CyberTech Rambler

March 29, 2010

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

Filed under: Uncategorized — ctrambler @ 7:30 pm

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.


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