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A Blizzard of Motions in Limine in SCO v. Novell

Tue, 09 Feb 2010 00:56:37 -0500

Motions in limine are flying in Utah like snowflakes in a winter storm, filed by both parties in SCO v. Novell. But there are a lot more from Novell than from SCO.

Novell has filed 19 more motions in limine, all filed on February 8, for a total of 20, as well as motions for a Daubert hearing to disqualify Dr. Christine A. Botosan, Dr. Gary Pisano, and G. Gervaise Davis III, three of SCO's experts. The Novell motions in limine are mainly to exclude testimony from certain witnesses of SCO's "for lack of personal knowledge," among other reasons. Like Ed Chatlos. Remember when Judge Dale Kimball was on the case, and Novell filed motions to disqualify that same testimony? Well, now they are raising it again.

SCO has filed 5 motions in limine, but they are not described in the docket, and I haven't read them yet. We can read them together. But I see one of them is titled a motion asking that certain statements of Michael Anderer "as an independent contractor" be excluded. You remember Darl McBride's once longtime friend and business associate, Mr. Anderer, the man who said that proprietary software companies would keep suing Linux until they killed it? And they don't want the jury to hear about what Judge Kimball earlier ruled about who owned the copyrights, I gather. Well, would you, if you were SCO? And they want witnesses to be told they can't mention Groklaw. Say, what? Why would anyone ever mention Groklaw in the trial? I can't imagine any circumstance where that would happen. Anyway, jurors are told not to do outside research, so even if it happened, jurors couldn't visit Groklaw, not that they wouldn't find it enlightening, until the trial was all over.

In other words, as is normal in filing motions in limine, both parties are asking the judge to decide what the trial is going to be about, in essence, by determining before anything goes before a jury what evidence will be allowed to be presented. Of course, Novell has already filed a motion in limine pointing out that one of Judge Ted Stewart's earlier orders seems to provide the meets and bounds of the trial. If he grants that first Novell motion in limine, I think this list will get pruned. Should he not grant that motion, however, he faces all of them.

Novell Motion in Limine No. 1 - Let's All Live by the Mandate Rule, Shall We? - Updated

Sun, 07 Feb 2010 11:41:00 -0500

Novell has filed its first motion in limine [PDF], the full title of which is Motion in Limine No. 1 to Exclude Evidence and Argument Concerning Claims Not Included in SCO's Appeal or the Tenth Circuit's Limited Mandate. It's making me chuckle.

Ah! The mandate rule. Since the judge, the Hon. Ted Stewart, highlighted it in one of his recent orders, as had Judge Cahn before him, Novell's response is, Fine. Let's all live by the mandate rule. Judge Stewart denied one of Novell's summary judgment motions, holding that the Tenth Circuit "remanded this matter to the Court for trial on those four specific issues identified in the mandate," and that "[b]ecause of the specific nature of the mandate, the Court is not free to explore matters outside of it."

So what's good for the goose should be good for the gander. Obviously, we'll find out now what Judge Stewart is made of, since it was his order that brings this motion in limine's argument to the fore. To deny Novell's motion, Judge Stewart has to more or less admit he goofed in his order on Novell's summary judgment motion on the slander of title special damages claim (or alternatively that he was too strict about the mandate rule in his order on Novell's 60(b) motion), which I earlier indicated I thought he had. What to do? What to do?

Now, judges are used to acknowledging their own errors, as it's part of their job to be reviewed by their superiors in the chain if not always by their betters. So that isn't likely to be a problem. I discern, then, that unless the fix is in, as they say, this motion in a normal universe would be granted. In short, I think we are about to find out if we are in a normal universe in Utah for the upcoming SCO v. Novell trial, beginning on March 8, or not.

Microsoft and Innovation -- On iTunes, 2003: "We were smoked"

Sat, 06 Feb 2010 17:44:54 -0500

Recently, an ex-Microsoft executive, Dick Brass, in a New York Times Op Ed piece, Microsoft's Creative Destruction, asked the question, why didn't iPad come from Microsoft? Why doesn't it lead the way in innovation?

But the much more important question is why Microsoft, America's most famous and prosperous technology company, no longer brings us the future, whether it's tablet computers like the iPad, e-books like Amazon's Kindle, smartphones like the BlackBerry and iPhone, search engines like Google, digital music systems like iPod and iTunes or popular Web services like Facebook and Twitter.

Aside from the obvious answer that monopolies don't usually bestir themselves unless they have to,I thought I'd highlight one of the exhibits we been transcribing (or describing) from the Comes v. Microsoft antitrust litigation. That case settled, but not before gifting the world with what can only be described as a true history of Microsoft in the 3,000 or so exhibits the judge ordered made available to the public.

It's Exhibit 7219 [PDF], and it's a flurry of emails from 2003, when the Microsoft top tier executives at Microsoft first heard about iTunes. Bill Gates said that Microsoft was "a bit flat footed again" by Steve Jobs and urged the troops to come up with something matching or better quick. Did they? Jim Allchin asked how in the world Jobs got the music companies to go along, and his assessment of the situation is short: "We were smoked."

Novell Asks For Extension to File with Supreme Court and Judge Stewart Issues Trial Order - Updated

Thu, 04 Feb 2010 18:14:46 -0500

Novell has filed a second request for an extension of time to file its appeal with the US Supreme Court. It would like until March 4th.

And Judge Ted Stewart has issued his trial order for the trial in Utah in SCO v. Novell, which begins on March 8:

02/04/2010 - 626 - TRIAL ORDER with instructions to counsel: 15 day Jury Trial set for 3/8/2010 08:30 AM in Room 142 before Judge Ted Stewart. Final Pretrial Conference set for 2/25/2010 02:00 PM in Room 142 before Judge Ted Stewart. Signed by Judge Ted Stewart on 02/04/2010. (asp) (Entered: 02/04/2010)

More exactly, the judge tells the parties to come up with a joint trial order by the February 25th pretrial conference. He doesn't know these lawyers yet as well as we do. They don't agree on much of anything. He also provides instructions on how to file jury instructions together, unless they can't agree and then he tells them to file separately, but "the court expects the parties to meet, confer, and agree upon the wording of the substantive instructions for the case." That's exactly what they couldn't do the first time [PDF]. This is what they finally came up with.

Packaging Open Source, by Mark Webbink

Thu, 04 Feb 2010 17:47:37 -0500

There is an article by Mark Webbink, Esq., "Packaging Open Source", in the International Free and Open Source Software Law Review, Vol 1, No 2 (2009) that I think you'll find interesting. It compares various FOSS licenses and how they handle compilations and collective works. The context of the article is specifically packaging Linux with an application into a software appliance, but the descriptions of the licenses and how they work are broadly useful in other contexts as well. I am republishing the article here because many of you face choices about what license you will use on your works, so you also need to understand, and others of you are lawyers who would like to understand FOSS licenses better.

Mark was at Red Hat and is now Visiting Professor of Law and Executive Director of the Center for Patent Innovations at New York Law School. He's also on the board of the Software Freedom Law Center. So whether you are a lawyer trying to understand FOSS licenses or a programmer trying to decide what license to use on your work, X marks the spot. The article is also available as a PDF.

I couldn't help but notice the part that SCO lawyers apparently didn't understand about GPLv2:

Finally, GPLv2 does not include an express patent license grant. Rather, in Section 6 the GPLv2 makes clear that no other restrictions can be imposed on recipients, which would include any restriction arising from a patent held by the distributing party. In section 7 the GPLv2 makes clear that, if conditions are imposed on the distributing party that would interfere with the rights granted under the license, the distributing party is not to redistribute the software.

Hence, as I read it, their SCOsource license, which purported to restrict rights previously granted by the GPL, was in violation of GPLv2, and SCO was not allowed to redistribute Linux, but it did, repeatedly. Even lawyers misunderstand FOSS licenses sometimes, but in the end, it costs you, so it's worthwhile to take the time to learn how the licenses work if you plan to benefit from the software attached to the license.

You will also note that I am not alone in finding the Artistic License, the one that is in the toy trains litigation, an unholy mess, or as Webbink more tactfully puts it:

It is worth noting that the Artistic License, version 2 does not appear to be widely used at this time, and perhaps for good reason. I have included it here to indicate another variation in approach and to demonstrate the need for careful drafting.

OSI, in my view, was derelict is approving the first version, and it ought to remove all versions from any approved list before it causes more trouble.

Two More Bills From Pachulski Stang - Still no MORs - Updated: Ocean Park's 3rd Bill

Wed, 03 Feb 2010 12:07:00 -0500

Yes, the flow of money out of SCO never ends, it seems, and so Pachulski Stang has filed a couple of more bills in the SCO bankruptcy. At some point it has to end for them. They withdrew from the case back in November on the 16th, and here we are in February, and they are filing bills for September and November, but not October. That must still be on its way. That alone seems odd.

And of course there are no MORs from the Chapter 11 trustee yet, despite their representation at the last hearing that they would file the MORs for October and November and hopefully December in January.

October. Did something happen in October that they would like us not to notice until after the March trial? I notice that October was the month SCO settled with AutoZone. Could that be it? We'll have to wait and see, but it's not usual to file for September, then skip a month, and then bill for November. And where exactly are SCO's filings with the SEC? What is going on?

SCO and Novell File Proposed Witness Lists. Again. - Updated 2Xs

Tue, 02 Feb 2010 12:57:00 -0500

The parties have filed their proposed witness lists in SCO v. Novell, so this is who you'll probably see testifying, either in person or by deposition, as well as the exhibits the parties expect they will use at trial in March:

02/01/2010 - 622 - Proposed Exhibit List and Witness List (Rule 26(a)(3) Disclosures) by Defendant Novell, Inc... (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit B, # 4 Exhibit C-1, # 5 Exhibit C-2)(Brennan, Sterling) (Entered: 02/01/2010)
02/01/2010 - 623 - Proposed Exhibit List and Witness List (Supplemental Rule 26(a)(3) Disclosures) by Plaintiff SCO Group.. (Normand, Edward) (Entered: 02/01/2010)

SCO's is a supplemental list, because it filed its original list in August of 2007, so it has added some new names to the complete list, Ryan TIbbits, Andrew Nagle, and Erik Hughes. Here's the original list [PDF]. I don't remember an order saying the parties could supplement their lists. Novell seems to think that they can only supplement their exhibits if the court or SCO agree, so Novell submits a proposed supplemental list of exhibits as Exhibit C, in case that happens. The rest is the same as back in August of 2007, when Novell filed its list [PDF].

Here's Rule 26, which is the rule that governs such lists.

The Google Books Settlement Culture Clash, and What About Fair Use? - Updated

Mon, 01 Feb 2010 01:06:00 -0500

Thursday was the deadline to file objections to the amended Google Books Project settlement agreement, and many have done so, Amazon, the Open Book Alliance (which represents Amazon, Microsoft and the Internet Archive), the usual competitors. Here's The Public Index, which has the filings, including the latest objections filed and a list of those who have requested to speak at the Fairness Hearing on February 18.

Some Authors Guild authors, like Garrison Keillor and Scott Turow are satisfied now, as are the families of John Steinbeck and Woody Guthrie, while others are not happy, and in fact, it's up to each one to decide. Except lawyers are in this, so there are now legal dustups. One author, Ursula Le Guin, has gotten hundreds of authors to sign a petition [PDF] asking the judge to exempt the US from the agreement. That would kill it, of course, but legal filings don't always tell you what a case is really all about. You may have noticed that in the SCO litigations.

The Indian Reprographic Rights Organization (IRRO), a copyright society in India is suing Google over its book scanning. They filed in New York, alleging copyright violations for scanning books without notifying the authors first. Larry Lessig has written the most thoughtful and on-point critique, and he hates aspects of it, specifically what is happening to fair use and to culture if you have to get permission now for use that was in the past not permissions-based, not that he blames Google as much as copyright law and the super-control technology now provides authors. It's well worth reading. The fair use issue was what I was unhappy about when the first version of the settlement was announced, if you recall. And I still feel the same way. But here's who I really blame: publishers. I see it as comparable to Apple trying to set up iTunes and having to deal with the music industry. Remember all that?

Microsoft on HP and Linux, 2002: oh, noes

Sun, 31 Jan 2010 17:20:23 -0500

I have another Comes v. Microsoft exhibit to share with you, Exhibit 9542 [PDF], a November 22, 2002 email to Jim Allchin and Orlando Ayala from Mike Oldham. It has to do with a planned meeting on the 25th between the two companies, on their "Better Together" theme. I think it will explain some things we've sometimes wondered about. One thing is clear. Microsoft was seriously concerned about Linux. And HP? Somewhat flexible, I'd say. Note the part about "the HP plan of record" to "bring a new Linux powered device into the mid-range marketplace" regarding NAS devices (network attached storage devices) and how Microsoft was able to convince them not to do that.

Judge Stewart Rules on Novell's Motions: No and Mostly No - Updated

Thu, 28 Jan 2010 17:41:00 -0500

Well, here we go. The new judge in the redo of SCO v. Novell, the Hon. Ted Stewart, has issued his decision on the two Novell summary judgment motions, and I've only skimmed them, but it looks like if it's Novell, he says mostly no and if it favors SCO he says yes, which is what I expected. That means the hearing set for February 4 has been cancelled. No oral argument. Weird. And he ruled on a motion that I don't see anyone asking him to decide.

Psystar and Apple Tell the Appeals Court Why Mediation Wouldn't Work Out

Wed, 27 Jan 2010 04:40:29 -0500

It isn't hard to see why mediation wouldn't work for the parties in the Apple v. Psystar litigation, just by reading what each has filed with the US Court of Appeals for the Ninth Circuit in a form called the Mediation Questionnaire:

01/22/2010 - 3 - Filed (ECF) Appellee Apple Inc. Mediation Questionnaire. Date of service: 01/22/2010. [7205615] (JGG)
01/24/2010 - 4 - Filed (ECF) Appellant Psystar Corporation Mediation Questionnaire. Date of service: 01/22/2010. [7205736] (KDC)

The form is a mediation form that they have to fill out within a week of a filing for appeal, telling the court about the case, so their mediation service can figure out what the issues are, or in this case, why mediation would be a wasted effort.

It's a total he said/she said thing. Here's the only thing they agree about: "Both Psystar and Apple agree that this case is not suitable for mediation." But this form is of real interest, in that it gives us our first real indication of what Psystar's appeal is going to be about. It has filed a notice of appeal, but it won't file its brief until May. So this is our first substantive clue.

The Free Software Way, by Richard Fontana, Esq.

Tue, 26 Jan 2010 14:18:26 -0500

Red Hat has a new website, opensource.com, where they intend to explore how open source affects more than just software, and they're publishing articles on open source in education, business, law, and government. And life. It's designed to be a community forum, one way to give back to the community, as expressed by Red Hat's CEO Jim Whitehurst in his welcoming article, and they hope you'll join in the conversation.

I thought I'd introduce you to the website's rich content by posting an article from the Law section. It's by Richard Fontana, who is Red Hat's Open Source Licensing and Patent Counsel, and I know him and trust him from being on the committee that he chaired in the revision of GPLv3. I can republish his article, because it's under a Creative Commons license, Attribution-Share Alike 3.0 Unported, which means you are free to republish it and share it with others under those terms as well. I think you'll want to, because he explains very clearly the legal rights that are implied by free, not just open source, software, and its extension to other areas, and why open source, while necessary, is not enough.

Notice of Agenda for SCO Bankruptcy Hearing on the 27th - Update: hearing cancelled

Mon, 25 Jan 2010 15:51:00 -0500

The Notice of Agenda [PDF] is up, letting us know what will be handled on the 27th in bankruptcy court. All that is on the schedule is the motion [PDF] by Edward Cahn, SCO's Chapter 11 trustee, to approve SCO board members issuing some stock options to themselves after they forgot to timely do so, without first seeking approval or apparently even telling Mr. Cahn first. The story is they voted in August to issue them, but then they forgot to actually do so for some months.

I don't know why they bother with all the paperwork. In bankruptcy court in Delaware, the corporate debtor always wins and creditors get nothing, from what we've seen, or at least 99% of the time. They seem to like it that way.

[ Update: What'd I tell you? The judge has already signed the order. I have it for you.]

Approving this motion ... well, it sticks in my craw, for all the reasons I painstakingly outlined when SCO filed this beaut of a motion, mainly because of SCO's 2004 Change of Control Agreement, which I believe means this motion will drain money from the company, not pull it in, when it comes to the end of the almost impenetrable plan, but I'm not the one who gets to decide.

Why Microsoft Suddenly Wanted to Be More Interoperable - Comes v. MS Exh. 7068 Tells Us

Sun, 24 Jan 2010 13:42:43 -0500

Guess why Microsoft suddenly decided it wanted to be more interoperable? It's so it can get customers to quit using Linux and switch to Windows & .NET.

Exhibit 7068 [PDF] in the Comes v. Microsoft antitrust litigation exhibits list tells us what happened with Intel. It is a 4-page email thread with Bill Gates and others at Microsoft all about trying to get Intel to switch from Linux/Unix to Windows for their development environment. Gates calls it a jihad. What stood in the way, according to the email report on what Intel was telling them: "Linux apparently meets over 90% of their current EDA needs." Intel said Linux interoperability was better, they could port code more easily, EDA ISVs "got burnt with poor experiences with Windows NT" and so were "wary of taking steps in this direction".

Remember when Microsoft told us it was interested in greater interoperability with Linux because their customers were demanding it? That part is true, as I'll show you. But the purpose of developing greater interoperability at the request of Intel, according to this exhibit, was so that Microsoft could get Intel to switch its development environment from Linux to Windows. Intel's Paul Otellini had reportedly asked his people to figure out how to do that. But in 1999, Microsoft and Intel had cooperatively done a comparison test project, testing Windows and Linux against each other, and Linux performed better. Way better. And so after identifying 100 or so Microsoft work items, Intel decided to go with Linux. The email thread is about whether Intel could now switch back.

1999. Think about what that means in the SCO v. IBM context, where SCO alleges that it wasn't until IBM got involved in Linux -- years after 1999 -- that Linux suddenly worked well in the enterprise. Seems they are, at best, mistaken.

The email thread begins with a report on a telephone conference with some Intel and Windows folks, to see what could be done to get Intel off of Linux and back on Windows.

By the way, are two monopolies allowed to work together to figure out how to gang up on one of the monopoly's competitors? Just asking.

Trust me, though, you won't find this exhibit on any Microsoft Get the Facts-style websites.

Novell's Reply in Support of Motion to Set Aside Judgment

Fri, 22 Jan 2010 19:43:00 -0500

Novell has filed its Reply to SCO's Opposition to Novell's Motion to Set Aside Judgment:

01/22/2010 - 619 - REPLY to Response to Motion re 608 MOTION to Set Aside Judgment filed by Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 01/22/2010)

This is the motion to set aside Judge Dale Kimball's ruling that Novell is not entitled to any of the SCOsource money from Microsoft or from Linux end users like EV1, a decision based on his ruling that Novell did not transfer to SCO the Unix copyrights. Now that the ownership of the copyrights is back on the front burner and will go to trial in March, Novell would like the contingent decision also back up for grabs. Novell would like its 95%, and of course SCO would like to hang on to it. Not that SCO is any good at hanging on to money, judging from its history. SCO's argument was that Novell failed to appeal this point, so it's too late now. Not so fast, Novell replies. Rule 60(b)(5) "authorizes relief from a judgment based on a ruling that has been reversed even when the judgment was not appealed", and SCO admits that. And SCO's cited cases "are irrelevant", Novell writes.

Hey. It wouldn't be the first time.

EU Commission Approves Oracle-Sun Deal With No Conditions

Thu, 21 Jan 2010 15:28:30 -0500

It's official. The Oracle-Sun merger has been approved by the EU Commission. There are no conditions.

Here's the press release, in which Neelie Kroes states that she is now satisfied that the transaction would not significantly impede effective competition: "I am now satisfied that competition and innovation will be preserved on all the markets concerned. Oracle's acquisition of Sun has the potential to revitalise important assets and create new and innovative products."

I'm very grateful, personally, that the EU Commission cares about Open Source, but after its extensive investigation into MySQL, despite some misinformation, as I viewed it, it found, "The Commission's in-depth investigation showed that although MySQL and Oracle compete in certain parts of the database market, they are not close competitors in others, such as the high-end segment." That is true.

It took into account Oracle's pledges, for example the pledge to continue to release future versions under the GPL, and Oracle has already, the press release states, taken action to implement some of its other pledges "by making binding offers to third parties who currently have a licensing contract for MySQL with Sun to amend contracts" and the Commission believes that this should allow third parties "to continue to develop storage engines to be integrated with MySQL and to extend the functionality of MySQL." So I'm satisfied that the decision was based on accurate information in the end, which was my chief concern, and I consider this, considering all the possibilities that were being considered, a happy ending. Even better would be: 1) if Oracle would affirmatively confirm Sun's patent pledge regarding Linux and Red Hat and 2) if it would update the GPL version on MySQL to GPLv3.

Microsoft Sues TiVo - The Why of It - Updated

Wed, 20 Jan 2010 15:49:54 -0500

Microsoft filed a patent infringement suit against TiVo late yesterday. Microsoft says it's really about defending AT&T, which is one of the companies TiVo has already sued over patents. TIVO says it is too. From the San Jose Business Journal:

The action is seen as being related to a lawsuit that Alviso-based TiVo filed against AT&T Inc., claiming the company's U-Verse TV service illegally uses its "time-warping" technology in its digital video recorders.
TiVo is involved in similar disputes with Verizon Communications Inc., the Dish Network and EchoStar Corp.AT&T service uses Microsoft technology for video delivery and digital recording.

That's, in my view, Microsoft spin, that it's doing this to help out AT&T. I would describe it more like this: remember when SCO sued AutoZone for using Linux in its business? AutoZone didn't write Linux. It just used it. So SCO sued an end user. Similarly, TiVo is suing AT&T. But AT&T didn't write Microsoft Mediaroom, the implicated software. Microsoft did. So naturally, AT&T has demanded that Microsoft indemnify AT&T, and so here comes Microsoft, essentially defending itself, because if AT&T loses, it's Microsoft who has to shell out the bucks.

The Latest on Psystar - Papa's Got a Brand New Bag - Updated

Sun, 17 Jan 2010 02:55:00 -0500

Psystar has filed an appeal. But it has also reported back to the California court that it is complying fully with the injunction ordered against it.

I thought you'd be interested in seeing the Report Regarding Compliance With Injunction that Psystar filed with Judge William Alsup in California. Psystar CEO Rudy Pedraza demonstrates a very different tone now. It seems Psystar would *never, ever* condone software piracy. Psystar tells the court that it might have made statements of defiance in the past, but now it knows it needs to stay legal, and so it will. Papa's got a brand new bag.

Request for Info: Ransom Love Talks - Updated 2 Xs

Sat, 16 Jan 2010 22:49:00 -0500

Mind if I pick your brain a bit? I've found some press releases and announcements of talks that Ransom Love gave when he was still CEO of Caldera, but it would be wonderful if by any chance someone taped them or even took notes at them. Were any of you there? Do you recall any details?

SUSE Motion to Lift Stay Denied. Natch. - Updated

Fri, 15 Jan 2010 20:26:00 -0500

Hot off the presses, the bankruptcy court has denied SUSE's motion to lift the stay so as to complete the arbitration. What? This surprises you? This court favors SCO, as it is a bankruptcy court, and it says SCO doesn't have the money to do both; if SCO fails in Utah, the arbitration won't be necessary; and the bankruptcy court has no way to know who is likely to prevail, so SUSE can't meet one necessary prong to get a stay lifted.

: D

He found a way, as some of you speculated he would, to deny the motion. It's hilarious. I can't defend it. One thing is for sure, if SUSE doesn't appeal, as soon as the Utah trial is ended, should SCO prevail in any way, it will immediately be back. So in that sense, it doesn't matter much, but this court is a riot.

The Microsoft-Linux Story As Told in the Comes Exhibits - Updated

Thu, 14 Jan 2010 23:27:09 -0500

As we are working on the data in the Comes v. Microsoft exhibits, describing the contents or transcribing each so as to make them keyword searchable, we are coming across some interesting materials regarding Microsoft's view of Linux. As far back as 1999, Bill Gates was asking his executives if there was a way to make things harder for Linux. For example, here's Comes Exhibit 3020:

From: Bill Gates
Sent: Sunday, January 24, 1999 8:41 AM
To: Jeff Westorinon; Ben Fathi
Cc: Carl Stork; Nathan Myhrvold; Eric Rudder
Subject: ACPI extensions
One thing I find myself wondering about is whether we shouldn't try and make the "ACPI" extensions somehow Windows specific.
It seems unfortunate if we do this work and get our partners to do the work and the result is that Linux works great without having to do the work.
Maybe there is no way to avoid this problem but it does bother me.
Maybe we could define the APIs so that they work well with NT and not the others even if they are open.
Or maybe we could patent something related to this.

1999. He wanted to patent something so as to hobble Linux and keep it from "working great".

Wait until you read about the EDGI program to keep folks in governments and educational institutions from switching to Linux, and then there is another exhibit that shows exactly how Microsoft tried to worm its way into OLPC and who helped it.

Sup. Ct.'s Justice Sotomayor Grants Novell's Request to Extend Time to File Petition for Writ of Certiorari

Mon, 11 Jan 2010 14:41:00 -0500

The Supreme Court's docket shows that Novell requested an extension of time to file its petition for a writ of certiorari in the SCO v. Novell case, and Judge Sonia Sotomayor has just granted that request. They now have until February 18th to file their petition. As you recall, the earlier deadline was this month. At this level, the case is titled"Novell, Inc., Applicant v. The SCO Group, Inc."

If you want to know how to find such tidbits, you can go here, in the drop down choose Supreme Court Docket, and search for Novell.

Place Exhibit Blurbs/Transcripts for Comes Exhibits Here Please

Sun, 10 Jan 2010 14:13:16 -0500

The original article asking for help on describing each exhibit in our Exhibits by Number list in our ongoing Comes v. Microsoft collection project is now closed for comments. So could you please now place your contributed work here, so I can find them in anorganized way? Thank you all so much. We are really making good progress. A few directions.

Update: Just so you know, we are breaking up the one long page into 4 or more, because it's getting too long. In the meantime, post your work here or just email it to me, as you have been doing, and/or check here to make sure someone has not already done the numbers you are thinking of working on.

Update 2: The new pages are up now, so you can check what needs to be done, beginning on the new page 1 of Exhibits by Number, and you'll find navigational links there to the rest of the pages.

Cahn Files Motion to Approve Stock Options - Updated 2Xs

Sat, 09 Jan 2010 03:10:00 -0500

Now SCO's Chapter 11 Trustee wants the court to authorize the issuance of stock options the board of directors awarded themselves in December "because they were concerned that as a result of the appointment of the Trustee, their options would expire within 120 days after the Trustee Appointment Date," so the money paid can be added to the estate's pot. It's a little more complicated a story than that. The Trustee seems to think it's a de minimis matter, as the options don't really harm anybody but the regular stockholders, and not by much, in his view. And there are restrictions on the options, the Motion points out, namely that they can't be sold until they vest, as I understand the Plan.

But has anyone shown the Trustee the 2004 Change in Control Agreement that allows for immediate vesting on a change of control? Well, I'll show it to you.

And no, Darl's not on the list. But Yarro is, along with Duff Thompson, Darcy Mott, Kent Millington, Omar Leeman, and Daniel Campbell. Supposedly this grant of options was voted on by the board in August of 2009, to cover the board for 2nd and 3rd quarters, which they say they somehow forgot about, and then they issued the options in December. But some things keep circling in my brain, and I can't see this as anything quite as insignificant as the Trustee seems to. I'll show you why.

Novell Adds 4 Local Lawyers to the Trial Team - Updated

Fri, 08 Jan 2010 22:49:32 -0500

Some new lawyers join the happy group about to try SCO v. Novell, on the Novell side. They are David Wright, Sterling Arthur Brennan, Kirk R. Harris, and Cara J. Baldwin. They are all with the Salt Lake City firm of Workman Nydegger. A little more home town advantage, maybe? Ms. Baldwin worked as Judge Ted Stewart's law clerk previously. And they are all IP litigation specialists.

On Selling Exceptions to the GNU GPL - Stallman Clarifies

Fri, 08 Jan 2010 12:25:14 -0500

Richard Stallman has clarified his earlier letter regarding MySQL. I had brought to his attention the claims Monty Widenius is making, implying that Stallman supports his petition campaign to "Save MySQL":

Richard Stallman agrees that it's very important which company owns MySQL, that Oracle should not be allowed to buy it under present terms and that it can't just be taken care of by a community of volunteers. http://keionline.org/ec-mysql

That last part is not true. So here are the salient paragraphs in Stallman's new article:

As the following article explains, my feelings about selling license exceptions are mixed. Clearly it is possible to develop powerful and complex software packages under the GNU GPL without selling exceptions, and we do this. MySQL can be developed this way too....
One thing that makes no sense at all is the idea of changing the license of MySQL to something non-copyleft. That would eliminate the possibility of selling exceptions, but allow all sorts of proprietary modified versions. Wherever MySQL should go, it isn't there....
We must distinguish the practice of selling exceptions from something crucially different: proprietary extensions or proprietary versions of a free program. These two activities, even if practiced simultaneously by one company, are different issues. In selling exceptions, the same code that the exception applies to is available to the general public as free software. An extension or a modified version that is only available under a proprietary license is proprietary software, pure and simple, and no better than any other proprietary software. This article is concerned with cases that involve strictly and only the sale of exceptions.

As you can see, he believes the GPL is sufficient, that the community can develop powerful programs with the license, and that there is an important difference between the GPL plus exceptions and changing to an Apache license, which is what Monty has been suggesting. So if you see further FUD from Monty about the GPL or how rms allegedly agrees that the GPL is insufficient, here is your rebuttal.

Trial in SCO v. Novell Now Scheduled for 15 Days Beginning March 8 - Correction

Wed, 06 Jan 2010 17:16:00 -0500

The trial schedule for SCO v. Novell in Utah has been altered. It was set as a 3-week trial; now it's set for 15 days:

01/06/2010 - 613 - AMENDED SCHEDULING ORDER: Final Pretrial Conference set for 2/25/2010 02:00 PM in Room 142 before Judge Ted Stewart. 15 day Jury Trial set for 3/8/2010 08:30 AM in Room 142 before Judge Ted Stewart. Signed by Judge Ted Stewart on 01/06/2010. (asp) (Entered: 01/06/2010)

Correction: I'm the idiot. Fifteen days is a 3-week trial. So I need to correct, but I simply don't see what has been amended. All I can think of is there may be a change in dates leading up to the trial, but we don't have an earlier schedule.

Here's the article with reports from the status hearing where the original schedule was set. Yes, SCO wanted 2 to 2 1/2 weeks and Novell said 2 1/2 to 3, if I mash together the conflicting reports. I notice that the days are not full days. It's 8:30 am to 1:30 pm. I think we may also assume that Judge Stewart isn't thinking of recusing himself, at least at this point.

In any case, we need to begin thinking about covering that many days of a trial. The cost for transcripts for something like this is way beyond our capabilities. So I'm asking the parties if they would please consider providing a copy of their transcripts when they order them? This is an historic case, one that will go down in history, I'm sure, no matter how it ends. So please would you consider the children, so to speak, the coming generations who will want to study and learn about this litigation?

And if anyone knows anyone who can take notes and will volunteer to attend a day or two or all of it, this is the moment for us to start to get prepared.

SCO Opposes Novell Motion to Set Aside Judgment

Wed, 06 Jan 2010 03:35:41 -0500

SCO, "by and through the Chapter 11 Trustee in Bankruptcy, Edward N. Cahn", has filed its opposition to Novell's Motion to Set Aside Judgment. This is the motion that will be argued on February 4. SCO argues that if Novell wanted to argue this, they should have appealed it, and that's a strong argument:

Novell could have filed a protective cross-appeal and argued that, if Novell were to lose on appeal, it would be entitled to certain relief. It did not.

And that's true. It could have done that. Maybe if SCO hadn't misappropriated money it should have paid Novell years ago, Novell might have. Whether it slams the door, I don't know.

We also get a glimpse of the position Cahn has taken on the slander of title claims, and why they imagine they have a shot at resurrecting all that. I'll also show you why I don't think they do.

Hearing Set for Feb. 4 for Novell Motion to Set Aside Judgment - And a Mystery Solved? - Update

Tue, 05 Jan 2010 02:36:52 -0500

There is a hearing coming up on February 4 at 3 PM before Judge Stewart in SCO v. Novell, and I surely hope some of you can attend, regarding Novell's recently filed motion asking to set aside an earlier judgment by Judge Kimball, so Novell can go after monies SCO took in from Microsoft and companies that bought a SCOsource license.

But there's something odd in the notice about the hearing. It says also on the schedule that day will be oral argument on docket number 277 [PDF], Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title Based on Failure to Establish Special Damages, which was decided in Novell's favor long ago. Novell didn't ask for that judgment to be opened up, that I can see, nor would it, since it won that motion, and neither has SCO filed any such motion that I can find. So how is this scheduled for this hearing? That is the mystery.

The GPL Barter Cycle - A Graphic - Updated

Tue, 05 Jan 2010 01:55:25 -0500

In our efforts at Groklaw to explain the General Public License, or GPL, over the years, we've used many words. But the other day I asked if anyone could think of a way to show it graphically, and PolR has done it.