Law

"IBM believes the Novell ruling effectively rejected all of SCO's claims and effectively granted several of IBM's counterclaims," IBM tells the court in its Memorandum in Opposition to SCO's recently filed motion asking for a status conference to discuss SCO going forward on four of its claims, while keeping IBM's counterclaims stayed by the bankruptcy rules. There is no good argument for going forward piecemeal like that, IBM argues. The claims and counterclaims are too intertwined to do just those two motions without all of IBM's counterclaims, because they can't easily be untangled, and why do it now? It would be a waste of judicial resources:2. Now, before the Tenth Circuit has ruled on the appeal, SCO seeks to pursue several of its claims against IBM, while IBM's counterclaims against SCO remain stayed as a result of SCO's 2007 bankruptcy filing. SCO's claims in this case depend on the outcome of SCO's appeal in the Novell Litigation. If affirmed, Judge Stewart's judgment will foreclose them. Moreover, they are closely related to IBM's stayed counterclaims and should not be litigated in the absence of IBM's counterclaims. While IBM shares SCO's interest in the expeditious resolution of this case, it makes no sense to litigate the case piecemeal. Doing so would waste judicial and party resources and potentially result in inconsistent rulings. Proceeding as SCO proposes would require the Court and the parties to undertake considerable work (on highly-complex issues) that might not be required, and risk litigating the same issues multiple times before different fact finders, depending on the Tenth Circuit's ruling. It speaks volumes that Judge Dale Kimball did not rule on these motions pending SCO's first appeal, IBM points out, and his wisdom in so doing should be informative of the right solution now. If SCO loses the appeal, it can't go forward on any of these claims. But for sure, if any of the claims are tried, they should all go forward together.

Acting Solicitor General Neal Katyal today named Assistant to the Solicitor General Leondra Kruger to the position of Acting Principal Deputy Solicitor General.  Kruger developed a sterling reputation this Term as an extraordinary advocate before the Court.  The interim appointment suggests that the Administration is not immediately poised to name a permanent successor to now-Justice [...]

The Linux Foundation has announced a new compliance program to help companies that wish to use Linux and other Open Source software responsibly know how to comply with licenses. The Software Freedom Law Center is backing it, along with gpl-violations.org, the Open Invention Network, and OSI, as is pretty much every major electronics company, including Adobe, AMD, ARM Limited, Cisco Systems, Google, HP, IBM, Intel, Motorola, NEC, Nokia, Novell, Palamida, Samsung, Sony Electronics, and more than 20 other companies and organizations -- even the Codeplex Foundation supports it. Here's the complete list. There are some new tools, and they are open sourced too, and the program also includes "training, a standard format to report software licensing information, consulting and a self-assessment checklist that will help companies comply with open source licenses." It's not hard to comply, certainly easier, I'd say, than with proprietary licenses, but anything new to you can feel harder, and this is designed help businesses easily and effectively incorporate open source tools into their products without friction. I guess after this there really will be no excuse not to get it right. The press release has links to all the details.

Supreme Court news continues to focus on now-Justice Kagan. At Concurring Opinions, Brandon Bartels expresses doubt that the Kagan confirmation hearings taught us “anything new about the Supreme Court appointment process”’ and concludes that if President Obama has the opportunity to replace a conservative Justice, “we can surely count on a highly dramatic, contentious appointment [...]

Here it is SCO's brief [PDF] in opposition to Novell's petition for a writ of certiorari filed with the US Supreme Court. They did file. Old-timers here will notice that it looks a lot like SCO's opposition brief to Novell's petition [PDF] to the Tenth Circuit Court of Appeals last year, when Novell asked for a rehearing by the Tenth Circuit of its decision on SCO's first appeal. That decision is the same one Novell now is asking the Supreme Court to review. Compare the table of contents on each SCO filing, and you'll see that SCO is recycling. In fact, I was able to just copy and paste their Table of Authorities from the earlier filing, and the only change I needed to make was to the page numbers by one digit. Don't take this case, SCO says to the Supreme Court. It's moot, because we lost in the trial the appeals court ordered and so Novell owns the UNIX and UnixWare copyrights at issue. We are appealing, but if we win, Novell can petition you then. And it doesn't involve a question of importance anyhow, SCO argues. Besides, the court of appeals was right, SCO goes on. The APA, once amended by Amendment 2, is a copyright transfer writing, because it showed an intent to transfer some copyrights. This is exactly what the jury just decided was *not* the case.

SCO would like to sell it. "As is, where is", they say. It defines what it is selling as "essentially all of the Debtors' software business assets". Excluded is SCO Japan and SCO Canada and the litigation rights regarding Novell, SUSE, IBM, Red Hat, etc. You also don't get "Seller's rights and obligations with respect to the SVRX Licenses (as defined in the Santa Cruz-Novell APA)". So... you buy the business, but SCO then contacts all your customers every month or so to collect money for Novell? Caveat emptor, y'all. "Additional Disclosure Schedules may be added Upon Finalization of Agreement," SCO says. Like... um... the buyer? Little details like that? I mean who'd want the business on these terms, I wonder? Ralph Yarro? Darl? Whoever it is, he or she is ready to roll:At the Trustee's request, OPA has begun the process of marketing the Debtors' business by preparing a due diligence room and marketing materials, identifying potential purchasers and engaging in preliminary discussions with certain interested parties. Immediately upon approval of this Motion, OPA is poised to commence the sale process without delay. So. An auction. Kind of like Jeapordy, though, with certain interested parties ready to hit the buzzer. But, you may say, what about Novell? It blocked SCO earlier from selling these same assets:14. Before the appointment of the Trustee, the Debtors attempted to sell their assets and were met with objections by Novell, based on, inter alia, the uncertainty of the Debtors' rights in the UNIX and UnixWare copyrights in light of the then pending Utah Litigation. Now that the 10th Circuit, the District Court on remand and the jury have ruled and the Debtors' interest in the Acquired Assets is clarified, the Trustee seeks to sell the Acquired Assets to maximize value for the estates. What about the appeal? Isn't SCO planning to win? What happens to the assets is SCO were to win? I guess then Novell can't get them to pay off their damages, as the assets transfer without encumbrances. Oh, say. Another smooth move from SCO. SCO wanted payment of the costs to Novell to wait for an appeal, but the assets it wants to transfer asap. SCO really doesn't want to pay Novell, I guess. It sees the handwriting on the wall, and it wants the software business off the table and in a friendly pocket. That's how it looks to me. It also wants to hire a firm, King & McCleary, to do taxes for SCO. It believes SCO lacks the employees necessary to do the job. And the job is federal and state tax returns for *2008* and 2009: Based upon the status of these chapter 11 cases and the state of the Debtors' businesses, the Trustee believes that the engagement of King & McCleary is necessary in order to bring the Debtors into compliance with applicable non-bankruptcy law. Specifically, the Trustee does not believe that the Debtors have the necessary staff to perform the Tax Services internally. 2008? It proposes August 23rd be the date for a hearing on this motion. "Stalking Horse Identified, if any" on October 11, with the qualified bid deadline set for October 5. The documents says there could be one or more buyers. Then the auction on November 1 and a projected closing date of November 30.

Last week we updated our sister site, SCOTUSwiki, to include a number of new filings in OT10 merits cases.  We have added new petitioners’ briefs to the case pages for Sossamon v. Texas, AT&T Mobility v. Concepcion, and Williamson v. Mazda Motor, and a new respondents’ brief has been added to the case page for [...]

On Saturday, in a ceremony attended by (among others) Justices Kennedy, Thomas, Ginsburg, Sotomayor and retired Justice Stevens, Elena Kagan was officially sworn in by Chief Justice John Roberts as the 112th Justice of the United States Supreme Court. The New York Times, the Washington Post, the Los Angeles Times, the Christian Science Monitor, NPR, [...]

The Supreme Court on Monday released a revised calendar of oral arguments for the first session of the new Term, beginning Monday, Oct. 4.  No cases from the previous version have been dropped, and no new cases have been added.  The only changes were to rearrange the order of the cases, to different time slots on [...]

The Court is in recess for the summer; it is expected to return on October 4 for the first oral argument of October Term 2010. The schedule of merits briefs due this week follows the jump. Monday, August 9: Petitioner’s brief in Wall v. Kholi (09-868) Petitioner’s brief in Cullen v. Pinholster (09-1088) Respondents’ brief [...]

This afternoon, Elena Kagan was sworn in as the 112th Justice, and the fourth woman, to serve on the Supreme Court.  Chief Justice John G. Roberts, Jr., (at right) administered the Constitutional Oath in a private ceremony in the Justices’ Conference Room, and then administered the Judicial Oath in the Court’s West Conference Room before a [...]

SCO has filed a motion asking for a status conference in the SCO v. IBM litigation. It would like IBM to be blocked from pursuing its copyright counterclaims, while asking the court to let SCO go forward on its contract claims, which SCO now asserts are not affected by the loss it sustained in the SCO v. Novell litigation. [ Update: See the update, for a more accurate description in detail. But in brief, SCO is asking that two of IBM motions for summary judgment on SCO's claims go forward and nothing else.] That is a puzzling conclusion, in that Novell was ruled to have the unfettered right to waive any such alleged contract violations. And it did long ago do so. The bankruptcy stay, SCO writes, applies only to litigation against SCO, not SCO suing "IBM and others". Note that "and others". So it would like the court to perhaps rule on SCO's summary judgment motions filed years ago, and to the extent IBM has motions regarding two of SCO's claims, regarding SCO's claims for Unfair Competition and for Tortious Interference, they can go forward to a decision. But not the rest of the IBM counterclaims. Here's a Groklaw chart of all the pending IBM and SCO summary judgment motions that were blocked by the SCO bankruptcy in 2007. But, I hear you say, that's not fair. Well. I look at it this way: if SCO started to play fair, it might upset the balance in the universe in the butterfly's wings sense. So it's very careful never to be fair and to stay in character. And let's be real. The only way SCO can win is probably if no one else is allowed to say or do anything. That's the kind of playing field SCO would like. The Notice of Hearing sets August 11 at 3:00 PM before Judge Tena Campbell as the day and time. So I hope some of you can attend. It should be fun. IBM will certainly have something to say about this latest oily move.

Eben Moglen of the Software Freedom Law Center recently gave the keynote address at the LibrePlanet conference hosted by the Free Software Foundation. He speaks about the current state of Free Software, what some of the challenges will be going forward, and what is needed for stage 2, as he thinks of it. In the course of his speech, he also speaks about patents, Microsoft, the growing value of patent pools to protect the community's interests, and about Oracle and MySQL, and why the community needs corporate allies, suggesting a more nuanced and strategic view of who are the community's allies and why: We need to think about the grand strategy of our continued forceful campaigning for free as in freedom. But we also need to be extremely aware of the extent to which we can now capitalize upon the achievements we have already set up and the alliances with forces not necessarily concerned with freedom that our technological sophistication has brought to them. He calls them friends in unexpected places, and he discusses strategic possibilities, particularly with respects to dealing with Microsoft and the noxious patent system. We will need these allies, he says, that we are gaining, and here's why: Microsoft will continue to attempt to get paid for what we do, by forcing people -- or quasi-forcing people through intimidatory conduct -- to take patent licenses to run our software....If we are to quell this nuisance we can only do so in cooperation with others who see clearly that this is a threat to the welfare of their customers.... We try to know what is going on, and we try and respond to it as effectively as we can, and we try to build coalitions with industrial parties outside the limits of the free world, narrowly construed, in order to protect the free world's interests. He ends talking about privacy, and he sees a need to provide federated services and a free, compelling replacement for Facebook and then explain to people why they need such replacements. A member of Groklaw, brooker, has done an unofficial transcript of the video. Enjoy! There are a few places where the audio was unclear, and we've left those without guessing. But if your ears are better than ours, and you can decipher the words, please let me know. We aim for perfection, while recognizing our limitations.

The Supreme Court, without noted dissents, on Friday refused to block the start next Tuesday of a war crimes trial of a young Canadian detainee at Guantanamo Bay — Omar Khadr. The brief order, noting that Chief Justice John G. Roberts, Jr., had submitted the issue to the full Court, gave no explanation for the [...]

FURTHER UPDATE 9:05 p.m.  The opponents of Proposition 8, together with city and county officials in San Francisco, joined Friday evening in opposing any delay in enforcing the judge’s ruling against the ban on same-sex marriages.  No harm will come to anyone else, or to the institution of marriage, if same-sex couples are now allowed [...]

Yesterday afternoon, the Senate confirmed Elena Kagan as the 112th Justice of the Supreme Court by a vote of sixty-three to thirty-seven.  NPR, the Associated Press, the Washington Post, the WSJ Law Blog, the CQ Researcher Blog, USA Today, the New York Times, the Wall Street Journal, the Boston Globe, the Los Angeles Times and [...]

The Supreme Court has issued the following statement with regard to Elena Kagan’s confirmation: Elena Kagan will be sworn in as the 100th Associate Justice of the Supreme Court on Saturday, August 7, at 2 p.m. at the Supreme Court of the United States. Chief Justice John G. Roberts, Jr., will first administer the Constitutional [...]

Here's the transcript as text for day four of the SCO v. Novell trial that began on Monday, March 8, 2010 in US District Court in Salt Lake City Utah and ran for 15 days, Monday through Friday, for three weeks. The Honorable Ted Stewart presided. Day 4 was Thursday, March 11, 2010, and the witnesses on that day, by video deposition, were Jack Messman, Burt Levine, Alok Mohan, Doug Michels, and Jim Wilt. William Broderick then took the stand, live. I know. Lots of witnesses, but it's short snips from prior depositions mainly. Still, it feels like a long, long day. This is still SCO presenting its case. Novell's turn comes later, and Novell's lawyer, Sterling Brennan, in his opening statement had asked the jury to wait for the rest of the story from Novell before reaching any conclusions during SCO's presentation. I have to say though that one inescapable conclusion from the day is that SCO didn't hit any solid home runs, but it definitely got hit in the head with a couple of fastballs. I think Fibers.com has a perfect T-shirt for SCO's Day 4 witnesses. It says: "I reject your reality and substitute my own". It's quite a stubborn performance by one and all. Novell shows them the APA and amendments, and witnesses say it's not what they meant, not what they had in mind.

The Senate has just voted to confirm Elena Kagan as the 112th Justice of the Supreme Court. The final vote was 63 in favor, 37 opposed. As anticipated, five Republicans – Senators Susan Collins, Lindsey Graham, Judd Gregg, Richard Lugar, and Olympia Snowe – voted in favor of Kagan’s confirmation. One Democrat – Senator Ben [...]

The Senate is set to vote on Elena Kagan’s confirmation to the Supreme Court at approximately 3:30 PM. We will report on any developments as they occur. A video feed of the proceedings on the Senate floor is available here.