And we thought they were dead :-)

Jeffry Smith jsmith at alum.mit.edu
Sat Jul 10 09:13:57 EDT 2010


On Sat, Jul 10, 2010 at 4:24 PM, Jerry Feldman <gaf at blu.org> wrote:
> Actually they have 2 law firms, BSF, and Hatch, James and Dodge (Utah).
> Yes they did pay in advance.

BSF are the ones handling the lawsuits.  They signed up through the
appeals process.

> Recall, when the jury said that Novell
> owned the copyrights, they sent a motion to Judge Stewart to vacate that
> verdict, and the judge denied the motion. The 10th circuit sent the
> appeal back to Judge Stewart's court, I wonder where they will send the
> appeal this time, maybe back to Judge Kimball :-).

Judge Kimball rules as a matter of law the contract was clear, and
tSCOG didn't get the copyrights.  tSCOG appealed to the 10th circuit
that it should be a jury who decide.  10th Circuit ruled ruled that,
even if Judge Kimball was right (they actually stated in their
decision Novell had compelling arguments), it was for a jury to decide
(as tSCOG asked for), and sent it back to the district court, where
Judge Kimball recused himself (for reasons I don't recall), so it
ended up with Judge Stewart for jury trial.  The jury (which tSCOG
asked for) ruled tSCOG didn't get the copyrights (probably not helped
by Darl testifying they didn't need the copyrights to conduct business
under the APA, only for their new extortion scheme).  tSCOG appealed
to Judge Stewart on the grounds, basically, that the jury they had
asked for had to be wrong (to quote a movie line "I object on the
grounds its damaging to our case").  Judge Stewart denied their
appeal.   Now they're appealing back to 10th Circuit that both the
jury (that they asked for) and Judge Stewart must be wrong, because no
one could possibly rule against them.  My suspicion is the 10th will
deny them this time, but IANAL, so who knows?

> I would suspect that
> this is only a formality, and they plan to appeal to SCOTUS.

I suspect they'll continue to appeal as long as they can.  Of course,
there's no requirement SCOTUS hear the appeal :)

> Maybe Ralph
> Yarrow will sponsor another law in Utah that can be applied retroactively.
> I'm really wondering who is actually driving this whole thing. Is it
> Judge Cahn (ch. 11 trustee) or BSF, or Yarrow.

That's a great question.

> Remember that Yarrow is
> the major stockholder (if I recall) and did loan them some significant
> money in Ch. 11.

He did loan - and if they default or go into Chapter 7, he gets all
the assets, with none of the liabilities (IBM suit, etc).  They're
attempting to sell the Unix agency business (but not the Unixware
copyrights) to someone (notice they are claiming in the suit that this
couldn't happen, so Novell must have sold them the copyrights).  They
sold off Me, Inc to Darl (for less than the cost of doing the sale -
how that managed I don't know, but the Bankruptcy Court approved it).

> It's possible that they are trying to dry up the pool
> so they don't have to pay Novell anything.

Supposedly they've set up a trust for an agreed-to amount.  We'll see.

> In any case, what is the next step. Will IBM and Novell try to place SCO
> in ch 7 again. In any case the saga continues, and Linux is still in
> jeopardy until this case is finally put to bed.
>

Linux is safe, in my opinion.  It's too widely used, and so far tSCOG
has presented no evidence (to quote Judge Kimball "Is that all you've
got?:")



jeff


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