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Week 3, Day 14 SCO v. Novell Trial - Braham, Bradford, Musika, and Judge: "the End is Nigh"
Friday, March 26 2010 @ 02:41 AM EDT

Today, Tor Braham took the stand again in the SCO v. Novell trial in Utah, and SCO had a chance to cross examine him. He said something interesting, that he remembers a lot about the APA, because it was a very significant deal, one that he knew at the time was important, because it would affect the future of Unix. It explains why after all these years he still has the drafts, don't you think? He knew this was historic and a significant moment in his career.

Then Novell called David Bradford to the stand, and finally it was time for Novell's expert on damages (see footnote 2), Terry Musika. He basically rebutted SCO's experts, Christine Botosan and Gary Pisano, in his report [PDF]. Here's where you'll find David Bradford's Declaration [PDF], so you can follow along, along with the Board Minutes he turns out to be the author of, and here's Tor Braham's Declaration, and you don't want to miss the exhibits attached, including drafts of the APA.

Note that while some in the media are saying that the case has gone to the jury, that is not accurate. Novell's case is chief ended today, followed by some rebuttal witnesses from SCO, Robert Frankenberg and Dr. Christine Botosan. We still have closing arguments and jury instruction ahead before the end, so as Judge Stewart said to the jury, the end is nigh, but it hasn't arrived yet.

And here is Chris's report, Part 1:

Part 1 - Initial matters and Completion of Tor Braham's testimony.

Judge Stewart said something I missed about Novell's rule 50 motion. He said there is no jury instruction regarding privilege. He scheduled a jury instruction conference for 3pm today.

Mr. Brennan said the parties have agreed to one hour fifteen for closing arguments and Judge Stewart said he will be keeping track of the time as well. Mr. Brennan said SCO plans to use deposition video clips during the closing and Novell's believes doing so would unfairly give weight to such over the testimony of live witnesses.

Mr. Singer disagrees. He said the jury is supposed to give equal weight and doesn't think it elevates over the live witnesses.

Judge Stewart says that video will not be allowed, though he says photos of witnesses is allowed and encouraged to help the jury match faces to testimony.

Mr. Brennan asked if he may be allowed to step out of court following completion of Mr. Braham's testimony so they may calculate time. The judge allows it.

Mr. Brennan brings up the cross-examination of Greg Jones and shows in the testimony that Mr. Normand first brought up bankruptcy. Stewart says he was in error but jury instructions.

Judge Stewart said Juror 13 is expected to be the alternate unless both parties are in agreement otherwise. Novell said they are ok with juror 13 being alternate, SCO said they'd like to consider it longer. Judge Stewart said he doesn't need their answers right away, but reiterates that the two sides must be in agreement.

The jury enters and Judge Stewart addresses them saying the two parties will finish their presentation of witnesses today. That tomorrow they will hear instructions and closing arguments. He assures them "the end is near."

Tor Braham takes the stand.

SCO's Stuart Singer asks Tor Braham, Novell was your largest client?

Braham: No, had another larger.

Singer asks, You left Sonsini to be an investment banker?

Braham: Yes.

Q: For Deutsche Bank? -- Yes.

Q: IBM is one of your clients? -- Yes.

Q: Where did you get your direction from?

Braham says something to the effect that there were lots of people he listened to, some more than others. He said he had to watch the ball, not the crowd; that Mr. Chatlos was moving over to the new company, so (Mr. Chatlos) mostly negotiated for himself. He primary listened to people representing Novell. I think he identified Mr. Bradford as his main contact.

Mr. Singer referred to exhibit 639, Bates 39783-39801 from Wilson Sonsini files, generated around September 10th, 1995. He asks, This represents terms the parties are discussing? Mr. Braham replies that term sheets represent individuals. He says he cannot tell if this term sheet is more than one person or not.

Mr. Singer asks if copyrights changed at the end? Braham replies he doesn't know the dates, he has no independent recollection.

Mr. Singer asks in the week leading up to the signing, when Santa Cruz saw the exclusion, was there pushback?

Braham replies that SCO's Mr. Higgins asked regarding the exclusions, "Is this really required?"

Q: Didn't SCO obtain legal title? -- Yes, to the licenses, not intellectual property.

Q: Because there was concern about bankruptcy? -- Yes.

Q: You transferred equitable interest? -- Yes.

Mr. Singer asks something to the effect, You could have transferred copyrights and retained the equitable ownership interest and royalties? Mr. Braham says he's confused.K)L Mr. Singer replies, It was a bad question. (I missed the restatement and reply.)

Q: In Section 4.16, SVRX License is capitalized. Is that because it's a defined term?

Braham: No, I don't agree. He says he understands defined terms are normally in quotes, that there are many reasons to capitalize.

Q: Could Novell direct SCO regarding UnixWare?

Braham: No, could only direct Unix, not the UnixWare flavor.

Q: In the memorandum to the board on section for "Novell retains" it does not say copyrights on the Friday before the vote?

Mr. Braham says he'll accept that representation.

Q: Was the board meeting a teleconference?

Braham: I believe so.

Mr. Singer shows a document annotated during the board call on September 18th, 1995. Mr. Braham confirms it's his handwriting.

Mr. Singer asks, are there any schedules attached? -- No.

Mr. Singer shows exhibit 89 with Braham's name on it. It's identified as a draft of a report to the government to comply with the Hart-Scott-Rodino Act. Asked if it was his, Braham replies he doesn't know, but it's not his handwriting on it.

Mr. Singer shows exhibit 88, the actual report that was filed, and it has Mr. Bradford's signature. Mr. Singer asks if this is an important document being submitted? Mr. Braham replies that documents submitted to the government are important.

Mr. Singer indicates it shows the assets to be transferred to Santa Cruz. He reads item 1, All rights, title,... to UnixWare. Mr. Singer says on Braham's draft it has the same language, nothing saying "except for copyrights." Mr. Braham says it doesn't say that in that summary section, but that he would need to see the entire document. He states though that the summary includes the entire document by reference.

Mr. Jacobs examines on re-direct asking Mr. Braham in that exhibit 88, first paragraph, What is this doing?

Mr. Braham replies that it's saying that the entire agreement is included by reference.

Did Mr. Singer point out that the entire agreement is attached? No.

Q: What was the agreement?

Braham: The entire APA.

Q: Could you explain how negotiation works?

Mr. Braham replies, lots of different people feeding you information, each with different interests. In this case it was David Bradford communicating for the board of directors and, at the end of the day, he was the one speaking for Novell.

Q: Did Mr. Bradford say there was anyone to watch out for? (objection, hearsay, sustained).

Mr. Jacobs asks, From your discussions with Mr. Bradford, did you form an understanding of anyone to give less credence to?

Braham: Yes, Duff Thompson.

Q: Why?

Braham: He was going to be on the board of directors of Santa Cruz.

Mr. Jacobs refers to exhibit Z3 again, the minutes of the Novell board of directors meeting of September 18th, 1995, the second page resolutions, and asks, Were copyrights mentioned? -- Yes.

Q: So, as to whether the negotiators acted in the interest of Novell, what does that tell you?

Braham: It validates it.

Q: Does the input of Ed Chatlos or Ty Mattingly matter?

Braham: They're not relevant.

Q: And even Mr. Messman?

Braham: Yes, not relevant. The board of directors is the intent.

Mr. Jacobs: Mr. Singer asked questions about the back and forth with Santa Cruz, Mr. Higgins and the Brobeck team. What was was the understanding about the copyrights?

Braham: That Novell retained all.

Q: What is all?

Braham: All at existent at the time. It was assumed that Santa Curz would build on that with copyrights of their own.

Q: Under section 4.16(b) Novell could direct (SCO with regard to Unix)? (missed) Mr. Braham compared it to a sundae, that Unix is the vanilla ice cream supplied by Novell, and people could use that ice cream to create a strawberry sundae from it, and that some other company could take that vanilla ice cream and make a banana split.

Mr. Jacobs says, you seem to have a good memory of these transactions. Why?

Mr. Braham replies with an impassioned explanation that this was a life moment. He was dealing with the future of Unix. It was affecting the balance of power in the industry, that a person doesn't get many chances in their life to be involved in something this important.

Q: When did you join Deutsche Bank? --2004.

Q: At Deutsche Bank, were you involved in any report related to SCO?

Braham: No, absolutely not.

Q: Do you speak daily with the analysts?

Braham: No. They're completely separate by law. To even go there I'd have to have a lawyer to chaperone me.

Mr. Singer then re-cross examines him asking, You remembered this because it was such a big deal, but you're saying it was only in the last week across the table that (copyrights were retained)? (missed answer)

Singer: (regarding reports to government) So if the government wants to know, they'd have to look in two tables in the agreement to determine if this critical element passed?

Braham: The four pages of included and excluded assets, the core of the document, yes.

Neither side had any more questions and Mr. Braham was released.

End of Part 1

And here's Part 2:
Part 2 - Testimony of David Bradford

After Mr. Tor Braham was released, Judge Stewart allowed counsel to take a moment to calculate their times for the remainder of the day. He suggested to the jury (and everyone else) that they take a moment to stand up and stretch.

When they'd returned, Mr. Brennan called David Bradford to the stand. He provided his background. He came to Novell in 1985 as corporate counsel then became general counsel until he left in 2000. Part of his duties was as secretary for the board of directors. In that capacity, he was the one who wrote the minutes.

Mr. Brennan asked, Did you have any role in the APA? -- Yes.

Q: Has it been necessary to review documents to refresh your memory? -- Yes.

Q: Is your memory as clear after reviewing?

Bradford: No, I'm appreciative that I documented it at the time.

Q: In these negotiations, did you look to outside counsel for assistance?

Bradford: Yes, to Wilson Sonsini. He then speaks highly of them.

Q: What was your relationship like with Tor Braham?

Bradford replies that he started working with him in the early 90s and depended on him. He said that he trusted Tor to carry out his directions. When asked, he also spoke well of Tolonen, Messman, Chatlos, and others.

When asked, he said the APA is clear that patents and copyrights were retained.

Q: Do you remember if the Board of Directors retained copyrights?

Bradford: Yes, I do.

Q: How do you remember?

Bradford: Because of my board minutes.

Q: How did you prepare the minutes?

Bradford explains how he created a draft containing the topics to be discussed, marked it up at the board meeting, reviewed it with Mr. Messman.

Q: Are the minutes of the Board of Directors approved at the next board meeting? -- Yes.

Mr. Brennan refers to exhibit Z3, the minutes of the board meeting of September 18th, 1995 and asks if that is his signature at the bottom? --Yes.

And under Resolved, Mr. Brennan reads the part "Board of Directors of this corporation, Novell..." and asks if it's referring to the APA? -- Yes.

Mr. Brennan calls his attention to the third paragraph "Novell will retain all the patents, trademarks, copyrights, etc" and asked, Based on your recollection based on this document, is your impression copyrights were retained? -- Yes.

Q: Were you involved in Amendment 2?

Bradford: No. The office in California, Allison and Tolonen, were involved.

Q: Was Amendment 2 brought before the Board of Directors? -- No.

Q: Do you have an understanding why?

Bradford: No, not exactly, but generally anything material is brought before the Board of Directors.

Q: Did you need to review documents to refresh you memory? -- Yes.

Q: Have you ever said you didn't remember details of the agreements? -- Yes.

Q: Did you tell Ty Mattingly and (someone else?) you didn't remember details of the APA? -- Yes.

Q: Could you tell me about it?

Bradford: It was a strange conference call, Ty Mattingly and (?) called and asked if I remembered (the APA).

Q: Do you have any financial interest in the outcome of this trial? -- No.

Q: Does Fusion-io have business relations with IBM?

Bradford: Yes, IBM is a customer of ours and takes our technology and resells it.

Q: Is there any relationship to your testimony?

Bradford: No. When I made my declaration three years ago, I'd not even heard of Fusion-io.

SCO's Mr. Stuart Singer corss-examines him, first referring to exhibit 754 and asks, Is this the memorandum you presented to the Board of Directors on September 15th, 1995?

Bradford: Yes.

Mr. Singer refers to the term sheet and asks, There's no mention of copyrights?

Bradford: Yes. It was only a part of the package that was sent to them. He notes that the name at the bottom of the page is Ty Mattingly so it doesn't look like something he sent to them.

Mr. Singer shows exhibit 638, Mr. Bradford's declaration and reads:

Q: The September 15th memorandum to the board, four pages but no term sheet?
A: Correct.
Mr. Singer asks, you didn't have the documents in your own possession?

Bradford: Correct.

Mr. Brennan asks for a sidebar. When they sidebar ended, Judge Stewart calls a fifteen-minute break and the jury leaves.

Judge Stewart asked Mr. Singer if that "will be enough time to find it?" --Yes.

Mr. Brennan offered that if he's wrong, he'll stand and say he is. Judge Stewart said that will not be necessary.

After the break, Mr. Singer reports that Mr. Brennan agrees with him. Mr. Brennan said he concedes the point. Reference is made to his declaration page 68 (Mr. Bradford had stated that the term sheet was with the document). Judge Stewart directs the SCO counsel not to imply ill will to Novell.

Mr. Bradford is called back and the jury returns.

Mr. Singer refers to the term sheet in exhibit 674. Asks to compare it to minutes of board meeting, exhibit Z3. Asks Mr. Bradford if there is any reference to copyrights on the first page of the minutes? -- No.

Q: And the second page at top, any mention of copyrights?

Bradford: No, correct. The only mention is in resolution. He then compares the resolution to the term sheet. He says patents mentioned on term sheet, copyrights not mentioned, license back is on term sheet.

Q: Did you review the TLA?

Bradford: I did not review in preparation for today.

Q: Did you review Amendment 2 for today? -- No.

Q: For your declaration? -- No.

Mr. Singer refers to exhibit 754, memo to the board of September 15th, 1995. He brings up the financial analysis. Asks, You understand Santa Cruz had a several hundred million dollar business at time of the APA?

Bradford: I don't recall.

Q: Next page of term sheet, what does Novell receive from SCO?

Bradford: A portion of licensing revenue from SCO.

Mr. Singer asked Mr. Bradford if he's aware of any different term sheet given to the board between this one and the Board of Directors meeting?

Bradford: Yes, they're fluid.

Mr. Brennan on redirect asks Mr. Bradford to explain what a term sheet is. He answers that they're draft documents exchanged by parties and that they change on a daily basis.

Q: Explain "rhythm of the deal".

Bradford: Obtain outside counsel, give overview of what we'd want and protection we'd want in a document, and they'd go off and negotiate it.

Mr. Brennan asks Mr. Bradford to turn to exhibit Z3, page 2 of the minutes he took of board of directors meeting, the resolutions. What are resolutions?

Mr. Bradford answers that there might be preparatory statements, but the resolutions are the core of the document. He says they are the most important part.

Mr. Singer asks on re-cross, you can have term sheets at beginning, but this one is part of your September 15th submission after the end of the negotiation?

Mr. Bradford replies, I don't know that this is the one that was attached. He concedes he doesn't know of any others.

With nothing further, Mr. Bradford is excused.

End of part 2. Part 3 is testimony of Terry Musika.

And here's Part 3:
Part 3 - Testimony of Terry Musika

Mr. Brennan calls Terry Musika to the stand and while waiting says he will fulfill his highest, and best, purpose setting up some stands and multiple blank poster boards.

He asks Mr. Musika his background. He replies that he has a degree from Indiana University in history and accounting. He said he worked for KPMG and PricewaterhouseCoopers. He then founded several of his own companies, a merger and acquisition company, a bankruptcy financial data research company, and others. The various companies have all been sold. He says he's also operated many companies as a trustee in bankruptcy. He includes running a shipyard building ships during the gulf war, multi-state grocery store chain, charter bus line, etc). His resume is provided in exhibit C33.

Mr. Brennan asks, What have you been asked to do for this litigation?

Musika: I was asked if I could form an independent evaluation as expert as to damages in this case.

With permission of Judge Stewart he goes to the poster boards set up before the jury. Mr. Brennan, Mr. Normand, Mr. Hatch, and Dr. Botosan all took places near the jury where they could view the presentation.

(I had problems following the presentation because he refers to things he's writing on the board and he spoke very fast.)

He said his first approach was to look at what was presented to the court. He looked at Dr. Botosan's "but for" and says he's in agreement with the approach but with a different look.

He says that it was "but for" that one single event, we would would have millions of dollars. He said there are other potential events. He says he'll discuss the decision-making process of someone considering buying.

He draws a diagram on the boards including a server(s) and client laptops. He says that Microsoft monopolizes the client computers, but that we're up here (server).

Mr. Hatch asks if there's a question coming? Judge Stewart directs Mr. Brennan to ask questions to elicit testimony. He does.

Musika said servers are hardware and software. SCO's not claiming to sell hardware. IBM, HP, Sun, they make the hardware. The software comes from three possible choices, Windows, Unix, and Linux. He says there are others, but they are so small as not to consider. He continues, you get into this software through a license sold through one of these vendors.

Linux is open source, you get through the GPL, which he mispoke and called the "Government Public License."

Mr. Brennan asks, So what other ways can a party get this other than through the "General Public License?"

Mr. Hatch say's he glad they finally asked a question, but would like a sidebar.

When they return, Mr. Brennan asks, You were explaining about the vendors?

Mr. Musika continues, you can get Linux through 1) Free GPL, 2) Through paid subscriptions, for example RedHat, and 3) free download. He told the jury they could go and download it now from the Internet free. He said he looked at SCO's business plan. He said the competitors were Windows and Linux.

Mr. Brennan then said he was putting up a demonstrative showing the relative market share of Windows, Linux, and Unix over time. Mr. Hatch objects to its usage, and Judge Stewart sustains because neither it nor its data are in his report.

Mr. Musika continues saying he'd looked at the company. It had made $112 (?) million dollars and lost $211 (?) million.

He says Dr. Pisano looked at the vendor license market. Mr. Musika says there's the paid market and free market and Dr. Pisano lumps them together. He reports Dr. Pisano said we'll only get 19 percent of this. He asks rhetorically, where did he get the 19 percent from? From a web survey conducted by the Yankee Group because he thought it would be a good proxy.

Mr. Musika says he has four concerns about the Yankee Group survey. First, they took the Winodws and Unix market, but they're not the Linux market.

Mr. Brennan asks, Are you suggesting he chose the wrong population for his survey?

Musika: Yes.

Mr. Musika continues, He was asking big companies (using all operating systems). Mr. Musika returns to the witness stand.

Second, A slide of data from the Yankee Group 2004 report is shown. He says it's a mix of Windows, Unix, and Linux. The survey only shows responses from large companies of over 5,000 employees, so it's not representative.

Mr. Musika says, Third, The indemnification -- they're different products.

Fourth, they did not consider the price of the license. He says, Take health care. Everyone wants health care. But how much do you care? How much will you pay? As price goes up, we buy less, price goes down we buy more.

Mr. Brennan asks, Do you believe there was any other reason would not buy?

Musika: Yes, seven reasons. Mr. Musika said SCO didn't get their millions of dollars because:

1) SCO doesn't know its target customers and they can't identify who downloaded.

2) Blind mailing. Some of the companies they sent their blind mailing to came back and said they don't even use Linux.

3) Inability to show Unix is in Linux.

4) Inability to reach (targets?). Expressed in their own 10K, "We do not have a history of profitable operation. Future SCOsource revenue uncertain. Lack of historical data, unable to predict, etc."

5) Public image -- target customers are the users of Open Source. The public has acted adversely. SCO's plan is based on targeting a market, and selling where they're the "most hated company in tech."

6) The Gartner Group, others, were telling target customers not to buy because SCO's claim is unfounded and arbitrary.

7) Weakness in developing a well thought-out plan. For a company (projecting hundreds of millions in revenue) one would expect to see a business plan.

Mr. Musika reported that SCO themselves are concerned about the plan. He put up a slide on the screen that reads "I thought this was a bad idea when it was discussed in the days when we ran SCO and I still think it's a bad idea... New SCO has few enough friends anyway without pulling this stunt." Mr. Hatch asked for a sidebar, but the slide remained up until the sidebar finished (presumably with the jury having time to ponder its meaning).

On return from the sidebar, Mr. Hatch said that, In the interest of time (he's moving along quicker). He asks something about Deutsche Bank. Mr. Musika answered, Dr. Botosan pulled certain numbers from Deutsche Bank's report. He reads their cautionary statement, The risks are huge, ... speculative, ... extremely high risk.... If it doesn't succeed in proving infringement, it will fail. Mr. Musika says you have to take this into account.

Mr. Brennan asks, So summing up Pisano?

Mr. Musika moves back to the boards and puts up a clean one. He said, approach: SCO has plan to sell based on pay or sue. SCO wants payment from the Open Source community. The community asks themselves, "Do I infringe or not?" If they infringe they pay. If not, no. He asks, What does Deutsche Bank say? "Shares worth zero if not proved" and that's what I'd say, don't buy until infringement is proven.

Mr. Hatch cross-examines asking, What are you qualification? Do you have training in accounting?

Mr. Musika answers, degree in history and public finance. He has a CPA, and his expertise comes from experience.

Mr. Hatch asks about his last company, Invotex, How much are you charging?

Musika: $525/hr

Q: How many hours?

Musika: I don't know.

Mr. Hatch asked how much he was paid, and Mr. Musika answered the payment goes to the company, that he's salary.

Mr. Hatch asked if he has an equitable interest in the company? Musika says he sold the company in 2007, no equity interest. He said he's worked more in the last month than he had on the report.

Q: When the report was made, did you have an equity interest?

Musika: Yes, he was still an equity owner.

Q: How much was paid for the report, over $200,000?

Musika: That's fair for all the people who were working on it.

Q: At the time of the reports, July 2007, what percent of your time was for expert testimony?

Musika: 75 to 85 percent.

Mr. Hatch asks, That's the time you spent on expert testimony or other litigation related matters? -- Yes.

Q: The bulk of your livelihood was litigation related?

Musika: No, investments pay us more.

Q: It was the bulk of the money you receive for your time?

Musika: It varies from time to time, but yes.

Q: You were hired to evaluate at the time you made your living as an expert?

Musika: Bulk of time, but not earnings; those were investments.

Q: You've never written papers on tech licensing?

Musika: No, I've taught courses. He says he's written hundreds of business plans.

Mr. Hatch says, Dr. Pisano held a chair at Harvard, he presented papers, etc. You have no peer-reviewed papers? Mr. Musika replies that he feels for people in academia who must publish or perish. Judge Stewart directs him to answer the question. He answers, No.

Q: You don't disagree with the "but for" world?

Musika: No, it is part of what damage experts rely on.

Mr. Hatch refers to exhibit R21, the Deutsche Bank report and asked, You remember when you talked to the jury where you said zero? -- Yes.

Mr. Hatch, The stock worth zero?

Musika: Yes, that's what the report said.

Mr. Hatch, referring to the report, asks what the value of the stock was at the time of the report?

Musika: $16

Q: The authors of the report took risks into account in their report? --Yes.

Q: With all that in play, what did they say?

Musika: Brian Skiba says $45. Deutsche Bank says this is not Deutsche Bank, this is Brian Skiba.

Q: Deutsche Bank makes market in SCO stock?

Musika: No, not at time of the report.

Mr. Hatch asks, Does Deutsche Bank have a connection to SCO?

Musika: Deutsche Bank no, not at this time. Brian Skiba, maybe.

Q: Deutsche Bank is estimating $10 million over three quarters?

Mr. Musika reads from the report, "Difficult to predict." These are for vendor licenses, and SCO's trying to force-fit this for the other license.

Mr. Hatch asks something about Deutche Bank using a conservative estimate, there was an objection, there was some disagreement over something and Judge Stewart called a break.

After returning from break Judge Stewart asks what their minutes are. I think they replied that Novell is at 52 minutes left and SCO 22. SCO also told Judge Stewart they reserve their Rule 50 motion as Novell had.

After jury returns, Mr. Hatch asks Mr. Musika, Bottom line.. you never calculated any number other than zero? -- No.

Q: Did you conduct a survey of consumers? -- No.

Q: You testify her analysis is deficient?

Musika: It doesn't take the issues into account.

Q: Were you impressed with her work? --No.

Q: Weren't you so impressed with her work that after reading her report you contacted her to hire her? -- No.

Mr. Brennan asked for a sidebar. When they returned, Mr. Hatch continued.

Q: When you had this correspondence with Dr. Botosan, didn't you say your firm's greatest challenge is finding qualified people to handle the volume?

Mr. Musika equivocates, but agrees that it's always difficult and that he doesn't remember corresponding with her.

Mr. Brennan examines Mr. Musika on re-direct asking, Is there a connection between Brian Skiba and Darl McBride?

Musika: Yes, that's correct.

Demonstrative displayed showing some excerpt from the Deutsche Bank report and an email from SCO's Bingham to Deutsche Bank and (?).

Mr. Brennan asks, What to you believe about a connection?

Musika replies that when examining Deutsche Bank he found they are not independent. Found an email in SCO's files from (someone at SCO) to (someone at DB or Mr. Skiba), "Please book a car and hotel for Darl (something) Darl and Bingham stay at Skiba's ocean villa" (apparently in Caen, France)

Mr. Musika said that as an auditor, he's not sure if there's any social connection, but it raises red flags.

Mr. Hatch examines Mr. Musika further on re-cross asking who the other author of the Deutsche Bank report was? Mr. Musika provides the name.

Q: Do you have anything bad to say about him? -- No.

Q: When was the report written? -- October 14th, 2003.

Q: What was the date of the conference (that presumably the email was arranging lodging for)?

Musika: Email was dated September 20th, 2004.

Mr. Hatch asks, A year later?

Musika: Yes, he says it raises red flags but concedes no evidence of relationship at time of report.

Novell rests their case in chief and SCO starts calling their rebuttal witnesses.

End of part 3. Next part rebuttal testimony of Robert Frankenberg and Dr. Botosan and final matters.

Update: The minutes from PACER:

03/26/2010 - 842 - Minute Entry for proceedings held before Judge Ted Stewart: Jury Trial held on 3/26/2010. The Court instructs the jury, and closing statements are delivered. The jury is released to begin deliberations. At 5:30 p.m., the jury breaks for the week, and will return at 8:30 a.m. on Tuesday morning to continue deliberations. The Court gives cautionary instructions on proper behavior for jurors during deliberations. Attorney for Plaintiff: Stuart Singer, Edward Normand, Brent Hatch, Attorney for Defendant Sterling Brennan, Eric Acker, Michael Jacobs. Court Reporter: various. (slm) (Entered: 03/30/2010)


  


Week 3, Day 14 SCO v. Novell Trial - Braham, Bradford, Musika, and Judge: "the End is Nigh" | 289 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: Tufty on Friday, March 26 2010 @ 03:02 AM EDT
Keep it tidy

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Off topic here
Authored by: Tufty on Friday, March 26 2010 @ 03:03 AM EDT
Off tropic most welcome

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Linux powered squirrel.

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Week 3, Day 14 SCO v. Novell Trial - Braham, Bradford, Musika, and Judge: "the End is Nigh"
Authored by: losat on Friday, March 26 2010 @ 03:03 AM EDT
Yay! It's back!

(The article and the preceding one had disappeared for a time, and there was
fear this article may have been lost.) (Or it was, and PJ worked at lightning
speed to recreate it!)

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Newspicks
Authored by: Tufty on Friday, March 26 2010 @ 03:04 AM EDT
Latest pedition

---
Linux powered squirrel.

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The official thanks thread
Authored by: Tufty on Friday, March 26 2010 @ 03:05 AM EDT
From the squirrel too.

---
Linux powered squirrel.

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The "What's more important than the outcome of this trial" thread
Authored by: SirHumphrey on Friday, March 26 2010 @ 03:28 AM EDT
I'll start:

1.) Effectively returning to their homes, everyone who was displaced by
Hurricane Katrina
2.) Implementing actually effective Indigenous health programs
3.) "Getting Washington's birthday and Lincoln's birthday back to separate
paid holidays."

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"Please book a car and hotel for Darl (something) Darl and Bingham stay at Skiba's ocean villa"
Authored by: Anonymous on Friday, March 26 2010 @ 04:06 AM EDT
This is truly jaw-dropping for me
Is it just me or there is something rotten in SCO small circle ?

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Judge: "the End is Nigh"
Authored by: grouch on Friday, March 26 2010 @ 04:58 AM EDT
This trial is being held in Skagway, right? Sorry, but I keep expecting Novell's herd to be confiscated for the dastardly act of interfering with SCOG's scheme.

It's hard for me to reconcile Judge Stewart's rulings in this case with his earlier insistence on adherence to the law.

---
-- grouch

GNU/Linux obeys you.

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Favorite points thread
Authored by: Barbie on Friday, March 26 2010 @ 05:15 AM EDT
5) Public image -- target customers are the users of Open Source. The public has acted adversely. SCO's plan is based on targeting a market, and selling where they're the "most hated company in tech.
That has to hurt.

And the jury is going to accept that as a fact, since SCO didn't contest the characterization.

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Week 3, Day 14 SCO v. Novell Trial - Braham, Bradford, Musika, and Judge: "the End is Nigh"
Authored by: odysseus on Friday, March 26 2010 @ 05:50 AM EDT
A fairly quiet day today then, besides Braham, it's the previous 2 days that
should make-or-break it for Novell. Bradford essentially said "I don't
remember, it's too long ago, that's why we write all this stuff down" and
Musika essentially said "I'm a hired gun who makes my money doing this
stuff, the academic was too naive about the real world, but yeah I'm paid to say
this sort of stuff".

The two bits I want to know more about are

"Bradford: It was a strange conference call, Ty Mattingly and (?) called
and asked if I remembered (the APA)."

and of course

"Musika replies that when examining Deutsche Bank he found they are not
independent. Found an email in SCO's files from (someone at SCO) to (someone at
DB or Mr. Skiba), "Please book a car and hotel for Darl (something) Darl
and Bingham stay at Skiba's ocean villa" (apparently in Caen,
France)"

The Bradford quote tells me SCO were desperately trying to find anyone important
enough who would support their side of the story, so I'd love to know when this
call was made. I'm sure we would have if SCO hadn't burned through all the time
with their witnesses.

The Musika quote is probably not that unusual, analysts and CEO's socialise all
the time in the hope of influencing each other or picking up inside info about
the market, but France does seem a rather long way to go. Perhaps Skiba was on
holiday and Darl was desperate to spin a tale to him?

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Week 3, Day 14 SCO v. Novell Trial - Braham, Bradford, Musika, and Judge: "the End is Nigh"
Authored by: Anonymous on Friday, March 26 2010 @ 05:58 AM EDT
Doesn't finishing up with the financial expert make for a weak finish to
Novell's case? A damages expert supposes that there was some kind of
infringement and that therefore there are damages to be calculated. The whole
time he is testifying the jury is therefore in the mental space of supposing
Novell damaged SCO and trying to figure out by how much. I wouldn't want to
leave the jury in that mental space. Wouldn't it be better to finish up with a
witness strongly asserting that SCO was not damaged at all.

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SCOG's damages to Novell?
Authored by: arch_dude on Friday, March 26 2010 @ 07:13 AM EDT
I'm confused. Novell has a counterclaim that SCOG slandered Novell's title. But
to prove slander of title, you must prove specific damages. The cost of the
defense against SCOG's slander are a perfectly legitimate damage to Novell, but
I thought that they needed to get a witness to make a statement about these
costs to get it before the jury. This does not appear to have happened. Did I
miss it, or did Novell make a mistake?

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And that's the game. SCO are getting the copyrights.
Authored by: Anonymous on Friday, March 26 2010 @ 07:29 AM EDT
Because Novell has rested, having never tackled Amendment 2, having instead
chosen to focus on the slander, and damages.

Maybe Novell have a Chewbacca Defence planned for their summation, but on the
performance so far, I'm guessing it'll just be more hair-splitting over the
(irrelevant) un-Amended APA.

Verdict: SCO is awarded the copyrights, Novell has not slandered title, still no
resolution on whether "Unix is in Linux". And then we begin the next
round.

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A half-baked scheme
Authored by: Anonymous on Friday, March 26 2010 @ 08:15 AM EDT
7) Weakness in developing a well thought-out plan. For a company (projecting hundreds of millions in revenue) one would expect to see a business plan.

The same could be said for the IBM litigation, the bankruptcy sell off schemes, the whole sorry story.

I feel bad knowing that there are some people (not very many these days) actually doing real work trying to make SCOG into a going business while these louts are dreaming up get rich quick schemes and shooting holes in the bottom of the corporate boat. It is a sad end to the Bell Labs/AT&T/USL Unix legacy.

Tor Braham saw that. He's the one person who seemed to have some insight into the historical value of the transaction and why Unix old-timers (as well as the new Linux generation) would care. There's more to this than the $100 per server.

And I think that legacy was the real value that Caldera was buying from oldSCO, $100M worth of "good will" as the depository of historical Unix. They could be throwing 'UNIX Hall of Fame' parties and making something of it. But instead, over a period of a few months they burned that all up.

Here lie the remnants of history being bandied about by hucksters.

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Week 3, Day 14 SCO v. Novell Trial - Braham, Bradford, Musika, and Judge: "the End is Nigh"
Authored by: AMackenzie on Friday, March 26 2010 @ 08:28 AM EDT
> The Daily Mail:

Would any of its readers understand?

> The topological conundrum essentially states that any three-dimensional
space without holes in it is equivalent to a stretched sphere.

> One hundred years to solve that? I'd have thought any reasonably competent
sculptor could demonstrate that using a sufficiently large lump of clay.

Yes, but you need 4 dimensional space to accomodate the 3D equivalent of Möbius
strips and the like. Most sculptors lack access to 4D space.

For a simple exercise, picture a Möbius strip. Now unfold the single edge into
a circle. What happens to the surface of the Möbius strip_

> Haven't mathematicians got something better to do? Is maths the art of
rendering something inherently simple as being exceedingly complicated? I'm glad
I don't have anything to do with the subject. Oh, wait...

Maths is the art of the tautological.

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The Contract is Ambiguous, but the Copyright Transfer Needs to be Specific.
Authored by: darkonc on Friday, March 26 2010 @ 08:46 AM EDT
That's the problem that tripped up the 10th.
As a matter of contract law, it couldn't find that the contract was clear in saying that amendment 2 was specific in what was not being excluded from the "All copyrights" by the language of amendment 2.

That's because it wasn't clear which copyrights were "necessary" per the amendment's language.

Now here's where it's possible to bite SCO. ... by copyright law, SCO needs to prove (in this case by extrinsic evidence, because that's where the contact is ambiguous) that specific copyrights were in fact needed ....

The problem for SCO is that they would have to be clear and unambiguous that those specific copyrights were needed, for the contract to have transferred those copyrights.

That clear and unambiguous that comes from copyright law is the threshold that SCO needed to cross to show that any copyrights were transferred by the (amended) contract. (( The reason being that the amendment was a safety release-valve for a situation where the lack of copyright transfer proved to be a problem )).

It seems to me that this language was intended to be retroactively triggered, but it never has been.

Given that SCO hasn't given any evidence that the language of the amandment was clearly and unambiguously triggered, they have no transfer under copyright law. Thus it is that the copyrights were not transferred as a matter of law.

At the very least, if the judge doesn't find as a matter of law (by a new, last-minute application) that there is no evidence available to the jury that the copyrights were clearly transferred, then the jury should be informed of the threshold needed in copyright law for copyrights to have been transferred.

(( I'm thinking that this hairline may be where the 10th tripped up in transferring this back to the jury, but they didn't clearly indicate the dilemma of law ... that SCO could have potentially produced clear evidence of a need for transfer.))

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

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question about jury instructions
Authored by: UncleJosh on Friday, March 26 2010 @ 09:12 AM EDT
Judge Stewart says jury instructions will take 45 minutes. Will the jury get a
copy to consult during deliberations? If so will there be a copy filed or will
they only be in the transcript?

Could/did anyone attend the 3pm conference on jury instructions?

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Juror 13?
Authored by: rsteinmetz70112 on Friday, March 26 2010 @ 09:20 AM EDT
Does anyone know if Juror 13 is the same juror who planned a trip to Vegas?

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

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Bad memory? Moi?
Authored by: Anonymous on Friday, March 26 2010 @ 09:20 AM EDT
Mr. Brennan asked [Bradford], Did you have any role in the APA? -- Yes.

Q: Has it been necessary to review documents to refresh your memory? -- Yes.

Q: Is your memory as clear after reviewing?

Bradford: No, I'm appreciative that I documented it at the time.

Q: Do you remember if the Board of Directors retained copyrights?

Bradford: Yes, I do.

Q: How do you remember?

Bradford: ***Because of my board minutes.***

Q: How did you prepare the minutes?

Bradford explains how he created a draft containing the topics to be discussed,
marked it up at the board meeting, reviewed it with Mr. Messman.

Q: Are the minutes of the Board of Directors approved at the next board meeting?
-- Yes.

Mr. Brennan refers to exhibit Z3, the minutes of the board meeting of September
18th, 1995 and asks if that is his signature at the bottom? --Yes."

1. Mr. Bradford needs his board minutes to remember what has been discussed
***during*** the notorious board meeting on September 18, 1995.

The next half an hour or, SCO smacks his face in his preparation notes
(including term sheets) NOT excluding the copyrights.

Mr. Bradford answers that there might be preparatory statements, but the
resolutions -i.e.- his famous Board Minutes are the core of the document. He
says they are the most important part.
With nothing further, Mr. Bradford is excused.

2. Mr. Braham [gives] an impassioned explanation that this was a life moment. He
was dealing with the future of Unix. It was affecting the balance of power in
the industry, that a person doesn't get many chances in their life to be
involved in something this important.

I presume David Bradford made him aware of the importance of the moment.

OK, summary: copyrights were not excluded before the board meeting, but David
Bradford remembers "because of my board minutes" that they were
excluded AT the board meeting.

So, what happened at the Board Meeting on September 18, 1995?

Let's have a look at the trial testimony of Mr. Messman.

Mr. Singer referred to Novell's exhibit Z3, minutes of a board of directors
meeting on Monday, September 18th, 1995 and asked Mr. Messman if there was
discussion of the APA?

Messman: Yes.

Q: Was it approved?

Messman: Yes.

Q: Is there a discussion of copyrights?

Messman: It was important that copyrights were not included... I insisted that
copyrights be excluded. It was a key part of the deal that they be excluded.

3. Messman himself insisted *in* THE Board Meeting that copyrights be excluded.

So, it was a historical moment!!
But David Bradford cannot remember it. As nobody else can remember it. Except
Mr. Messman!!

NOT GOOD! Trust me!

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Question for Chris
Authored by: perpetual_newbie on Friday, March 26 2010 @ 09:27 AM EDT
Not that it really matters, but how accentuated was the "the most hated
company in tech" statement made by Mr. Musika? Did you notice how it was
received by the jury?

My reason for asking is that thus far BSF has worked very hard to paint SCO as
the little company being beaten up by the big bad corporate Novell. If I were
Novell, I think I would want those particular words to ring true in the jury's
ears - after all, it repaints the picture as SCO being the little bully that is
trying to show how great it is by beating up whoever it can, which is exactly
what it is doing.

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Judge Stewart has done a good job...
Authored by: Gringo on Friday, March 26 2010 @ 09:38 AM EDT

...of handicapping Novell. It is like in a golf tournament. It wouldn't be a very interesting match if the same top players won every match. In that game, they use a system of handicapping to evenly match up all the players. The better a player is, the higher the handicap he has - negative points which he must overcome before he can go on to win the game.

It seems to me that the good judge has developed an excellent sense of the strengths and weaknesses of the case for each side in the trial underway. SCO is clearly disadvantaged. They have a very weak case, whereas Novell is indisputably the stronger player on the field. The judge has given Novell a handicap equal to its strength via his rulings all along, and especially through the instrument of his instruction to the jury. Though we haven't seen the final form this will take, we can get a good sense of what he has in mind from Novell's Proposed Jury Instructions..

While we may thank Judge Stewart for ensuring that this will be an exciting match, I am left wondering if perhaps his talents are wasted in the courtroom. Wouldn't a posting as a referee at St. Andrews be far more appropriate for a man of his abilities?

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Lee Johnson
Authored by: Anonymous on Friday, March 26 2010 @ 10:07 AM EDT

From the report of Bradford's direct examination:

Q: Did you tell Ty Mattingly and (someone else?) you didn't remember details of the APA? -- Yes.

"Someone else" was Lee Johnson, a SCO declarant and potential witness who didn't testify. He's also the one with whom Mattingly admittedly discussed the testimony of other witnesses, in violation of the witness exclusion order.

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Week 3, Day 14 SCO v. Novell Trial - Braham, Bradford, Musika, and Judge: "the End is Nigh"
Authored by: Anonymous on Friday, March 26 2010 @ 10:32 AM EDT
AND to insure that Novell would remain the owner of copyrights and the core UNIX
IP so they could pick up the pieces needed to keep UNIX going in the event of
Santa Cruz going bankrupt.

Without those protections, Novell risked losing control over the legacy
contracts their royalty stream depended due to a bankruptcy liquidation and
sell-off.

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Makeup of Jury
Authored by: Anonymous on Friday, March 26 2010 @ 10:44 AM EDT
Do we know anything about the makeup of the jury? Gender, age, background?

I realize that it won't matter in the long run, but I'm just curious.

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  • Makeup of Jury - Authored by: Anonymous on Friday, March 26 2010 @ 10:49 AM EDT
? For reporter - musika credible?
Authored by: Anonymous on Friday, March 26 2010 @ 10:57 AM EDT
Hiya. Hoping to get a flavor of whether musika sounded credible or not.
Like was he so condescending to botosan that he didn't prove his point?
That's kindof how it sounds after a first read. I hope it went over well.

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You keep using that word. I do not think it means what you think it means.
Authored by: Anonymous on Friday, March 26 2010 @ 11:04 AM EDT
SCO does not know what excluded means!
As I told you, it would be absolutely, totally, and in all other ways
inconceivable that a Jury would excluded that excluded really meant included.

It's like say No means yes and will means maybe! But stranger things in courts
have occurred.

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Mismanagement - Week 3, Day 14 SCO v. Novell Trial - Braham, Bradford, Musika, and Judge: ...
Authored by: Anonymous on Friday, March 26 2010 @ 11:10 AM EDT
I get a sense of mis-management on the part of Santa Cruz Operation, if the
stuff Caldera got did not adequately document who the Unix Licensees were and
the current state of all the contracts, current addresses, license fees and so
on.

Then I also fault Caldera in their due diligence, when they bought the Unix
business from Santa Cruz Operation, in not nailing down exactly what the Unix
licenses were they were expecting to collect from.

I actually have a little sympathy, (very little, but it doesn't outweigh my
outrage) for Darl, being handing years of mush and told to make a profitable
business of it.

And so far, I've seen nothing about the argument that Novell has failed to
fulfill the contract by refusing to turn over copyrights. There is nothing I've
seen so far that says it has become necessary for us to have the copyrights to
run the Unix business, therefore it is Novell's contractual responsibility to
transfer those copyrights to us. Everything so far has been that we expected to
already have the copyrights. But the amendment doesn't say that copyrights are
transfered.

It is kind of like Microsoft's promise not to sue. It indicates intent, but
doesn't actually accomplish anything.

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Strawberry Sundae
Authored by: Anonymous on Friday, March 26 2010 @ 04:38 PM EDT
Mr Braham sure knows how to put the "flavors" of Unix
into a context a lay jury should understand.

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But for...
Authored by: billyskank on Friday, March 26 2010 @ 05:59 PM EDT
But for not being born of the Queen, I'd be in line for the throne.

---
It's not the software that's free; it's you.

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Bradford Cannot Be Trusted!
Authored by: Anonymous on Friday, March 26 2010 @ 08:49 PM EDT
I worked at Novell when Bradford was general counsel. He is was hated by most
employees. His neighbors can't stand him for his consistent threats of lawsuits
for minor things. No one should ever trust this guy. He started breaking the
covenants of his gated community and when neighbors called him on it he
threatened them.

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Next part rebuttal testimony of Robert Frankenberg and Dr. Botosan and final matters.
Authored by: Anonymous on Saturday, March 27 2010 @ 07:24 PM EDT
Did this turn up somewhere else, or did it get mislaid? We've seen the Friday
reports, but this bit from the end of Friday seems to have fallen through the
cracks.

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