What the Judge Still Has to Decide in SCO v. Novell

By Anonymous

April 19 2010

That leaves unspoken the answer to whether that means the jury thought it was not the intention of the APA that the copyrights transfer, but I believe that is what they meant. If they thought the copyrights were supposed to transfer, they would have answered that question with a yes. But does Judge Stewart agree?

I was on the jury. In deliberations we agreed that the APA could have transferred some of the copyright rights without necessarily transferring ownership. We agreed that the written contract was the best indicator of the parties intent.

It seemed clear that the intent of the deal was for Santa Cruz to develop UNIXWare, and that they would own any copyrights associated with the new development.

It was also clear that Novell intended to reserve some of the copyright rights to itself, which is how it could expect direct Santa Cruz/SCO how to act with regards to the licenses that produced the revenue stream.

A number of confusing points remained: Frankenburg's testimony that (C) transferred; The board minutes stating they did not; the written contract being the best indicator of the parties intent at the time of the deal; Tor's testimony that (C) were withheld; no testimony from Santa Cruz's lawyers from the APA negotiation; Santa Cruz/SCO doing business until 2003 without the (C) being an issue; Sabbath vs. Amadia in negotiation of A2 (Sabbaths' clerical error vs. Amadia not being authorized to change APA); Why A2 changed only schedule 1.1b and not 1.1a if the intent was to include copyrights; why A2 was so vague as to which rights were required for Santa Cruz to operate; why no one noticed during the review period that (C) were excluded in 1.1b.

The evidence seemed to work out to a tie, and per the instructions we had to find in favor of Novell. We did agree that it was possible for Novell to assign all of the rights of copyright without transferring ownership.

01:11 PM EDT

What the Judge Still Has to Decide in SCO v. Novell

By SpaceLifeForm

April 19 2010

Congratulations on sorting through the mess so quickly.

Did you ever get the feeling that the tSCOG lawyers
were trying to confuse you and the rest of the jury?


You are being MICROattacked, from various angles, in a SOFT manner.

02:10 PM EDT


Evidence came out to a tie?

By cpeterson

April 19 2010

In that case, I would have expected more deliberation.

With all due respect, I am somewhat dubious of this report.

04:51 PM EDT


This point *must* influence Judge Stewart

By dmarker

April 19 2010

It was also clear that Novell intended to reserve some of the copyright rights
to itself, which is how it could expect direct Santa Cruz/SCO how to act with
regards to the licenses that produced the revenue stream.

This is surely a fundamental understanding.

We now have tSCOg behaving badly in regard to the revenue stream - this proving
the worth and necessity of Novell's lawyers needing to include such protection
in the contracts. It surely shoots down tSCOg's logic and completely undermines
their claim for specific performance.


09:04 PM EDT


Definition of "tie"

By bugstomper

April 19 2010

I'm only guessing, and the anonymous juror might come back here and clarify, but
it seems to me that if the jury got to the point of deciding that SCO's evidence
did not prove Novell's witnesses and evidence to be false they could return a
verdict for Novell without having to decide if any of Novell's evidence proved
any of SCO's witnesses and evidence to be false.

Why deliberate any longer once they have decided that Novell achieved at least a

09:09 PM EDT


Get out of here!

By webster

April 19 2010

[This comment is based on the tenuous presumption that an actual juror did post

Anything you say can be used against you or your verdict. People who loose
verdicts use anything they can to attack that verdict, and get off or win a new
trial. Although jury verdicts are hard to attack, whatever you say will be

Your mere posting here will be used. They will try and see if you violated
court orders by clicking on Groklaw. Erase your browser histories. They will
also cross-check your every answer on voir dire to see if you may have hid some
bias and unduly influenced your fellow jurors. Indeed it seems by your
explanation above and the length of time of deliberations that you absorbed a
mass of evidence, organized it and articulated it for the jury whose sentiments
were already leaning as you saw it.

Many here agree with the verdict and don't wish to feed a fertile line of
attack. So "Anonymous Juror" get out; "anonymous" is just
fine. I suggest you refuse to talk to any investigators or lawyers that come
around. Don't sign anything. Every time you say something it can be compared
to another time you said something. This can produce discrepancies,
contradictions, lies even...!


09:29 PM EDT


What the Judge Still Has to Decide in SCO v. Novell

By Anonymous

April 20 2010

No. It would have done SCO no good to confuse the us because that would have
hurt them in demonstrating a preponderance of evidence. Theirs was the burden to
tip the scale in their favor.

If anything they were trying to be absolutely clear that the intent was to
transfer the copyrights and that the exclusion of (C) in 1.1b was simply an
oversight - albeit an oversight by many, many people. In the instructions we
were told that we could consider the parties' intent to clarify the contract if
it was unclear.

The biggest problem SCO faced was not demonstrating Santa Cruz's intent during
the writing of the APA (except for a line or two from a lawsuit in Germany where
the same lawyers for Santa Cruz asserted SCO owned the (C)).

Prior to the APA negotiations it's clear that everything was to transfer,
including copyrights, and after the APA both parties acted as if they received
what they expected - Santa Cruz tried to develop UNIXWare further and Novell
received royalties for SVRX and directed Santa Cruz/SCO how to act with regards
to those licenses.

Without that piece - the intent of the parties as they drafted the APA - all we
had to rely on was the APA itself. Since both parties participated in the
drafting, it's probable that the lawyers for Santa Cruz agreed to the exclusion
(Tor Brahm testified as much, that when (C) were brought up it wasn't given
much notice, as if it weren't unusual).

Also Santa Cruz's officers said they would have noticed if (C) were excluded,
but none of them read the agreement - Doug Michaels' testimony was a hilarious
illustration of that point - or they assumed that the (C) meant the Netware
copyrights. That assumption (which Frankenburg shared) seemed pretty shallow
because each itemization of included/excluded assets was very specific as to
what it was referring. Why assume the same for 1.1b V?

So it appeared that the deal changed, or it was very probably that it did, and
that the lawyers for both sides drafted an agreement to reflect the intent of
each side.

SCO had to be very clear to tip the scale in their favor. They could not afford
to confuse the us.

02:52 AM EDT


Definition of "tie"

By Anonymous

April 20 2010

Well, there were twelve of us, and we each picked up on different points of
evidence. Most of the deliberation was spent trying to work out how we could
come to a unanimous agreement. Do you know how hard that is?

One juror wanted to stand on the signed, un-amended APA alone (he never budged,
BTW - it wasn't me). Another juror thought Santa Cruz couldn't develop UNIXWare
without (C) ownership. Another thought that perhaps Novell was selling for a low
price to cut their losses and run. Another juror spent time trying to convince
us that SCO received an exclusive, implied license to UNIXWare. Other jurors saw
"big-bad Novell" beating up on "little old SCO."

And, we did not have all the information that is posted here. From my
observation, Judge Stewart was doing everything he could to make sure that we
were free from bias and that we remained impartial, and frankly (no offense
intended) some of the info here is kind of inflammatory, and would have hindered
us in reaching a decision.

Ultimately, on Tuesday, we sat down and read through the instructions and the
law again. We knew that we were to be the finders of fact. So we took the
evidence piece by piece and determined how much weight, if you will, each piece
added to the scales. Ultimately, we couldn't tip the scales either way because
of the questions we couldn't resolve against the other.

The instructions said if we couldn't determine SCO had proved a preponderance of
evidence (i.e. make the scales tip ever so slightly in their favor) we must find
for the defendant.

And we did.

Once we checked the "no" box, we were done.

And, you can have Chris (I think he was there) go ask Dino at the Royal Eatery
what the two favorite orders of the jury were, if you need confirmation. Answer,
Mountain Dew and onion rings.

I came here because this is the only place I could find that is following the
case, and I want to see how it turns out.

And, PJ, to confirm, I had never visited Groklaw until after the trial.

03:20 AM EDT


This point *must* influence Judge Stewart

By Anonymous

April 20 2010

Well, from the jury's point of view, we could only look at 4.16 to determine the
intent of the parties, and 4.16 showed us (the jury) that Novell intended to
reserve some part of the (C) to itself.

I think the actuality of 4.16 is still before Judge Stewart.

03:23 AM EDT


Definition of "tie"

By ChrisP

April 20 2010

Anonymous Juror,

Much as I enjoy reading your insights into the jury deliberations, you really
should take Webster's advice (he's a lawyer by the way) and "Get out of

Delete your browser history and anything else on your computer to do with

Refuse to speak to anyone from now on about the jury deliberations. This
includes friends, investigators, lawyers, reporters etc.

Don't sign anything.

SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.

09:18 AM EDT


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