Did SCO argued that Copyright must had transfered because they need it to start SCOSource?

I heard the news yesterday my time: SCO did not have t he copyright!

That is great news instead. But it is not over.

From what I read from the Groklaw members’ account from the court house throughout the trial, it confirms to me that the  opening statements are about setting the tone of the trial, the main body of the trial, where witnesses are called,  is simply to present piecemeal information, and the closing argument stitch all of them together into one coherent argument. That was why I was rereading the eye their account of the closing arguments from SCO again and again to try to understand their arguments.

The notes are patchy compared to a transcript and I do hope we will get to see the transcript one day. May be I was reading it one to many time and starts to see things that are not there. For sure, none of the Groklaw members’ had that impression. I need to see the transcript, but I have the feeling that it is possible that SCO is arguing since they need the copyright to pursue the SCOSource business, therefore Amendment 2 must had transferred the copyright?

Far fetch? Yes. We however knows that SCO is good when it comes to tinkering with the impossible. Think about it. It is not improbable.

SCO bought the Unix business from Novell. The Unix business SCO brought is, as SCO will argue, not restricted to collecting and remitting royalty. Most importantly, it allows them to start new businesses or as they would argue, expand the Unix business they bought. Amendment 2 is a promise from Novell to transfer copyright to SCO if they need it for the Unix business they bought and crucially this will include any new business or expanded Unix business.

Since  SCOSource is an expansion of the  Unix business, therefore, Novell, by nature of Amendment 2, must transfer copyright to SCO because without it, there is no SCOSource.

I know this is not what a layman actually understands when one read the Asset Purchase Agreement and the amendments to it. However, it is a valid prong of attack. After all, the APA is indeed vague on the expansion of the Unix business SCO acquired in this direction. Sure, it covers new potential licensees to the Unix source code, but anyone reading it would says it only covers people who use the source code directly and does not cover Linux, whose independent development from Unix is very strong. Moreover, most people in the technology world would had say that this is simply lawyers tidying up loose ends in the APA. Nobody expects any new people to pay money for the old source code, but existing licensees may want to expand their rights. Unfortunately, wording to tie up loose ends can have unintended consequences, and SCO hope what it wants to do qualify.

I think in some sense, Novell’s lawyers, intentionally or unintentionally, covered this in their defense. They draw a big bright line between SVRX (the Unix code SCO bought the management right to) and UnixWare (SCO’s own Unix). By separating the two, they strengthen the argument that the Unix part of the business do not cover the expansion that SCOSource wants and need.

Anyway, enough of speculating. Let’s just wait for the transcript. I don’t think I am right, but will be interesting to see whether it is just remotely possible that the lawyers had argued this.

SCO’s case can be, from the point of jurors, stronger than what it should be

Having followed GrokLaw‘s coverage of the SCO vs Novell trial, and from experience of following the coverage of Pirate Bay trial, I must, however, reluctantly, concludes that SCO chances of winning the trial had improved considerably.

Why? By necessity, the jury are fed an abridged version of the whole story. They don’t have access to all the facts that we possess. This abridged version, compared to the real story, put SCO is slightly better light. The Appeal Court had sent the issue of whether copyrights was transferred backed to them. The Appeal Court wants them to sort out whether the language of the contract did transfer the copyright. Unlike us, they won’t know precedence in case laws had made it extremely difficult to transfer a copyright. It is mainly due to the fact that they simply do not have the time to digest the intricacy of copyright law. That may be a good thing as it makes them more open-minded. However, it does make Novell’s case weaker and at the same time makes SCO’s case appear stronger.

What we have from Groklaw is amateur reporting. That is great. Without them, I won’t not had such detail account of the trial progress and probably will not think that SCO’s hand is stronger in the trial phase. However, because they are amateur, they don’t have the experience to realize and capture important points that juries will take note of the way a trial lawyer or a seasoned journalist would. Take for example, SCO has been saying that Novell ‘admitted’ that SCO has the copyright when one of its press statement says “SCO appears to have the copyright” (emphasis mine). Did Novell managed to impress on the jury that this is just a preliminary statement and upon further investigation into the language used in Amendment 2, they realize that it is not the case? Another example is SCO saying that the sentence to the effect that “Novell has retained the copyright” did not appear on Novell’s Board agenda but in the Minutes can have a rather mundane explanation? From experience I know that agenda is not there to capture everything that is to be said in the meeting, but just give the participants an indication of what to expect. The proposer normally has a separate sheet on what he wants to discuss and bring it to the meeting. After discussion, the content of the discussion sheet then goes into the meeting. Therefore it is not unusual to have “copyright not transferred’ in the agenda, as it would regarded as detail. SCO is trying to do two things here: (1) exploit the naivety  jurors who have limited experience in medium to large corporate environment on the role of agenda vs minute, and (2) Trying to raise doubt that the ‘copyright not transferred’ is an afterthought and therefore not part of the original negotiations. If the latter is true, which I doubt, then I have two things to say: (1) Novell’s Board did a good job. It is there to scrutinize the business, and it performed its duty flawlessly; And (2) if that was the afterthought, it will be so important that this will be communicated to the negotiation team at once for immediate action.

I have no experience of trial, nor am I a lawyer or anyone who has the opportunity to experience a trial first hand (and I hope to keep it this way).

Did the judge helped SCO? Or is he biased against Novell? Let’s not forget Judge Wells and Judge Kimball had also bend over backwards for SCO. Judge Kimball then rule overwelmingly against SCO. For judges, it is important not only to be impartial, but also to make sure any judgement is as watertight as possible to give the appeal courts less chance of reversing the judgment. If they sensed that one party’s case is weak or very weak, they will use the opportunity to make the case more watertight by  lend over more for the weaker party. That is not to help them, but the selfish desire to make sure the judgment from their court stands by removing as many excuses as possible for the appeal. Therefore, my reading is Judge Stewart is trying to tighten his judgment and not helping SCO.

The jury has retired to consider their verdict. Let’s hope they arrive at the appropriate conclusion. Whatever the jury decides, I don’t think it is going to be the end of it. SCO has nothing to lose if it appeals the decision. Novell has already a petition to the Supreme Court awaiting approval.

Same problem, different treatment

I was always wondering what happen if Germany warns its citizen not to use Firefox instead of Internet Explorer. I got the answer: We have radically different atmosphere as predicted.

First, the response is rather muted when the advisory first came out. Instead of big headline slamming the maker of Firefox, most people seems contented to sweep it under the carpet.

Now came the news that Firefox fixed the bug one week ahead of schedule. We are going to have a field day celebrating it. TheRegister’s fired its salvo with the byline “Have that, German Government” and it is not going to be the only one.

Are we hypocrates for treating the two differently? I think so. In situation such as this Microsoft exhibits a much better behaviour than us.

Worth celebrating? Any important bug fix is worth the celebration, including when IE fix its bug. Is it a model that IE should emulate, i.e., try fixing it as soon as possible and not wait for the next Tuesday or any day for that matter? Perhaps. I am not sure about the real value of putting a fix out at the first available moment.  For most people, they are and will still be vulnerable, until their firefox will only get fixed the next time firefox checks for update. How is this different from waiting for next Tuesday?

Empty Gesture From Google

I already said Google’s threat to quit China is hot air, nothing else. China sees through it, and I suppose its rivals is praying for a miracle as well.

So, after months of negotiations, what do we have? Google simply decided to redirect searches originating from mainland China to Hong Kong instead of censoring them. To the rest of the world, Google had stood up to China, or did it?

This BBC article on the subject says that results from Google’s Hong Kong server will come back censored. Since Google knows that, therefore, in my opinion, Google had capitulated and sold its mainland China out.

From the PR viewpoint, Google managed it well. It could had turned ugly for Google, i.e., seen to be capitulating in front of the world stage for starting the fight that it cannot even hope to win. Instead, it pull the wool over our eyes as to most of the world it stood up and ‘win’ the war by stopping censorship. Did it?

This is a well-planned PR campaign to take a jab at China. Fighting censorship is only the weapon of choice, Google’s motivation is embarass China over the espionage chaims. In that sense, it was successful.

Guess what? I believe China was prepared to take the punch.

While I think China’s censorship regime is too harsh, I cannot help but be happy that the rule of the land rein supreme in this case. If Google succeeded in this case, what is its next chanllenge? Not that Google is going to do it, peddling drugs with impunity?

What you hear is not necessary what the court hears, nor the jury

In the case of SCO, we know that already. SCO made a lot of noise in public. However, when it comes to the time when it is time to put beef into their argument, i.e., put forward their argument to the court, they chicken out. What we seen presented to Judge Kimball was not what we heard from SCO’s public statement. I expected that.

Not being a lawyer, and as my job does shield me from the real business world, I am a bit surprise to find out that they are presenting a different picture to the jury from that given to Judge Kimball. I am following the jury trial of SCO vs Novell as reported by Groklaw. It is a bit tedious, and I had never sensed that SCO was changing its story. However, obviously Novell sense it. It’s lawyer had decided that it is worthwhile trying to show the jury that SCO had change its tune for their benefit and therefore willing to risk the jury being prejudiced against Novell  by hearing that the appeal court had overturned Judge Kimball’s judgement.

No doubt Novell is going to introduce all the noises SCO had been putting out in the public. That will make things more interesting.

My take of the trial so far? It is still “he says she says”. Is this a turning point? I don’t know. What I know is since we only have one more week to go, any turning point that has to turn up will do so in this time frame. Who knows whether SCO might suddenly discover something and we will have a Perry Mason moment.

O’Gara reputation under the wheels, courtesy of SCO

What does a journalist fear most? To be shown to be biased. Not being accused of being biased, but proven to be one.

What does a opposing lawyer’s want most? To prove that a journalist voting for the other party is biased.

That sets the scene for Ms O’Gara grilling in the SCO vs Novell lawsuit and explains her combative mood. We got a glimpse on it on a submission by (PDF from GrokLaw. Groklaw coverage here)

There is another lesson to learn in this saga: Bring your own lawyer. SCO’s lawyer has no squirm in making public excerpts of the transcript available to argue for SCO, regardless of what it will do to Ms O’Gara’s credibility. Moreover, I do not see them objecting in the defense of Ms O’Gara in the deposition.

One word of caution: What we have is excerpts from the deposition, not the full deposition. In particular, the part just immediately after the infamous ‘Who is PJ’ article which got O’Gara fired from SysCon is missing. May be the lawyers moved on, may be not, I would prefer to determine myself instead of leaving it hanging.

Take home messages? One: O’Gara is right to say PJ is biased, but I won’t not agree that she is unbiased as she claimed. There is no love lost between the two women. We know they don’t like each other. PJ made it clear long ago, and O’Gara more-or-less confirm that the feeling is mutual in the deposition. Two: From the excerpt, Novell’s lawyer is definitely trying to link Blake Stowell’s “I need you to send a jab PJ’s way” email to that article, and O’Gara did her best to deny that, saying that article is her initiative instead and has nothing to do with the email. My take? The email is the straw that broke the camel’s back. O’Gara probably would had done it without Stowell’s email, but Stowell’s email did clear one potential obstacle.  Three: Ms O’Gara is not sorry and stand behind the ‘Who’s is PJ’ story. What can I say? it is only to be expected that she had chosen behind whatever she wrote. To tell the truth, I can understand why she is not sorry about the article. PJ’s decision to not to divulge her true identity makes any effort to uncover her true identity a potentially good story and the increasing tempo of the spat between the two is coming to a boil. Then, SysCon’s editors did not see anything wrong about it initially. One is even quoted to ‘stand behind’ O’Gara. It took them quite sometime to change their mind. The length of time it took for them to make this decision raise this lingering doubt in my mind: Did SysCon let her go because she had become a liability? i.e., the decision to fire her was a business decision, not because they think she had done anything wrong. It does not, however, mean I agree with what she had done.

Finally, fair disclosure. I tried my best to be unbiased in this blog post, but I have an inherent bias toward Ms O’Gara, if you haven’t noticed.

BBC’s has its own definition of open source?

Either BBC has a convoluted idea what ‘open source’ means when it comes to media or my understanding of ‘open source’ in software/content does not apply to medias. As a result, I am totally confused by the BBC’s blog post that aims to clarify the iPlayer issue.

I won’t call WMV, H.264, 3GP, MPEG open source format and a link to Wikipedia’s definition of Open Source doesn’t make them open source.  Moreover, I cannot see how using SSL, RTMP, RTSP, HTTP, means one’s content delivery method is open source. If I use the definition in the article, Windows is an open source product because it uses components licensed to it under BSD license.

Why is BBC adding to the confusion of open source and BBC content? Just come out and say we use open source product but our content are not subjected to the open soruce requirement. Finally, we want to control the player you can use to view our content.

BBC is free to police its content,  and I accept and expect any third party applications who wants to consume BBC’s content to follow reasonable restrictions, such as deleting program after 30 days. However, simply making content available in open (source) format does not make you quality as open source, especially if you want to control which players you want people to use.

Tax yet, but it cannot be used to reward bad software writing

Microsoft’s Scott Charney suggests a tax on the internet to defray the cost of combating cyber crime. Will I pay it, may be.

It all depends on what the tax money is paid for. According to the article, Chaney was thinking about taxing us “to help defray the costs associated with computer security breaches and vast Internet attacks”. I can see myself paying money for the later,  we need to combat child porn, phishing website, spams, Nigerian scams and arguably big DDNS attacks.

As for fighting computer security breaches? Up to a certain and very limited extents. Probing individual computers for vulnerability and email the responsible person, yes. I am not talking about surveilence, big brother behaviour, policing, just general watch, i.e., like police patrol around the neighbourhood.

As for paying software companies to fix flaw in their softwares? NO WAY. That will be rewarding bad software writing.  We not only don’t want to reward that, I propose to use this tax money to give them the stick instead. For example, detecting and fine internet users who do not secure their computers. This way, software companies will be forced to deal with the flaws or face the warth of their users.

Bid to take Novell private

Someone is trying to take Novell private. That Reuters’ piece is also interesting for another reason: It is filed in Bangalore.

Anything sinister or it is just a investment smelling an opportunity to make money on an undervalued company? Let us wait and see.

What is the sinister side you might think? For me, it is Microsoft orchestrating this move in order to buy Novell. Strategically it makes perfect sense. If I were microsoft would stay in the background, let a third party do the work of taking it private and promise to buy it from them for say cost + 25%, for two reasons: (1) My rivals, especially my competitions, will drive up the price if I publicly want to buy Novell and (2) It is easier to buy a private firm then a publicly listed one: Just look at the Microsoft-Yahoo tie up if you want a recent example.

I think Microsoft has plan to buy Novell. It makes sense because Microsoft needs a ‘Linux presence’. Acquiring Novell, which is by Microsoft’s cash pile standard, cheap, give it the market share it needs to make its presence felt in the Linux sphere of influence. The Microsoft-Novell’s deal, to me, other than the GPL controversy and the IP FUD, prepare the groundwork for the purchase as well. How? Microsoft selling SuSE coupons. If it sells well, and the company wants us to think that it sells well, it helps convince skeptics to take the plunge.  It also buys time for Microsoft to make up its mind. And finally, it is also an experiment to see whether a close tie-up of Microsoft-Novell or Microsoft buying Novell is a better business solution.

I cannot see any downside for Microsoft buying Novell except on public relation ground. Public relation alone is not going to stop a hard business head like Microsoft to abandon a business move. That is actually what I like about Microsoft.