURT: Mr. Jacobs, you may proceed
with your cross-
examination of the witness.
MR. JACOBS: Thank you, Your
Honor. I have here a copy of Exhibit
232520934, the declaration of Doug
Michels. May I approach the witness?
THE COURT: Yes, and don't waste this
court's time by asking again.
MR. JACOBS: Sorry, Your Honor. Mr. Michels, is
this a correct copy of
your declaration under oath made on November 9,
2006?
WITNESS: Seems to be.
MR. JACOBS: Would you please read to the
court the first sentence of
paragraph 6 on page 1?
WITNESS: "Santa Cruz was
itself a UNIX System V licensee prior to its
acquisition of the UNIX business
and copyrights from Novell."
MR. JACOBS: Thank you. Is that an accurate
statement of your views?
WITNESS: Yes.
MR. JACOBS: Your Honor, this is a
copy of Exhibit 30495830, a
transcript of the deposition of Doug Michels. Mr.
Michels, I've opened this
document to page 138 and highlighted a part of your
answer to a question
from Mr. Melaugh. Do you see what I'm referring
to?
WITNESS: Yeah.
MR. JACOBS: Is that an accurate transcription of your
sworn testimony
on March 28, 2007?
WITNESS: I don't remember my exact
words, but it looks about right.
MR. JACOBS: Is there anything in that part
of the transcript that doesn't
accurately represent your views?
WITNESS:
No.
MR. JACOBS: Would you please read the highlighted section for the
court?
WITNESS: "We took over the business. We were in the business of
selling
intellectual property. We were in the business of supporting
intellectual
property. We were in the business of providing training. We were
in the
business of providing marketing materials. We couldn't do any of that
without owning the copyrights."
MR. JACOBS: The "business" you were
referring to here was the UNIX
business that Santa Cruz acquired from Novell in
1995. Is that correct?
WITNESS: Yes.
MR. JACOBS: Could you remind the
court, please, were you involved with
Santa Cruz before the acquisition from
Novell?
WITNESS: Yes, I was one of the founders of the company.
MR.
JACOBS: And in what year was the company founded?
WITNESS: 1979.
MR.
JACOBS: You were with the company as CEO or board member for
more than 15 years
before the acquisition from Novell?
WITNESS: Yes.
MR. JACOBS: And was
Santa Cruz in the software business during that
time?
WITNESS: Yes.
MR.
JACOBS: Was it in the business of selling intellectual property?
WITNESS:
Licensing it, yes.
MR. JACOBS: Licensing it. Is that any different from what
Santa Cruz did
after the acquisition from Novell?
WITNESS: We were
licensing different things.
MR. JACOBS: But still licensing.
WITNESS:
Yes.
MR. JACOBS: During that period before the acquisition from Novell, was
Santa Cruz in the business of supporting intellectual property?
WITNESS:
Yes.
MR. JACOBS: Providing training? Providing marketing
materials?
WITNESS: Yes.
MR. JACOBS: And were any of the products that
Santa Cruz sold,
supported, and provided training an marketing materials for,
based on UNIX
System V?
WITNESS: Not the same version of System V.
MR.
JACOBS: But some version of System V. That's what you said in your
declaration.
WITNESS: Yes.
MR. JACOBS: Now, during the period of which
we're speaking, from the
founding of Santa Cruz until the acquisition from
Novell in 1995, did the
company own all the copyrights in System V? I mean, in
the version or
versions from which its products at that time were
derived?
WITNESS: We owned the copyrights to all the improvements we made in
our products.
MR. JACOBS: But you stated that Santa Cruz was a UNIX
licensee. You
didn't own the copyrights in the material you licensed from
others.
WITNESS: No.
MR. JACOBS: So Santa Cruz was, for more than 15
years, selling,
supporting, and providing training and marketing materials for
at least some
software that it didn't wholly own as copyright
holder?
WITNESS: Yes.
MR. JACOBS: Did Santa Cruz in fact hold any
copyrights at all in any
version of UNIX System V before 1995?
WITNESS: I…
We didn't push anything upstream. Not that I know of.
MR. JACOBS: Could
Santa Cruz have somehow acquired any such
copyrights without your
knowledge?
WITNESS: Probably not.
MR. JACOBS: So for 15 years, while you
were CEO or chairman of the
board or the Santa Cruz Operation, it was doing the
very things that you now
say are impossible?
MR. HATCH: Objection! Move to
strike!
THE COURT: On what grounds?
MR. HATCH: Because… because Dad
wouldn't like it!
THE COURT: Sust… uhhh… hmmmmph… Objection… aahhhhh…
Objection is overruled. The witness will answer.
WITNESS: Well, uh…
MR.
JACOBS: Thank you, that's all. Thank you, Your Honor. I have no
further
questions for this witness. [ Reply to This | # ]
|
| |
| Authored by: Eeyore on Monday, February 22 2010 @ 11:06 AM EST |
One can only hope! However, based on history, I'm a bit suspicious of anything
related to "law" in Utah. There seems to be a proclivity toward
helping the local boy at the cost of the outsider.[ Reply to This | # ]
|
|
|
|
|
