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| Week 2, Day 9 of SCO v. Novell Trial - Jury Hears About Kimball's Rulings and Botosan - Updated Again |
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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. Update: Hey, look at this, a new searchable database, CourtWeb where you can search full text of court rulings for free. Not every order is in there, but eventually I hope they will be. I see Google seems to be in this project. I want to say thank you. Be sure to choose to expand to 100 documents, if you are searching for SCO Group. This is exciting.
Here's Chris's first report:
Novell's attorney Sterling Brennan read before the jury the portion of Judge Kimball's 2004 ruling stating that it is uncontestesd that the APA did not transfer the copyrights to SCO.
He provided a summary of Judge Kimball's 2007 ruling that the APA, A1, and A2 did not transfer the copyrights to SCO.
This was anticipated during considerable pre-jury discussions this morning that he may do so, but they were certainly dramatic moments when each where brought before the jury.
I thought Judge Ted Stewart's numerous (perhaps 3 or 4) disclaimers and instructions to the jury were handled very well and not nearly as prejudicial as had been foreshadowed the last few days.
I'm sure it will have a powerful influence on the jury.
Judge Stewart instructed the jury that, among other things, they must not base their decisions on that wording, that it was reversed on appeal and was sent here for them to decide. He told the jury that Mr. Brennan is using it here solely to counter the testimony of the witness (Dr. Botosan).
Here's what Judge Kimball wrote in the 2004 ruling:
It is undisputed that the APA did not transfer any copyrights. Under the APA, Novell agreed that on the Closing Date (December 6, 1995) it would assign all assets on Schedule 1.1(a) but that it would transfer no assets listed on the Excluded Assets schedule, Schedule 1.1(b). There is no dispute that all copyrights were excluded on Schedule 1.1(b) and, therefore, no copyrights transferred on the Closing Date under the terms of the APA. Also, Amendment No. 2 merely amends the schedule of excluded assets and does not constitute a transfer of copyrights on its own. So now the jury, if it is discerning, realizes that SCO has changed its story since 2004. Now they are contesting that the APA did not transfer the copyrights. The story now is that they were supposed to but somehow the language didn't reflect the proper intent, and later it got "fixed" by Amendment 2. And of course in the 2007 decision, Kimball said Novell did not transfer the copyrights to SCO by means of the 1995 APA or by Amendment 2 or in any other way. I have a question. If the judge tells the jury that the case was appealed and the Appeals Court sent it back to them to decide, shouldn't he also tell them that Novell has filed a writ with the Supreme Court regarding that Appeals Court decision? Of course, then they'll *really* wonder why they are sitting on a jury, but then, so do I.
Update 2: Our own cpeterson was there today for part of the morning session also, and here's his report, but it's more to give you the flavor of the morning. He left prior to the reading of the rulings to the jury to get to work, so he'll be glad to read the rest of the story when he gets home. Meanwhile, we get to feel what a tense morning it was in a small courtroom in Salt Lake City, Utah:
Bombshell in court this morning. However, by the end of the first break, we were all still sniffing the 'bomb' and wondering what would happen if it went off.
First off, Judge Stewart thanks both sides for getting him their latest work on proposed verdict instructions. He noted that it had been filed at 4:00 a.m., and said that there were probably some very tired individuals there. He said that if anyone needed to be excused to go take a nap, not to be afraid to ask - he'd certainly be willing to grant such a request.
Then Judge Stewart said that he was going to grant Novell's motion to allow rulings from Judge Kimball's court to be used in conjunction with their cross examination of Dr. Christine Botosan.
However - there are caveats.
And on those caveats, I ended up very confused, and I think that I wasn't the only one.
To the best of my understanding, Novell is not permitted to use these rulings simply to get them in front of the jury. They can only be brought up in the context of rebutting Dr. Botosan's 'but for' world to the real world. Novell can present the rulings, and suggest that they were a risk factor which should have been considered.
However, if Dr. Botosan disagrees that they are relevant, then permission to use the rulings is withdrawn.
So the early part of the day was spent in Mr. Brennan's cross of Dr. Botosan, but it was very slow going. In spite of the judge's admonitions, yes/no questions were answered in lecture format. Consequently, Mr. Brennan's questioning had just gotten to the point of beginning to identify what risk factors she had used in her analysis by the time we took our first recess.
There was more discussion after the jury left the courtroom -- this continued for about 10 more minutes, I think -- and it was then that some of the caveats were revealed, and there was more confusion. Judge Stewart said he would tell the jury that the earlier court findings had been 'reversed' -- his term, there -- but it was not clear (to me, and I think I wasn't alone in this) whether that would be *if* the permission is withdrawn, or if he was going to state that regardless.
Mr. Hatch made a motion that this decision should be made out of the hearing of the jury by bringing in Dr. Botosan, going over the testimony, and coming to an agreement so there wouldn't be any confusion for the jury. Judge Stewart denied that motion - although I don't remember Novell objecting to it.
I have to admit, I would have preferred that course of action. I really felt like this could turn into a booby-trap situation for Novell, and it looked to me like they were having second thoughts about even going through with using the rulings. Cliffhanger for this afternoon's reports.
Chris asked me what I thought about getting the transcripts for the day's proceedings. Partly because he (nor anyone else) expected the pre-recess conference to go on like it did, so he wasn't taking notes.
Hopefully, things will have been clarified in the later sessions, and there won't be a need - but I think we'll need to consider the possibility that transcripts might be necessary to sort this one out.
Now I, with the rest of you, get to gnaw knuckles till we hear more...
Thanks to Chris, we know how it turned out, but I will be eager to read the transcripts myself, to capture all the details.
Update 3: Chris just sent me his final report from yesterday's session, the direct examination of Dr. Christine Botosan, which I've added to yesterday's article. That means he'll be sending the rest of today's events as soon as he can type up his notes.
And here it is, Chris's report on today's session, the cross examination of Botosan, with a final report promised for tomorrow:
Most of the day, up to the 11:55am break was Novell's cross-examination of Dr. Christine Botosan and SCO's redirect and significant motions and rulings regarding same.
Before the jury was brought in, Judge Stewart observed that someone must be very tired as the Jury Instructions were filed at 4am. Having reviewed them he asks if the parties are abandoning the Litigation Privilege? Mr. Normand said that was their understanding but that it was [Novell] who was asserting it. Novell's Mr. Jacobs said that he's not sure if something in the wee hours changed, but that he will look into it and find out if that's the case.
Judge Stewart addressed the motion filed late last night regarding admittance of prior court rulings. SCO's Mr. Singer was quick to state that they do not believe they have opened any doors. He stated that they operated in a "but for" world where we have the copyrights, where there was no slander. That without the slander there was no litigation, therefore no rulings, etc.
Novell's Mr. Sterling Brennan asserted that saying this is a "but for" world is a mischaracterization. He said the entire foundation of Dr. Botosan's report is based on analysts' projections based on the "real world." He said that there are people in the real world who rejected licenses based on real world court rulings. He stated it's not fair to Novell to defend against the, potentially, $250 million slander of title claims. He said Dr. Botosan stated in her testimony that she used the summary judgment motions in developing her report.
Judge Stewart said he's going to grant Novell's request. And that should the rulings be mentioned he will read the following instructions to the Jury... "You have heard references to court cases... district court reversed the decisions in this case... and that is why you are here, to decide..." He said his ruling is limited to the two judgments in 2004 and 2007.
SCO's Mr. Brent Hatch asked about Novell's additional exhibits request sent overnight. He said Novell has known about the reports for some time. Mr. Brennan starts saying there are two species of exhibits, the first are SCO SEC 8K filings. Judge Stewart interrupted him and, I believe, denied Novell's request.
The Jury enters and Dr. Botosan takes the witness seat.
Novell's Mr. Sterling Brennan asks, When did SCO's attorneys first approach you?
Botosan: 2007.
Q: What is your hourly rate?
Botosan: $450/hour, it may seem high, but I want to describe to the jury the reason... Judge Stewart cuts her off and directs her to only answer Mr. Brennan's questions, that her lawyer can elicit more.
Mr. Brennan: Substantially more than UofU?
Botosan: Yes, but it's comparable to my consulting work.
Q: How many hours have you worked on this since 2007?
Botosan: About 4 weeks.
Q: And that's 40 hours per week?
Botosan: No, I wish. Closer to 50.
Q: So 200?
Botosan: Correct.
Q: So just under $100,000?
Botosan: Yes.
Q: When you started were you given instructions?
Botosan: Yes, "but for."
Q: Were you given assumptions?
Botosan: Yes, 1) Novell slandered.... (missed the rest)
Q: SCO's attorneys asked you to follow instructions and put it in a report?
Botosan: No, that's not correct...
Mr. Brennan produces her May 23, 2007 report and asks, SCO's attorneys provided her with documents?
Botosan: Yes, access to database of case documents.
Q: And that included all rulings in this case?
Botosan: I assume so.
Q: Did you read any?
Botosan: Yes.
Mr. Brennan reads from the report SCO's instructions: "...The APA and Bill of sale transferred the entire business and APA confirmed transfer to SCO..," is that correct?
Botosan: Yes
Q: The Instructions based (page 1, paragraph 1) on Novell's public statements? Botosan: Yes, based damages on Novell's statements.
Q: SCO gave you the measure of damages?
With qualifications she agrees.
Q: If the instructions SCO gave you were inaccurate, the damages would be different?
She agrees, but this came after a long time of Mr. Brennan questioning the scenario of if SCO did not own the copyrights, there would be no damages.
Q: Your report contains information not presented in court yesterday?
Mr. Hatch objects and is sustained. (Much later in the day the judge and Mr. Brennan discussed where this question was going. Judge Stewart opined that had Mr. Brennan gone further along this line of questioning toward the prior court rulings he would have entertained SCO's objections. Mr. Brennan notes that Judge Stewart had done so. Mr. Brennan said he wasn't going to go there and that was as far as he was going to go on that question.)
Mr. Brennan turns to board (summary board) from her previous day's testimony and asks Dr. Botosan what would the calculation be if the copyrights did not transfer? She responds, but if that's true we wouldn't be sitting here. On further prompting she states that there would be no product, there would be no damages. She states, but that's not the world we live in.
Mr. Brennan asks further, So what would you calculate the damages to be?
She eventually responds, $0. Mr. Brennan asks her to write that on the board, She then writes $0 down at the bottom.
Mr. Brennan thanks her and says, That's all the calculations I need.
He then asks her of her specialities. She replies to the effect, financial reporting, financial report analysis...
Mr. Brennan asks, You relied on two sorts of documents -- stock trader analysis and internal forecasts?
Botosan: Yes, they were a small subset of the documents I used.
Q: Do you understand SEC filings, 10Ks, 10Qs?
Botosan: Yes.
Q: And event 8Ks?
Botosan: Yes (but not as well).
Q: Did you examine SCO's filings?
Botosan: Yes, the 10Ks and 10Qs. The 10Qs for period 2001 to 2004 and for the 10Ks she used quite a few.
Mr. Brennan asks further, Those 2003 to 2007 10Ks.. Did you review them all?
Botosan: Yes.
Q: Was the information contained within these documents used in your report presented to the jury?
Botosan: Yes.
Q: You were also engaged by SCO for work in another case?
Botosan: Yes.
Q: Was that IBM?
Botosan: Yes.
Q: When was that?
Botosan: 2005.
Q: How much were you paid?
Botosan: I don't recall.
Have you published (peer reviewed papers) on lost profits?
Botosan: No (some qualifications that she believes no one would publish academic papers on lost profits).
Q: You're not an expert in programming?
Botosan: No.
Q: Computers?
Botosan: No.
Q: Linux?
Botosan: No.
Q: Computer operating system markets?
Botosan: No.
Q: Issues of computer software licensing?
Botosan: No.
Q: Are you an IP expert?
Botosan: It depends on area, she considers herself an expert in market analysis IP.
Q: Expert on patents?
Botosan: No.
Q: Is it fair to say you are not an expert on copyrights?
Botosan: That's fair.
Q: Trademarks?
Botosan: No.
Q: Before this, you've only written one other expert report?
Botosan: No, two.
Q: What others?
Botosan: LifeWise v E-Trade, Freightliner.
Q: In LifeWise you state you are not an expert in business valuation?
She asks for the quote on that. Mr. Brennan refers to her deposition testimony in this case from February, page 26 and 27. Dr. Botosan admitted that she had stated on being requested she hadn't felt qualified for many reasons, including that she was being brought in too late.
Q: Your analysis is dependent on Dr. Pisano?
Botosan: Not solely.
Q: But you relied on Dr. Pisano?
Botosan: Yes, in part.
Q: His report is dependent on surveys?
Botosan: Yes.
Q: Do you know the methods of the surveys?
Her reply begins, Dr. Pisano explained during his testimony... She was then cut of by Judge Stewart directing her to only answer the questions.
Q: You relied on his expertise?
Botosan: Yes.
Q: Your high end number is based on Dr. Pisano?
Botosan: Yes.
Q: And the low end on your analysis?
Botosan: Yes.
Q: When was this case filed?
Botosan: January, 2004.
Q: So you were contracted three years after the lawsuit was filed?
Botosan: Yes.
Mr. Brennan asks her to turn to her report to the list of materials she used to prepare the report, and asks, You used the motion for summary judgment?
Botosan: Yes.
Q: Did you only rely on documents provided by SCO?
Botosan: No.
Q: What else?
Botosan: Public reports.
Mr. Brennan, How did you find those?
Botosan: Both on request from SCO for reports and by Internet search.
Q: A Google search?
Botosan: Yes.
Q: And what were your Google search terms.. Novell?
Botosan: Yes.
Q: SCO?
Botosan: Yes.
Q: Copyrights?
Botosan: Yes, in relation to SCO and Novell.
Q: Does the computer software developer community follow the case? Botosan: I expect so.
Q: Do you believe the computer software developer community follows developments in the case?
Botosan: They probably don't read the filings in the case, but generally, yes.
(Reporter's comment: I must have misunderstood, I thought she reported she used a Google search. Perhaps she's not a Google search expert either, because you can't plug in those search terms and not run across Groklaw, for example, where it's obvious large numbers of the developer community avidly read all the filings.)
Q: Do you believe companies might base their purchasing decisions on reporting on this case?
Botosan: Yes, they would use all information.
Q: Is there any place, or anything, that SCO told you not to use?
Botosan: No.
This database of documents, did SCO give you a username and password to log in and do searches?
Botosan: I don't recall, but it involved an FTP or something.
Q: And the Deutsche Bank report, did you get that from SCO?
Botosan: I don't recall, I'd asked SCO's attorneys for help finding reports. I don't know if that report came from them.
(Missed some questions about other analysts.)
Q: Are you aware of the letters from (Novell's) Jack Messman?
Botosan: Yes.
Q:Aware of statements in the press release of December 22?
Botosan: Yes.
Mr. Brennan says he'd like to define a phrase, the "quiet time" to be from June 6th to December 22nd. Did SCO enter into any licenses during that period?
She answers, perhaps Computer Associates, but not sure.
Q: And the RTU program was announced in August?
Botosan: Yes, around that time frame.
Q: Did SCO enter into any licenses between August and December 22nd?
Botosan: None, through the end of the October 2003 financial quarter. There was in quarter November, December, January, but don't know if in first two months.
Mr. Brennan asks, How much then?
Botosan: $20,000
Q: So, during the period June 6 through December (and add in January), the only revenue SCO generated is about $20,000?
Botosan: (long answer) Yes.
Q: Did you understand SCOsource was a new business?
Botosan: No, it was a new product.
Mr. Brennan reviews with her what the RTU license is and asks, Is it a product?
Botosan: Yes. She says she doesn't believe a product needs to be material, that even her using her expertise in testifying can be a product.
Mr. Brennan asks, Is it a promise that SCO would not sue for use of Linux?
Botosan: It's a license for infringing code in Linux.
Q: When did The SCO Group, as a company, start?
There were a number of fumbled answers and obvious confusion over SCO's history, including confusing it with Santa Cruz's history. She states she doesn't know if Caldera existed prior to its purchase of Santa Cruz in 1995.
Mr. Brennan asks how she would use historical data of a business to project the future. She states it depends on if startup or long-term business. She states that for a startup, she would look at the market as Dr. Pisano had. For long-term business she would look at its historical performance. She would look at all information.
Mr. Brennan asks again if SCOsource is a new business or new product? She replies that it's a new product line in an existing business.
Q: Did you look at previous financial data for Caldera/The SCO Group in making your report?
Botosan: Yes, first quarter 2002 through (? quarter) 2007.
Q: What about 2002 was there a loss?
Botosan: Loss.
Q: And 2001?
Botosan: Loss.
Q: And 2000? She replies that based on company statements she's read, SCOsource provided the company's first profitable quarter, so she assumes a loss.
Q: So you would agree that prior to 2003 SCO had never made a profit?
Botosan: Yes, I think.
Q: In making a forecast would you do a risk factor analysis?
Botosan: Yes, I would look at risks in the market.
Q: So to make a forecast you would take into account the risk factors in the market?
Botosan: Yes.
Q: What risk factors did you take into account? Dr. Botosan answers that infringement did not exist, hostility in the Linux community, other indemnification products... She states that all these were taken into account by Dr. Pisano's analysis and also discussed and included in the analyst's reports.
Q: So one of the risks is that Linux does not infringe?
Botosan: Yes.
Q: Hostility toward SCO you learned from Deutsche Bank?
Botosan: Yes.
Q:
And by Internet searches?
Botosan: Yes, it's hard to do a search without finding news reports.
Q: Were there any other risk factors?
Botosan: Yes, not buying SCOsource, but instead a switch, but that was treated as a low probability. Also "design around" but that didn't get much traction.
Q: What do you mean by not getting much traction?
Botosan: The analysts said... (missed).
Q: What about the GPL?
Botosan: Yes, Deutsche Bank talked about it, so it was built into their forecasts.
Judge Stewart then called a break. As usual we all rose as the Jury left. The general practice is that if the judge stands, so does everyone else. Normally, Judge Stewart would then sit back down and continue hearing case management issues. In this case he did not sit back down, but started talking about Novell's potential pursuit of questioning on prior rulings. Therefore we did not sit back down and I was unable to take any more notes.
From memory: Mr. Brennan described his line of questioning trying to undermine Dr. Botosan's "But for" world with the "Real world." They discussed how close he is, or might come, to mentioning the rulings. Judge Stewart read the statement he intends to make that the rulings were "reversed." He said he chose the word "reversed" because the jury may find it more neutral than "overturned." Judge Stewart ruled that Novell may continue and mention the prior rulings as he believes Novell may use them in attempting to show the "disconnect" between Dr. Botosan's "make believe" world and the "real" world.
However he imposes significant caveats to his ruling. He states that he may not bring it up simply to put it before the jury, but it must be appropriately probative and relevant. That if Novell goes down a fruitless and without merit line of questioning where Dr. Botosan repeatedly resorts to "but that's not part of my But For world so it's not relevant" then the court may look on it unfavorably. Mr. Hatch requests that Judge Stewart add to his jury instructions that the ruling was "unanimous." Judge Stewart looks pained, but replies, "I'll grant that."
In one of the breaks, possibly this one, there were discussions about Novell's intention of questioning Dr. Botosan regarding the actual costs incurred in legal fees for the Microsoft and Sun agreements. Novell contends these legal costs were not properly included and deducted for the cost of goods sold that Dr. Botosan calculated. (These are not believed to be the SCOsource litigation-related legal fees, but the contingency fees/legal expenses of the two agreements, but Novell never stated precisely).
SCO's Mr. Singer argued that legal fees are never used as part of damage calculations and shouldn't be here. SCO is also concerned about the jury prejudice since the fees are paid to BSF (who's also the instant legal counsel). Judge Stewart agrees regarding the prejudice and doesn't want the law firm named, but he won't prevent Novell using it, but instead will handle SCO's objections as it unfolds.
We then went on break.
After the break, Mr. Brennan continues questioning, refers to exhibit R21, Deutsche Bank article dated October 4, 2003 titled "SCO, A Call (option) to Arms" and asks, Is this the report you used? [PJ: You can find it referenced in Dr. Gary Pisano's expert report, footnote 16.]
Botosan: Yes, this is the Deutsche Bank report I made reference to.
Mr. Brennan reads the two names identified as the authors and asks if Dr. Botosan has had contact with them?
Botosan: No, but she's made one call to Deutsche Bank about the report. She doesn't know the name of the person.
Mr. Brennan reads from the first paragraph including "extremely high risk." He reads the 2nd paragraph as well. The report states that "...a failure in either one would render the stock worthless." Mr. Brennan asks, Were you aware that Deutsche Bank is a "market maker" for SCOX? Mr. Brennan briefly states what a "market maker" is.
She answers that you'd have to go back and look to find the relationship (at the time).
Mr. Brennan states that Deutsche Bank issued another report in January 2003, exhibit C25, which clearly states that they are a "market maker" for SCOX.
Dr. Botosan said she doesn't know if they were at the time of the October report.
When he stated that the Deutsche Bank analysts worked for the same company that's trading SCOX stock, Dr. Botosan replies that by law the stock brokerage must be a separate firm.
Mr. Brennan reads from the report that traders can expect "significant fluctuations daily based on news reports... Fluctuations of 20% daily can be expected based on legal maneuvering." He asks Dr. Botosan if that's correct, and she says it is.
Q: Is it correct that legal maneuvering includes the IBM case?
Botosan: Correct.
Q: Are you aware that Red Hat filed suit against SCO for determination of non-infringement of their Linux?
Botosan: She said she was not aware. [PJ: !!]
Mr. Brennan reads further from the DB report, "... our thesis is that SCOX shares can be considered a call option...." and "...SCOX has frustrated the Linux community..."
He asks, You had access to SCO's database, so you looked at the litigation files?
Botosan: Yes.
Q: You looked at the Motion for Summary Judgment? Objection by Mr. Hatch (foundation?), overruled, but Judge Stewart suggests Mr. Brennan back up. Mr. Brennan asks, You told me people in the community were interested in the case?
Botosan: Yes.
Q: Those in the Linux community following litigation?
Botosan: True.
Q: You understood decision makers would base decisions on what happens in litigation?
Botosan: Yes, it was built into the forecast, it was known by the market.
Mr. Brennan says, Lets look at the "real world." He presents Judge Kimball's June 4, 2004 memorandum decision and order. Mr Hatch quite quickly objects on basis of foundation. Judge Stewart says the objection is overruled as it's being used to impeach the witness.
Mr. Brennan asks Dr. Botosan (and the tech) to focus on page 8, the last full paragraph on the page, and he starts reading. Judge Stewart interrupts and addresses the jury saying (approx), "You will hear evidence from a ruling in this case, and possibly another ruling, and possibly ask yourself why you are here.... SCO appealed these rulings and the 10th circuit court, in a unanimous decision, reversed these decisions and directed them to go to a jury for decision. That is why you are here. The appeals court found the decisions to have been in error."
Mr. Brennan continues, reading the full paragraph, then turning the page and starts reading the first paragraph there. Mr. Hatch says he has a substantial objection and asks if there's even a question in there. Judge Stewart inquires and Mr. Brennan says there is a question coming. Judge Stewart overrules Mr. Hatch's objection and repeats that this ruling has been reversed and found to be in error. He says he's going to trust Mr. Brennan, who then reads on to the end of the paragraph. When he finishes reading, Judge Stewart again addresses the jury and instructs they are to disregard the language as it's been subsequently reversed and that the only reason it's being used is to challenge this witness.
From the rustling I heard, I think just about everyone in the court shifted position in their seats after this.
Mr. Brennan asks, Would investors have taken this into account when deciding whether to take a SCOsource license?
Dr. Botosan replied, Not in the "but for" world. So those people would not have seen this ruling as it would not have existed.
Mr. Brennan pressed the differences between her "abstract" world and the real world and asks, Wasn't the Deutsch Bank analysis based on the Real World... and that calculation of damages must consider what happened in the real world?
Botosan: No.
Mr. Brennan asked questions very fast at this point and I missed a lot. Amongst the questions was one asking if Dr. Botosan "cherry picked" from the Deutsche Bank ruling "real world" things she wanted to use and not others? No. All of his questions seemed to impress upon the listener how different Dr. Botosan's "But for" world was from the real world. Mr. Hatch objects to the line of questioning and asks for a sidebar. It went on for longer than most and everyone who returned from it looked pretty grim.
Mr. Brennan returns to exhibit R21, the Deutsche Bank report, 'A call to arms' and directs Dr. Botosan to page 10 section entitled, "Unix, Linux, IBM" and a chronology of Unix ownership starting "In addition to its..." Mr. Brennan reads the paragraph and asks, Do you see that?
Botosan: Yes.
Q: You understand there is a question of SCO's claim to ownership?
Botosan: No, I understand the analyst writing this believed not.
Mr. Brennan asks, Do you believe you must be cognizant of developments in the real world?
Botosan: Yes.
Q: Does the jury?
Botosan: It's up to the judge.
Mr. Brennan responds, Fair enough. And asks, And the market?
Botosan: Yes.
He refers to her report stating $53 million in projected 2004 sales in her artificial world. She says that's correct. Mr. Brennan asks if Novell had done nothing wrong in the real world, if that would still be correct. Dr. Botosan states emphatically, But Novell *did* do something wrong in the real world or else we wouldn't be here.
Mr. Brennan, "Hmms" and says that's interesting.
He produces Judge Kimball's August 10th, 2007 summary judgment, and over objection of Mr. Hatch it's admitted.
Mr. Brennan asks Dr. Botosan if, between the June 2004 and August 2007, there were any rulings dealing dispositively with the ownership?
Botosan: No.
Mr. Brennan asks, In those three years the people in the real world had only those rulings?
Botosan: Yes.
Mr. Brennan directs attention to the ruling at the end but Judge Stewart directs Mr. Brennan to only provide a verbal summary of the judgment. Mr. Brennan gives a fair, but short, summation of its ruling including that Judge Kimball, as a matter of law and based on the APA, Amendment 1, and Amendment 2, ruled that the copyrights did not transfer.
Mr. Brennan asks, In the real world, people would not have purchased licenses in 2007 based on ruling?
Botosan: She states that it's not relevant.
Mr. Brennan asks further if, In the real world people in 2004 would not have purchased based on ruling?
She answers that it's not relevant.
Mr. Brennan asks if in the years between 2004 and 2007, when there were no dispositive rulings in the real world to the contrary, would people have purchased? Dr. Botosan provides lots of "Not relevant" answers.
Mr. Brennan states, In the real world there are real events that are relevant to the "But for" world. Again, there are lots of questions on real events being confirmed to not exist in her "But for" world.
Then Mr. Brennan says he's going to change gear. He asks her about her cost estimates used to determine profit. Are legal expenses in costs?
Botosan: Yes.
Q: Are they "real" or "artificial?" (I believe she said something to the effect that they are standard and based on information from SCO.
Mr. Brennan asks about the two agreements in 2003, that they are $25 million. Is revenue forecast based on these?
Botosan: No.
Q: But Deutsche Bank did?
Botosan: No.
Q: And these were UnixWare licenses or Unix?
She doesn't quite understand the question, but eventually answers, They were vendor licenses in the SCOsource division, so these were not Unix licenses. [PJ: That isn't the case, in that Sun's agreement was a Unix license, and that was what Judge Kimball ruled, and that part was not overturned on appeal.]
The court then took a break during which it was decided that Mr. Chris Stone's testimony would be taken the next day. Judge Stewart asks Mr. Brennan how much longer he has to go, and Mr. Brennan responded, about 20 minutes. However, on returning from break, Mr. Brennan told Judge Stewart that SCO's present scrambling is because he just told them he's only going to return to say, No further questions. Judge Stewart opined that they must have been happy to hear that.
When the Jury returned, Mr. Brennan took the podium and said he had no further questions.
Mr. Hatch then started redirect and put up the poster boards Dr. Pisano had previously done her calculations on.
He referred to the 2004 court decision and asked what kind of motion was it? She answers it was a motion to dismiss. Mr. Hatch asks, Was it found in favor of SCO? Yes.
He refers to the 2007 decision and asks its eventual outcome? She answers it was overturned. Mr. Hatch asks, In favor of SCO? Yes.
He further asks, As a result of those decisions, is that why we're here today? Correct.
Mr. Hatch asks if the Deutsche Bank report identified risk factors? Yes. Hatch, Did you take them into account? Yes, they were also taken into account in Dr. Pisano's analysis. The risk factors he identified were company risk factors that might affect stock price, but not SCOsource.
(Reporters comment: A risk factor that SCO may go out of business, a possibility stated in their SEC filings, does not put SCOsource at risk?)
Hatch: SCO's stock price was $16 the day before the report came out. With all the risks, and all the pros, what target price did Deutsche Bank estimate?
Botosan: Over a 12-month period, $45.
Mr. Hatch turns to the posterboard with her calculations and says, I'm putting the pen right here and I'll let you come up here and change whatever you want based on the arguments today. Botosan says there's nothing she would change, hesitates, well except for one small thing. Mr. Hatch asks, What's that? She asks, could you rub out the $0? Mr. Hatch replies, I don't think the judge will let me do that. Judge Stewart smiles and says, No.
Mr. Brennan given opportunity for re-cross. He refers to the June 2004 ruling, at the end of the order, and asks, You understand that before the court were three motions? No. He continues, SCO asked to send back to state court... He started to read further to which Mr. Hatch objected and was sustained.
Mr. Brennan refers to a news article regarding the ruling. Mr. Hatch objected and was sustained.
Mr. Brennan states he has no further questions.
Mr. Hatch stated that SCO may ask her to come back and Judge Stewart instructed Botosan that she is free to go, but is subject to recall.
End of Part 1.
Again today, I continue to run behind schedule.. I will provide Part 2 tomorrow, consisting of the deposition testimony of Gasparro, Langer, and Pettit. With no video available, the deposition testimony of Gasparro and Pettit were done by lawyers taking the witness stand and acting the parts. It's hard to believe that anyone would use the Deutsche Bank report as a foundation. At the time that Brian Skiba issued the report, predicting a $45 share price, other analysts questioned it. I placed some material about that on yesterday's article, but here's another Skiba/Deutche Bank report on SCO, that was also viewed negatively at the time. Dion Cornett, then at Decatur Jones Equity Partners, was the only other analyst following SCO closely at that time, and he disputed the Deutche Bank math, saying that viewed rationally, no matter what SCO does, in his opinion, there was no way SCO could reach a $45 target from the licensing program, even at its most successful. So while Botosan says she didn't cherry pick the highest numbers, she surely did cherry pick which analyst to use as her foundational "but for" world.[Update: Another disturbing thing, after a good night's sleep, is her outburst, that Novell *did* do something wrong. That is precisely what the jury is supposed to decide, and she is not a lawyer in any case, so she isn't supposed to opine on the law. And she says she read all the 10Ks. But she also says she doesn't know about Red Hat. But that is impossible, in that Red Hat is mentioned in all the 10Ks since they sued SCO. Finally, I find it disturbing if the judge told the jury that the Appeals Court ruled Judge Kimball's decision was in error. That isn't true. They said it was error to decide the matter on summary judgment. They very specifically said they took no position on who owned the copyrights, except they added that Novell had strong arguments. If all he said was the decision was in error, what might the jury suppose? I think they might think that it was an error to decide Novell owned the copyrights.
And her alternate universe and real life have nothing in common. For example, her suppositions were that SCO owned the copyrights and had Novell not spoken out, lots of companies would have taken a license. But that leaves out of the picture so much. Here are a lot of issues that were not expressly assumptions of
Botosan's analysis, and therefore should have been properly considered
for her analysis of the but for world.
She assumed:
C) Customers would ignore AT&T vs. BSDi.
How many big customers are unaware of that?
D) Customers would ignore challenges to SCO's copyright's covering
trivially small, un-copyrightable portions of code.
E) Customers would ignore SCO's repeated failure to answer
inquiries as to the exact details of alleged infringement
They would not become sceptical in her world.
F) Customers would disregard the cost/utility balance of
taking protection licenses and contract at SCO's prescribed
values (or the Deutsche Bank analysts' opined values).
G) Customers would easily make an about-face on their
choice of free software;
i.e. customers could easily be swayed by (assumedly proven)
infringement to change their attitude and buy licenses
where they previously consciously placed a bet on free
code.
(IMHO, customers would just move to other free products,
e.g. a Linux kernel without RCU or some such thing)
H) Customers would consciously buy into a protection scheme
without knowing what they were protected from.
A lot of customers would not do this on principle. -
End Update.] Larry Gasparro, Philip Langer, and Gregory Pettit were all deposed in connection with the IBM case, but all of their depositions are under seal. But SCO, in connection with its Motion to Allow Testimony, attached excerpts from each of their depositions to the letter Brent Hatch sent to the judge. I gather the motion was granted and that this is what the jury was read. You may recall that Langer was the guy who pushed EV1 to sign up for a SCOsource license.
Update: Chris sent a final point of interest:
Another comment from yesterday, the case goes to jury at noon on 3/26. Judge Stewart said that should the parties believe they can continue arguing the case until midnight, he wanted to disabuse them of that notion.
By my estimate, subtracting another SCO witness or two being presented next week and closing arguments, Novell gets only about 4 days for their case. And they have a long list of Will Calls.
Pehaps SCO *needs* more time to attempt to convince the jury, while Novell might be quick and 'to the point' in their case.
"Trial Tip: Truth is Simple."
So, SCO has taken 9 of 15 days, and just as Novell is about to begin, he tells everyone to hurry up?
And now here is Chris's final report:
Part 2 - Deposition testimony of Gasparro, Langer, & Pettit
SCO's Mr. Hatch calls Lawrence Gasparro (by deposition) and indicates they have no video of the deposition and will instead read it.
Judge Stewart then instructs the jury that occasionally depositions are not videotaped as they have been accustomed to seeing. And he says that what they are about to see is a typical method of presenting the testimony in that one of the lawyers will take the stand and play the part of the deponent. And each lawyer will read the lines of testimony.
SCO's Mr. Edward Normand takes the witness stand while Mr. Brent Hatch asks the questions. In my report as Mr. Normand reads the answers, I will indicate it was Mr. Gasparro who answered. I did not catch the name of the deposition examiners or cross-examiners so I will be using the live reader's name. I believe the deposition is dated October 27, 2004.
Mr. Hatch asks Mr. Gasparro, When did you first begin work with SCO?
Gasparro: 2004
Q:
In regard to the EV1 and Robert Marsh, what was the sale price?
Mr. Gasparro indicates it was $800,000 plus additional marketing agreements.
Mr. Hatch, And how much originally?
Gasparro: 3 to 600,000.
Q: Was there any negative feedback from members of the licensing program?
Gasparro: Yes.
Q: Were they affected by the IBM litigation? Gasparro: Yes
Q:
Novell?
Gasparro: Yes.
Q:
The Open Source Defense Fund?
Gasparro: Yes. Q:
By IBM's $10 million contribution to the Open Source Defense Fund?
Gasparro: Yes.
Q:
What responses were you getting from customers?
Gasparro: Novell's claim to copyrights affected their decision.
Q: How much did you lose because of Novell?
Gasparro: We developed a list of those who did not take a license because of Novell. He lists some company names. But he says he remembers the total being around $50 to $60 million.
Q: How did you come to that figure?
Gasparro: It was based on unit volume, how many servers each of those companies had.
For cross examination, Novell's Mr. Acker read for Mr. Gasparro and Mr. Jacobs asked the questions. Judge Stewart instructed the jury they should evaluate based on their words and not their acting ability. Mr. Jacobs opined he should keep his (own) day job.
Mr. Jacobs refers to an email from Mr. Gasparro to Mr. McBride and asks, What suggestion were you making to Mr. McBride? Mr. Gasparro answers that they were getting a lot of pushback from (potential) customers.
Mr. Jacobs reads from the email where it asks Mr. McBride if SCO should publish the results of the code auditors. Mr. Jacobs asks, Were you ever shown the work produced by the auditors?
Gasparro: No.
Mr. Jacobs asks, Were you ever provided the code auditors' results as a result of your request?
Gasparro: No.
Then next deposition is the November 5th, 2004 video deposition of Philip Langer. I will refer to the questioners as SCO and Novell since I did not note either of their names.
Mr. Langer states that he started with Santa Cruz in 1998 as a sales associate selling Unix, Unix support services, and UnixWare.
With The SCO Group he worked in IP sales until 2004 under Mr. Gasparro. He said he received credit for the Questar Gas license though he wasn't involved in the sale. The sales he was successful on was EV1 and Everyone's Internet.
SCO asks, And did Computer Associates purchase?
Langer: No, only two purchased. Q:
And you contacted a lot of people?
Langer: Yes. Q:
Did there come a time Novell made an announcement?
Langer: Yes.
SCO asks, At the time they did that, did it negatively affect sales? Yes.
You were unable to sell because of that announcement? Yes.
SCO asks, Did you do anything to counter it?
Mr. Langer answers, Yes, we pointed them to our website contracts, (told them that) we've been selling Unix for six years. It's a no-brainer.
Q:
Did you read the contract? Mr. Langer answers that he looked it over.
SCO asks how much he expected to sell? He replies that he expected two to three million dollars in his territory for the year.
Asked when, he says it was after Novell's announcement in June, but after the retraction. He said, but then people started doing their homework.
SCO asks regarding Regal Entertainment Group. Mr. Langer says they were moving forward with purchasing. He said they wanted to get done before the end of the month.
When asked, he states that it was going to be for $350,000. He stated that they decided they won't purchase until the ownership issue is settled.
Novell cross-examined asking, You don't know the infringing code in Linux?
Langer: No.
Q:
Have you asked (SCO) for information (on the infringing code)?
Langer: Yes, I've asked.
When asked, he answers that he's not seen any.
Novell: Who'd you ask? Langer: Mr. Gasparro.
Q:
Did SCO provide any?
Langer: No, general but no specific.
Novell asks, Customers wanted line-by-line?
Langer: Yes.
Q:
Did you tell customers you would not do it?
Langer: Correct.
Q: And you told them you would not do it or that you could not do it?
Langer: We told them we would not do it.
Next is the deposition of Gregory Pettit. Again, no video was available so SCO's Mr. Normand read again for the deponent and Mr. Hatch examined.
Mr. Hatch asks, Did anyone approach you about IP in Linux?
Pettit: Yes, NASDAQ, Raytheon, (some more). Q:
Were any meetings set up?
Pettit: Yes, with Raytheon.
Upon being asked, Mr. Pettit said that for the meeting he accompanied Mr. Gasparro. Dispute by code and by contract. They referred to the malloc code but it was not shown (to Raytheon). He said that Raytheon then went off to determine their use of Linux.
Mr. Hatch asked, Any others wanting to see more material?
Pettit: Yes, Cisco, (some more).
Mr. Hatch aksed if he made a proposal to Merrill Lynch?
Mr. Pettit answers that they provided them different prices for different ranges. They chose not to because of Novell's statements.
Mr. Hatch refers to SCO exhibit 188. Mr. Normand (playing Mr. Pettit) acts as if he is taking time to review the document. After a few moments Mr. Hatch says that it's a letter from Morgan Stanley to yourself.
Mr. Hatch asks, Did you provide the information requested?
Pettit: No, our program worked with those willing to work with us.
Mr. Hatch refers to SCO exhibit 165(?) (now Novell exhibit F27), the Google letter from Michael (I didn't make note of last name, but suspect CTO Michael Jones).
Mr. Hatch asks what happened when you finally hooked up? Mr. Pettit answers, We said we could do an NDA and go over the code. There was no meeting. There were questions raised about ownership (of Unix).
Novell's Mr. Jacobs cross-examines while Mr. Brennan plays the part of the Mr. Pettit.
I'd note that in both depositions acted by the attorneys, SCO read the deponent's part with a strong confident voice and Novell read the deponent's part with a meeker hesitant voice. Not having heard the original audio, there's no way to tell who was closer to being accurate.
Mr. Jacobs, Did anyone you called ask for more detail?
Pettit: Yes.
Q: What would you have sent?
Pettit: We wouldn't have sent anything. We would have had an executive come in (and meet with them).
Mr. Jacobs asks, So it was "We'll get back to you?" (missed response).
Mr. Jacobs asks, Was any provided to your customers?
Pettit: No.
End of day's session. Judge Stewart provided yet another warning to the jury.
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| Authored by: belad on Thursday, March 18 2010 @ 02:58 PM EDT |
I thought the earth was going to stand still if the previous court ruling was
introduced to the jury....I guess not.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 18 2010 @ 02:59 PM EDT |
I wonder what SCO is said in the break. I bet they didn't think it was fair
enough to their side. Likely more filings in the afternoon.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 18 2010 @ 03:01 PM EDT |
The way the article comes across it seems the jury might as well have been told
right from the start.[ Reply to This | # ]
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| Authored by: Guil Rarey on Thursday, March 18 2010 @ 03:03 PM EDT |
At some point, Unca Stewie has to realize he's bent over so far backwards that
the appeal isn't going to result in *just* a reversal....
---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 18 2010 @ 03:05 PM EDT |
Was Judge Stewart using the right terminology "Reversed". It seems it
is less prejudice if the language reversed would have been left out. A simple
statement like the CA decided that this should be up to a jury to decide, not
necessarily reversing a decision.[ Reply to This | # ]
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| Authored by: jvillain on Thursday, March 18 2010 @ 03:08 PM EDT |
Can any one explain how we got from the judge ruling(3 times?) that there was
going to be no mention to Novell explaining it to the jury? Was there a ruling
we haven't heard about? If so what changed his mind?[ Reply to This | # ]
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- See previous story - Authored by: Anonymous on Thursday, March 18 2010 @ 03:13 PM EDT
- Huh? - Authored by: Jimbob0i0 on Thursday, March 18 2010 @ 03:14 PM EDT
- Huh? - Authored by: Anonymous on Thursday, March 18 2010 @ 03:15 PM EDT
- Huh? - Authored by: ThrPilgrim on Thursday, March 18 2010 @ 06:29 PM EDT
- Huh? - Authored by: tbogart on Thursday, March 18 2010 @ 09:36 PM EDT
- Huh? - Authored by: Anonymous on Friday, March 19 2010 @ 12:17 AM EDT
- Huh? - Authored by: Anonymous on Friday, March 19 2010 @ 10:18 AM EDT
- SCO - Authored by: cassini2006 on Thursday, March 18 2010 @ 04:40 PM EDT
- What probably changed the judge's mind - Authored by: OmniGeek on Thursday, March 18 2010 @ 04:51 PM EDT
- Huh? - Authored by: iksrazal on Thursday, March 18 2010 @ 05:15 PM EDT
- Huh? - Authored by: Ed L. on Thursday, March 18 2010 @ 05:30 PM EDT
- Huh? - Authored by: WWWombat on Thursday, March 18 2010 @ 08:10 PM EDT
- Huh? - Authored by: J.F. on Friday, March 19 2010 @ 03:16 PM EDT
- Huh? - Authored by: PJ on Friday, March 19 2010 @ 03:36 PM EDT
- Huh? - Authored by: rsteinmetz70112 on Thursday, March 18 2010 @ 11:26 PM EDT
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| Authored by: Anonymous on Thursday, March 18 2010 @ 03:09 PM EDT |
Nope. Judge Kimball's ruling was not reversed. The decision to have a bench
trial was reversed. The appellate court took no position on if the copyrights
had transferred. Stewart is again trying to tilt things in SCOs favor. Or more
correctly, in the favor of the son of the guy who got him appointed.[ Reply to This | # ]
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| Authored by: The Mad Hatter r on Thursday, March 18 2010 @ 03:16 PM EDT |
BSF only had to avoid certain things, and this wouldn't have happened. This is
truly and utterly weird.
Of course they may have planned for this, in that there's some reason that we do
not understand why BSF would want to introduce evidence of the prior court
rulings, but I can't see it.
---
Wayne
http://madhatter.ca/[ Reply to This | # ]
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- This is just truly amazing - Authored by: PolR on Thursday, March 18 2010 @ 03:25 PM EDT
- LOL - you're funny.... - Authored by: Anonymous on Thursday, March 18 2010 @ 03:45 PM EDT
- MIT Team - Authored by: Anonymous on Thursday, March 18 2010 @ 04:56 PM EDT
- MIT Team - Authored by: PJ on Thursday, March 18 2010 @ 05:04 PM EDT
- MIT Team - Authored by: Anonymous on Thursday, March 18 2010 @ 05:20 PM EDT
- MIT Team - Authored by: Anonymous on Thursday, March 18 2010 @ 07:10 PM EDT
- There was a choice - Authored by: Anonymous on Thursday, March 18 2010 @ 08:34 PM EDT
- trivia questions RE: MIT Team - Authored by: Anonymous on Thursday, March 18 2010 @ 06:01 PM EDT
- MIT Team - Authored by: Anonymous on Thursday, March 18 2010 @ 06:14 PM EDT
- MIT Team - Authored by: wvhillbilly on Thursday, March 18 2010 @ 06:26 PM EDT
- MIT Team - Authored by: Vic on Thursday, March 18 2010 @ 11:07 PM EDT
- MIT Team - Authored by: rsteinmetz70112 on Thursday, March 18 2010 @ 11:28 PM EDT
- MIT Team - Authored by: Anonymous on Thursday, March 18 2010 @ 10:59 PM EDT
- Yep, I'm trying to be a Chameleon - Authored by: The Mad Hatter r on Friday, March 19 2010 @ 12:03 PM EDT
- I Dunno - Maybe BSF tired of not getting paid - Authored by: Anonymous on Thursday, March 18 2010 @ 07:03 PM EDT
- This is just truly amazing - Authored by: tbogart on Thursday, March 18 2010 @ 09:47 PM EDT
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| Authored by: Jimbob0i0 on Thursday, March 18 2010 @ 03:16 PM EDT |
Wow was waiting with keen anticipation for tonight... didn;t expect even a
partial report so soon.
Thank you Chris - I am supremely grateful to you getting this earth shattering
news out so quickly.
[ Reply to This | # ]
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- Agreed! Thanks Chris! - Authored by: Anonymous on Thursday, March 18 2010 @ 03:27 PM EDT
- Muchas Gracias Chris! - Authored by: Anonymous on Thursday, March 18 2010 @ 03:46 PM EDT
- Week 2, Day 9 of SCO v. Novell Trial - Jury Hears About Kimball's Rulings - Authored by: kevinsnotalawyer on Thursday, March 18 2010 @ 03:50 PM EDT
- Wow, and thank you Chris. - Authored by: MikeA on Thursday, March 18 2010 @ 04:46 PM EDT
- Week 2, Day 9 of SCO v. Novell Trial - Jury Hears About Kimball's Rulings - Authored by: Anonymous on Thursday, March 18 2010 @ 04:49 PM EDT
- Thank you! - Authored by: jbb on Thursday, March 18 2010 @ 05:35 PM EDT
- Thank you! n/t - Authored by: RPN on Thursday, March 18 2010 @ 06:13 PM EDT
- Week 2, Day 9 of SCO v. Novell Trial - Jury Hears About Kimball's Rulings - Authored by: Anonymous on Thursday, March 18 2010 @ 07:12 PM EDT
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| Authored by: PolR on Thursday, March 18 2010 @ 03:19 PM EDT |
This sounds like outstanding lawyering from Novell is bearing fruits despite
near unsurmountable obstacles. It is too early to draw conclusions on the trial
outcome but the progress Novell is making is very apparent.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 18 2010 @ 03:27 PM EDT |
Because in that ruling, CoA has affirmed Judge Kimball finding that APA didn't
transfer copyright, only Amendment 2 is left for Jury to decide?
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 18 2010 @ 03:28 PM EDT |
It seems to me this could be the result of a big mistake
on the part of SCO to push for the ultimate amount of potential damages.
That's the same thing that got them where they are today: asking for
multi-billions from IBM.[ Reply to This | # ]
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- Greed? Over Reaching? - Authored by: rsteinmetz70112 on Thursday, March 18 2010 @ 03:33 PM EDT
- Mistake? - Authored by: ak on Thursday, March 18 2010 @ 03:52 PM EDT
- Depends what they believe they are "too good" at... - Authored by: Anonymous on Thursday, March 18 2010 @ 04:00 PM EDT
- Mistake? - directed by clients? - Authored by: Anonymous on Thursday, March 18 2010 @ 05:53 PM EDT
- Mistake? - Authored by: Anonymous on Thursday, March 18 2010 @ 06:15 PM EDT
- Mistake? - Authored by: ThrPilgrim on Thursday, March 18 2010 @ 06:54 PM EDT
- Mistake? - Authored by: PJ on Thursday, March 18 2010 @ 10:20 PM EDT
- Mistake? - Authored by: Vic on Thursday, March 18 2010 @ 11:14 PM EDT
- Mistake? - Authored by: kenryan on Friday, March 19 2010 @ 07:57 AM EDT
- Mistake? - Authored by: Anonymous on Friday, March 19 2010 @ 08:33 AM EDT
- Mistake? - Authored by: Anonymous on Friday, March 19 2010 @ 08:01 AM EDT
- Mistake? - Authored by: JamesK on Friday, March 19 2010 @ 10:42 AM EDT
- Mistake? - Authored by: PJ on Friday, March 19 2010 @ 01:43 PM EDT
- Mistake? - Authored by: txwikinger on Saturday, March 20 2010 @ 11:56 PM EDT
- Mistake? - Authored by: Anonymous on Thursday, March 18 2010 @ 10:57 PM EDT
- Mistake? - Authored by: Anonymous on Friday, March 19 2010 @ 10:47 AM EDT
- SCO's big mistake? - Authored by: Anonymous on Thursday, March 18 2010 @ 04:55 PM EDT
- SCO's big mistake? - Authored by: Anonymous on Thursday, March 18 2010 @ 07:18 PM EDT
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| Authored by: Anonymous on Thursday, March 18 2010 @ 03:37 PM EDT |
This is going to make Novell's case all the more stronger. The jury will now
hear from the people who wrote the contract, and know that a previous judge
found it convincing enough. They now know that all parties agree and a court
ruled that the APA didn't transfer copyright. They know SCO's only hope hangs on
Amendment 2, which SCO barely touched on. ROFL!
The whole slander of title claim is out the window. Obviously, now to the
jurors, Novell's claim was reasonable to make. Reasonable enough for a prior
court to rule they owned the copyrights. SCO's dreams of Millions in slander
fees are gone in a puff of smoke.
But then the case was theirs to lose from the start, given the tilted playing
field they were given. they just couldn't leave it alone. Greed is a fickle
lover and a powerful enemy.
-- Celtic_hackr[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 18 2010 @ 03:58 PM EDT |
Wow, very nice!
I hope I can find some time over the weekend to re-read
the ones
from the last few weeks.
Also, I appreciated your reproof
elsewhere vis a vis certain
references to Judge Stewart; all that name
calling stands in the way
of trying to understand (and in that way
'outguess') him.
bjd
[ Reply to This | # ]
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| Authored by: benw on Thursday, March 18 2010 @ 04:00 PM EDT |
Folks have been talking about a mistrial, but surely at this point Novell has to
move to dismiss the case.[ Reply to This | # ]
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| Authored by: Tufty on Thursday, March 18 2010 @ 04:02 PM EDT |
Thanks Chris
---
Linux powered squirrel.[ Reply to This | # ]
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| Authored by: tknarr on Thursday, March 18 2010 @ 04:08 PM EDT |
I don't know about the appeal to the Supreme Court, but I certainly think
Judge Stewart should, when he mentions that Judge Kimball's ruling on the
copyrights was reversed on appeal, also mention that that same Appeals Court
said that Novell had strong arguments that the copyrights didn't transfer. To do
otherwise is to mischaracterize what the Appeals Court said. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 18 2010 @ 04:10 PM EDT |
I wonder if Judge Cahn is preparing his Chapter 7 paperwork yet? After this
revelation and Darl's performance on the stand, it seems a foregone
conclusion...[ Reply to This | # ]
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| Authored by: JamesK on Thursday, March 18 2010 @ 04:25 PM EDT |
Since no else seems to have bothered for the past 1.5 hours...
---
IANALAIDPOOTV
(I am not a lawyer and I don't play one on TV)[ Reply to This | # ]
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| Authored by: polymath on Thursday, March 18 2010 @ 04:26 PM EDT |
Shouldn't Judge Steward be saying that the appeals court remanded the issue for
jury trial. It's as if Judge Kimball had not ruled and now a jury will decide
the issue. It's not the same thing as "reversing the decision". That
would imply that the appeals court voided Judge Kimball's ruling and made a
contrary ruling in his stead (i.e. that the copyrights had indeed transferred.)
The appeals court said that Novell had a persuasive case, but a bona fide
controversy remained that meant a judicial finding of fact was not appropriate. [ Reply to This | # ]
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| Authored by: JamesK on Thursday, March 18 2010 @ 04:26 PM EDT |
If you post on topic here, I'll sic Darl on you...
---
IANALAIDPOOTV
(I am not a lawyer and I don't play one on TV)[ Reply to This | # ]
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- The Case for Cadence: Towards a Shared Release Cycle - Authored by: Anonymous on Saturday, March 20 2010 @ 12:54 AM EDT
- Red Dress Suggestions for PJ - Authored by: The Mad Hatter r on Saturday, March 20 2010 @ 04:13 AM EDT
- Using kids as vectors for spreading Mono - Authored by: Anonymous on Saturday, March 20 2010 @ 08:11 AM EDT
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| Authored by: JamesK on Thursday, March 18 2010 @ 04:27 PM EDT |
This is the place for fixing what Darl says. ;-)
---
IANALAIDPOOTV
(I am not a lawyer and I don't play one on TV)[ Reply to This | # ]
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| Authored by: eggplant37 on Thursday, March 18 2010 @ 04:37 PM EDT |
I guess someone was listening to me as I said a brief prayer in hopes that
Novell would win on their motion to present the facts about the previous
favorable decisions made by Judge Kimball. I'm currently in hospital awaiting
discharge after a couple days for a medical problem, but I feel like dancing.
This is the best thing I've read about this trial since it began.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 18 2010 @ 04:54 PM EDT |
I don't know what Judge Stewart's statement was exactly, it may have been
totally fair ( I have to wonder if he didn't have both sides check off on it. I
believe this is a standard procedure. ), but the way it has been reported to us,
it sounds like it was not. I have a question in the event that his statement was
not.
Is it possible to begin their closing remarks with a statement something like
this:
"Ladies and Gentleman there is something that I fear may be misconstrued
and I feel I should try to clarify before I begin my remarks. One of the things
you are here to decide is whether or not certain copyrights transferred. Now you
have heard that a judge ruled that the copyrights did not transfer. You have
also heard that an appeals (appellate?) court reversed this judge. Now let me be
clear. The appeals court did not rule the copyrights did not transfer. They also
did not rule the copyrights did transfer. If they had ruled either of these
things then you would not be asked to decide whether they transfered or not the
matter would have been decided and you would be presented the ruking as a fact
as you have been presented otehr rulings.
"There are times when a judge can rule on a part of a case and save the
jury the trouble of listening to that part. I think you can appreciate the fact
that the judge wanted to save you the trouble. The appeals court mearly ruled
that the judge jumped the gun and you should decide this part. After hearing the
testimony, I think you can appreciate why the judge felt this way ... <begin
the transfer arguments>"
I don't see how the judge could oppose something like this if it is carefully
worded.
Handy Gandy
To lazy to get an account.
[ Reply to This | # ]
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| Authored by: Silurian on Thursday, March 18 2010 @ 05:03 PM EDT |
Will there be anything on the docket about Stewart allowing Novell to mention
Kimball, or will this be a matter for the [future] reading of the transcripts?
I, for one, would be very happy to put in some cash for the transcripts of such
a day.
[ Reply to This | # ]
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| Authored by: jbb on Thursday, March 18 2010 @ 05:15 PM EDT |
| SCO's witnesses say one thing (the copyrights were always
supposed to transfer)
and Novell's witness are going to say the
exact
opposite, that the copyrights
were not meant to be transferred
either by the final, signed, original APA or
by either of the
amendments.
This is not a question of misinterpretation or
a fine distinction,
it is obvious that one side is lying. The jurors must be
asking
themselves: "which side is lying?". The winner will be the side
they
thinks is telling them the truth.
IMO, the most important result of the
disclosure of the previous
rulings is that it let Novell clearly show that SCO
has been lying
to the judge and jury. In the opening statements (IIRC) Singer
was pounding his fist in outrage over the fact that Novell was
slandering
their title to this day when all along Novell has had
excellent reasons (at
least some of that time) for saying they
owned the copyrights. SCO went after
that same point again
and again in the testimony. They had an expert calculate
damages for the time it was perfectly fine for Novell to be
claiming
ownership.
The jury now knows that was all lies and fabrications. If they
can recall Singer's opening, they will realize that his outrage
was phony.
The jury must suspect that SCO are not just liars
but stupid liars. They have
got to be wondering if SCO is lying
about anything else. Acker's cross
examinations dovetail into
this theme perfectly.
These last couple of days
have been devastating.
I hope the current trend continues and SCO's oft wished
for day
in court turns out to be like many ancient myths, a story of
hubris
followed by humiliation.
---
You just can't win with DRM. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 18 2010 @ 05:32 PM EDT |
That's what it seems like. It's better to both the trial and keep everything
vague than to lose the trial outright.
If this isn't the case, what advantage does SCO get from a mistrial?
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 18 2010 @ 05:46 PM EDT |
And on those caveats, I ended up very confused, and I think that I wasn't the
only one That is an interesting statement. I attended last week one day for a
few hours. I have been following the case fairly close and it was hard to keep
up with everything. I can only imagine what a jury is going through having no
background whatsoever. They have their work cut out for them. Now with this
latest twist, the poor jury has even more and the trial is just about half over![ Reply to This | # ]
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| Authored by: UncleJosh on Thursday, March 18 2010 @ 06:12 PM EDT |
| Not Judge Cahn's old district, but close... [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 18 2010 @ 06:46 PM EDT |
Novell's Brennan: "(...) it is uncontested that the APA did not transfer the
copyrights to SCO."
Judge Stewart: "(...) it was reversed on
appeal"
bjd: Hmmm.......?
bjd
[ Reply to This | # ]
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| Authored by: snakebitehurts on Thursday, March 18 2010 @ 07:04 PM EDT |
The Judge had warned them that he would tell the jury "that Judge Kimball
was reversed".
Novell measured the risks, and jumped right in. The first report seems to be
that, in the end, it was not all that bad.
SCO skirted the line. Novell called their bluff.
Got to hand it to Novell. No guts, no glory. I would not count SCO out though.
They have an uncanny ability to come up with something at the last moment.
I still think that Tor Braham's testimony is what will sink SCO. SCO will try
and discredit him. But he kept his notes, and his marked up drafts/documents.
It will be devastating IMHO.
Darl's testimony that he did not need copyrights to run the Unix business did
not help. He only needed them for his extortion scam.
Now if Novell can get in that SCO has never identified the so called infringing
code.
.... I am starting to see the light at the end of the tunnel.
MikeD
[ Reply to This | # ]
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| Authored by: dmarker on Thursday, March 18 2010 @ 07:19 PM EDT |
I am looking to try to boil the current state of the case down to some simple
points (might be impossible but I'll try) - 1st I'll introduce a company called
Covert Corp - a 'guess who' name.
- tSCOg with BSF as their spearhead, are intent on litigating the issue of the
copyrights for as long as they can and at whatever cost. Why ? possibly because
they have the covert backing of a wealthy corp who will keep helping them try
(as covertly as they are able) and that the longer it goes on the better the
outcome for Covert Corp (short of an outright victory which surely has to have
big doubts hanging over it)
- tSCOg with the Yarro loan, may have / or has, set up a channel by which they
can hand over the litigation baton to Yarro should tSCOg go under before any
ruling (via current litigation or planned future litigation). We know (I
assume) that tSCOg tried to set up other channels they might pass the baton to
but could not quite pull them off.
- Novell is subject to a takeover raid which look a lot like an alternate plan
in place should Novell clearly prevail in this current jury trial and in a way
that leaves tSCOg or its successor in litigation, without a strong go forward
position. The monies at stake are so high that a 2 billion offer for Novel is
worth it & once again Covert Corp could be involved. Just a reminder that
in regard to java damage Microsoft was fined a cumulative 2 billion for the the
harm it did to java and Sun MicroSystems. I assume that Microsoft must have seen
2Bill as a reasonable price they were willing to pay for destroying client-side
java.
- I do not believe for an instant that this trial is the end of things in regard
to Unix copyrights, damaging Linux, and going after IBM (perhaps the leading
Linux champion since 2000). As long as Linux keeps progressing & IBM
supports it & Microsoft remains a tier 1 player, I believe the current
litigation will drag on and on and on and on ....
DSM[ Reply to This | # ]
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- Nope-a-dope - Authored by: Anonymous on Thursday, March 18 2010 @ 07:58 PM EDT
- Nope-a-dope - Authored by: Anonymous on Thursday, March 18 2010 @ 08:22 PM EDT
- Nope-a-dope - Authored by: wvhillbilly on Friday, March 19 2010 @ 12:40 AM EDT
- Nope-a-dope - Authored by: Anonymous on Friday, March 19 2010 @ 04:20 AM EDT
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| Authored by: webster on Thursday, March 18 2010 @ 10:26 PM EDT |
"So the early part of the day was spent in Mr. Brennan's
cross of Dr. Botosan, but it was very slow going. In spite of the judge's
admonitions, yes/no questions were answered in lecture
format."
Witness insolence has to bug any trial lawyer.
Expert insolence is doubly annoying. These experts are hired guns, but they are
experts so they are permitted to answer hypothetical questions and give opinions
in their field. This expert clearly does not want to answer. She gives
unresponsive lectures and eats up Novell's time.
Novell has to use
this against them. Novell has to get the judge put an end to this. There are
several tricks techniques to remedying this situation. The
lawyer cross-examining has to be slightly cooler than the hottest head in the
room, insistent and only following his opponents level of outrage. If opposing
counsel objects and blurts something out, blurt something back before the judge
takes over:
"He's badgering the witness!"
"I'm trying to get a straight
answer/the truth/over the stone wall!"
Whatever happens is the Court's fault
for not controlling the witness, opposing counsel and the courtroom. Federal
judges should be strict. Enlist them to direct an answer. Turn the evasiveness
into your issue.
First technique is to ask a string of short simple
questions that only require a yes or no answer. This is known as a leading
question. You are allowed to do this on cross-examination. If you get a too
long answer that avoids yes or no. Ask it again, same words, same tone. See
what happens.
Ask it again. There might be an objection. The judge
might interject. He could tell the witness to answer or tell the lawyer to
"Move on."
Another technique is to ask a leading question, receive
the inappropriate lecture as an answer and then follow up suggesting the answer
you want, "Does that mean Yes?" or "Does that mean No?" A few strings along
this line and no one knows what the witness said and they look evasive. The
lawyer straightens them out or they can argue at the end that the witness was
evading "yes," "evading answering" and "evading the truth!"
If the
witness won't answer proberly, then make that the issue. It proves their bias
and evading the truth.
Another trick is to use the other sides witness
to bolster the questioner's argument or claim. Ask hypothetical questions that
suspiciously fit Novell's claim. Put that expert to work for you. He can
inflate both claims.
Get that expert to "contrabsulate' that jargon
into household terms. For example in a drug case forget about milliliters and
milligrams: "How many teaspoons in these milligrams?" "How many grains in a
quarter teaspoon of 2% heroin powder?" Try and help the jury out by eliciting
human explanations.
~webster~
[ Reply to This | # ]
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| Authored by: ChrisP on Thursday, March 18 2010 @ 10:36 PM EDT |
The Week 2, Day 8 Groklaw story, two stories ago, has been updated with Dr.
Botosan's direct testimony.
---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 18 2010 @ 11:00 PM EDT |
She did a good job getting the jury to like her. Smart witness, it sounds like
she approached her testimony as if she was one of the jury. Not an expert
orcondescending, just trying to be more of a personal approach. She really
cozies up to the jury.
"She includes personal details along the way. She says she is married with
two children, and about to celebrate her 20th(?) wedding anniversary."
How personal are witnesses supposed to be? Are they supposed
to tell their life story?[ Reply to This | # ]
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| Authored by: wvhillbilly on Thursday, March 18 2010 @ 11:28 PM EDT |
| Anybody have any thoughts on SCO's proposed jury verdict
form (pdf)? I haven't seen one from Novell, or did they jointly decide to
use this one? ---
Trusted computing:
It's not about, "Can you trust your computer?"
It's all about, "Can your computer trust you?" [ Reply to This | # ]
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| Authored by: ailuromancy on Friday, March 19 2010 @ 12:35 AM EDT |
The experts were asked to invent damages based on
only two baseless
assumptions
(SCO actually owned the copyrights, and Novell slandered
those
copyrights).
They were not told to assume there is any infringing code
in
Linux. They seem to have taken this for granted.
There are plenty of fun
quotes from Judge Kimble and
Judge Wells (in SCO vs IBM) that make this extra
assumption ridiculous. I would like to hear why
Dr Pisano and Dr Botosan
forgot to include lack of
copyright infringement in their alternative
universe.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 03:12 AM EDT |
If the judge tells the jury that the case was appealed and the Appeals
Court sent it back to them to decide, shouldn't he also tell them that Novell
has filed a writ with the Supreme Court regarding that Appeals Court
decision?
No, because it's 99% certain that the Supreme Court will
not decide to hear Novell's appeal. Only about 1% of writs filed with the SC
result in Supreme Court hearings. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 04:02 AM EDT |
It's a large number with nothing in front of it but a dollar sign and nothing
following but a decimal.
That must have been the hardest 0 she's ever written down.
And no, the judge won't let you erase it.
Wow!![ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 04:08 AM EDT |
Stewart doesn't seem to think that SCO has to obey the rules against hearsay
evidence. First the two experts, one that based his opinion on a survey to
which he didn't know the methodology and the second that based her opinion on a
faulty market analysis and the first expert's report. Now, he is allowing the
depositions to which Novell wasn't a party. Stewart is giving Novell plenty to
use in an appeal.
Are all biased judges this obvious?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 04:31 AM EDT |
He refers to her report stating $53 million in projected 2004
sales in her
artificial world. She says that's correct. Mr. Brennan asks if
Novell had done
nothing wrong in the real world, if that would still be
correct. Dr. Botosan
states emphatically, But Novell *did* do something wrong
in the real world or
else we wouldn't be here.
Mr. Brennan, "Hmms" and says
that's interesting.
So in the fantasy world, only SCO gets to
determine which real world events
are used to make up damage estimates. Between
the two of them, they've
used up $300K to try to make their fantasies
reality. And I like that she said
even her testimony could be a product.
I
would hope that the jury doesn't think highly of vaporware.
And good job
Brennan on getting her to say that if the copyrights didn't
transfer, then
damages are 0. That's an easy number to fill in. Both of them
testifying on
damages have given such outrageous numbers that it would be
next to impossible
for a jury to come up with any number greater than zero
that has any basis in
reality. Our reality anyways.
So Novell also has to prove special damages to
win their counterclaim. I
wonder what they'll put on. Do they get to say that
they won a judgement
that hasn't been paid for, and the SCO is bankrupt, and
they never got
interest on their fee for Sun? Or that SCO entered deals without
their sayso.
Or BUT FOR SCO's trying to claim UNIX was theirs and code was in
linux,
Novell's SVRx royalties would have continued for a long time, or at
least until
everyone on them switched to Linux or BSD or AIX? or that SCO
cheated
Novell out of SVRx royalties by changing two lines of code and calling
it a
UnixWare license? Do they get to add up the cost of all their litigation
fees?
Can anyone tell who Novell's damages witnesses are? [ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 04:35 AM EDT |
Q: A Google search?
Botosan: Yes.
Q: And what were your
Google search terms.. Novell?
Botosan: Yes.
Q: SCO?
Botosan:
Yes.
Q: Copyrights?
Botosan: Yes, in relation to SCO and Novell.
Q:
Does the computer software developer community follow the case?
Botosan: I
expect so.
Gosh, I hope Mr. Brennan wasn't giving the jury ideas
about which search
terms to use to find Groklaw.[ Reply to This | # ]
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| Authored by: Tufty on Friday, March 19 2010 @ 04:48 AM EDT |
Q: Was that IBM?
Botosan: Yes.
Q: When was that?
Botosan: 2005.
Q: How much were you paid?
Botosan: I don't recall.
Oh come off it, only 2 or 3 cases before this and you cannot remember.
Sorry, makes me mad.
---
Linux powered squirrel.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 06:32 AM EDT |
But Novell *did* do something wrong in the real world or else we
wouldn't be here.
Isn't the point of the trial to let the jury
decide the answer to that question?
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 06:43 AM EDT |
From the report:
"Mr. Brennan asks if in the years between 2004 and 2007, when there were no
dispositive rulings in the real world to the contrary, would people have
purchased? Dr. Botosan provides lots of "Not relevant" answers.
Mr. Brennan states, In the real world there are real events that are relevant to
the "But for" world."
I wish he'd have asked if the "but for" world was relevant to things
that happen in the real world...[ Reply to This | # ]
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| Authored by: odysseus on Friday, March 19 2010 @ 06:56 AM EDT |
"Q: Do you know the methods of the surveys?"
"Her reply begins, Dr. Pisano explained during his testimony... She was
then cut of by Judge Stewart directing her to only answer the questions."
And how does she know???[ Reply to This | # ]
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| Authored by: ka1axy on Friday, March 19 2010 @ 07:03 AM EDT |
Well done, Chris Brown and cpeterson!
Day after day, it's like being there in person. All the gestures and reactions
that will never be in the court transcripts are recorded and ready to read the
next morning!
Bravo to all the reporters![ Reply to This | # ]
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| Authored by: Steve Martin on Friday, March 19 2010 @ 07:04 AM EDT |
[Hatch] referred to the 2004 court decision and asked what kind
of motion was it? [Botosan] answers it was a motion to dismiss. Mr. Hatch asks,
Was it found in favor of SCO? Yes.
No, it wasn't. The Court
ruled at that time:
For the reasons stated above, Plaintiff's
Motion to Remand is DENIED, and Defendant's Motion to Dismiss is DENIED as to
Plaintiff's pleading of falsity and GRANTED as to Plaintiff's pleading of
special damages. Plaintiff is granted 30 days from the date of this Order to
amend its Complaint to more specifically plead special
damages.
That doesn't look to me like a ruling "in favor of
SCO".
---
"When I say something, I put my name next to it." -- Isaac
Jaffe, "Sports Night" [ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 07:10 AM EDT |
Q: Do you believe the computer software developer community follows
developments in the case?
Botosan: They probably don't read the filings in the case, but generally, yes.
That sounded like an open door to ask: Are you aware that there are web sites
specifically dedicated to following this case that do post filings in this case,
and that provide active discussion about how unlikely SCO is to prevail in this
case?[ Reply to This | # ]
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| Authored by: Steve Martin on Friday, March 19 2010 @ 07:18 AM EDT |
Q: Do you believe companies might base their purchasing
decisions on reporting on this case?
Botosan: Yes, they would use all
information.
Q: Is there any place, or anything, that SCO told you not
to use?
Botosan: No.
I bet I know one site they told her
to avoid.
;)
This database of documents, did SCO give you a
username and password to log in and do searches?
Botosan: I don't
recall, but it involved an FTP or something.
If this recall is
accurate, then she didn't get her court filings from PACER, as PJ does. PACER
does not use an FPT URL, it's entirely Web-based. Gee, I wonder where she got
her court filings?
---
"When I say something, I put my name next to
it." -- Isaac Jaffe, "Sports Night" [ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 07:23 AM EDT |
Larry Gasparro, Philip Langer, and Gregory Pettit were all deposed
in connection with the IBM case, but all of their depositions are under
seal.
Does IBM have any say in whether these depositions could be
used outside of the case where they were admitted under seal?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 08:07 AM EDT |
The reporter (thank you for doing this for all of us) expresses
some surprise that it appears that witnesses don't know about
"alternative" sources of information.
This should not be surprising. There are 2 related reasons:
1. They are paid for a specific point of view
2. People not trained in scientific method fall victim to source bias (more
easily)
No, I don't believe this witness is trained in Scientific Method, in
spite of her doctorate. It is likely SCO witnesses only looked at
"trusted" sources. A lot of SCO's problems are clearly a result of
this.[ Reply to This | # ]
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| Authored by: JamesK on Friday, March 19 2010 @ 08:12 AM EDT |
" Mott and Yarro were on the SCO board as the company was flown straight
into the ground, and then replaced by the bankruptcy court's appointment of
Edward Cahn as SCO's Chapter 11 trustee. So, it appears that this little group
is back, because that's who Cahn has just hopped into bed with by taking a loan
on terms that, should SCO default, gives the company -- without liabilities --
to this happy group of shareholders."
So lemme get this straight. A board member offers the company a
"deal" after helping drive it into the ground and walks away with the
assets and no liabilities. I thought the BK court was supposed to prevent this
sort of thing. This has fraud written all over it. Any chance of someone,
including the judge & trustee facing criminal charges?
---
IANALAIDPOOTV
(I am not a lawyer and I don't play one on TV)[ Reply to This | # ]
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| Authored by: ChrisP on Friday, March 19 2010 @ 08:13 AM EDT |
So we still have reports on Larry Gasparro, Philip Langer, and Gregory Pettit
from Thursday and Stone to come today in SCO's case, but where's the deposition
from Maureen O'Gara? Will Stone be asked if he's one of her 2000 lamb chops?
---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.[ Reply to This | # ]
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| Authored by: nattt on Friday, March 19 2010 @ 08:18 AM EDT |
Was Stewart's speech to the jury a whole truth or a partial truth or what? It
didn't read to me like he was giving the jury the full and correct picture.[ Reply to This | # ]
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| Authored by: iksrazal on Friday, March 19 2010 @ 08:20 AM EDT |
Just curious if the unsealed opinion will be introduced to the jury. Or the
leaked 2003 darl slide show for that matter, and the Eric S. Raymond analysis. I
know both of these events personally made me less worried about the sco threats,
so I wonder if that could be used to make these ridiculous $200+ million numbers
less credible. [ Reply to This | # ]
|
- USL v. BSDi - Authored by: Ian Al on Friday, March 19 2010 @ 08:40 AM EDT
- USL v. BSDi - Authored by: Anonymous on Friday, March 19 2010 @ 08:58 AM EDT
- USL v. BSDi - Authored by: iksrazal on Friday, March 19 2010 @ 09:17 AM EDT
- USL v. BSDi - Authored by: Anonymous on Friday, March 19 2010 @ 09:23 AM EDT
- USL v. BSDi - Authored by: Anonymous on Friday, March 19 2010 @ 09:18 AM EDT
- Those slides - Authored by: Anonymous on Friday, March 19 2010 @ 11:24 PM EDT
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| Authored by: mvs_tomm on Friday, March 19 2010 @ 08:22 AM EDT |
When Judge Stewart was planning for the trial, he asked the lawyers how much
time was needed. If I remember correctly, SCO predicted that two weeks would be
sufficient, Novell thought it would be longer and the judge scheduled it for
three weeks.
Then at the end of Tuesday, Chris
reported,
Judge Stewart then addresses Mr. Singer and asks if we
are behind schedule. Mr. Singer reports that yes, we are and that he is not in
control of duration of cross-examination.
What a lame response. I
get the impression from reading the reports that the cross examinations were not
particularly long, with the exception of Dr. Botosan on Thursday.
Now
it has been almost two weeks and I don't know if SCO is finished presenting
their side of the case yet. I'm sure it's obvious to the judge that the SCO
team has very little credibility.
Tom Marchant[ Reply to This | # ]
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| Authored by: PolR on Friday, March 19 2010 @ 08:44 AM EDT |
From Chris' report:
He refers to her report stating $53
million in projected 2004 sales in her artificial world. She says that's
correct. Mr. Brennan asks if Novell had done nothing wrong in the real world, if
that would still be correct. Dr. Botosan states emphatically, But Novell *did*
do something wrong in the real world or else we wouldn't be here.
Mr.
Brennan, "Hmms" and says that's interesting.
Dr Botosan looks
disconnected with reality but nowhere as much as in these lines. Jurors know
very well why they are there. They are spending three weeks of their lives for
this very purpose. If it was established Novell did something wrong why a trial?
Nobody told the jurors "this is a kangaroo court and you are here just for
show". They were told they are there to perform an important civic duty. Dr
Botosan insulted the jurors' intelligence in a way none of them could miss.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 08:51 AM EDT |
Normally, IP is used to reference Intellectual Property as described in the
Law. My understanding is that IP is a grouping term used to
describe:
- Patents
- Copyrights
- Trade
Marks
- Trade Secrets
It's ironic she answered with the
following:
Q: Are you an IP
expert?
Botosan: It depends on area, she considers
herself an expert in market analysis IP.
Q: Expert on
patents?
Botosan: No.
Q: Is it
fair to say you are not an expert on
copyrights?
Botosan: That's
fair.
Q: Trademarks?
Botosan:
No.
So she admits she's not an expert in Patents, Copyrights or
Trade Marks.
One could amusingly conclude she must be an expert in Trade
Secrets however considering there's no issue with regards Trade Secrets in this
case that would sort of leave her being an expert in the wrong case.
It
seems to me she's not refering to the same use of the Term "IP" as defined above
and she thinks it means something else.
RAS[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 09:05 AM EDT |
It would have been fairer for the Judge to have clarified that the decisions
should have been made as a finding of Fact rather than a finding of
Law.
To claim they were made in error would - to my thinking - paint a
quick picture that the opposite ruling was the correct ruling.
RAS[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 09:48 AM EDT |
SCO has been carrying on their nonsense for almost two weeks now and this is
supposed to be a three week trial. When is it going to be Novell's turn?
I suppose SCO still has their "surprise" witness waiting in a dark
alley somewhere, as well. Additionally, there are still closing statements to
be made. That doesn't leave Novell with as much time as SCO had.
Doesn't seem rightly fair.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 09:52 AM EDT |
Why would Novell not ask the "expert" how the complete lack of any
credible information documenting infringement in Linux would effect her
report figures?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 10:01 AM EDT |
I finally realized that Novell can now call just about anybody to the stand that
has an opinion about the SCO case,
anyone who did or did not buy an SCOSource "license".
They get that wide-open barndoor because they are impeaching/rebutting the
damages testimony.
Cool[ Reply to This | # ]
|
- DOH! moment - Authored by: Vic on Friday, March 19 2010 @ 01:11 PM EDT
- Yes and No! - Authored by: Anonymous on Friday, March 19 2010 @ 01:35 PM EDT
| |
| Authored by: JamesK on Friday, March 19 2010 @ 10:01 AM EDT |
" Mr. Brennan asks, In the real world, people would not have
purchased licenses in 2007 based on ruling?
Botosan: She states that
it's not relevant.
Mr. Brennan asks further if, In the real world
people in 2004 would not have purchased based on ruling?
She answers
that it's not relevant."
Is it my imagination or does she live in
an alternate universe where facts don't count?
---
IANALAIDPOOTV
(I am not a lawyer and I don't play one on TV) [ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 10:04 AM EDT |
Let us assume for a minute that Novell had done nothing.
Where would we be now? In the conclusion of the IBM trial where it was proven
there was no infringing Unix code in Linux? Where would SCO Source be then?
SCO's litigation coffers filled by frightened lemmings? Many more EV1s saying
they made serious mistakes. If Novell had done absolutely nothing, not saying
one thing one way or another and refusing to respond to SCO? SCO would have
been forced to take them to court to get the copyrights, and we would be right
back where we are now, fighting over what amendment 2 means.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 10:17 AM EDT |
In her mind, Novell "did something wrong".
I believe that there is no question SCO lost money because Novell disputed SCO's
claim they had copyrights. However the witness's belief that this was something
wrong has not been demonstrated. We haven't even begun to hear Novell's defense
against the slander accusation. Here it is, day 9, of 15 and so far it has all
been the plaintiff's witnesses. I can't wait to hear the other side of the
story.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 10:45 AM EDT |
So in the "But For world" Novell and all the other big players just
sit back and do nothing (apart from paying the SCO tax)
Is she so unimaginative that she can't imagine any other futures (how about a
class action for racketeering?)
Unlike the RIAA, MPAA with their attacks on members of the general public the
strategy was to go after companies with deep pockets - surely some of them could
afford to fight back.
Q: Are you aware that Red Hat filed suit against SCO for determination of
non-infringement of their Linux?
Botosan: She said she was not aware. [PJ: !!]
Googling "SCO Litigation" on google.fr the first two entries point to
Wikipedia "SCO v. IBM". (Groklaw is number 3)
Wikipedia's "SCO v. IBM" article mentions Red Hat's litigation in the
second paragraph. Looking at the history I see Red Hat was mentioned in January
2007, August 2007 and today. I have no reason to believe the words "Red
Hat" were removed at any intervening moment.
Redhat appears on the second line of the timeline in
SCO Litigation - From Soup to Nuts (Groklaw in case it wasn't obvious). I don't
believe PJ had any reason to remove it at any time in 2007.
And this is entry 5 on my google search
#
The SCO Group, Inc. | Scoip | Lawsuits | SCO IP
During the stay, SCO and Red Hat are required to provide updates to the court on
... STATUS REPORT of various related litigation matters by Red Hat Inc.. ...
www.sco.com/scoip/lawsuits/redhat/ - Cached - Similar
#
This contains SCO's view of the history of the Red Hat Case from 2003 to 2007
(when SCO went into Chapter 11). Unsurprisingly this page was blocked from the
wayback machine by the site's owners so we can't check the history. (in fairness
the soup2nuts page is also un-waybacked)
So where DID she look?
Well I suppose there's http://maureenogara.sys-con.com/node/429510 "SCO
Files for Bankruptcy Protection - September 10 2007" That article does
not mention Red Hat but - in all due fairness to Ms O'Gara - is not particularly
flattering to SCO
So for Dr Botosan's final grade I would give these comments
1) Total lack of imagination in the "But For" world
2) Cherry Picking of research in the Real World. (She can't blame Bing as that
was only introduced in 2009)
I wonder how many students at Eccles Business School are squirming with
embarrassment.
...And speaking of Eccles business school I noticed this course description on
her home page.
David Eccles School of Business
FINANCIAL REPORTING – (ACCT 6610)
Fall 2004
“Enron's demise was the product of creative financial engineering,
over-aggressive accounting and woeful disclosure standards.” (The Banker;
London; Mar 2002)
Is this statement true? Were Enron’s disclosures woeful? Consider the following
information disclosed in Enron’s 2000 financial statements published in February
2001, long before its collapse.
.
.
.
.
.
The message: Enron’s disclosures revealed that Enron was a high-risk proposition
built on soft numbers long before it’s collapse.
What do we learn from this?
1.Individuals that know how to read, interpret and manipulate financial
information have a significant competitive advantage in the market place.
2.For the most part the action is in the footnotes where firms are required to
provide information about off-balance sheet assets and liabilities and
off-income statement expenses – NOT on the face of the statements.
How about SCO's Q3 2006 10Q
http://sec.gov/Archives/edgar/data/1102542/000110465906060911/a06-19528_110q.htm
#Item1_LegalProceedings_044018
"Our claims relating to our UNIX intellectual property may subject us to
additional legal proceedings.
"In August 2003, Red Hat brought a lawsuit against us asserting that the
Linux operating system does not infringe on our UNIX intellectual property
rights and seeking a declaratory judgment for non-infringement of copyrights and
no misappropriation of trade secrets. In addition, Red Hat claims we have
engaged in false advertising in violation of the Lanham Act, deceptive trade
practices, unfair competition, tortious interference with prospective business
opportunities, and trade libel and disparagement. Although this case is
currently stayed pending the resolution of our suit against IBM, we intend to
vigorously defend this action. However, if Red Hat is successful in its claim
against us, our business and results of operations could be materially harmed.
Anyone less charitable than me would be tempted to say "Liar Liar, pants on
fire!"
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 10:51 AM EDT |
What really strikes me about SCO's method of determining their damages caused by
loss of SCOSource income is that there were so many other reasons that their
supposed customer base would have balked at paying the fees that are going
utterly unnoticed in their estimates.
Things like the press announcement of the RedHat vs. SCO suit are never
considered.
And, they never considered that had there actually been infringement that some
time between the start of SCOSource and 2007 there might have been a cleansing
of Linux.
But, worst of all, it would seem to me that SCO is overlooking one important
facet of their charges regarding SCOSource revenue. They have not presented any
testimony whatsoever in this case that demonstrates that there was actual
infringement.
Having failed to even address the issue, SCO should not be allowed to continue
with their suit for damages to the SCOSource revenue stream. In order to make
that charge in court, there needs to be more than merely the suggestion that
some "rubes" had been located who were fooled by the SCO statements.
It is time for Novell to enter a motion that SCO failed to demonstrate that
there was actual infringement before this jury, and lacking that evidence SCO
should be barred from charging damages related to SCOSource.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 11:07 AM EDT |
That looks more prejudice to Novell than anything. Not one, not twice, but 3
times he had to rub it in. If anything a jury trusts the judge more than anyone
else in the room. I suspect unfortunately that the jury was either really
confused and perhaps this really took away from any point Novell was attempting
to make.
The judge overly reached for SCO in my opinion. He didn't only say reverse, but
said in "error".
Then Hatch gets up and gets to say the rulings "favored" SCO.
So SCO get to use the rulings to promote themselves, but Novell has to be
neutral. Not fair in my opinion.
I follow the logic following Novell closely, but the jury, I hope they paid
attention to Novell and not the judge.[ Reply to This | # ]
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| Authored by: veatnik on Friday, March 19 2010 @ 11:30 AM EDT |
Q: In making a forecast would you do a risk factor analysis?
Botosan: Yes, I would look at risks in the market.
Q: So to make a forecast you would take into account the risk factors in the
market?
Botosan: Yes.
Q: What risk factors did you take into account?
Dr. Botosan answers that infringement did not exist, hostility in the Linux
community, other indemnification products... She states that all these were
taken into account by Dr. Pisano's analysis and also discussed and included in
the analyst's reports.
Q: So one of the risks is that Linux does not infringe?
Botosan: Yes.
So my question: Can this open the door to mention that the community attempted
to obtain knowledge of any actual infringements from SCO so they could be
removed but was rebuffed by SCO? Second question: Would that also open the
door to explain that copyright law requires a copyright holder to make a good
faith effort to allow an accused infringer to correct infringements?
Between these two facts ScoSource licensing was already dead as can be very
early in this game. (Specifically because of SCOs own actions to prevent Linux
developers from mitigating costs of infringement.)
In addition there is a second reason that SCOSource was not viable. It would be
interesting to see noted in court that businesses that develop and distribute
Linux are barred by the GPL from distribution if they have actual knowledge of
an infringement. To do so is to infringe the copyright of every copyright holder
involved.
This is tremendously at odds with the characterization of the wild west of the
Linux community put forward in Singer's opening arguments. Also that the
community has a complete record of the original source of all code (and authors)
in the public repositories would correct other mis-characterizations made in
that opening. (GPL licensed development is a far cry from (much more ethical
than) some places I have worked at that develop proprietary code.)
While this is obviously not the core of the Novell part of the case. It directly
speaks to the viability of ScoSource and any potential damages. It also shows
that SCO was not acting in good faith because to do so would destroy their dream
of a big payday.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 11:39 AM EDT |
"It is my conclusion, based on my esteemed expertise, that if wishes were
horses, beggars would ride."[ Reply to This | # ]
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| Authored by: mtew on Friday, March 19 2010 @ 12:32 PM EDT |
INAL
My understanding is that Judge Kimball's decision to have a bench trial in
place of a jury trial was reversed.
The decision to grant summary judgment was also reversed. His decision that
summary judgement was appropriate may have been based in part on having a bench
trial.
So, from the point of view of deciding the ownership of the copyrights, the
decision was moot and not to be presented to the jury in that light.
It is, however, part of the evidence against 'Slander of Title', and in that
context, is relevant. The two contexts are quite different and have to be
distinguished in the mind of the jurors.
Fair summary?
---
MTEW[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 01:12 PM EDT |
> her outburst, that Novell *did* do something wrong
I wonder what the jury will think of that. I always supposed
expert witnesses were meant to be neutral in some way (i.e.
while they testified for one side, they did so because that
was their neutral expert opinion that the facts favoured
that side).
A "neutral" witness that makes such statements in court is,
IMO, utterly disqualifying himself.
Because this hints strongly towards personal bias, so how is
the jury supposed to believe such bias was without influence
on the supposed "expert testimony"?
It's as if you called Linus Torvalds to testify on some non-
Linux open source matters and he would blurt out "but closed
software is evil and Microsoft eats babies!".[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 01:25 PM EDT |
Don't get lost in the mess.
SCO's whole SCO source licensing scheme was based on the supposed copyright
infringement of Linux. The experts did not comment on SCO's failure to mitigate
and any possibility that the Linux community might be fully able to avoid any
infringement should SCO clearly define the infringement areas.
The experts claim to be knowledgeable in the areas of copyrights. They missed
the following points
1) SCO failed to clearly disclose the violations
2) Mitigation was possible
#1 means SCO can't claim damages and can't start lawsuits against infringes. So
the source licensing program does not have any traction until the violations
have been disclosed with specificty
#2 means even if there violations it is possible they could all be removed
before SCO could really start a licensing program.
The "experts" failed in considering these impacts. Not very expert.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 01:28 PM EDT |
Their market analysis is based on the premise that a number of marks were scared
enough by the fud they would pay for a RTU. Presumably everyone who know SCO
had no teeth because they distributed Linux under the GPL were not a member of
that market group. Likewise everyone who was not a follower of the case and saw
the ruling that copyrights did not transfer are not a member of that market
group. In fact anyone who had an ounce of sense were not a member of that
market group. Anyone who followed the IBM case and saw 321 lines of
"infringing" code was all there is is not a member of that market
group. That market group just keeps on shrinking, but is all part of the
analysis that SCO lost money by not fleecing the marks.[ Reply to This | # ]
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| Authored by: jbb on Friday, March 19 2010 @ 01:33 PM EDT |
| Dr. Botosan kept insisting that all sorts of risk factors (that make
SCO look
really bad) were taken into account in Dr. Pisano's
analysis but I don't see
even a hint that this was true. It seems
they are claiming they have some sort
of "magical" analysis that
can take all these risk factors into account without
actually
modelling them. I mean, if they claimed they took X into
account, I
would then ask them how did they model X and what
was the effect of X in their
model. Did the experts do anything
more than just pull some numbers out of
their hat?
---
You just can't win with DRM. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 01:36 PM EDT |
Novell's Mr. Sterling Brennen asks, When did SCO's attorneys first approach
you?
Botosan: 2007.
Whats up with that? Figuring damages 4 years after the lawsuit started, and
didn't take into account the judgments?[ Reply to This | # ]
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| Authored by: mtew on Friday, March 19 2010 @ 01:42 PM EDT |
INAL
It seems to me that there are several severe problems with the damage assesment.
A number of important possibilities were simply ignored...
Possibility: There was no slander of title
Case 1:
This was explicitly ignored, however a brief discussion would have made things a
lot clearer:
Case 2a:
The copyrights did not transfer and Novel was not maliciously disregarding the
possibiliry that they might not have transfered. In this case, no damages.
Case 2b:
The copyrights did transfer but Novel had sufficient reason to believe that they
had not. Since there was no malice, no damages.
Possibility: Novell slandered tSCOg's title.
Case 3:
If the copyrights did not transfer, Novell would have to be shown to have
maliciously disreguarded the possibility that they might have. (There would
have been damages, but I have no way of determining what they would have been.
The damage analysis is faulty because it does not consider this situation or
explain why it is too complex to be considered at this time.)
Case 4:
If the copyrights did transfer and Novell knew or should have known that they
did, tSCOg is due some damages, but what factors should be taken into amount?
Even if Novell did slander tSCOg's title, there seems to have been other factors
not under Novell's control that would have changed the amount of damage due to
Novell's action:
Factor 1a:
The impact of the licence inherent in using the GPL. If tSCOg really had pulled
their distro or tied its distribution to SCOsource, they would have been taken a
lot more seriously. Ignoring this possibility should have been explained in the
report.
Factor 1b:
The impact of the license of copyright from other transactions, specifically
including the ones under arbitration. Again, this had an impact on how
seriously SCOsource was taken, and its impact on damages should have been
included in the report (if only to say that no way to assess that impact was
reasonable).
The refusal to identify the infingement specifically had a huge impact on
tSCOg's credibility: If they had identified the infringing code properly:
Factor 2a:
The amount of infringing code was minimal -- the resulting potential damage to
tSCOg would have been small and the value of SCOsource would have been
correspondingly small, greatly reducing the damage from Novell's action.
Factor 2b:
The amount of infringing code was substantial -- it would have taken significant
effort to remove, but the damage to tSCOg would have been limited, again
limiting the value of SCOsource.
Factor 2c:
The amount of infringing code was huge -- it would be almost impossible to
remove. This is what tSCOg hoped for but most prospective buyers found
improbable. Failing to identify the infringing code lent weight to this view
and reduced the value of SCOsource.
---
MTEW[ Reply to This | # ]
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| Authored by: sproggit on Friday, March 19 2010 @ 01:59 PM EDT |
Before reading on, I feel compelled to declare than I am not an un-biased
observer of these events. Based on my following of this case from "day 1" both
here and elsewhere, I have formed an opinion that Novell did not slander SCO.
With that disclaimer in place, then:
These reports provide some
fascinating material for review. For example, if you scan the text you will find
the following three samples (reproduced here in sequence).
1. Doctor
Christine Botosan, being question by Mr Brennan (Counsel for Novell) on the
subject of her fees / expenses paid by SCO in return for her research and expert
testimony.
Botosan: $450/hour, it may seem high, but I wand to
describe to the jury the reason... Judge Stewart cuts her off and directs her to
only answer Mr. Brennen's questions, that her lawyer can elicit
more.
2. Doctor Christine Botosan, being question by Mr Brennan
(Counsel for Novell), on the mechanism by which she had calculated projected
sales that SCO may have accrued had Novell not made public statements [speaks to
damages].
He refers to her report stating $53 million in
projected 2004 sales in her artificial world. She says that's correct. Mr.
Brennan asks if Novell had done nothing wrong in the real world, if that would
still be correct. Dr. Botosan states emphatically, But Novell *did* do
something wrong in the real world or else we wouldn't be here.
[commentator's emphasis].
Mr. Brennan, "Hmms" and says that's
interesting.
3. Doctor Christine Botosan, being question by Mr
Brennan (Counsell for Novell), on the subject of what judgement criteria
companies may have used to evaluate the need to purchase SCOSource licences.
Mr. Brennan asks, In the real world, people would not have
purchased licenses in 2007 based on ruling?
Botosan: She states that
it's not relevant. Mr. Brennan asks further if, In the real world people in 2004
would not have purchased based on ruling?
She answers that it's not
relevant.
Observations
1. In the first instance,
Doctor Botosan tries to explain the way that her fees are structured but is cut
off by Judge Stewart. This suggests to me that Judge Stewart is "on the ball"
and alert to instances where a witness is not answering the questioned as asked.
The Court intervenes and directs the witness to answer correctly.
2. In
the second instance, the Counsel is asking the witness to extend her
hypothetical damages model. Instead of answering the question as asked, Doctor
Botosan ventures a legal opinion on which she is not qualified to give a view
but worse, she does not answer the question as asked. The Court makes no comment
- despite the fact that the apparent harm to Novell from this second error is
significantly greater than the first.
3. In the third instance, Mr
Brennan asks Doctor Botosan whether or not prospective licensees would have been
interested or been able to evaluate the 2007 ruling when determining whether or
not to purchase a SCOsource license.
Instead of answering the question as
asked, Doctor Botosan's response is to state that the question is "not
relevant". The question called for a "yes" or "no" answer, but Doctor Botosan
side-steps the question and attempts to devalue it by giving an opinion on the
question, as opposed to answering it. Once again, the Court makes no comment -
despite the fact that the witness has failed to answer the question as asked and
despite the fact that the witness has already been admonished for this once
before during this examination.
It is important to realise that these
three examples come from just one witness on just one day of testimony and
therefore cannot be said to be representative of the entire course of the trial.
However, as a biased [though not prejudiced] observer, I cannot help but start
to question the conduct of the Court during this trial.
PJ has written
of Novell's determination to proceed with this trial and to face SCO on any
field of legal combat, but with my much more limited experience of the law I
cannot help but question the way that Mr Brennan has allowed events to unfold.
With the initial admonition of Judge Stewart a matter of record, I would have
expected someone of his doubtless legal acumen to pounce on Doctor Botosan's
un-requested assertain as to Novell's actions [the second example, above].
Obviously any objection they raised would fail to have her testimony excluded,
but this exchange does strike me as very odd.
Finally, and I do not
know if it is even permitted to ask this during examination, one line of
questions I would like Mr Brennan to have asked [while he was close to the
subject] would be whether or not Doctor Botosan stood to receive any additional
monies - over and above her stated hourly rate - if SCO were to prevail in the
case. The question talks directly to motivation and to potential witness bias.
Reading this transcript I would describe Doctor Botosan as a hostile witness and
I find the strength of her assertions of Novell's guilt to be somewhat
disturbing.
But then again, SCO, it seems, have a very, very small
circle of friends.[ Reply to This | # ]
|
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| Authored by: DMF on Friday, March 19 2010 @ 02:07 PM EDT |
| ?? [ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 02:24 PM EDT |
In "But for" world, has she consider the risk of Court will award big
portion of SCOsource revenue to Novell? Then read out Judge Kimball ruling
regarding award Novell from SCO-SUN deal and remind juries that CoA has affirmed
Judge ruling[ Reply to This | # ]
|
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| Authored by: OmniGeek on Friday, March 19 2010 @ 02:43 PM EDT |
"Ladies and gentlemen of the jury, you've heard directly from the people
who drew up the APA and its Amendments that they did not intend to transfer the
UNIX copyrights to SCO. The APA didn't transfer any copyrights. Amendment 2
didn't transfer any copyrights, either.
As for the ambiguous reference in Amendment 2 to "any copyrights needed for
SCO to run the UNIX business," SCO obviously didn't need any such
copyrights, because they operated the UNIX business happily for years without
ever needing them. SCO only started asking Novell for the UNIX copyrights when
they began their extortionate and unethical "SCOSource" licensing
scheme, which was never part of the UNIX business, and thus could never
represent a "need" under the APA or its Amendment 2.
Since the UNIX copyrights never transferred to SCO, Novell's assertions of
ownership have all been true, and there was never any title owned by SCO for
Novell to slander. Actually, the opposite is true. By making claims of ownership
of the UNIX copyright that they knew to be false, SCO has slandered Novell's
title, has harmed its business, and should pay damages to Novell. Thank
you."
---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.[ Reply to This | # ]
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| Authored by: veatnik on Friday, March 19 2010 @ 02:58 PM EDT |
When SCO looses they will ask for a mistrial on the grounds that the Judge was
unfair. When asked to elaborate they will say he helped them too much and that
if they had anticipated going into a fair trial instead of one contrived to give
them every possible advantage allowable by law, they would have worked harder to
win and thus, would have achieved glorious results.
(Sorry folks, I could not resist)
All I can say is that I am really looking forward to Novell's side of the case.
I'm afraid it will be a really long weekend. Maybe the upcoming reports will
help blunt that a bit.
Thanks to everyone helping with the reports.[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, March 19 2010 @ 04:08 PM EDT |
I was just thinking, based on Botosan's comments regarding Google searches, I
would expect that the jury will probably be doing a search on Google right after
the trial. Eventually they will make their way to Groklaw since it is clearly
referenced early on almost every combination of "SCO ..." search.
Others may also recently make their way here too for the first time.
Would PJ consider a modification to the top of the Groklaw website to boldly say
something like: "If you are new to Groklaw, start here" with a link to
some introduction text and a short collection of highlighted articles? Then
that page could have a link to one of the earliest articles and the person could
just scroll through time back to the present.
Maybe something bold right above the Headlines text.
Just a thought.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 04:41 PM EDT |
In the Week 2, Day 8 post:
Mr. Singer asks how he goes about
determining what percent would buy? Dr. Pisano said the way you go about doing
that is to find a "proxy," a similar product with similar characteristics. For
instance a proxy to determine how a certain mystery novel might sell in Utah
would be to look at how John Grisham novels sell in Utah.
Did I
miss it, am I insane, or what? How could Novell's attorneys not pounce on a
statement like that?
What this says to me is that Pisano would use John
Grisham (Gri
sham ranks as top-selling author of decade) as a calibration for what some
unknown, off the street author should expect in sales, for writing a novel. That
is so much of a joke as to be obscene -- your average book by an unknown author
doesn't sell like a Grisham book, nor does it sell within a factor of 100,000
like a Grishham book.
This is, in fact, just an incredible flaw in the
Pisano methodology -- the non-process by which Pisano determines what
constitutes an accurate proxy. It doesn't seem like this flaw was even touched
on by Novell. And the perfect opening to the absurdity of it all was certainly
there by virtue of of Pisano's Grisham analogy. Pisano did all but shout about
how flawed his methodology was, IMO -- he's going to use Grisham -- best selling
author of the decade -- to calibrate expected sales from your run-of-the-mill
author?
Are the Novell attorneys sleeping?
[ Reply to This | # ]
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| Authored by: BobinAlaska on Friday, March 19 2010 @ 05:29 PM EDT |
I may have missed the answer to this but there have been a lot of posts.
We are now in day 10 of a 15 day trial with no Novell witnesses appearing on
the stand yet. I am assuming that Novell can ask for more time if they need it
since there seems to have been no limit on SCOG. I do understand that Novell has
control over how long they question SCOGs witnesses.
---
Bob Helm, North Las Vegas, NV
[ Reply to This | # ]
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| Authored by: bigbert on Friday, March 19 2010 @ 05:55 PM EDT |
"Doing a botosan" means "talking about things you actually don't
understand, but are paid to sound like you know something"
---
--------------------------
Computo, ergo sum.[ Reply to This | # ]
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| Authored by: Zenock on Friday, March 19 2010 @ 06:03 PM EDT |
I would like some coments on something that is bothering me. I will start with
the least important to me first you have this from SCO...
He
referred to the 2004 court decision and asked what kind of motion was it? She
answers it was a motion to dismiss. Mr. Hatch asks, Was it found in favor of
SCO? Yes.
Can anyone tell me what decision that was? In 2004 in
favor of SCO? What was dismissed?
He refers to the 2007 decision
and asks its eventual outcome? She answers it was overturned. Mr. Hatch asks, In
favor of SCO? Yes.
So SCO is allowed to elaborate on the ruling
adding to what the judge said. Novell didn't object, but I think they should
have, what's good for the goose is good for the gander. Would the judge have
sustained? Later Novell tries to respond to this line of question to show that
it had more to do with just having it overuled in SCOs favor, but SCO does
object repeatedly and the judge sustains. I've got to think it would have been
better to object to SCOs question. On the other hand, I think they got enough
out that the jury is aware that there is more going on there than simply them
being overruled. Maybe this is what they wanted. Who knows?
Now more
importantly, I've got to think that she opened herself up to a different line of
question that Novell missed.
In seemed to me they missed asking her about
whether she took into consideration the fact that SCOs claims were weakend by
the complete lack of evidence of infringing code. As I remember it, it went
something like this...
SCO... Millions of lines of infringing code...
Companies using linux ... oh no we need to be indemnifide start talks
with SCO
IBM ... No Way...
Linux Community ... Show us the
code
SCO to Linux Community... NO!
SCO to IBM ... We're
suing
SCO to Companies ... Pay us.
Linux Community ... Show us the
code
IBM ... Show us the code
Companies ... Show us the code and we'll
pay.
SCO to Linux Community ... NO!
to IBM ... Make us
to
Companies ... Here's a little bit of it.
Companies ... Oh no... We're
thinking about it.
Linux community ... We saw what you showed that's not
your code.
Companies ... Community says this isn't infringing, what else you
got show us something,
IBM ... Judge says you have to.
SCo to Linux
Community ... Go away.
SCO to Companies... Just take our word for
it.
SCO to IBM ... It's not about code it's only about contracts. And code
but its only a few hundred thousand lines of code now.
Companies, IBM,
Linux Community... What CODE is infringing.
SCO to Companies ... We're
going to sue you too. Oh and we have begun suing you.
SCO to IBM ... You
should know what code it is, you put it there.
SCO to Linux community...
NEENER NEENER.
etc... etc ... etc...
Now I would think that
SCOs absolute inability to show ANY inkling of infringing code over time in
addition to them SUING their customers would have SOMETHING to do with the
failure of SCOsource even without the Novell owning the copyrights statement.
The only reason I can think that Novell wouldn't follow this line of questioning
is if after being shown to own the copyrights they want to assert ownership over
"infringing code in linux". But I really shouldn't disparage Novell that way.
Please comment, why do you think Novell didn't question her about
this?
Z
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| Authored by: eric76 on Friday, March 19 2010 @ 07:07 PM EDT |
Mr. Brennan turns to board (summary board) from her previous day's
testimony and asks Dr. Botosan what would the calculation be if the copyrights
did not transfer? She responds, but if that's true we wouldn't be sitting
here. On further prompting she states that there would be no product, there
would be no damages. She states, but that's not the world we live
in.
Was she challenged on this statement? It looks awfully
close to being a legal conclusion.
That is, she seems to be arguing that APA
2 did transfer the copyrights which is certainly outside of her area of
expertise. [ Reply to This | # ]
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| Authored by: bastiaan on Friday, March 19 2010 @ 07:37 PM EDT |
I wonder if the jury is comparing the pay rate of SCO's experts to what they
themselves are being paid to be "involved" in SCO's court case.[ Reply to This | # ]
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- pay - Authored by: Anonymous on Friday, March 19 2010 @ 08:25 PM EDT
- Goes to credibility - Authored by: hardmath on Friday, March 19 2010 @ 09:28 PM EDT
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| Authored by: DaveJakeman on Friday, March 19 2010 @ 08:27 PM EDT |
| It's been reported here at Groklaw -- which is very widely read by the Linux
community -- that if you, as an individual, asked SCO for a SCOsource licence,
you got no response. Word of that soon got around. How did that affect
potential SCOsource purchases -- knowing that you couldn't actually buy
one???
Doesn't that beat sending out part-completed form letter templates to
large potential marks "customers"? [ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 08:29 PM EDT |
If my understanding of history is correct:
Novell wanted to sell the unix business to Caldera but Caldera didn't have
enough money to make it worth while.
So Novell sold Caldera enough for Caldera to develop their own product and
handle sales of Novell's product, but Novell kept the patents - their crown
jewels - so that if Caldera went bankrupt the patents would not be picked up for
next to nothing by (insert deity here) knows who.
And here we are in 2010 with Caldera's successor in title about to go bankrupt
and the finest lawyers in the land fighting to enable or avoid the copyrights
being picked up for next to nothing by Ralph Yarrow.
Also ironic is that assuming Novell proves ownership of the copyrights the only
way to avoid being sold and split will be to donate all copyrights to the Linux
Foundation ASAP.
I don't think a large company with effectively infinite resources would find any
interest in getting a sock puppet to buy up Novell if there are no copyrights to
be gained from it.[ Reply to This | # ]
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| Authored by: Zenock on Friday, March 19 2010 @ 09:35 PM EDT |
I will be in Utah on Thursday and Friday with my family. My wife has informed
me in NO uncertain terms that I will NOT being going to "that Linux
trial".
How can anyone be so inhumane. To be so close... [ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 19 2010 @ 10:27 PM EDT |
Each day I read the fine reporting from Groklaw volunteer's and look to the
SLTrib website for Tom Harvey's report. I am fascinated with the different
viewpoints of the same trial.
What I am wondering is where did Tom's March 5th to 17th articles go? I remember
reading them, but they have disappeared from their website. What's really
interesting is if you search the Trib website you find SCO and Novell articles,
but absolutely nothing related to Groklaw.
I think Groklaw should be required reading for the Judge and Jury at this trial.
Perhaps it would save SCO enough money so they could pay their fines.
Keep up the great work.[ Reply to This | # ]
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| Authored by: Guil Rarey on Friday, March 19 2010 @ 10:45 PM EDT |
Chris's late comment that the case goes to the jury at noon on the 26th, come
hell or high water sounds very prejudicial to Novell.
We have now well exceeded half the available trial period. Why shouldn't SCO be
getting cut off at the knees?
And if SCO is going to be allowed to continue presenting their case until they
rest, is it not a manifest injustice to prevent Novell from presenting their
complete defense?
If the judge cuts Novell off before completing their defense after allowing SCO
to run to completion, isn't that pretty much an automatic mistrial?
---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, March 20 2010 @ 12:25 AM EDT |
Why is there nothing on todays events. Were there no reporters there? Or was
this a day off for the court?
[ Reply to This | # ]
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| Authored by: Ian Al on Saturday, March 20 2010 @ 04:51 AM EDT |
I have been looking for competitive Right-To-Use-Linux licences to reduce the
$690 per processor, per annum fees of the SCOSource RTU licence. I have
found a couple of super alternatives. I think they both use the same licence
class because the wording seems almost the same. Here is the Right-To-Use
clause.
The act of running the Program is not
restricted.
Well, IANAL but you just can't say freer than that!
The two companies offering this licence are Caldera Systems and The SCO Group
with their OpenLinux licence. If you are thinking of taking out a SCOSource RTU
licence, I really recommend these as an alternative as they offer many more
additional rights to use Linux on additional computers and change or pass the
program on to others. The SCOSource RTU licence is also quite restrictive on the
use of the Linux binaries whereas these alternative licences don't seem to
restrict in an onerous way, no matter what you want to do.
The really good
news is that they are free, as in beer. Yes, free of charge. Fabulous! Well, not
fabulous at all; real. I have been having difficulties obtaining copies,
though.
The other thing I don't like about the SCOSource RTU is the promise
not to sue which does not say what it is that they promise not to sue about. I
worry that the company has all your contact details by the time you have taken
out the licence. Mind you, they might not keep those records up to date.
Nevertheless, it's almost like encouraging them to sue you.
Don't forget,
IANAL and you should consult your lawyers before making a final decision. Your
lawyer needs to advise you on what you are really getting from each licence and
which is the best for you in legal terms. ---
Regards
Ian Al
I sentence you to seven years, or more with good behaviour. [ Reply to This | # ]
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- Keep dreaming - Authored by: Anonymous on Saturday, March 20 2010 @ 07:09 AM EDT
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| Authored by: Anonymous on Saturday, March 20 2010 @ 07:50 AM EDT |
I'm interested in the part of Botosan's testimony
where she refers to Pisano's
testimony. How would
she know what he said?[ Reply to This | # ]
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| Authored by: WWWombat on Monday, March 22 2010 @ 08:58 AM EDT |
I've read this testimony, and I can't understand how it progresses SCO's case at
all.
Gasparro gives numbers, but says it was affected by the IBM litigation (so not
just Novell).
Langer gives some numbers, but also says that, after the retraction,
"People started doing their homework".
Pettit points the finger at Novell, and shows things going off the boil.
None of this testimony seems to be startling or damning in any way.
Novell's cross-examination of them all concentrates solely on the fact that they
wouldn't show the infringed code to anyone, and in fact, couldn't get that
information out of other parts of SCO when requesting it - that it was a
deliberate choice to not show infringement.
On balance, SCO might have made a tiny point of the amount of money involved in
their chase for SCOSource. They might have pushed a point that it was Novell
that caused this (but it still seems to be SCO employees voicing the opinion,
not customers).
But on the other hand, we do see customers asking for evidence of the
infringement, and getting no answer.
I'm beginning to see some of the "Unclean Hands" strategy in this.
While SCO might be selling the value of the damages to the jury, Novell is
trying to sell the "other factors" defence to the jury *and* trying to
sell the "deliberately prevented fixing" argument to the judge.
It will be the judge that determines the "unclean hands", and he will
make that determination *after* the jury result comes in, but it will take
priority. So you could see the ironic result of the jury giving massive damages,
and then the judge taking them away again ;-)
It also strikes me that Novell's cross doesn't ever seem to get as far as a
dramatical "aha" moment - I guess you can't from deposition testimony.
I suspect they're just building a large database of quotes to be able to put
into their closing argument.[ Reply to This | # ]
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