Week 2, Day 10 of SCO v. Novell - Chris Stone, O'Gara, Maciaszek, Nagle - Updated 2Xs

Chris Brown
Groklaw

March 20 2010

Other matters kept me from getting to the courthouse until quite late in the day, around 11:30am.

My report starts during the examination of Mr. Andrew Nagle by SCO's Edward Normand.

I understand that by not reporting the entire testimony of Mr. Nagle I am leaving part of both Novell and SCO's presentation untold. This is unfair to the parties but entirely unintentional, I can only report what I can. I believe for our purposes a partial report is better than no report at all. As always, the transcripts are the official source.

Mr. Normand asks Mr. Nagle 'How does this Unix System V release 4.2 compare with the first version of UnixWare?' Mr. Nagle answers, There were a few minor fixes and enhancements added to make UnixWare.

Mr. Normand shows the CD used in prior days and asks Mr. Nagle to explain to the jury what it is. He answers that it's UnixWare release 2.1 (and it's entered as physical exhibit 752).

He asks further, do the files contained on that disc contain Santa Cruz copyright notices?

Nagle: I know UnixWare 2.1 contains the notices.

When asked how he knows, he answers, Because they were added in November 1995 by Novell in the process I'd described earlier.

Mr. Normand refers to exhibit 'A' and exhibit 'B,' exhibits to the redacted trial exhibit 655. (They are photographs of a computer screen) Mr. Normand asks Mr. Nagle to describe the exhibit 'A' screenshot. Mr. Nagle says that it shows the opening page of the online command reference manual for UnixWare 2.1. Mr. Normand asks, It shows the copyright registration for Santa Cruz? Yes, added by Novell engineers in November 1995.

Mr. Normand shows exhibit 'B' and asks, If I asked the same questions would you give the same answers? Yes. He asks, 'you approved these changes? Yes, I did.

Mr. Normand shows exhibit 'C' from trial exhibit 655 and asks, Do you recognize this screenshot?

Nagle: Yes.

Q: And what does it show?

Nagle: It shows the output of "uname" on the command prompt.

Mr. Normand asks further about it and Mr. Nagle explains that "uname" tells all the important information about the system, that this is the output of the "uname -X" command. Mr. Normand asks what it shows. Mr. Nagle reports it's identifying the system as Unix System V release 4.2 MP because UnixWare 2.1 is based on 4.2 MP.

Mr. Normand says, You mentioned RCS. He then asks something to the effect of, Can someone modify the past RCS entries to alter what they say and Mr. Nagle indicates that someone of sufficient skill and password can change anything on the computer.

Mr. Normand asks, To the best of your knowledge, has the copyright registration changes been changed since 1995? No.

Judge Stewart calls a break. After the jury leaves, Mr. Singer brings up that Novell would like to amend their pleading in regard to claims to Unix and Unixware. He states that SCO opposes this. Mr. Jacobs states that in the intervening 6 sears since the pleading, and with the sharpening of the case and additional information, Novell believes it will be confusing to the jury not to change it.

He states that Novell's position has always been that they claim Unix, not Unixware. Mr. Singer says that this was a clear admission by Novell that they slandered title to Unix *and* Unixware. (I'm only presuming this is relation to the APA where the earliest/first UnixWare seemingly remained Novell's and all subsequent UnixWare releases belonged to Santa Cruz. I'm guessing the presumed confusion Novell refers to is what the definition of 'UnixWare' is. Generally in the case, and colloquially, Unix referred to Novell's product and UnixWare referred to Santa Cruz's.)

Judge Stewart said he will give his decision after the break.... Following the break Mr. Singer tells Judge Stewart that the agreement states, Unix and Unixware "at the time of APA" and he is willing to consent to that. Judge Stewart states he will not allow Novell's request (to modify pleading).

Mr. Normand says they have another issue, the deposition objections to Mr. Ryan Tibbitt's testimony. He says that the two parties are not in agreement on the resolution of the objections. (It appears that despite Mr. Tibbits sitting right at counsel's table, his deposition testimony will be used.) Mr. Normand, or perhaps Mr. Brennan, ask how it should be handled, either after court, now, or by objections at the point of the deposition playing. Judge Stewart says he will hear it now.

Mr. Brennan refers to his April 2007 deposition lines 10-18. He said when Mr. Tibbitts was questioned regarding contacts with SCO licensees regarding Questar (Questar Gas is the local Utah natural gas utility which took a SCOsource license which, incidentally, caused me to indirectly pay SCO via my utility bill.), Novell asked Mr. Tibbitts if SCO contends the damages would have been larger had Novell not slandered title? The witness was not allowed to answer based on "work product." Novell never found basis for this. Mr. Normand replies that Mr. Tibbitts is not testifying as a damages expert. That he's not being used for amount of damages or even if there were damages. He will be discussing the nature of discussions with customers.

Mr. Brennan says that the discussions include Questar and the DOD. He says that the DOD line of questions bring Novell's argument into better view. He reads the questions and responses. Novell contends that discussing these customers implies that SCO believes they've been harmed in relation to them but did not allow Novell to cross-examine their witness on them, that every time they asked, the witnesses attorney directed Mr. Tibbitts not to answer.

Judge Stewart originally seemed to contemplate not allowing any testimony with regards to these two specific customers but then ruled (I believe) that the questions from the deposition may be used.

Mr. Brennan said the next area of objections Novell has to the deposition testimony is (something regarding potential customers). Mr. Normand states that Mr. Tibbitts will not answer questions today regarding existing customers. Mr. Brennan indicates that resolves his objection. Please note that I might have reversed the potential and existing customers issue (I suspect some double negatives might have confused my notes).

Mr. Brennan says the third type of objections relates to an item of correspondence SCO sent to Novell, a letter dated October 9th from Ryan Tibbitts to Joseph LaSala. He jumps forward to the question "...remind you, Novell sold for $150 million. How did you come to that figure?" There is an objection by his counsel of "work product." He says that SCO had the same objections regarding several other letters on the same basis. Mr. Normand stated that exhibit 110 is the only one to be used. And that he will not use the $150 million line, he will use other parts. This resolved it, provided there are the redactions.

Judge Stewart turned to Mr. Nagle and said, I hope this makes you happy you're an engineer and not an attorney. Which drew laughter from the court.

The jury returned and Novell's Michael Jacobs cross examined, asking Mr. Nagle, You discussed with Mr. Normand your employment history and roles. One of your roles with SCO was regarding SCOsource. Mr. Normand objected, not subject of his direct, and stay territory. Mr. Jacobs responded that he will not venture into stay territory but that Mr. Normand asked on direct about roles, and this was one of his roles. Mr. Normand asked for a sidebar.

On return from sidebar, Judge Stewart told Mr. Jacobs, "I will hold you to the five minutes though."

Mr. Jacobs asked Mr. Nagle, You were SCO's representative to the OpenLinux consortium?

Nagle: Yes, 2001 to 2002.

Q: Can you describe the OpenLinux consortium?

Mr. Nagle does so.

Mr. Jacobs refers to exhibit I11, SCO's press release dated November 19, 2002. It reports that SCO is part of the OpenLinux consortium, releasing their own version of Linux as part of goal. It mentions SCO Linux 4 as being a stable, reliable, enterprise-class, operating system for mission-critical business applications.

[I believe this is this press release (from SCO's website): http://ir.sco.com/releasedetail.cfm?ReleaseID=95573]

Mr. Jacobs reads "High quality..." from the second line and asks Mr. Nagle if it says that?

Nagle: Yes.

SCO's Mr. Normand states that he wishes to make it clear that he has a standing objection to the relevance of the next three and one half minutes of questioning. Judge Stewart says he takes notice of his objection.

Mr. Jacobs asks if SUSE is a member of the OpenLinux consortium?

Mr. Nagle replies Yes, and SUSE was purchased by Novell one year later.

Mr. Jacobs asks, So one year later Novell will have a version from SUSE?

Nagle: Yes.

Mr. Jacobs refers to exhibit C14. Mr. Normand objects and Judge Stewart says it's noted. The exhibit, whose first 1/3 is redacted, is an email from Mr. Nagle dated May 8, 2003. He refers to the statement related to SUSE and asks if SUSE is reacting to the SCOsource campaign?

Mr. Nagle says, It seems so.

Mr. Jacobs reads that so far SUSE is not losing any sleep over the SCOSource campaign... because of (SCO's) contractual obligations. Mr. Jacobs asks, Isn't it true this was widely reported?

Mr. Nagle indicates he doesn't know.

Mr. Jacobs indicates it's Infoworld, it's widely distributed isn't it?

Mr. Nagle doesn't know, but accepts that it's widely distributed.

Mr. Jacobs refers to SCO exhibit 833 and represents to Mr. Nagle that the hand-written boxing, highlighting, were made on document by SCO. He says the document discusses the activities underway to transfer (something) to Novell. Mr. Jacobs asks, Is one activity listed transferring the source code in Intellectual Property plan?

Nagle: Yes.

Q: Describe the plan under the box.

Nagle: Activites to transfer intellectual property from Novell source code archives to SCO archives.

Mr. Jacobs asks, What is the intellectual property as described?

Mr. Nagle answers, The source code.

Mr. Jacobs, Isn't it the case that sometimes intellectual property can be described as source code?

Mr. Nagle answers, By lay people, Yes.

Mr. Jacobs, The copyright notice practices dated back to the old AT&T days, specifically the sub-licensing agreements?

Mr. Nagle replies to the effect that he's not aware of written practices.

Mr. Jacobs produces Novell exhibit E1, AT&T Technologies sub-licensing agreement with IBM and refers to the top of page 5 of the agreement, sub-paragraph B (2.0.8 section on previous page), and read "each portion... shall contain copyright notice ... or if copyright changes, identify owner of changes." Mr. Jacobs asks, Was it the case if a change is made, the company making the change placed a copyright notice to the change?

Mr. Nagle: ... true, to reflect third party changes for, example, drivers.

Mr. Jacobs, How much code has Santa Cruz contributed?

Mr. Nagle, I don't know.

Mr. Jacobs, Would it surprise you if it were millions?

Nagle: No.

Mr. Jacobs: Would it surprise you if they started with seven million and now it's fourteen million?

Mr. Nagle says he's not surprised.

Mr. Jacobs asks, There's no dispute to Santa Cruz's ownership to that code?

Nagle: No dispute.

Mr. Jacobs asks if Santa Cruz inserted copyright notices to their changes?

Mr. Nagle, We inserted copyright notices only on release, not on day to day record of our changes. But on third party changes we did.

Mr. Jacobs asks what the latest UnixWare is.

Mr. Nagle replies, UnixWare 7.1.4 is the latest.

Mr. Jacobs asks if they added copyright notices to it?

Nagle: Not sure if there was a source code release, but if there was, we would have added to every file since we owned all the source code to Unix.

Mr. Jacobs, At the time of transfer, the existing product was sold as-is without changing the copyrights?

Nagle: Yes, we understood the agreements were controlling, not the copyright notices in the product.

Mr. Jacobs produces a hand-drawn demonstrative on the digital projector which he purports to be the Unix tree. He indicates the trunk is Unix, and the branches UnixWare, etc. He asks, At the time of UnixWare 2.1 it consisted of System V, NetWare code, and Network code?

Nagle: Yes, includes at least that, but other third party code also.

Mr. Jacbos asks, and you placed copyright notices on that code?

Nagle: Yes.

Mr. Jacobs asks, would it be accurate to write "copyright notice" on this branch?

Nagle: Yes.

Mr. Jacobs asks, With IBM's AIX, would it surprise you they would place copyright notices on their release?

Nagle: No.

Mr. Jacobs writes "copyright notice" on the AIX branch.

Mr. Nagle continues that it's his opinion that the copyright notice on the box is more of a notice to come to see me to discuss copyright, not that it's meant to override the legal copyright on the files.

Mr. Jacobs states that he has no further questions.

Mr. Normand, on redirect, refers to SCO exhibit C14, middle paragraph, and asks if Mr. Nagle recalls being asked about UnitedLinux?

Nagle: Yes.

He asks if he sees the second line, "SCO, owner of OpenLinux?"

Nagle: Yes.

On being asks, Mr. Nagle states that none of what they contributed (to UnitedLinux) was part of SCO's core product.

Normand: Did Novell change the copyright notices to SCO on code that Novell now claims ownership to?

Nagle: Yes.

How do you know? Mr. Nagle answers that he was part of the team, that he directed the team that made those changes while he was working for Novell.

Do you recall Mr. Jacob's tree, with the trunk labeled System V and the branch labeled UnixWare?

Nagle: Yes.

Mr.Normand, Was it fair?

Nagle: No.

Q: Why was it not fair?

Nagle: Because System V was in all of the branches.

Mr. Normand produces his own, admittedly bad, demonstrative showing two concentric rings. The center he identifies as Unix, and the outer ring (not much larger) he identifies as UnixWare. He asks Mr. Nagle if it's a fair representation of Unix and UnixWare? Mr. Nagle said he would agree if the outer ring is labeled UnixWare 2.0.

(Reporters comment: Is is simply not possible in this entire case to properly describe the incremental development process of source code? Forget these trees and rings (both are SCO constructs) and use a LEGO house or a stack of paper, a different color for each contributor.... you own your own color.)

Mr. Normand scribbles out the center and asks, If he took away the center, would it work?

Answer: No, it's like selling a car to someone and years later coming and taking the engine back.

Mr. Jacobs then asks on re-cross, Can SCO ask HP to remove the core code?

Mr. Nagle answers, HP has a license, as long they are in compliance, they can use the code.

Mr. Jacobs has no more questions, and Mr. Normand indicates Mr. Nagle may be released. Judge Stewart admonishes him that while he will not be recalled he is not to discuss his testimony with anyone.

Judge Stewart recesses for weekend. He admonishes the jury that, as he first directed them, they are not to discuss the case with anyone or with other jurors, not by email, websites, Facebook, Twitter, etc. Do not read, etc. Do not do any research anywhere, etc. He tells them that they have only heard one side's case and have not heard all the evidence, that it would be inappropriate and unwise to make a decision until they have heard the entire defense's case and to only make up their minds at the end. He then releases them for the weekend.

Counsel for both parties indicate they have nothing for the Judge. Court was held in recess until 8:30 Monday morning.

09:30 AM EDT

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