Day 5 of the SCO v. Novell Trial & Some Help for Journalists - Mattingly & Broderick

Day 5 of the SCO v. Novell Trial & Some Help for Journalists - Mattingly & Broderick - Updated

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Groklaw

March 12 2010

I was there with my red dress on, carrying two pads and five (not just two) pens. Nobody seemed to notice the red dress lapel pen from the American Heart Association, though.

Before I do my full report, a couple of highlights:

Groklaw was discussed (with jury out of the room) twice, with respect to the Maureen O'Gara deposition. The first was to strike a mention of Groklaw; the second, a mention of pj. In the end, Judge Ted Stewart observed that if we can't trust the jury to follow his admonitions, we'd just as well quit. It's not clear just how much will be allowed in the end. I see you have an article up that may be about this, but I won't get to read it until I finish reporting.

Our friendly neighborhood Salt Lake Tribune reporter was there for the whole thing. He seemed friendly with the SCOGlings, but didn't seem to talk to Novell's side. I went up to him and mentioned that 'it must be nice to cover a story in person, rather than sitting around doing telephone work'. Then we got serious. I mentioned that Groklaw had been following his stories, and was dissatisfied with the one-sidedness. He said he had gotten some emails about it. He complained of having trouble finding things on Groklaw, agreeing that there's a lot there. He couldn't find the search function; I couldn't help, because I use the red-dress essayage style, rather than the default that he would use. His bottom line was that it's still SCOG's turn, so that's all he has to report on.

Picking up after 10:00 AM break.

10:16 Judge Stewart enters; Broderick to witness chair; jury returns; continue cross-examination by Acker.

Discusses APA Sch 1.1b, Exclusions. Broderick doesn't want to discuss this, because it has been changed by Amendment 2.

APA Attachment E, Copyrights acknowledged by Seller. On this 7-page list, only the last 4 items are code, and they date from 1978.

Q: Is it true that flavor creators didn't have or need copyrights?

A: That's true.

Discusses SCO 641 (exhibit?): shows Novell copyright notices through 1995.

SCO L6 and L7 show new Software License Agreements by Santa Cruz in May, 1996. **[Thus, Santa Cruz, without copyrights, could and did enter new SLAs. At least, I think that's the point here]**

Broderick says that APA 4.16a only covers binary licenses.

10:48 Broderick redirect by Normand.

Q: Can a literal contract interpretation be absurd?

A: Yes.

Q: If a contract is ambiguous, do you look at performance?

A: Absolutely.MO Ambiguity means two interpretations of wording.

11:08 Ty Mattingly, Direct by Singer

Close friends with Ryan Tibbits since BYU days. *[I watched Mattingly and Tibbits leave the courthouse together at the end of the day's festivities.]* Still friends with Bradford at Novell, too. Owned about 9000 shares of Vultus.

Mattingly identified himself as the 'high-level business negotiator' for Novell, in the Santa Cruz deal. Chatlos was the detail business negotiator, and Tor Braham was the lawyer. He was fairly dismissive of Braham's role in the transaction, as a lawyer who just wordsmithed the meeting of the minds that he and Chatlos had hammered out. He testified that he and Chatlos had drafted the Memorandum of Understanding (MOU) on a six-to-eight week trip to California **[check my number recall, here.]**, then they left town since their part was all done. It was Braham's job to write up the MOU in legalese.

Questioning turned to 9/18/1995 Board of Directors meeting. But first, Normand had Mattingly establish that Bradford produced the exhibits for most BoD meetings, and then presented them.

Bradford circulated a letter dated 9/15 (Friday) for the 9/18 (Monday) meeting. It had an attachment, being the term sheet for the Santa Cruz deal. The term sheet didn't cover the copyrights, says Mattingly, so the minutes of the BoD meeting must mean that Novell retained copyrights only for retained products.

11:40 20 minute recess **[which I was well ready for]**.

12:05 Judge Stewart returns. Discusses jury instructions with counsel. He seemed a little peeved about the subject (but maybe not), and called for them to be submitted Monday.

Jury returns. Mattingly cross-examination by Brennan. They had a little byplay about whether Mattingly knows Brennan from a deposition or whatever. Brennan had been at BYU when Mattingly was, but not studying engineering.

The Santa Cruz deal was codenamed "sleighride" at Novell; "Rhine River" was codename for HP deal to expand Unix availability on Intel processors **[Was this the 64-bit stuff? Mattingly called it x86, though.]* *

Mattingly found a bunch of Novell documents in his garage during the last quarter of 2009, and turned them over to Ryan Tibbits. It appears that Tibbits finally gave some of them to Novell's counsel today. This included NOV045, an undated draft of the APA, with a notation, not in Mattingly's hand, of the date 9/16/1995. This draft had an exclusion in 1.1(b) that did not appear in the final, excluding patent licenses. This was on the line above the copyright exclusion.

**[The inference seems to be that deleting the patent-license exclusion would call attention to the copyright exclusion: if the copyright exclusion were a scrivener's error, it really should have been caught when that line got renumbered.]**

Mattingly has had disputes with both sides. He maintained that Vultus was undervalued (or Caldera overvalued) in the sale. Since he held about 9000 shares of Vultus, he took a hit, he says. He also claims a hit over Novonix, a joint venture between Novell and Netscape, due to valuation issues.

*[His description of Novell retaining the royalty stream indicates that the royalties were not to be consideration in the Santa Cruz deal.]*

He will make the garage documents available to Novell's counsel; therefor, he's still an active witness so that he can authenticate them for the record.

13:16 Mattingly redirect by Singer.

Mattingly says that business folks are better than legals as information sources. Someone said "Legal work on both sides was sloppy.": my notes seem to indicate that it was Singer or Hatch, not Mattingly, that said this, but they're not clear.

Jury excused for weekend.

More discussion of the MoG deposition, and whether to strike what about Groklaw and PJ. This is where Judge Stewart made his remark about trusting the jury to follow the admonitions.

08:32 PM EST