News

Let's catch up quickly in the Psystar/Apple situation, so we don't miss any of the action. When I read the new DMCA exemptions EFF won, I immediately started to think about Psystar, so I wanted to see what's new. Maybe you did too. So here's the latest I could find. The appeal is going forward. Presumably the next step in the appeal will be oral argument, although I can't swear to it, since Psystar filed its brief under seal with the Ninth Circuit Court of Appeals back in May, so we can't read it, and that's when they would have made the request or not. I can't believe the entire document needed to be sealed, but that is what happened. Perhaps they'd prefer we not get a chance to analyze it? Apple has now filed its answering brief [PDF], along with a request [PDF] that the court take judicial notice of the Florida litigation, and Psystar has just filed its reply brief [PDF], and these documents are not sealed, so we finally get to find out what it's all about.

What Psystar wants is nothing less than to overturn copyright law as we know it and create a new doctrine of per se copyright misuse any time a copyright owner restricts use of its software to particular hardware.

Wait. Isn't that kind of what TurboHercules is whining about too? Here's what TurboHercules told us it wants: "We simply want IBM to agree to allow legitimate paying customers of its z/OS mainframe operating system to deploy that software on the hardware platforms of their choice - including, should they so choose, on low-cost servers using Intel or AMD microprocessors and Hercules." Psystar and TurboHercules are going after different software, but they want exactly the same thing, to force the software creator to let them use it on hardware the owner doesn't want it used on. And of course, they are two noble hearts with no interest in the buckets of money they'd thereby gain, without having to do the hard work of actually creating their own software. Let Apple and IBM pay for all that, and then they swoop in and make sure the creators don't benefit from their labor, so that Psystar and TurboHercules can.

You know what I find so striking? This is just one of four cases trying to grab some measure of control or use of other people's software against the owners' will, starting with the SCO v. IBM case.

In the latest news from SCO's slow boat to absolutely nowhere, Novell has filed its opposition to SCO's motion to stay taxation of costs. SCO filed this exact motion [PDF] in 2008, after it lost the first trial, Novell points out, and Novell opposed that motion too, and the motion was denied [PDF] by this very same court, and here they are with the same type of motion and even using the same stupid case that didn't work for them the last time.

Is SCO trying to lose this motion? Or just half-hearted? If it knows the court will not grant the motion, why file it? No. Really. Why? To keep things going as long as possible? They think Judge Ted Stewart will be more favorable to them than Judge Dale Kimball? Nothing else has changed.

When you are the paralegal, all you do is take the old document, change the dates to upgrade it, and hand it to your boss for him to add his touches, if any. I puzzle over why SCO is even bothering. But I'm thinking about that more and more. Why is SCO continuing when the outcome is so obvious?

There are new anticircumvention rules from the US Copyright Office. Several are very good changes, such as allowing you to bypass a technological protection measure to use snips from a movie or video if your purpose is educational or for comment or criticism, and there's more flexibility for phone apps if interoperability is the goal:"When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses," the Copyright Office stated.

"It's gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability," commented Electronic Frontier Foundation senior staff attorney, Corynne McSherry. Keep in mind that copyright infringement is separate from DMCA analysis, so you still have to be careful about staying within the fair use boundaries when making a documentary. But at least now you can legally access. And while you can jailbreak your iPhone with respect to the DMCA, there's remains the issue of breaking the warranty. Also, while it's not criminal, there is still a EULA to consider.

But Linux got bonked on the head again. They essentially ruled that if you want to access DVDs or streaming videos, like with Netflix's "Watch Instantly" service, you have to buy a PC or an Apple computer or a DVD player. I wonder why they don't see that this situation is identical to the jailbreaking a smartphone, or should be? What's the difference? Linux users want to view movies too, and all they want is interoperability so they can. I wonder how Hollywood would like it if the government told them that to make their movies they couldn't use Linux but instead had to use a Windows PC or an Apple computer? Hollywood uses Linux to make their movies, but they oppose letting us view their products on Linux? Why? If the government is going to regulate operating systems and compel citizens to buy certain vendors' products as opposed to the ones we want to use, I think it should at least be consistent. Actually, I don't think any government should compel use of any private company's products, and I wish that argument had been presented. Maybe next time.

I'll show you the relevant language in the document Determination of the Librarian of Congress and Text of the Regulation [PDF].

The SCO Group has filed their docketing statement [PDF] in their appeal from the jury's decision and Judge Ted Stewart's rulings and findings in SCO v. Novell. And thus we find out what the appeal is going to be about. The PDF is a honking 323 pages, mostly exhibits.

What does SCO want? What it has always wanted, the UNIX copyrights. It wants the appeals court to rule that Judge Stewart erred in ruling that Novell had the right to waive. After SCO lost the jury trial, it filed some motions, essentially asking Judge Stewart to overrule the jury and grant SCO judgment as a matter of law that the copyrights did transfer in 1995, despite the jury's ruling otherwise, or alternatively SCO wanted a new trial. The judge didn't do either, and SCO now wants the appeals court to rule that was error on his part. Finally, if all that fails, SCO wants the appeals court to rule that SCO is entitled to specific performance, compelling Novell to hand over the copyrights now.

In short, they want to win. They thought the jury "just got it wrong", they asked Stewart to fix that, and he didn't, so now SCO is asking the appeals court to help them win something, one way or another. Why? It wants to sue Linux folks, I presume, and it can't without the copyrights. And it wants to sue IBM, too, and unless it can get the appeals court to rule that Novell has no right to waive and get the copyrights, SCO can't sue IBM. I guess it would be more accurate to say SCO wants to not lose. It's in quite a pickle as things stand. Think of IBM's counterclaims for just a minute, and you'll understand why SCO probably feels it has nothing to lose by trying.

We have all the transcripts from the SCO v. Novell trial now as text, a version for each day with line numbers, so as to match the PDFs. I'll be writing about them one by one, pointing out interesting things, with versions without the line numbers, for readability as well. I've done that for day 1 and day 2, and I'll keep working through them all, all 15 days. So you can pick and choose which way you prefer to read the transcripts. I don't want you to have to wait, though, so here's a calendar you can use right now, to find whatever day of the trial that interests you the most, the text versions with line numbers:

March 2010 M Tu W Th F 08 09 10 11 12 15 16 17 18 19 22 23 24 25 26

You'll find a copy of this calendar on each page, so you can navigate any way you like. Enjoy!

I have the corrected transcript for day 2 [PDF] of the SCO v. Novell trial as text. This was the very first actual day of trial, the jury having been chosen and sworn in the day before. So today is Tuesday, March 9, 2010, and we have opening arguments from each of the parties and then SCO begins to present its case. You'll find the rest of the day here [PDF; text] and then here [PDF; text].

For SCO's side, Stuart Singer begins the opening argument, and then Brent Hatch finishes up the last part of it. For Novell, it's Sterling Brennan all the way. Then SCO puts on its first witness on the stand, Robert Frankenberg, formerly CEO at Novell, who is examined by SCO lawyer Stuart Singer of Boies Schiller, then on cross for Novell by Sterling Brennan, then Singer on redirect and Brennan on recross. Here's Groklaw's coverage of that day.

Isn't it lovely to have the daily transcripts from the SCO v. Novell trial? We're working hard to prepare them all for you as text. This is the first one, from the first day of the trial that began on Monday, March 8, 2010. We'll work sequentially, day by day. Here's the PDF, so you can check any details that intrigue you. I thought I'd share with you my impressions of opening day. I want to explain a few things.

This is technically not the trial itself, but jury selection and instructions to the jury from the judge, the Hon. Ted Stewart. The actual trial didn't start until the following day.

If SCO was hoping for a jury that was tech-challenged, they certainly did not get a jury pool like that. And the number of potential jurors who knew about Linux, had friends or relatives that used it, or who used it themselves was strikingly high. Either Utah loves freedom or someone has been seriously underestimating how many people in the U.S. use Linux. Maybe a little of both. Judge Stewart told SCO that he wasn't going to remove people from the jury just because they knew what Linux was or used it, but a couple of them got weeded out for other reasons.

The day begins with some initial judge/lawyer brainstorming, and then the jury pool is brought in, all 52 of them, and the process begins unfolding. The clerk was expecting 55, but there are always a few that don't show up due to illness or unforeseen occurrences. Judge Stewart tells them how grateful everyone is that they are willing to serve. He tells them that juries are necessary for the legal system in the US to work: If we did not have individuals such as you who are willing to take your time to be here to allow us to select a jury, and those of you 13 in number who will ultimately be asked to serve as jurors in this case, if they were not willing to serve, then our entire judicial system would collapse. And if we did not have an operating judicial system in this country, we would not have a country. That's true, by the way, not hyperbole. Juries do play a vital role. And the judge tells them that they'll get out usually by about 1:30 in the afternoon, so they can serve without it being unduly a hardship. So then each one tells a little bit about him or herself, answering a list of questions from the court. And the judge and the lawyers on both sides are listening and observing carefully. At least one jury consultant is present. They have to get from 52 down to 13.

SCO filed its monthly operating reports for May. They had the Yarro loan, so these were still relatively flush days. If you are like me, you are deep into the transcripts from the trial, or you are analyzing Mozilla's draft MPL license, or both, so it's hard to focus on this. But the MORs are filed, so those of you who are more accounting-oriented will want to take a look.

As I look quickly through them, it looks like at the end of May, SCO could have paid back the Yarro loan in full. I realize they had just got it in March, and that that wasn't the goal in May. And this is July, not May. They took the loan to be able to keep the litigation going. And going. And going.

Guess how much they've spent in professional fees since this bankruptcy started? $5,097,729 plus $321,753 in expenses, not counting May or bills outstanding. So, the Chapter 11 bankruptcy has pretty much wiped out what they had when they started it, all to lawyers and other professionals helping them. Helping them do what? No wonder they keep postponing meeting with the bankruptcy judge lately. And no wonder they can't pay any creditors. Anyone notice this Chapter 11 thingie doesn't seem to be pointing toward success?

We have the daily transcripts from the recent SCO v. Novell trial, at last. I haven't read them yet myself, but I wanted to share them immediately as soon as the court made them available. We can read them together. I can't wait to read the closing arguments, personally.

The trial began on March 8, 2010, a Monday, and ran for 15 days.

Can we talk about licenses for a bit? It's something I've wanted to talk to you about for a long time, and it's a good time for it, because Mozilla is redrafting its license and would like your input.

Here's where you can find the Mozilla Public License, the current version, along with a FAQ that explains it and an annotated version, and here's where you can get the draft of the revised version [PDF], and here is a red-lined version [PDF]. Nothing in the draft revision is yet set in stone. You'll notice that they are working on it like Legos, issue by issue, and this draft isn't addressing all the issues they hope to address. Here's the big picture.

But before we dig in, I'd like to talk to you about the big picture with licenses generally, where we are now, and why it's important to revamp licenses at this point in time. I hope OSI folk will read this too, because in my view, what Mozilla is doing is what needs to be done with every single license on the OSI list. Let me explain why.

Here's Part 2 of the 2006 IBM document Redacted Memorandum in Support of its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement [PDF] IBM'S Tenth Counterclaim, as text, the document where IBM presents all the reasons why SCO's claims of copyright infringement in Linux are bogus. If ever SCO or Son of SCO waives a list of allegedly infringed code, this is the document to have on hand.

Part 1 listed the reasons why IBM did nothing wrong, in that it has multiple licenses to use the code, for one thing, and this part continues that argument, but it then focuses on the files that SCO presented to the court, stating point blank that they are not protectable under copyright law. If you are not a programmer, and you see a list of header files allegedly infringed and don't know who is right, this is the document that will explain it all to you.

Just as we thought, SCO sued over essentially nothing at all, or as IBM puts it:Despite SCO's grandiose description of its alleged evidence of IBM's infringement, it is now clear that SCO does not have (and never has had) any such evidence. Is that not appalling?

I think when you read this 2006 IBM document, its Redacted Memorandum in Support of its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement [PDF] IBM'S Tenth Counterclaim, Part 1, which I've done as text for you at last, you'll be left wondering how SCO ever dared to open its mouth about Linux, let alone continue to claim infringement by anyone at all ever. Here's a bit of IBM's conclusion, after looking at SCO's list of allegedly misused materials, SCO's laughable Final Disclosures:194. The Final Disclosures do not specifically allege or include any evidence of unauthorized copying of System V code in Linux by IBM, unauthorized distribution of Linux by IBM or unauthorized preparation of derivative works by IBM relating to Linux. (See Ex. 54.) Nothing. Nothing at all. Nothing specific. No evidence. Even if there was anything, IBM points out it had multiple licenses; and besides SCO had distributed the code it sued IBM over under the GPL -- in some cases for nearly a decade.

What were they thinking? How could SCO's lawyers keep this going so many years? How could they even want to? Weren't they ashamed? Or don't they grok the tech? Was it all a cynical exercise in harassment? Could they ever seriously have thought IBM would settle over *this*?

My reaction on reading this document was how sad that the world was put through all this for absolutely no reason. How did they dare? And on what basis would anyone, let alone a retired judge, I couldn't help but ask myself, read a document like this and decide to go forward with this litigation? It's inexplicable to me. One thing is clear as a bell if you understand the tech: Linux doesn't infringe UNIX at all. That's what I get out of this.

Look at this, will you? The first decision from the Board of Patents Appeals and Interferences post-Bilski to reference that US Supreme Court decision, in In Re Proudler [PDF], a ruling rejecting HP's application for a software patent, setting forth a rule stating, as I read it, as saying software is not patentable because it's an abstraction:Laws of nature, abstract ideas, and natural phenomena are excluded from patent protection. Diamond v. Diehr, 450 U.S. at 185. A claim that recites no more than software, logic or a data structure (i.e., an abstraction) does not fall within any statutory category. In re Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994). Significantly, "Abstract software code is an idea without physical embodiment." Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 449 (2007). The unpatentability of abstract ideas was confirmed by the U.S. Supreme Court in Bilski v. Kappos, No. 08-964, 2010 WL 2555192 (June 28, 2010). This is not the last word, I'm sure, as HP can certainly try to reword. But don't you find this encouraging? I do. And that's why I wanted it in our permanent record of the Bilski case and its aftermath.

Back in 2006, IBM filed a document in the SCO v. IBM litigation that includes five reasons IBM told the court it has what it called "a complete defense" to any SCO claim of copyright infringement, even if SCO had any UNIX copyrights, which a jury in Utah has just ruled it doesn't.

It talks about ELF, Streams, all the oldies and goodies, the claims that survived Magistrate Judge Brooke Wells's order granting IBM's motion to limit SCO's claims as a sanction. Most of SCO's list of allegedly infringed materials, filed by SCO under seal, was tossed for lack of specificity. It wasn't a long list, in any case, as you will see, judging from IBM's math.

I just noticed we never did this memorandum as text. Can anyone help by doing an OCR for us, so we can add it to our collection on Groklaw? Before you say yes, it's long, in two parts, IBM's Redacted Memorandum in Support of its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-infringement (IBM's Tenth Counterclaim}:Part 1
Part 2 Even the title is long. If the SCO v. IBM case gets resurrected, unlikely but conceivable as long as SCO's appeal in the Novell litigation is still pending, it will be important to have this as text. It was never ruled on because SCO filed for bankruptcy, and everything got put on a back burner. In any case, it's important for history.

There's a very interesting case, Media Queue v. Netflix, where Netflix is asking the Federal Circuit to revisit the standard for awarding attorneys' fees. Here's their appeal brief [PDF]. It would like the court to create parity between plaintiffs and defendants. Right now, the system tilts to help plaintiffs recover their fees if willful infringement is demonstrated, which is fairly easy to demonstrate. But defendants wrongfully sued have little hope of success when asking that their legal fees be covered, unless they can prove the claims were objectively baseless or brought in bad faith, a mighty high bar to get over. Netflix would like to change that to allow district courts to have discretion to award attorneys fees when folks bring litigation unlikely to succeed. From the motion [PDF] asking for en banc review, which Netflix is also requesting: District courts should have discretion to award fees when a patentee was objectively reckless -- that is, filed or maintained a lawsuit with an objectively low likelihood of success knowing or having reason to know that it was likely to lose -- or when the court finds that the defendant vindicated an important public interest. If Netflix prevails, it could indeed have an impact on how readily folks initiate questionable patent infringement lawsuits.

If we can't yet get rid of software patents as a category outright -- although, I must say, after reading about this case, you may agree we ought to -- at least savvy patent lawyers can tweak the system so it's not so lopsidedly awful. Yes, there are such patent lawyers. If you download the filings, you'll see that Michael A. Jacobs of Morrison & Foerster is on the Netflix legal team, along with Durie Tangri's Mark A. Lemley. So that drew my attention right off the bat. This case is important enough that amicus briefs have been filed by Amazon, Facebook, Microsoft, Oracle, Toyota, and others supporting Netflix's request for an en banc hearing. Let's take a look. I think you'll want to follow this one.

SCO has filed a motion to stay taxation of costs until after the appeal they just filed notice that they plan to pursue. If you are getting that deja vu feeling, you're right. They did this the last time too. It's almost word for word the same. The last time, Novell opposed, and Judge Kimball denied SCO's motion, ruling that "the court does not believe that a party's speculation as to the possibility of the underlying judgment being reversed on appeal is a valid reason for delaying a determination of costs."

SCO then filed objections to Novell's list of costs. It got it whittled down slightly.

And here is SCO, submitting the same motion on the same grounds that the court said wasn't convincing the last time. Are they just going through the motions, so Novell has the annoyance and costs of having to file an opposition? One might begin to suspect. And no doubt Novell will oppose again. It wants to be paid. SCO even cites the same case [PDF] that didn't work for them last time, that Novell pointed out doesn't support their motion. What in the world is SCO thinking? Are they really trying?

I don't think SCO is giving this their all. Here's what never changes. SCO doesn't want to pay Novell anything if there is any way around it.

SCO has cancelled the bankruptcy hearing that was supposed to happen on the 12th, so don't travel to Delaware:PLEASE TAKE NOTICE that the omnibus hearing scheduled in the above-captioned case for July 12, 2010 at 1:30 p.m. has been cancelled. The next omnibus hearing is currently scheduled for August 16, 2010 at 10:30 a.m.

Poor SCO. They're on a slow boat to nowhere, and they'd rather not arrive just yet, I gather.

SCO has filed its notice of appeal:

07/07/2010 - 881 - NOTICE OF APPEAL as to 876 Findings of Fact & Conclusions of Law, 878 Judgment, 877 Order on Motion for Judgment as a Matter of Law, Order on Motion for New Trial, Memorandum Decision filed by SCO Group. Appeals to the USCA for the 10th Circuit. Filing fee $ 455, receipt number 1088-1150192. (Hatch, Brent) (Entered: 07/07/2010)

As you can see, they hope the 10th Circuit Court of Appeals will bail them out again:Plaintiff, The SCO Group, Inc., hereby appeals to the United States Court of Appeals for the Tenth Circuit from the Jury Verdict entered in this action on March 30, 2010, the district court's evidentiary rulings at trial, Findings of Fact and Conclusions of Law dated June 10, 2010, Memorandum Decision and Order Denying SCO's Renewed Motion for Judgment as a Matter of Law or, in the alternative, for a New Trial dated June 10, 2010, and the Final Judgment entered on June 10, 2010. They're appealing everything, in short, or they'd like a new trial. Because three trials isn't enough when you're not having fun. Speaking of which, I confess. I'm so sick of SCO I could spit.

More hilarity ensues as SCO files its MORs for April. As you'll recall, it was in March that the Yarro loan went through, and both Blank Rome and Ocean Park got paid, $335,296 and $261,645 respectively. Now what happened in SCOville in the following month?

Oh noes. I think SCO is losing money.

: D

My favorite notation is on page 14 of the SCO Operations MOR: Total Cash in SCO Ops BS Hey, hey, SCO. Watch your language on Groklaw please. All right. Kidding. The serious part is how will they pay Yarro back? It'd be a cryin' shame if they had to let him have the company assets instead, what with the professionals getting paid and all. Hardy har. Wait. Isn't that what the mob does? So I hear tell. They loan you money and when you can't pay it back, they take your restaurant.

Simon Phipps is correct: Open Core is Bad for You, the "you" here being you and me, end users: The open core model exploits open source and is a game on software freedom. The fact the game is played does not invalidate software freedom, but it suggests we need to revisit definitions and make the game harder to play.

Open core is a game on rather than a valid expression of software freedom, because it does not cultivate software freedom for the software user. Mark Radcliff worries that the anti-open core position will scare away VC investment. So be it. But here's my question: what is OSI's position in this debate? With both men associated with OSI, it's getting confusing.