decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO's Prentice-Hall Letter - McBride's Trial Testimony
Wednesday, May 07 2008 @ 09:33 AM EDT

A number of media reports have focused on Darl McBride's testimony in last week's SCO v. Novell trial, which morphed into Novell v. SCO when all but Novell's counterclaims were decided on summary judgment back in August. McBride asserted again that Unix is in Linux, blah blah.

But what was more interesting to me was a piece of "evidence" that he tried to introduce into the record via his testimony. It's a letter from 1996, I believe this letter [PDF] to Prentice Hall, the publishers, about who to contact regarding certain Unix works. The timing is after the APA in 1995. This may be the low water mark in the SCO saga's "evidence", so I thought I'd go over a few details about it. For sure, the SCO lawyers, at least, had to know that it doesn't prove what McBride tried to use it to prove, although they did quote from the letter in SCO's Memorandum in Opposition to Novell's Motion for Partial Summary Judgment on its 4th Counterclaim for Relief, and in Support of SCO's Cross Motion for Partial Summary Judgment , a motion Novell won in the August 10 decision. So, the letter didn't help SCO at all then, and it is unlikely to do so now.

First, here is what McBride said about the letter in his testimony on day 2 of the trial:

What Novell did is they told us in 1995, they didn't just tell us, they told all of their customers that they had sold UNIX and their interest in UNIX to SCO. They sent out letters to Prentice Hall, they sent a letter to Prentice Hall and dozens of other companies that said in part, we have sold our interest and our ownership in UNIX and UnixWare to the Santa Cruz Operation. It makes immeasurably more sense for you to be dealing with the owners of UNIX and UnixWare than us. And so here's their numbers. And Novell signed this. SCO signed it; Novell signed it.

Then it lists, in this Prentice Hall letter that goes out in 1996, it lists numerous versions of what Novell said to the customers, to Prentice Hall in this case, was transferred. It was sold. And it lists all of the things that your client went out and filed copyrights on, not in '95. Why didn't they do it in '95? Why didn't they do it in '96? '97? Why didn't they do it in '98 when we had a licensing deal going on with Monterey or IBM. Maybe in 2001 when SCO transferred the company to a new company called Caldera. They could have said something then.

They only did it after we filed suit against IBM in 2003 and IBM paid Novell $50 million to come and work with them. And that copyright ownership letter that Novell sent out to Prentice Hall could not be more clear that SCO is the owner of those products. And ownership in my mind and in the APA says that it includes all rights and ownership.

I never get tired of pointing out the smooth moves SCO tries to make, I find, so here goes. First, if you look at the APA itself, you will find this, in Attachment B, under the header "Agreements* with Most Favored Customer Pricing or Exclusive Marketing Rights for Business Products or Territories":

Publication Agreement dated December 17, 1986 between AT&T Information Systems Inc. and Prentice-Hall, Inc.

The star references this footnote:

*Agreements originally entered into by one of Seller's predecessors in title are so identified.

As you can see, there was a deal struck in 1986 between AT&T Information Systems, Novell's predecessor in title, and Prentice Hall, the publisher. So, the letter McBride refers to happened in that context and it is talking about ownership interest under *that* agreement, the book deal, not the APA. AT&T wanted UNIX out there, where universities could spread its popularity, and publication of books about UNIX was part of that strategy, as you can see in the Declaration of Douglas McIlroy [PDF], one of the hundreds of exhibits IBM offered in support of its numerous summary judgment motions in SCO v. IBM, motions yet to be decided:

16. A complete manual of UNIX supplied detailed descriptions of important system data layouts, particularly those used in the file system. To an experienced programmer, the short, but thorough descriptions of standard system calls (now often called the API, or application programming interface) revealed the underlying architecture of the operating system.

17. Thus, the mechanisms of Unix have always been openly available and widely known. Indeed, had that not been so, academia would probably not have adopted Unix so enthusiastically, and Unix would probably have become just another among countless bit-player operating systems.

18. John Lions began to teach an operating systems course in Sydney from the actual text of Unix, and AT&T barely objected. To protect its interest in the license, AT&T asserted rights over the class notes. Far from suppressing Lions's work, though, the company adopted it for in-house use and, I believe, made it available to licensed customers. Lions was brought temporarily to Bell Labs to advance Unix documentation. AT&T did not object to the rampant circulation of samizdat copies of Lions notes. Some years later AT&T made his book, Lions' Commentary on UNIX 6th Edition, with Source Code (1976), available to the public, including the text of the Sixth Edition Unix, a direct ancestor of System V. The code is still accessible online.

19. One factor that led to AT&T's liberal licensing policy and lenient enforcement was that it was constrained by consent decrees from straying far from its core business as a communications provider. With no potential for significant licensing income, Unix was most profitable in building goodwill among and gaining the respect of the technical community.

20. Subsequent to Lions's book, many books about Unix internals have been written. Among the earliest was M. J. Bach, The Design of the UNIX Operating System (Englewood Cliffs, NJ: Prentice-Hall, 1986), which the Unix development team wrote. The availability of books has further encouraged the study of Unix as a classroom example, and has provided entrée for many others into the mechanisms of Unix.

So, that's how Prentice-Hall gets into the UNIX universe and then eventually into the SCO litigation. This Declaration was offered in support of IBM's Motion for Summary Judgment on SCO's Contract Claims (SCO's First, Second, Third and Fourth Causes of Action , believe it or not back in October of 2006. It's still listed in red on our IBM Timeline page, because it has not yet been decided. First, there was a delay while Novell got to go first, and then another delay due to SCO's bankruptcy. But we'll be getting to it in due time.

The letter, then, is talking about the deal between AT&T and Prentice-Hall, not the APA, as its primary reference. You can see that in the Reference ("Re:") subject line of the letter, which you always find in business letters, so everyone knows what file to put the letter into. What does the letter say?

NOVELL

By Certified Mail, Return Receipt Requested

March 25, 1996

Prentice-Hall, Inc.
[address]

Attention: Mr. Gregory Doench, Executive Editor

RE: December 17, 1986 Publication Agreement, as amended, now in effect between Novell, Inc. ("Novell") and Prentice-Hall, Inc. ("Prentice-Hall")

Dear Mr. Doench:

As you may know, Novell transferred to The Santa Cruz Operation, Inc. ("SCO") its existing ownership interest as listed in Attachment A of this letter ("collectively "Transferred Products").

It makes immeasurably more business sense for SCO, as the owner of the Transferred Products, to handle directly with Prentice-Hall any matters that may become relevant under the subject Agreement. Accordingly, Novell would appreciate Prentice-Hall's formal concurrence under Section 28 of the subject Agreement, to Novell's assignment of its rights and delegation of any remaining obligations under the subject Agreement insofar as such rights and obligations relate to the Transferred Products, to SCO. Novell represents that SCO has undertaken in writing to assume such obligations.

Since Prentice-Hall's interests under the subject Agreement continue to be protected, we assume that Prentice-Hall has no problem with this request. Accordingly, please indicate Prentice-Hall's concurrence by signing and dating a copy of this letter and returning such signed copy to:

Ms. Mei Negishi
Novell, Inc.
[address]

Any applicable payments associated with the Transferred Products under the subject Agreement should be sent with any applicable royalty reports, to the following address:

The Santa Cruz Operation, Inc.
[address]

Please send all other correspondence with respect to the Transferred Products to the following address:

The Santa Cruz Operation, Inc.
[address]

Any payments associated with products other than those listed in Attachment A should be sent to the following address:

Novell, Inc.
[address]

Novell, Inc.
[address]

Very truly yours,

NOVELL, INC.
By: ___[signature]_____

Accepted and Agreed to:

Prentice-Hall, Inc.

____[signature]________
Signature

____[Gregory Doench]______
Printed Name

____[Executive Editor]______
Title __[6/18/96]__
Date


ATTACHMENT A

NOVELL SOFTWARE PRODUCTS

All Releases of UNIX System V and prior Releases of the UNIX System

All UnixWare Releases up to and including UnixWare Release 2 (encompassing updates and upgrades to these releases as well)

Open Network Computing+

386 Implementation of UNIX System V Release 4
Multi-National Language Supplement
3B2 Implementation of UNIX System V Release 4
Multi-National Language Supplement
Application Source Verifier Release 2.0
Artus
C Compilation System for Motorola 68000
C Optimized Compilation System for UNIX System V
386/486
C++ Documents
C++ Language System Release 2.0
C++ Language System Release 2.1
C++ Language System Release 3.0 and 3.0.1
C++ Language System Release 3.0.2
C++ Language System Release 3.0.3
C++ Object Interface Library Release 1.1
C++ Standard Components Release 2.0
C++ Standard Components Release 2.0.1
C++ Standard Components Release 3.0
C++ Standard Libraries Release 2.0
C++ Standard Libraries Release 3.0
C++ Standard Library Extension Release 1.0
C++ Translator
CFRONT Release 1.2
Chinese System Messages Implementation of UNIX
System V Release 4 System Messages
Distributed Manager/Framework & Host Manager
Release 1.0
Distributed Manager/Framework & Host Manger
Technology Licensing Program 1
Distributed Manager/Framework & Host Manager U. I.
Early Access
Distributed Manager/Print Manager Release 1.0


Distributed Manager/Print Manager Technology
Licensing Program 1
Distributed Manager/Print Manager U.I Early
Access
DM/SM-TLP1
Documentation Reproduction Provision - UNIX System
V Handbook
Documentation Reproduction Provision - UNIX System
V Programming Books
Documentation Reproduction Provision - UNIX System
V Reference Books
Documentation Reproduction Provision - UNIX System
V User's and Administrator Books
European Supplement Release 3.2
European System Messages Release 3.2
French Application Environment 1.0/3B2
French System Messages Implementation of UNIX
System V. Release 4 System Messages
French System Messages Implementation of UNIX
System V Release 4.1 Enhanced Security System
Messages
German Application Environment
German System Messages Implementation of UNIX
System V Release 4 System Messages
German System Messages Implementation of UNIX
System V Release 4.1 Enhanced Security System
Messages
Hindi System Messages Implementation of UNIX
System V Release 4 System Messages
Intel386 Microprocessor Implementation of VERITAS
File System (VxFS) Release 1.0
Intel386 Microprocessor Implementation of VERITAS
Visual Administrator Release 1.01
Intel386 Microprocessor Implementation of VERITAS
Volume Manager (VxVM) Release 1.01
Intel386 Microprocessor Implementation of VERITAS
Volume Manager (VxVM) Release 1.1
Intel386 Microprocessor Implementation of VERITAS
Volume Manager (VxVM) Release 1.1.1
Italian System Messages Implementation of UNIX
System V Release 4.1 Enhanced Security System
Messages
Italian System Messages Implementation of UNIX
System V Release 4 System Messages
Japanese Application Environment I/O Release 1.0
Japanese Application Environment Release 2.0
Japanese Application Environment Release 2.0
Japanese Application Environment Release 2.1
Japanese Environment for SVR4.2
Japanese Extension Implementation of UNIX System V
Release 4.2
Japanese I/O Release 1.0
Japanese System Messages Implementation of UNIX
System V Release 4 System Messages


Japanese System Messages Implementain of UNIX
System V Release 4.1 Enhanced Security System
Messages
Japanese System Messages Release 3.2
Korean System Messages Implementation of UNIX
System V Release 4 System Messages
Optimizing C Compiler for Intel, Release 3.0
Spanish System Messages Implementation of UNIX
System V Release 4 System Messages
Spanish System Messages Implementation of UNIX
System V Release 4.1 Enhanced Security System
Messages
System V Release 2.0 Machine Readable
Documentation
System V Release 3.0 Documenation Reproduction
Provision
System V Release 3.1 Documenation Reproduction
Provision
System V Release 3.2 Documenation Reproduction
Provision
System V Verification Suite Release 2
System V Verification Suite Release 3
System V Verification Suite Release 4
UNIX System V French System Messages Release 3.2
UNIX System V German System Messages Release 3.2
UNIX System V Release 1.0 for 3B2 Multi-National
Language Supplement
UNIX System V Release 1.0 for Intel 386 Multi-
National Language Supplement
UNIX System V Release 3.2 386 Documenation
Reproduction Provision
UNIX System V Release 3.2 for Intel 386 Multi-
National Language Supplement
UNIX System V Release 3.2 Multi-National Language
Supplement
UNIX System V Release 4 European Language
Supplement
UNIX System V Release 4 STREAMS-Based Korean
Input/Output Subsystem
UNIX System V Release 4.0 386 Documentation
Reproduction Provision
UNIX System V Release 4.0 3B2 Documentation
Reproduction Provision
UNIX System V Release 4.0 i860 Documentation
Reproduction Provision
UNIX System V Release 4.2 European Language
Supplement, Version 1
UNIX System V Release 4.2 MP Japanese Extension
UNIX Time Sharing Operating System Phototypesetter
and C Compiler Edition #7
USL Standard C Development Environment for the 860
Implementation of UNIX System V Release 4.0


Veritas File System (VxFS) Release 1.3 for UNIX
System V Release 4.2
XWIN Graphical Windowing System Release 3.0
XWIN Graphical Windowing System Release 4.0
XWIN Graphical Windowing System Release 4.0i

Of course, McBride tried to spin this as "evidence" that Novell sold everything, lock, stock and barrel, to Santa Cruz under the APA. But please go to the APA Schedules page, and look for items on the above list. What? No "Japanese System Messages Release 3.2"? No "Documentation Reproduction Provision - UNIX System V Handbook"? Why might that be? Because this is a list of items referenced in the AT&T/Prentice-Hall agreement, not the APA.

[Update: You can find them listed on Amendment 1, dated December of 1995, with the following change which helps SCO not at all:

The following is added to the list of SVR4 Licenses: -- Auxiliary Products --

Emphasis added. And then you find the list of the auxiliary products which presumably SCO owes Novell for, since they are SVRX products, according to the amendment to Article VI, the first two paragraphs of which read like this:

4.16 SVRX Licenses.

(a) Following the Closing, Buyer shall administer the collection of all royalties, fees and other amounts due under all SVRX Licenses (as listed in detail under item VI of Schedule 1.1(a) hereof and referred to herein as "SVRX Royalties"). Within 45 days of the end of each fiscal quarter of Buyer, Buyer shall deliver to Seller or Seller's assignee 100% of any SVRX Royalties collected in the immediately preceding quarter. Buyer shall diligently seek to collect all such royalties, funds and other amounts when due (and shall investigate and perform appropriate auditing and enforcement under such licenses at Buyer's cost including auditing two (2) SVRX licensees identified by Seller during each quarter in which SVRX Royalties are collected). In consideration of such activities described in the preceding sentence, Seller shall pay to Buyer within 5 days of receipt of SVRX Royalties from Buyer as set forth in the preceding sentence, an administrative fee equal to 5% of such SVRX Royalties.

(b) Buyer shall not, and shall not have the authority to, amend, modify or waive any right under or assign any SVRX License without the prior written consent of Seller. In addition, at Seller's sole discretion and direction, Buyer shall amend, supplement, modify or waive any rights under, or shall assign any rights to, any SVRX License to the extent so directed in any manner or respect by Seller. In the event that Buyer shall fail to take any such action concerning the SVRX Licenses as required herein, Seller shall be authorized, and hereby is granted, the rights to take any action on Buyer's own behalf. Buyer shall not, and shall have no right to, enter into future licenses or amendments of the SVRX Licenses, except as may be incidentally involved through its rights to sell and license the Assets or the Merged Product (as such term is defined in the proposed Operating Agreement, attached hereto as Exhibit 5.1(c)) or future versions thereof of the Merged Product.

End update.]

Plus, you likely know that Veritas owns Veritas products, not SCO, yet Veritas products are listed in this letter. If you note, on the APA's schedules, Veritas appears under the header of Products (or Components) on which Vendor Royalty is Due". So when the letter says to send payments to Santa Cruz, it's for the products in Attachment A, which is not a list from the APA. It is talking about who gets paid for books about the stuff on Attachment A, in reference to the AT&T/Prentice-Hall book deal.

So that's for starters. Nothing like taking things out of context. But even if it were about the APA, which it isn't, the letter doesn't say what it would say if everything was sold in the sense that McBride would like the court to believe. Instead, it would say, "We sold everything. Don't write to us any more. Santa Cruz owns it all now." It doesn't say that. Instead it says it makes more "business sense" for SCO to keep track of everything, and Novell asked them to take on the responsibility to keep track of book stuff, and SCO agreed to "assume such responsibilities." There would be no issue about that if SCO owned it all, lock, stock and barrel. Novell would have no standing to ask them to take over this job. And SCO wouldn't have to agree. It'd be automatic. Obviously, Novell retained some interest, which is why Prentice-Hall needed assurances from SCO that it would do what it needed to do under their agreement, their being AT&T/Novell. So the book royalties were to be sent to SCO as the owner "under the subject Agreement". And that's the book agreement, not the APA. What Novell sold was its business of selling UNIX and UNIX products.

So the letter is totally irrelevant to the trial subjects, and that is why if you read the closing statements of both SCO and Novell, closing statements being where the lawyers sum up the important points and evidence from the trial, neither side mentioned the letter. In fact, SCO's Stuart Singer didn't use anything McBride said. You know why? One must assume it's because it was not only useless, it was incredibly helpful to Novell, as I'll be writing about soon, which is why Novell's attorney quotes McBride copiously.

Anyway, I wanted to highlight this letter, so you'd know what they were talking about. SCO actually has it on its website. To me, it sums up SCO's "proof". Over and over SCO flashed something quickly before our eyes that seemed like it might "prove" SCO's case, but when you looked more closely, it evaporates.

Update: You can get a very clear picture of what Prentice Hall and SCO might be doing together if you look at this Caldera press release from 1997:

CALDERA AND PRENTICE HALL COLLABORATE ON LINUX BEST-OF-BREED INTERNET BUNDLE FOR EDUCATION

Number One Commercial Linux, Educational Publishing and Educational Distribution Companies Combine Efforts

PROVO, UT—Dec. 2, 1997—Caldera today announced that it has teamed-up with Prentice Hall, the leading publisher of college course materials, and NACSCORP, the leader in educational promotion and distribution, to deliver a new product containing OpenLinux Base and the Prentice Hall Web Server Handbook.

This collaboration targets the education market and augments Caldera's long term commercial Linux strategy to meet and fulfill educational needs. Through this collaboration Caldera will provide standard technical support and Prentice Hall will support product sell-through.

Same time frame. Same publisher. Caldera. They should know better, I therefore assume.

  


SCO's Prentice-Hall Letter - McBride's Trial Testimony | 243 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic Here
Authored by: nuthead on Wednesday, May 07 2008 @ 09:44 AM EDT
Off topics stories here..

[ Reply to This | # ]

Newspick Discussions here:
Authored by: nuthead on Wednesday, May 07 2008 @ 09:46 AM EDT
Please include the name of the article in the title.

[ Reply to This | # ]

Corrections Here
Authored by: feldegast on Wednesday, May 07 2008 @ 09:52 AM EDT
So they can be fixed

---
IANAL
My posts are ©2004-2008 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

"When you look at it more closely, it evaporates"
Authored by: Anonymous on Wednesday, May 07 2008 @ 10:28 AM EDT
Perfect summary of five years of litigation.

One question, though: We've looked at SCO pretty closely. Isn't it about time for them to evaporate?

MSS2

[ Reply to This | # ]

SCO/Caldera/TSG Shell Game again
Authored by: Anonymous on Wednesday, May 07 2008 @ 10:48 AM EDT
I'm surprised no-one called them on the continued shell game of TSG pretending
they were/are Santa Cruz:

"Why didn't they do it in '98 when we had a licensing deal going on with
Monterey or IBM. Maybe in 2001 when SCO transferred the company to a new company
called Caldera."

"we" had a licensing deal? No Darl, "we" didn't. Santa
Cruz had a licensing deal of which Caldera (you remember them right? They're
known as The SCO Group now) had no part. You can surely argue that you became
the owner of that agreement after the sale, but Caldera had _nothing_ do do with
the original agreement.

Also, minor note here, SCO didn't transfer the company to Caldera. They
transferred the Unix business. Santa Cruz continued to exist although they
later changed their name, facilitating (unintentionally I'm sure) your current
attempt to rewrite history. Sheesh.

[ Reply to This | # ]

SCO's Prentice-Hall Letter - McBride's Trial Testimony
Authored by: Steve Martin on Wednesday, May 07 2008 @ 11:01 AM EDT

Of course, McBride tried to spin this as "evidence" that Novell sold everything, lock, stock and barrel, to Santa Cruz under the APA.

What struck me was this (from the letter text):

Any payments associated with products other than those listed in Attachment A should be sent to the following address:

Novell, Inc. [address]
Oho. So Novell was still taking in payments for products "other than those listed". If it had all been sold "lock stock and barrel", this phrase would not be present, would it?

---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

Ever heard of Attachement A to APA Amendment No.1, PJ
Authored by: Anonymous on Wednesday, May 07 2008 @ 11:07 AM EDT
It might be worth the effort.

[ Reply to This | # ]

So Darl's mouth was a liability in the courtroom as well?
Authored by: billyskank on Wednesday, May 07 2008 @ 11:20 AM EDT
If SCO's lawyers really were working for SCO's best interest, wouldn't they have
had McBride bound and gagged years ago?

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

[ Reply to This | # ]

Hey SCO that was psychotic paper not psychic paper
Authored by: LaurenceTux on Wednesday, May 07 2008 @ 11:23 AM EDT
In that packet. (hint for future reference the Gallifreyian symbol reads the
other way yours is backwards)

So Red Dress party in say July or so??

[ Reply to This | # ]

ownership interest versus ownership
Authored by: Anonymous on Wednesday, May 07 2008 @ 11:37 AM EDT
I note in the letter, it indicates they sold the ownership interest - rather
than simply saying that they sold the ownership. Is that just them being wordy,
or is that them stating explicitly, to those who actually know the language,
that they did not actually sell these products, just the ownership interest.
That is, they still own it, but they no longer care about it - they sold the
caring about it to SCO. As such, since SCO cares about it and we don't, go talk
to them.

[ Reply to This | # ]

when might we expect kimabll decision?
Authored by: Anonymous on Wednesday, May 07 2008 @ 11:52 AM EDT
given the amount of evidence and exhibits, can anyone estimate when ??

[ Reply to This | # ]

Darl the dolt?
Authored by: Anonymous on Wednesday, May 07 2008 @ 12:00 PM EDT
Does the guy get *ANYTHING* right? We've all known the guy is two tacos short
of a combo platter for years, but you'd think the attorneys coaching him would
have tried to keep him on the reservation.

Or is he just being paid to act like a fool to take the focus off of others -
like Yarro, Tibbits, Gates, et al?

[ Reply to This | # ]

McBride's August 2002 claim to OWN C++
Authored by: Anonymous on Wednesday, May 07 2008 @ 12:21 PM EDT
Insight credit to Lingamaha on IV, who wrote:
I believe this prized artifact is the exact reason why Darl said:

And C++ programming languages, we own those, have licensed them out multiple times, obviously. We have a lot of royalties coming to us from C++. (August 15, 2002, [Reference]
Lingamaha comments:
It seems no one has explained this error to him in almost six years. At least until he did his tragic (for SCO) courthouse show last week. And I will not bet any money that he gets it even now.

Darl read the letter with the C++ Manuals listed, and assumed he owned the language, silly boy.
C++ Documents
C++ Language System Release 2.0
C++ Language System Release 2.1
C++ Language System Release 3.0 and 3.0.1
C++ Language System Release 3.0.2
C++ Language System Release 3.0.3
C++ Object Interface Library Release 1.1
C++ Standard Components Release 2.0
C++ Standard Components Release 2.0.1
C++ Standard Components Release 3.0
C++ Standard Libraries Release 2.0
C++ Standard Libraries Release 3.0
C++ Standard Library Extension Release 1.0
C++ Translator

[ Reply to This | # ]

SCO's Prentice-Hall Letter - McBride's Trial Testimony
Authored by: Anonymous on Wednesday, May 07 2008 @ 12:23 PM EDT
And please remember, in the following statment:

"Novell asked them to take on the responsibility to keep track of book
stuff, and SCO agreed to..." we are not talking about SCOG, but about Santa
Cruz Operation.

Was Prentice Hall ever notified when Santa Cruz Operation transfered the
business to Caldera.

Of course, none of this matters any more, in regards to the Novell case because
both sides have rested their cases. Whateve evidence has been entered in is the
sum and total of what the judge will consider. That, and no more and no less.

Only if one of the other trials proceeds will any of this have any importance.
What's done is done.

Wish we could simply put a stake in it and move on to the next challenge!

[ Reply to This | # ]

McBride. How does someone so stupid get so far?
Authored by: kawabago on Wednesday, May 07 2008 @ 12:33 PM EDT
Oh, he's the fall guy. I bet he doesn't even know it.

[ Reply to This | # ]

Vendor revenues?
Authored by: Anonymous on Wednesday, May 07 2008 @ 12:49 PM EDT
If I were the vendors due Prentice-Hall revenues, I'd be reviewing my books and
conferring with P-H, rather than taking SCOG at face value.

If SCOG does not recognize that the letter doesn't refer to the APA in the
lawsuit context, they may also not be recognizing it in the "passing on of
revenues" context.

[ Reply to This | # ]

SCO's Prentice-Hall Letter - McBride's Trial Testimony
Authored by: MrCharon on Wednesday, May 07 2008 @ 01:52 PM EDT
Is XWIN and X Window the same thing?

---
MrCharon
~~~~

[ Reply to This | # ]

waiting for the "Scooby Doo" moment...
Authored by: Anonymous on Wednesday, May 07 2008 @ 03:58 PM EDT
when Darl admits he'd have gotten away with it if it hadn't of been for those
pesky kids...

[ Reply to This | # ]

SCOG keeps trumpeting the "all right ...." language
Authored by: Anonymous on Wednesday, May 07 2008 @ 04:12 PM EDT
even after Kimball ruled that all relevant precedent holds that language does
not transfer copyrights.

[ Reply to This | # ]

McBride - new words
Authored by: Anonymous on Wednesday, May 07 2008 @ 04:22 PM EDT
As a foreigner it is fun to associate newly learned words with things, whether
dead or animate. Having known of the word for two decades, I just realized what
it meant; thanks to the animate McBride, no less. The word of my day is
"wippersnapper"

According to http://dictionary.reference.com/browse/whippersnapper it means:
"an unimportant but offensively presumptuous person, esp. a young
one".

Don't you like it when you can put a face to a, word?



________
IMANAL

[ Reply to This | # ]

While We're Still Counting...
Authored by: sproggit on Wednesday, May 07 2008 @ 04:44 PM EDT
... this does seem to be yet another case of a litigant - in this case Darl
McBride - using the legal system to completely undermine the laws and principles
it was set up to administer, honor and serve.

Perhaps someone with experience of the legal system can explain something to
me...

Is it possible for Novell, IBM [or possibly even Judge Kimball as the presiding
Judge] to sanction Darl for some of these comments he continues to make? How can
it be possible for someone to "get away with" using court testimony to
further attack Novell? It's as if Darl believes that he can say almost anything
he likes in relation to this court case and then later, if [or rather, when]
proven wrong, he won't even apologize, he'll just repeat that he's looking
forward to his day in Court...

Maybe Darl really does genuinely and truthfully believe all the things he's been
telling us. But based on the ability of his testimony to change and adapt to
circumstance I'm not sure.

But I do find it rather frightening that someone could, in theory, accuse any of
us of committing a whole bunch of criminal acts, drag our names and/or
reputations through the mud, and apparently get away with it. Yes, I appreciate
that his company is toast, but with this style of leadership it was always going
to be that way, and this court case just accelerated the inevitable.

If Darl made these claims against a private individual, the chances are that he
would be committing slander, defamation of character, or other offences. Given
that corporations are supposed to be "legal entities" in substitute of
"real entities", maybe it's a shame that a company can't sue for
defamation of character...


Whatever else may happen now in this case, the biggest loser of all in this sad
state of affairs could well be the US Legal System. It has been made to look so
foolish by this 2-bit hustle. What a shame.

[ Reply to This | # ]

Testimony about SEC filing
Authored by: Anonymous on Wednesday, May 07 2008 @ 04:45 PM EDT
Has anyone caught his use of the word *Hope* when saying he told the truth in
the SEC filing? It didn't seem as if the judge or Novell's attorny caught it.
He hopes he told the truth?

[ Reply to This | # ]

So when does SCO sue Sun?
Authored by: Anonymous on Wednesday, May 07 2008 @ 06:03 PM EDT
SCO's lawsuits were all predicated on the premise that they owned the copyrights. SCO bought - whatever they bought - from Santa Cruz (not directly from Novell). So, the path of ownership (of - whatever-) was Novell -> Santa Cruz -> SCO Group.

This whole fiasco can't be SCO's fault. That just isn't conceivable. At least, not if you are SCO. The judge has ruled that it's not Novell's or IBM's fault. So, that leaves Santa Cruz. Also known as Tarantella. Also known as Sun.

So, when does SCO file suit against Sun, blaming them for everything? Or perhaps does SCO go to Sun, and suggest that this whole misunderstanding could be cleared up if Sun were to buy out SCO for say, $100 million?

If at first you don't succeed, try, try again ...

[ Reply to This | # ]

What's Darl blathering about IBM paying off Novell $50 million?
Authored by: eggplant37 on Wednesday, May 07 2008 @ 08:10 PM EDT
Anyone got cite on that?

I've been watching this case since the get-go in pretty good detail, and I don't
remember hearing anything at all about this. Anyone know of any references to
whatever deal between IBM and Novell that Darl's on about? Or is this yet
another round of, "Let's shoot off our mouth and see what we can get away
with?"

My money's on Option B, "Bob."

[ Reply to This | # ]

Thank you PJ!
Authored by: The Mad Hatter r on Wednesday, May 07 2008 @ 09:08 PM EDT


I read all of Darl's testimony, and missed this totally. I owe you another hug.




---
Wayne

http://sourceforge.net/projects/twgs-toolkit/

[ Reply to This | # ]

  • You swine! - Authored by: Ian Al on Thursday, May 08 2008 @ 04:05 AM EDT
    • Not likely - Authored by: Anonymous on Thursday, May 08 2008 @ 07:24 AM EDT
SCO's Prentice-Hall Letter - McBride's Trial Testimony
Authored by: Anonymous on Thursday, May 08 2008 @ 11:08 AM EDT
I am surprised that this SCO suit has lasted so long. SCO has never showed what
unix code was in Linux, just thier word it was. Judge Kimball should of thrown
the case out a long time ago. Darl McBride should be charged with exdtortion
& blackmail from all this FUD and lawsuits he initiated; him and his lackey
Chris Sontag.
Old Darl firmly believes if he can get a jury trial, it would be easy to
hoodwink the jury and get what he wants. The guy lives in a world of lies and
fabrications.

[ Reply to This | # ]

Even if...
Authored by: Anonymous on Thursday, May 08 2008 @ 11:24 AM EDT
... that letter *had* explicitly stated "We've sold all of UNIX to SCO,
lock, stock and barrel" - that still wouldn't invalidate or overrule what's
been contractually defined in the APA and only the latter would be binding.

It would be "falsa demonstratio" at best, thus of no legal value, only
good for spinning some "conspiracy" story to the media.

[ Reply to This | # ]

  • Exactly - Authored by: Anonymous on Thursday, May 08 2008 @ 12:59 PM EDT
  • Even if... - Authored by: Anonymous on Thursday, May 08 2008 @ 09:01 PM EDT
Problems with the Prentice-Hall, Microsoft & Tatung Letters
Authored by: Anonymous on Thursday, May 08 2008 @ 08:25 PM EDT
I’ll be honest that I can’t completely follow the logic in the analysis of the
Prentice-Hall letter here. If the letter is what you assume it is, why didn’t
Novell use that logic in their argument in court? Here’s where I think Novell
is having some problems with that letter and the Microsoft and Tatung letters:

1.The first sentence of the letter seems to indicate the intent of the letter,
“As you may know, Novell transferred to The Santa Cruz Operations, Inc. (“SCO”)
its existing ownership interest in UNIX System-based offerings and related
products as listed in Attachment A of this letter (“collectively “Transferred
Products”).” I believe SCO is using it because of the language of that first
sentence. The letter doesn’t say that Novell “licensed” anything to SCO. It
states “ownership interest” which is a problem for Novell’s position.

2.SCO references a similar letter to Microsoft. The same language is used in
this letter. If Novell believed that the letter was simply referring to the
publishing deal originated years before, why didn’t Greg Jones in his court
testimony last week say so? Here’s what he says:

Q. Mr. Jones, in Novell's view, it would not be
accurate to say that Novell had transferred its existing
ownership interest in the UNIX System V products to Santa
Cruz in 1995, correct?
A. Could you say that again?
Q. In Novell's view, it would not be accurate to
say that Novell had transferred its existing ownership
interests in UNIX System V to Santa Cruz in 1995,
correct?
A. Right.
THE COURT: SCO 411?
MR. NORMAND: Yes, Your Honor.
Q. Mr. Jones, this is a document dated May 23,
1996. Do you recognize the document?
A. Yes. I've seen it before.
Q. And the second full paragraph says:
As you may have heard, Novell has transferred
to Santa Cruz, Santa Cruz Operation, Inc., Novell's
existing ownership interest in the UNIX System-based
offerings and related products, collectively transferred
products.
Do you see that line?
A. Yes.
Q. And you think that that's an inaccurate
statement, correct?
A. Yes.
Q. Do you have any explanation for why Mr. DeFazio
would sign a document containing such a statement?
A. No.
Q. Have you spoken with Mr. Defazio about that
issue?
A. No.

Jones could have said, “this letter refers specifically to the publishing
agreement we had with Prentice-Hall, not any transfer of assets.” I think the
fact that he didn’t state that indicates that they don’t have a very strong
defense as to why a Sr. VP in the company would write that. Simply, Jones
believes that Michael Defazio, a Novell Sr. VP got it wrong. And your Sr. VP's
are supposed to know what's going on.

3. There’s some argument here that the Attachment A of the Prentice-Hall letter
deals specifically with the Prentice-Hall agreement of publishing. You said:
“Of course, McBride tried to spin this as "evidence" that Novell sold
everything, lock, stock and barrel, to Santa Cruz under the APA. But please go
to the APA Schedules page, and look for items on the above list. What? No
"Japanese System Messages Release 3.2"? No "Documentation
Reproduction Provision - UNIX System V Handbook"? Why might that be?
Because this is a list of items referenced in the AT&T/Prentice-Hall
agreement, not the APA." I don’t think that is the case as the exact same
attachment is in the Tagung letter as well. Identical list. Prentice-Hall and
Tatung are significantly different businesses. That’s why I don’t think Novell
used that argument. The same language, the same Attachment A are used in other
letters. They are not company specific.

4.There’s been some comment also that SCO was claiming that the letter to
Prentice-Hall was a transfer agreement. I can’t find anything where there is a
claim to that. Does anyone have a link?

5. I just don’t see the evidence about this being all about the publication
royalties for books. You said, “It is talking about who gets paid for books
about the stuff on Attachment A, in reference to the AT&T/Prentice-Hall book
deal.” Yet Tatung has the exact same Attachment A to their letter as does
Prentice-Hall and they are not a publisher.

“Lock, stock and barrel” those are the words used by Larry Bouffard, VP at
Novell in describing the sale of assets to SCO. I don’t think you want to be
using the same language that SCO is using to defend its position.

In any case, this is just my opinion. I don’t think Novell brought it up in
closing arguments because they knew it wouldn’t help them. I don’t think SCO
brought up that letter specifically because they already referenced the
Microsoft letter that had the exact opening line and similar content.

Obviously this is all water under the bridge at this point but I do think that
SCO will use this sort of stuff in an appeal.

Thoughts?

[ Reply to This | # ]

Lock Stock and Darl
Authored by: mobrien_12 on Friday, May 09 2008 @ 04:57 PM EDT
Why do they keep saying "Lock, Stock, and Barrel" over and over?

Are they trying to Johnny Cochrine "if it doesn't fit you must aquit? or
something?

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )