Week 3, Day 12 in SCO v. Novell - Tolonen, Amadia(Groklaw)

Thanks must go out again to all of those who have attended the SCO v Novell trial and have reported as best they can. And for the most part all of the reports have been very good.

Day 12 is the killer for SCO.

The primary task in interpreting any contract is to ascertain what the two parties actually agreed to. This is called the “meeting of the minds”. And of course you can ask those who participated what they recall about the negotiations. And what their instructions may have been. But, most importantly the determination of what they actually agreed upon is crucial. And that means that they both agreed to the same terms.

It is not good enough that one side thought one thing and the other thought something different. In that case, you do not have an agreement at all. And even in this case, that would mean the copyrights would not have transfered. If there is no agreement, it is voidable or void as a matter of law.

And today we hear testimony from James Tolonen and most importantly Allison Amadia, the Novell lawyer who drafted Amendment 2. And where is her testimony that the copyrights were supposed to transfer? Missing. Na da. Not there. Did not happen. In fact, she testified that the language proposed by SCO was rejected simply because copyrights were not suppose to transfer.

And where is the attorney for Santa Cruz that can testify that the agreement was that the copyrights were transfered? No show. Na da. Not there.

I have to hark back upon a simple statement mentioned here much earlier in this process. The way you defeat a nuisance law suit is to litigate it. The evidence is not there. And when you get into the courtroom that becomes quite obvious.

A lot of people can misunderstand an agreement. Memories can fade. And some can have selective memories or simply see things as they wish it were rather than the way it was.

But, the court and jury are obligated to determine the way it was. The obligation is to find out what the two parties actually agreed to. The “meeting of the minds” is crucial.

Not understanding the deal simply does not count. Not knowing what the deal is does not count either. The only thing that counts is what they actually agreed to.

Most interestingly the testimony does not differ from the written words of the APA and even Amendment 2. They are not in disagreement.

“In disagreement” would mean that evidence is available from both sides that the agreement was to transfer the copyrights but somehow it did not happen or the agreement itself including the amendments were incorrectly written in some way. I do not see any evidence of that at all.

SCO seems satisfied not to call the only witnesses that might have something credible to say. And you can bet your last dollar that each one of those witnesses would be available if they had something worthwhile to say (for SCO). They apparently do not and therefore have not been called. And that is something that even stuck out to Judge Kimball. Why? Because judges know that if there is some dispute as to what a contract does, lawyers for both sides are johnny on the spot and anxious to testify. After they are contract experts, right? And they were there, right? And they live in the courtroom, right? Right. Unless what they have to say would not help out SCO. Then they are missing in action.

I trust the jury can see that SCO's event is not happening here. I know that SCO lawyers can see that. After all, they too know that the way you defeat a nuisance law suit is that you litigate it.

Sometimes the court or the jury can screw it up. The jury in the O. J. Simpson murder trial is an example. But, it is still fraudulent to suggest to a company like SCO that they spend $30 million or more in legal fees to bring nuisance law suits. Maybe SCO management did not care. Extortion does work. Fraud works too. Not all the time. But, unfortunately often enough for criminals and frauds to try it.

I really would like to know what the SCO lawyers told SCO about their chances and what they would have to prove in court. Certainly they knew. The lawyers were not dummies. Perhaps dishonest. Perhaps fraudulent. But, not dummies. The question remains what the SCO lawyers told SCO about the law. Clearly today's testimony is what it looks like when the chickens come home to roost.

I do trust the jury is smart enough to see it.