No Verdict Today, the Final Day, in SCO v. Novell - Deliberations Begin Again Tuesday - Updated

Losat
Groklaw

March 26 2010

Next up: Brennan's closing and Singer rebuttal.

It was a full courtroom today. I'm not familiar with the faces, but I was told there were several of the usual SCO supporters. Groklaw was well represented. I spoke with 4 fellow Groklaw frequenters, and I think there was at least one other.

MSS2 remained at the courthouse in case there's a quick verdict. He urged others of us to post information as soon as possible because there are 10000 geeks waiting. :)

I had thought I might mostly listen to the closing arguments as if I were on the jury, not taking extensive notes. But, I ended up taking lots of notes anyway. I didn't try to catch every word by any means, but I wrote down things that seemed interesting or important.

First, the judge asked if there were disputes over closing. There were no objections.

He then indicated that SCO had filed a motion today with 3 points: Judge Stewart said the first is no longer relevant. The second: that Novell should not argue 'Unix not UnixWare.' Jacobs agreed 'with regard to closing.' Third, there should be no attempt to argue contrary to law. He stated his assumption that nobody would do that. Jacobs said that was correct. They would not argue the bill of sale under section 204 of copyright act. They may argue that there was only a 'promise to assign' under contract law, which the 10th Circuit did not address.

Singer stated that arguing contract law equivalent to section 204, contrary to 10th circuit. Jacobs referred to a footnote in the 10th circuit ruling (not a holding); he offered to hand it to the judge.

Judge Stewart: I should probably look at it.

Singer made an argument, to which Judge Stewart replied that was a good argument for his reply. He allowed Novell to go there if not arguing pure legal but the intent of the parties.

Singer will go first. SCO will reserve 15 minutes for the end. Hatch will share time: 45 minutes Singer then 15 Hatch. Brennan will close for Novell.

Proposed Findings of Fact and Conclusions of Law will be due in 20 days.

Jury is brought in. Judge Stewart delivers jury instructions. There was a lot of typical stuff, which I didn't take notes of. Only the items particular to this trial are described below.

SCO burden of proof, mostly preponderance (which he describes including the phrase 'probability not possibility'). The constitutional malice requires clear and convincing evidence. He uses the phrase 'no substantial doubt.'

He comments about notes taken by jurors, which he has allowed while some courts do not. He cautioned: don't compare notes, don't give extra weight to things written in your notes.

He mentioned direct vs. indirect/circumstantial evidence (both acceptable under the law).

He mentioned the earlier rulings: did not have benefit of the evidence you've heard. 'Reversed', why you're here. No bearing. But they may be considered for special damages and punitive damages, if any. He also mentioned the bankruptcy and 2008 trials.

Slander of title requirements: lists the 4 requirements then provided detail on each:

1. Publication
Not private, not in pleadings; not slanderous if clear it's opinion, not fact; but couching purported facts as opinions doesn't excuse; don't consider in isolation ' context of statement, surrounding circumstances must be considered.

2. Falsity
Directly untrue or untrue inference; need not be absolutely, totally, or literally accurate. Substantially true, 'the gist'.

In order to answer this, must decide who owns the copyrights ('Unix and UnixWare').

APA: interpret: taken together, as single document; what the terms mean; the intent of the parties.

Where clear, ordinary meanings. Whole agreement, not isolated portions. Extrinsic evidence as to intent. Intent of those negotiating; performance of the parties after the agreement, before the dispute.

May consider nature of copyright (lists rights: reproduction, derivatives, distribution)

'Owner': author, assignee, or *exclusive licensee*.

Possession of registration certificates immaterial to ownership but may be considered for other purposes.

Transfer must be in writing.

Exclusive license, transfer, sale, conveyance must be in writing.

Implied may be non-written, can only be non-exclusive.

3. Constitutional Malice
Clear and convincing evidence

1. Knowledge of falsity; or

2. Reckless disregard

High degree of awareness that probably false; or substantial doubt that it was true.

Not enough: negligence; carelessness; sloppy; not researched; reliance on one source, even if others would be available or one might think should reasonably be consulted; spite, hate, evil purpose, or intent to harm.

Unless you find constitutional malice, there is no liability.

3. Caused Damages:

Special Damages
No lost sale, no damage.
Loss in value not sufficient.
Proof of specific person or group not possible to identify individually.
Slander is substantial factor, not exclusive or predominant factor; had substantial weight on decision.
Stock price is not special damages.

Punitive Damages
If statement is false, and:
Hatred, intent to injure
Reasonable and proper punishment ' and wholesome warning to others.
Caution. Only for reason just mentioned.

Section 4.16 issue is for the court to decide. May consider the section in interpreting the amended APA.

Lawyers have a duty to object. Don't show prejudice.

Foreperson selection. Collective judgment. Unanimous. Consult without 'violence to individual judgment.'

(There was no break between instructions and closing.)

Singer:

Depends on copyright ownership.

(I noticed the jury was very attentive at this point and seemed to remain so through closing arguments.)

Credibility: Stone vs LaSalla contradiction regarding IBM asking Novell to waive.
Another: Stone vs Messman about whether Stone was asked to leave Novell.

Amendment 2 'replaces old language.' Novell in opening referred to 'the rest of the story': the rest of the story is the copyright exclusion language doesn't exist any more. 'That's really the rest of the story on this.'

'All rights and ownership.'

Novell admitted in June 6 2003 press release 'appears to support SCO claim.'

2nd time admitted: March 23rd. Allison Amadia. (Cites Normand cross, question about the 'required for SCO' language -- Q: if required, copyrights transferred? A: Yes)

No real dispute ' that copyrights are required. 'Ludicrous' to exclude. Like 'breathing oxygen.' 'Walk out the door and your head goes with you.' 'Couldn't go after pirated software.'

With Amendment 2, APA makes sense. (Suggest car without engine, house without roof, sundae but you only get the cherry.)

It's consistent with the intent.

(Shows Novell slide from opening statements)
40-50M ' a lot of money: wouldn't even receive that if copyrights weren't included.

Sale of business, not agent.

License-back: no sense if Novell kept the copyrights.

TLA: ownership of licensed technology is with SCO.

Made sense in light of testimony of witnesses.

Novell's intent is not the issue: look at the intent of both parties.
Santa Cruz said 'copyrights are like oxygen.'
'We put copyright notices in every software module we wrote.'
An executive: if suggested SCO had to ask Novell, I'd have laughed them out of my office.

Kimberly Madsen (at Apple now): clear to me intent was to transfer copyrights.

Numerous execs with Novell agree.

Frankenberg -- the most important witness in this trial. The term 'stand up guy' ' I think of him. He said it was clear to him the copyrights went to SCO.

There was an error that had to be fixed a year later.

Chatlos' wife 'has a little stock.'

You'd have to believe 10 people remembered wrong or were lying ' half of them Novell's people.

Braham ignored months of negotiation from before his involvement. He ignored the term sheet. The term sheet's list of rights lines up well with the copyright rights listed in the jury instructions.

No pushback from SCO about copyright exclusion in contract means it was just missed.

Executive's copy of draft APA had *no* schedules [neither the included nor exclude assets schedules].

Messman didn't even know which decade the agreement was from ('81 or '83). It isn't even in the board of director's meeting minutes that the discussion took place.

Either by mistake or overzealous lawyers. Mistake corrected in Amendment 2.

Press release at the time said 'intellectual property.'

Novell's version can't be squared with this.

Even IBM recognized that SCO had the copyrights. 'You can show us the source code because you have copyrights to protect you.'

Course of performance: 3 individuals' testimony. Nagle [didn't catch other 2 names]. Virtually undisputed. Letters were sent (Prentice Hall) by Novell. 'ownership'

Nagle: changed copyright notices in UnixWare.

Novell could have kept registrations, but they've been sitting with Santa Cruz.

Next question: slandered? If SCO owns the copyrights, there's not much question. It was a 'campaign.'

Constitutional malice: Reckless disregard. After June 6, knowledge of falsity.

Balance of free speech.

Knew about unsigned Amendment 2. Didn't do checking. Could easily. Could have called Sonsini. Could have called Frankenberg. Recklessness.

After that, not just reckless. They 'turned upside down' looking for signed Amendment 2 ' know it was very important.

June 5: signed Amendment 2 faxed by SCO. MkBride says Messman admitted copyrights transferred. Press release next day.

June 6: not just casual statement. Amendment 2 language was in one paragraph. Didn't take months to analyze. It took them months to turn it around.

Stone's 'We still own Unix' ' outrageous! This was echoed by Messman.

Falsity proven by Novell witnesses. 'So absurd' ' would be unethical to take that position. Deal I negotiated included copyrights. Chatlos similar. 'unethical'

Damages: special (to compensate SCO), damage to SCOsource.

'Certain Unix libraries being used to run Linux.' Obtain a license. Unix in Linux not issue.

Protection against infringement, 'a number of these individual companies' took licenses after seeing 'code room'

Press citations 'readible' 'If everything SCO showed me today is true, then Linux [users] should be concerned.'

Sent letters with examples of code. Not issue in this trial.

Percentage of users would license; others wait and see; others never.

Members of Open Source community viciously attacked. Submit Novell has brought some of them here. [ ?! ]

If no threat to Novell's Linux activities, there would have been no slander.

(Compare to house: no title) Deadly. That type of slander killed SCOsource.

Punitive: 'personal malice' ' intent to injure. No shortage of evidence.

Same day as earnings announcement. Not a coincidence. Intent to injure. Malice.

OGara: Stone admitted timing was planned.

[statement trying to dismiss] 'why don't you take a jab at PJ?'

'while chortling'

Messman published as widely as possible.

Waiver was because of IBM. Consider as evidence of intent. Consider 50M investment. Not telling the truth about IBM's involvement the first time asked.

Singer turns time over to Hatch.

Hatch:

SCOsource had begun to make sales. Tens of millions of dollars.

Next: HP deal (shows draft contract): redlines typed in by HP: $30M deal. Sudden change. McBride said 'Novell inserted itself' to reassert copyright ownership.

Google (500K Linux servers): pulled out of deal, Novell a substantial factor.

Dell. Primary reason: Novell.

Testimony of 3 SCO salespeople:
Potential buyers can't buy because there's not clear title.

Referred to jury instructions.

People hated SCO: 'It was a small Utah company standing up for its IP rights'

Some of largest companies ' Sun, Microsoft -- had done deals. Understood the risk yet took licenses.

3 studies (not one): 19-45% range. 'Taking into account every one of the risk factors' 'hard, scientific data'

Verdict form question 3: amount of special damages, if any:
Best and proper measure: Expert helped you.

Botosan cherry picked the low numbers to be conservative. 'conservative on top of conservative'

Novell offered no calculations. Agreed it was the correct 'but for'

Answer for #3: 115-200M range from Botosan.

Malice / bad acts: punitive. Additional. 'Teach them a lesson.'

Timing of press release was to maximize damages. 2nd time, again to maximize damages.

One thing of note I forgot to mention on the jury instructions: when he told them they wouldn't be deciding the Novell counterclaim of slander of title, he instructed them not to infer anything from this, not to speculate.

Disclaimer: the actual closing arguments on both sides were much, much smoother and effective than my poor notes might suggest.

Now, on to Novell's closing arguments:

Brennan:

I promised to tell you "the rest of the story."

Burden is on SCO. I don't get to speak to you again after Singer. Please anticipate what you think Novell would say.

When I was a kid I was told "don't make a federal case out of it." (Don't make something minor into a big deal.) Here we are in a federal case. This is a big deal.

SCOsource intent: "extract" fees

Huge uproar

It was beyond Novell. Novell felt compelled to respond.

There are other cases out there waiting to be heard. Other suits. This hangs over all Linux users.

3rd:
Very important fundamental question: meaning, sanctity of contract.

Contract carefully drafted and meticulously written.

If we go look not at the language but at what we should have, the whole reliability of contracts is threatened. Chaos would result! Challenged by outside thoughts. Rely upon written contract.

4th:
Free speech. (Businesses are comprised of individuals.) Stand and state position without fear of monumental damage claims.

Recommended result *for you to consider*:
Did the copyrights transfer? No.

How do we know? Intent. BOD resolution. Very language of the resolution appeared in the contract. List of assets. Clearly excluded copyrights. 1.1(b).

Regarding suggestion that this was "passed by quickly": it did not go without review. Almost 3 months before closing of the deal.

Exhibit T5, Amendment 1: 10-12 pages of modifications. 1.1(a) not modified to include copyrights. 1.1(b) with exclusion not modified. No credible argument can be made that there was any pulling the wool over eyes

December 5 actual transfer: APA just a promise to transfer. Bill of Sale transfers.

What does the bill of sale say? It's straightforward and clear.

Novell acquired *entire* Unix business from AT&T. SCO deal was only a limited transfer of some assets.

Santa Cruz sold to Caldera, now SCO. The agreement disclaimed: could not represent to SCO that it had a chain of title that includes copyrights.

McBride joined in 2002: see whether they can change the business. Existing business: UnixWare + even servicing Linux! New: try to turn on customers. Go after rather than aid them.

SCO counsel advised McBride far less transferred. Excludes. Need to be careful -- might be less than you think.

Term sheet? (Ty Mattingly found in his garage -- not final agreement -- preliminary sketch of possible agreement.) Final APA is what was agreed and signed.

Press release back at time of deal was not joint. Logo was SCO's.

Theory that maybe TLA transferred copyrights: sleight of hand maybe taking license back. Argument was: Why take license back if you retained the copyrights? License back was to the assets that had been transferred which didn't include copyrights (1.1(b)). Sleight of hand? I think you'll see past that quickly.

Witnesses presented by SCO were not involved, haven't read the APA, or misinterpreted. Look at those who actually were involved: Tolonen: not mistake. Sleight of hand? Tolonen was the one who actually signed Amendment 2. No financial interest in the case. Should you rely on him? Frankenberg said he did. He would expect that Mr. Tolonen would be able to accurately state the agreement.

Bradford knew.

Lawyer who actually wrote the agreement: if anyone knew, Braham know.

Carefully crafted to protect license revenue.

Tor stated the client was the board of directors -- the governing body.

No financial interest.

Thompson more interested in SCO interests. Mattingly and Chatlos not involved in final negotiations.

Amadia: she drafted Amendment 2. No financial interest.

Compare SCO: Thompson: not at Novell long (since coming from WordPerfect). No good place for him at Novell. Already decided to leave Novell ("checked out"). Already planned to go to SCO. Owns 100,000 shares of SCO.

Michaels actually said no specific memory. Didn't know what Amendment 2 was. Hadn't read APA. Whatever wishes, hopes, and dreams he might have had, he was not involved in APA.

Mattingly owned SCO stock. Not drafting. Not Amendment 2. No mention of board meeting.

Sabbath: (what he actually said) in declaration (from IBM litigation):
Q: recall executing deal? A: Yes

Paragraph 11: under APA, Novell retains -- 1.1B provides much would not be transferred. [Not sure where Q ends and A begins here]

And Amendment 2 -- Novell retained certain IP.

Frankenberg, the "most important witness in the case" repeatedly asked about board --- what approved. Was agreement consistent with the BOD? Q: Acting beyond authority? A: of course not.

Yesterday:

Q: express exclusion APA minutes: You thought you saw or heard something different?

A: Yes.

Chatlos' wife works for SCO and will make money if they win. He wasn't involved with BOD.

Kim Madsen: no specific memory of intent of Amendment 2. Did not remember. Or even remember discussion with Sabbath.

SCO former CEO [McBride]: millions of dollars he'd make -- financial interest.

Darl had no involvement in Amendment 2. Can't know intent.

Tibbitts: financial interest. No involvement in preparation and agreement.

Parade of witnesses who weren't there, not involved in BOD decision, personal financial interests.

Why exclude copyrights? Sounds one-sided? Could just as easily ask why did SCO agree?

Valid reasons:

- Defazio: "Q APA intended to transfer copyrights? A: No." Designed to protect Novell. Implement bulletproofing. (Bankruptcy concerns.) (Also concerns about MS.)

- Novell paid 330M, SCO paid 50M [stock]. Novell retained license fees. If SCO succeeded with merged product, additional royalties to Novell. (But didn't reach that level.)

Back to Frankenberg ("most important witness in the case"): "Q: Possible copyrights were excluded? A: Yes, a possibility. Q: board agreed to? A: Yes." You heard about Novell outside counsel that negotiated/drafted the APA. SCO had outside counsel, too. Brobeck. You didn't hear from Brobeck. None of them appeared in this case. None of them appeared by deposition. Empty chairs. Tells you something. SCO should have presented. They have burden of proof to substantiate "mistake"

Amendment 2 (agree it's of critical importance).

1st draft resulted from Sabbath claiming "clerical error"

(Shows comparison of language between draft and final Amendment 2) Red: stripped out by Novell: which pertained to and which SCO has acquired hereto

had been transferred -- APA very clearly contradicts.

except for *required*

What was required?

Tolonen (CFO): did not intend to transfer copyrights. Sabbath's suggestion was *rejected*

Amendment 2 clearly not intended to transfer copyrights. Did not go back to BOD. To change exclusion of copyrights would be material. BOD would have to have been involved.

Amidia: Q: Positive not intended to transfer copyrights? A: I am. Q: How can you be so sure? A: I drafted it. I didn't have the authority to change that.

Were copyrights required? We need to get an answer to that question. McBride: Q: didn't you tell them you could run that part of your business without copyrights?

A: We could run our business. Just like HP and others

We'll come back to that.

HP, IBM, and others had license. They built and sell. None owns Unix copyrights. That's the business SCO was in. They did not need the copyrights to do that. Darl acknowledged.

Not the business SCO wanted to get into in 2003. He wanted to turn on his customers. Infringing Unix. New and different business. (McBride) Q: A: unable to run the business on the licensing side, which was the future of the company.

Q: You could operate business but outside SCOsource, correct? A: affirmative

Recall what SCO was doing. First 1000 letters sent out [including to licensees]. Were they prohibited from these actions? 4.16B: cannot, no right to enter into new licenses. They were violating contractual obligation.

Re: "Ludicrous" to operate without copyrights?

Tibbitts: Q: Aware of proposed transaction where SCO would sell its Unix business and retain the copyrights? A: Correct. Q: SCO to sell product business and retain copyrights? A: Yes

Messman: They didn't need copyrights to run the legitimate Unix and UnixWare business.

Displays Legos

Small block on left, Unix. Rights under APL to build on top. SCO owns copyright on its own block on top.

For 8 years, this was not a problem.

Re: suggestion that exclusion was "snuck" in or hidden "in a corner"

Levine (worked at AT&T, went to Novell, then moved to SCO) On 1.1A and 1.1B: His draft of 1.1B excluded all copyrights.

This was not a last-minute invention. SCO's guy wrote that language.

Document was reviewed:

[someone]: I'm sure that I did see/read it.
Mattingly: Q: chance to read? A: Yes
When Mattingly appeared, he brought documents with him and showed SCO. Novell hadn't received them. He had a draft APA which includes the exclusion of copyrights.

See how people behaved. (All SCO employees):

Copyright notices. We didn't go back and change prior versions, only current or going forward.

You can obtain copyright protection on new work performed [on old files, no need to own the original copyright]

Nagle: copyright on box. Acknowledged what's on box doesn't establish ownership -- look to the legal agreements.

Regarding letters suggesting transfer: You'll have a chance to look and see. Mr. Nagle stated the letters were [something like just rough descriptions?], included something about contacting SCO if recipient had questions. Answering questions is one of the things SCO has to do for the 5% they retain of the royalties.

1st Amendment: Fundamental protection of civil liberties. Novell has the right to speak.

Jury instruction 3rd element required proof by clear and convincing evidence (not preponderance, which is little more than tip the scales). Constitutional malice. To protect constitutional rights to free speech, avoid chilling effects. Imagine the consequence: fear of speaking if you can be held accountable for monumental damages.

[He repeats standard for slander from jury instructions here]

That's the standard. You must be convinced -- clear and convincing. If reckless, all these other factors.

No substantial doubt in your mind. Highly probable.

Spite, hatred, evil purpose, intent to harm do not mean constitutional malice.

Exhibit I11. SCO in business of licensing Linux. They were encouraging Linux use, reaching out to Linux users. Then turned on them!

The motivation for their new and different business: financials were down.

Hail Mary? Yes. Looking for ways to improve declining finances.

What did Santa Cruz think of SCO? "Guys that run protection rackets occasionally make a profit -- but not long term success."

There was backlash to SCO.

Feb 2003: Recognizing they did not own the copyrights, SCO proposed to Novell and agreement to "clarify" the transfer. If indeed SCO owned the copyrights, why ask for written confirmation?

Novell rejected this proposal and did not sign it.

Threats. Linux infringes our Unix IP and rights. The threats were made to Fortune 1000 companies. Public uproar! Novell itself was sent one of the letters.

The response: Linux: doubt validity of claims. GPL violation.

Linux is an alternative to MS. Who benefits from this? MS.

Ultimately, Novell had to respond. They did report to McBride that Novell owned the copyrights.

The response came May 28th. Novell has the APA (Messman recalled no copyrights transferred). McBride acknowledged it was a reasonable reading (without Amendment 2). It's important to respond publicly. No idea of the timing (coincidence).

Suggestion of Malice: Sole witness: O'Gara. In fact, she confirmed to SCO she wanted "war pay." Asked by SCO to send a jab PJ's way. Hardly evidence of detached journalist. Attempt to create words Stone never said. Q: What were the words? (Pressed repeatedly.) She could not.

Public statements.

(SCO's earnings were preannounced before May 28.)

Amendment 2 was sent to Messman.

Singer suggested that in searching for signed Amendment 2 earlier, Novell should have reached out to Sonsini. Sonsini was not involved in Amendment 2. It was handled by in-house counsel Amidia.

Should have reached out to Frankenberg. He left the company before Amendment 2.

Novell, trying to act responsibly did release statement about "appears"

Novell then, with some time, undertook to review the matter more carefully. (They made the June 6 response because of pressure from SCO.) After looking more closely, Novell sent private communication to SCO that Novell believes the copyrights did not transfer.

SCO, in the face of this, stated publicly "if you go ask Novell today, they'll tell you" SCO has the copyrights.

Novell sent another private letter to SCO. (2 private letters).

Public statement from Darl: "regarding Novell's recent claim it still owned the copyrights -- took just 4 days to press the eject button"

Nov. 8. SCO: once we had copyright issues resolved had clarity

Novell had been *privately* talking to SCO. SCO was publicly stating the contrary.

With all that brewing, Novell did make a public release. Its form: copies are here. SCO is well aware of our position. See the letters and judge for yourself. We invite you to look at it.

Claim of slander:
1st no false statement
2nd not believe they were false
3rd not requisite level of malice

Damages: (for these "atrocious acts" [sarcastically])
What did the marketplace do in reaction in the real world?

People dispute to this day Linux infringement. Hotly debated. Contested. Indemnifications offered (from Novell and others)

GPL issue: provides protection for Linux users.

Quickly adapt, design around.

Will not pay "license extraction fee."

Tremendous public anger.

Looking in "but for"
What *really* happened.
2004 Ruling at minimum raised substantial question. Ruling is available to the public. People can see for themselves.

Summary judgment in favor of Novell. As a matter of law, Novell did not transfer copyrights. (based on APA with Amendment 2)

Yes it was reversed; you're here today. But what could consumers know from this judgment?

HP: I *urge* you to take a look at exhibit D20. Why? -- for so many reasons.
I *urge* you to take a look at it.

Verdict form #1: Did APA transfer copyrights?
No. Look at agreements themselves. Look at the words.

If you answer no as the contract compels, that's the end of deliberation.

My plea: Mark No. If you get past that point:

Whether Novell slandered:
When you get to the jury room, see if any of you have questions in your mind as to whether copyrights transferred. You're reasonable people. If reasonable jurors can have questions, how can Novell [be found to meet the standards for slander]?

In this courthouse is a painting of the signing of the Constitution. [Very impassioned, patriotic speech here, almost to tears] The constitution protects us. Novell is entitled to rely on it. [Sorry, there was a little bit more to the speech, but my notes are poor and illegible here. Something about at very heart, wasn't slander. Constitutional protections.]

Singer again (12 minutes left).

Something about credibility.

May I borrow that book? (Bound APA)

Sanctity of contract: Amendment 2 fixed the contract.

We aren't saying to use unwritten language. Amendment 2. Which is not found in this book.

"Except required..."

June 6 admission. You decide.

Not addressed by Braham. Amadia: if required, they transferred.

Virtually every witness said copyright is required. [PJ: Except the ex-CEO, who said they were not required for UNIX or UnixWare business.]

Even if there was a license, no express license. This could not protect SCO. Novell admitted.

"Extract license fee." I suppose Novell's license fees are not extraction. IBM's not extraction? It was not extraction; it was opportunity to purchase. Except that market is now gone. [PJ: Opportunity to purchase. Heh heh. In the same way that a root canal is an opportunity to chat with your dentist.]

Regarding other litigation in the waiting: Constitutional right to go to court. They tried to block. A right IBM and Novell used.

1st Ammendment. Interesting that Brennan said "now we get to the important question." That's because the copyrights are with SCO. So he wants to lead to a finding of no slander.

Recklessness. Reckless is not finding out if there was a signed Amendment 2.

The court decisions were reversed. Nothing to do with damages anyway. But for the slander, lawsuit would never have occurred. Sleight of hand.

Only implied license. Implied license is nonexclusive, covered in jury instructions.

"Empty Chairs": Brobeck firm no longer exists. [PJ: But the people who were at the firm survived the firm's closure, and I found them on the internet in about two minutes. My logical brain tells me that this means SCO could have found them and invited them to testify.]

They stated their position in an exhibit [something for European governmental agency; states something about transfer of rights] [PJ: I believe this is likely a reference to the Santa Cruz letter in 1997 to the EU Commission complaining about having to pay Microsoft royalties for old code from Xenix they didn't want that forced "unwilling parties to license MS software under circumstances where it is not wanted and increase[d] the financial cost of any non-Windows operating system alternative". Say. Sort of like SCOsource, if you ask me.]

Amendment 2 specifically transfers copyrights.

Copyrights -- oxygen.

Response from McBride regarding not required: "can't protect property".

Lego: [According to Novell's view of what transferred] brick on top that represents SCO property would be a very small sliver instead of full-size brick. Would undermine products SCO wants to sell.

Have to have copyrights?

Alleged term sheet. Testimony was that it was the term sheet actually used. It was provided before Mattingly brought his copy -- by Novell. Actual term sheets.

Witnesses: You'd have to disbelieve 10. Half of them from Novell.

Shots at witnesses. Examples: Steve Sabbath: stated deposition was not his testimony.

Someone else reviewed copyright language and said it was "intended to apply to Netware".

Bulletproofing:
Amadia: Final Amendment 2: if required, SCO gets copyright.

Braham: Why something put in at last minute? Got fixed by Amendment 2.

Can't take shots at Frankenberg. His testimony clearly says intent was to transfer.

The deal Chatlos et al negotiated called for transfer.

Damages:
Novell's expert has been paid to testify too many times.
No number but zero.
You decide who's reasonable.

How important! Title to Crown Jewels.

(end of rebuttal/closing)

Judge: Thank you, Mr. Singer, you can breathe now. (Laughter in the court)

(After a few moments, Singer replies "didn't want to go over my time." (more laughter)

Judge Stewart dismisses Juror 13 (the alternate). "Not allowed to deliberate with jury. That will be some disappointment to you." Much laughter at her reaction. It's apparent she's not disappointed. Judge continues about if you were disappointed, know that your presence was important. Thanks her for her part.

Oath to Marshall to guard jury. (Judge asks jurors to listen to the oath because, though it's with the marshall, it's applicable to them.)

Jury departs.

Judge Stewart explains that if the jury asks questions, he'll call counsel in. Both sides must agree with responses. If it's something simple, he can do over the phone. (Example: if they ask if they can have a dictionary, the answer will be "no"; no need to bring counsel here to discuss that.)

Judge Stewart jokingly delivers a compliment on behalf of a lawyer: if you hadn't met your quota of at least one motion per day he'd [something like have had to wander aimlessly, only funnier].

Then he delivers a serious compliment to both legal teams. Something about the biggest collection of legal talent he's had in his court room. Compliments on their professionalism. Finally, "sincere gratitude of this court."

Now the waiting for jury to deliberate.

06:47 PM EDT

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