No Verdict Today, the Final Day, in SCO v. Novell(Groklaw)

It is true that trying to handicap a jury is almost impossible.

But, the jury system is the best we have.

And remember that the jury's primary responsibility is to weight the credibility of the witnesses. Who do you believe?

Certainly many of the arguments coming from Novell addresses this charge. Do you believe a bunch of people who were not there or have a financial stake in the outcome? Or, do you believe the professions who do not have any interest in the outcome?

According to the reports (thanks again to all who have attended and given us their reports) the SCO lawyers tried to suggest that ten people would not lie. Well, perhaps. But, that lawyers carefully left out the possibility that they were simply misinformed or misunderstood what the agreement was. And clearly, that lawyers concluded that was the case. And that is why he left out that possibility. Hopefully the jury can test that possibility themselves.

And it is interesting that SCO lawyers even addressed the lack of testimony from Santa Cruz lawyers. Yes, sometimes law firms do disappear. Their files do not however. No lawyer I know of tosses out legal files. They remain protected for years and years. If for no other reason to allow the lawyers themselves to protect themselves. From suits claiming that the intent of the parties was to transfer the copyrights but the agreement failed to do so? Just an example.

The truth is that SCO lawyers contacted every single attorney that was involved in the original APA and Amendments. How do I know? It would be malpractice not to do so. They had to contact them. Even if they moved to Burma, etc. You know they were contacted. And what was the result of that communication? Most likely those attorneys told the SCO lawyers that they could not offer any testimony that could help SCO today. They are lawyers. They know precisely what kind of testimony could help. And they could not offer it.

And as for the one attorney that was deposed but not offered as a witness it is hard to tell. Clearly SCO lawyers did not leave a stone unturned. Unless they only found mud and a bug or two underneath. And it is possible that testimony could be uncovered that the elusive 2nd amendment was available to SCO much earlier than claimed. I never did believe the claim that a paralegal or clerk somehow stumbled upon it as reported. It simply makes no sense that all of the relevant documents were not fully reviewed by both Santa Cruz and Caldera lawyers before their transfer took place. In fact, if they only found the original APA instead of both the APA and amendment 2, they would have simply made reference to the APA instead of telling Caldera that the chain of title for the copyrights was not provable. You do not need to even look for a chain of title if the agreement (APA) clearly says they were excluded. But, if you are confused by the amendment and have to ask, the missing chain of title becomes the issue.

The truth is that lawyers and judges (all of them) know that lawyers are always available for testimony. And the only reason they are not called in cases like this is because one side decides that calling them does not help their case. Claiming lawyers for a major transaction like this are somehow “unavailable” is pure poppycock. All the lawyers and judges know that. Judge Kimball mentioned it. Even the appellate court noticed it but as I recall did not mention it. There may not be any reason for the appellate court to mention it. But, that court did say Novell had a strong argument. And in part the appellate court may have suggested a trial would necessary in the hope that those elusive witnesses might surface. Fat chance, right? Well, one of them did get deposed just recently. But even he was a no show for some reason or another. Judges and lawyers do not need to know the specific reason. But, they all know that SCO is hiding it. Whatever it may be.

The truth is that the pending petition before the US Supreme Court is critical here. Although the Novell lawyers were restricted from arguing that the APA and Amendment can not challenged at this trial as not being a sufficient writing, the pending appeal should focus squarely upon that issue. A written document does not mean the writing is sufficient to satisfy the requirement that transfers be in writing. And it would be very good law for the Supreme Court to hear the Novell petition and decide that if the writing itself is not sufficiently clear, the transfer fails regardless of what witnesses may possibly testify too. This issue goes beyond simple contract law. Congress actually decided that copyright transfers had to be in writing. And I am sure they never intended extrinsic evidence to compensate for an ambiguous writing. If the APA and amendment can even be considered to be ambiguous. I do not consider that to be the case. And I am sure that the lawyers who drafted the APA and even the amendments did not consider the agreements to be ambiguous either. They may be somewhat unclear to third parties. But, I did not hear any testimony from any of the lawyers about how ambiguous the APA and Amendment 2 was. Of course, that would be an admission that they help draft a lousy agreement (an unclear one). No where does it say all copyrights transfered unless proven otherwise. I am aware that SCO lawyers tried to make that argument before the appellate court. But, that is not what the Amendment 2 says. At best (for SCO), it provides a standard by which SCO could prove they actually needed the copyrights. But, then Santa Cruz did not even own the copyrights for Nexis. Microsoft held those. So it was very likely that Santa Cruz was unconcerned about the lack of copyrights. It knew it did not need them. And in fact, McBride? testified that SCO did not need them either to conduct their UNIX business. They only needed them for the SCOSource extortion. Or, the racketeering business. I trust the jury picked up on that.

So we await the jury deliberations.