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Groklaw member webster attended the en banc oral arguments in In re Bilski today before the US Court of Appeals for the Federal Circuit in Washington, DC. This is the case trying to figure out precisely what is and is not patentable and whether or not to overturn State Street Bank v. Signature Financial Group. You may recall that Red Hat submitted an amicus brief in the case (text). There were many, many amici briefs. To give you the picture of one in support of Bilski getting its patent, here's the amicus brief [PDF] by the American Intellectual Property Law Association, in support of the appellants. IBM's [PDF] argues that there should be no business methods patents.

Today was the hearing in Skype's appeal of an earlier judgment against it for a GPL violation. Harald Welte, as part of the gpl-violations.org project, brought the matter to court in Germany back in February of 2007, seeking to enforce the GPL against Skype. The case is Welte vs. Skype Technologies SA, and he won an injunction in the lower court. But Skype wanted to appeal to the higher court in Munich, alleging ... hahahaha ... well, something about antitrust, à la Dan Wallace, I gather. You'll recall the Wallace v. FSF appeals court ruled on that theory in the US already: The GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers. These benefits include lower prices, better access and more innovation.

Just in case Skype is thinking deep second thoughts tonight.

Well, today was the hearing, and Welte reports that one of the judges told Skype's lawyer that if a copyright owner wants a publisher to publish his book in a "green envelope" (dust jacket), it might seem odd to the publisher, but he can't publish without the green envelope. In short, don't touch the GPL code if you don't follow the requirements of the license.

Like it or lump it. I think that's how one would translate into English the judge's mindset.

At that, after a break, Skype decided to accept the lower court decision and skip the appeal. And so the GPL wins again.

To all those who don't like the license: you don't have to use it. Just write your own code. But if you want to use GPL code, the license comes with it. It's a package deal. Thanks.

SCO's accountants, Tanner, have applied to the bankruptcy court for compensation for the seventh month. Amazing, isn't it, this story without an end? This monthly bill is for April, and Tanner would like only $8,574 plus $71 in expenses. That's the lowest monthly bill ever. October 5-November 5 was $28,499; November 6 - December 5 was $19,001; December 6 - January 4 was $65,955; January 5-February 1 was $98,095; February 2 - March 3 was $32,868; and March 4 - March 31 was $28,441.

They seem to be running out of things to do, which may explain why Tanner has applied to the court for permission to audit SCO's 401K next.

A number of media reports have focused on Darl McBride's testimony in last week's SCO v. Novell trial, which morphed into Novell v. SCO when all but Novell's counterclaims were decided on summary judgment back in August. McBride asserted again that Unix is in Linux, blah blah.

But what was more interesting to me was a piece of "evidence" that he tried to introduce into the record via his testimony. It's a letter from 1996, I believe this letter [PDF] to Prentice Hall, the publishers, about who to contact regarding certain Unix works. The timing is after the APA in 1995. This may be the low water mark in the SCO saga's "evidence", so I thought I'd go over a few details about it. For sure, the SCO lawyers, at least, had to know that it doesn't prove what McBride tried to use it to prove, although they did quote from the letter in SCO's Memorandum in Opposition to Novell's Motion for Partial Summary Judgment on its 4th Counterclaim for Relief, and in Support of SCO's Cross Motion for Partial Summary Judgment , a motion Novell won in the August 10 decision. So, the letter didn't help SCO at all then, and it is unlikely to do so now.

Yesterday, I wrote in a comment that indeed Sun's performance in 2003 in signing the agreement with SCO, highlighted in the trial testimony, was making it look really bad. The motive in doing it seemed to me to be not just to open source Solaris but to also hobble Linux and promote a competitive product instead, and in the ugliest way possible. And then, when they had to power to stand up to SCO and protect Linux end users, they failed to do so.

Yesterday, I noted that there has been a change in management, and the guy who signed that agreement is gone. On the other hand, they still offer OpenSolaris as a competing product. On the third hand, no one showed up at trial to testify for SCO. So the real question I was asking was, has Sun changed? After all, Microsoft talks a lot about openness and such, but they fail to convince me that they wouldn't kill and eat my cat if they thought there was money in it. Ethics is the real value add to FOSS, you know. It's the one thing Microsoft can't embrace, extend and extinguish. The hovering doubt in my mind was, did Sun benefit from the SCO assault on Linux? Did they intend it? Is it all still playing out as they hoped? Clearly SCO's attack failed, but no one predicted that. So, other than that, what exactly is the answer to my question?

Groklaw member grouch took my question seriously, and he researched and compiled a list of all the Groklaw articles since we began. At that point, he says, he needed to go no further, because it was obvious there has been a change.

No matter where you stand on my question, I think it's useful to have as a handy list. I pointed the finger at Sun back in 2003, and it turns out I was exactly right. So all you guys who attacked me for saying that Sun was playing an ugly game can send me apology emails now. : )

But fair is fair. If there has been a change, I need to highlight that too. Whether their journey is complete is another question, but grouch's research shows the trajectory very clearly.

Guess where Sandeep Gupta landed after he left SCO? If I put a blindfold on you and told you to point on the map, you'd still guess Microsoft, wouldn't you? And you'd be right. From January, that is where he found a soft landing, as Director, Technical Competitive Strategy of the Server & Tools Division. The company that got him the gig say they are simply thrilled to have placed him there:"Sandy Gupta is the kind of technology expert that Microsoft prides itself on having inside the company. We could not be more pleased with Sandy coming to Redmond," said Jim Krouskop Partner, Laurel Group. I think that means they maybe didn't read his affidavits/declarations in the SCO mess, specifically in SCO v. IBM. Or that Microsoft did, for you cynics out there. Would you like to see the Laurel Group's press release about this placement? Here you go, and for history's sake, I'll reproduce the meat of it here also.

Here it is, the cherry on top, the transcript of day 4 [PDF] in the Novell v. SCO trial. That would be May 2nd. I've been waiting to make any substantive comment on any of the transcripts until I could read the closing arguments. I think you'll see why when you read them. It's in closing arguments that we find out what each side believes it has demonstrated. You get to see what the lawyers were aiming for with the questions asked of the witnesses, and you find out what they think was established by their answers. I think you will enjoy it.

While I was sleeping (for 12 hours straight), Chris Brown followed up to make sure we got the transcript, which was delayed, and Steve Martin did the HTML already for us. You'll find links to each side's closing arguments in the index, if you want to jump straight to them. And I see more donations. When I say I couldn't do Groklaw without the community's support, I truly mean it. Thanks guys!

Richard Stallman just switched to an OLPC XO, for the free bios, and at that same moment in time, Nicholas Negroponte made some odd statements about Windows and the OLPC. Walter Bender's replacement has just been announced, by the way:Charles Kane will move from the part-time role as chief financial officer to oversee the organization's operational matters and distribution of the XO laptop on a day-to-day basis....The organization is in negotiations with Microsoft to load Windows on dual-boot versions of the XO laptop, which is being marketed as a learning tool for children in developing countries. In an open letter, Negroponte criticized the development of Sugar, XO's user interface, and asked developers to stop bickering, unite and jointly develop a Windows user interface to make XO laptops more appealing to customers.

However, when rms spoke with some of the OLPC volunteers, it turns out that Negroponte was disappointed in the community's help with software, and that is his primary issue. He thought more volunteers would help, but he didn't set up the project in a way that encouraged it. And there were other problems, such as Flash, that I believe can now be solved thanks to Adobe's recent announcement about Flash.

Update: However, note Mozilla's warning about Flash and Silverlight, and its point that in HTML5, Flash will not be needed for audio or video.

So, the pressures that Negroponte was feeling -- that is a problem that can be fixed, simply by restructuring the project to enable everyone to know what is needed and facilitate contributions to Sugar. Whether that is going to be what resolves the issue, or whether that is truly the issue, is unknown to me. When Negroponte said that he couldn't promote openness and then exclude Microsoft, I became aware that there are some fundamental issues he hasn't yet thought through carefully (like what about the key on the XO that a child can press and see the underlying code? -- in Windows that won't be allowed, obviously, so logically I conclude Windows does not contribute to openness, and hence excluding it does promote openness), but according to Stallman, it is not too late to change Negroponte's mind. *If* that is true, it is certainly worth doing.

So he's written an essay, which I thought it was important to republish here, since a lot of you are programmers and can actually help if you wish to. I should also mention that there is a group forming to extend Sugar outside of OLPC, essentially a fork [upon deeper research, I'd say it's not a fork, but rather a group working to make sure the educational aims behind Sugar are fulfilled -- whether the group can work with OLPC still, although separately, is yet to be determined]. I'll have more information on that for you as developments occur. The truth is, in true FOSS fashion, nothing anyone does at the top can destroy Sugar. It will be extended and improved, thanks to being FOSS. But the OLPC project -- that can be damaged and at the moment, it is being damaged. So what rms is asking is this, "Can we rescue OLPC from Windows?" Personally, I'd like some binding commitment from Negroponte that if all the software issues are fixed, he'll stick to Plan A. It's possible that could happen, I gather, but I feel obligated to say it hasn't to my knowledge happened yet. So before everyone rolls up their sleeves, it might be wise to do some due diligence.

I wonder if Negroponte has done that with regard to XP. Is it going to be improved and extended or even maintained? Who will fix it when it crashes? Who will protect the little children from malware, which Microsoft software is so prone to be a victim of? Sugar and the XO was set up to provide real security. Can anyone say the same about Microsoft's software? What are you doing to those children?

And what about the future? If some governments want Microsoft software so children will be ready to find jobs, as I've seen reported in the media, the right question to ask them is, will XP be the software in use when the children grow up? Considering XP's death sentence date has already been announced, obviously not. And Vista is... well, the kindest thing to say is that it won't work on an XO or any small laptop of that type. That is what he should be telling anyone that says the children need Windows XP to be able to find jobs. I doubt there will be any on XP when the children start job-hunting. Negroponte isn't an engineer, and I gather the new president isn't either, so they may not even know such technical things.

However, since there is a fork on the way, whether or not Negroponte changes his mind, your labor will for sure never be wasted. So, it's up to you. Here is the essay.

Here we are, the third day's daily transcript from May 1st, Thursday's session. Again, it's split into three parts, thanks to Chris Brown:Part 1
Part 2
Part 3

And thanks to the extraordinary Steve Martin, we have the transcript as text already. Thursday's testimony was by William Broderick, Jean Acheson, Jeff Hunsaker, and Jay Petersen.

Yes, my friends, the old faithful chorus for SCO, some of the very ones who failed to impress Judge Dale Kimball already.

Well, friends, the trial in Novell v. SCO is done. The judge will render a decision as soon as possible. Here's Chris Brown's first quick note. And we have a report from a new eyewitness. Today's last witness for SCO was Andrew Nagle.

Here is day two of the trial of Novell v. SCO, the daily transcript as text. Our thanks go to Steve Martin. Here's Day 1.

This is the day that saw CEO Darl McBride take the stand and tell the court he always certified truthful SEC filings, even when they seem to contradict what he is now testifying to. He says that the Sun and Microsoft licenses were *not* SCOsource licenses, just UnixWare licenses "embodied in the SCOsource division." Oddly, that is the same language that he uses to describe SVRX, as being "embodied" in UnixWare.

I wonder what he means by that word 'embodied'? One clue is his statement that "we use UnixWare as the wrapper to sell a System V license." Well, there you have it. They used a wrapper to sell *System V * licenses. Oops. I think he probably woke up at 2 AM thinking about that answer. A casual onlooker might think he was agreeing with the court, which has already ruled that the Sun and Microsoft licenses are SVRX licenses, to an unknown degree, which is what the trial is to establish, not that Darl acknowledges the court or its decisions as being binding. He stays on message. But might that casual observer get the idea that SCO deliberately wrapped System V licenses in UnixWare to avoid having to pay Novell its System V royalties?

Also Chris Sontag finished his testimony, and Greg Jones and John Maciaszek also took the stand.

By the way, he mentions that if you go into a bookstore you will find how to program in Unix and Linux books in the same section. That is because Linux is not a programming language. Neither is UNIX. They are both written in C, C++, Java, Perl, Python, and Ada95. Etc. You know. In programming languages. And both are POSIX-compliant, POSIX being a standard. Duh. What he says is like saying that if you go into a US bookstore and head for the cookbooks section, you'll find a lot of books written in English. That is true. You will. Not only that, but they all use cups as a measurement and Tablespoons and such. That doesn't mean they copied from one another, or that all the recipes will produce the identical result, just that they were written in the same language and use standard measurements for US cooks. He is such a riot. And I have only scratched the surface.

Here is the transcript of day one of the Novell v. SCO trial, April 29, as text, thanks principally to Steve Martin. As always, go by the PDFs for anything that matters, as we strive for accuracy but we can't guarantee it when we are working so fast. This is a version with no line numbers, because those who rely on screen readers have told me how hard it is to read otherwise. We'll be posting a version with line numbers also, to be as close to the original as possible.

Here are the PDFs again, divided into three parts: Part 1
Part 2
Part 3 This is the day that saw opening statements by both sides, Michael Jacobs of Morrison & Foerster for Novell, and Stuart Singer of Boies Schiller for SCO. Then we see Joseph LaSala, who was at relevant times General Counsel at Novell, testify, and then we have the first part of Chris Sontag's testimony. He continued on day two, and we're working on that now.

Here we are, the transcripts!! These are for days 1 and 2. More on the way as the trial continues tomorrow, and we'll be getting the transcripts for today as well, and then we'll have a complete historical record of this part of the SCO saga. Chris has made them into PDFs, for our convenience broken up into three per day so you guys on dial up won't choke, and we'll have the text versions up as soon as we can. These are transcripts that you made possible, so I didn't want to wait a minute to share them with you. We can read them together.

The docket entry for today's session is now up on PACER:05/01/2008 533 Minute Entry for proceedings held before Judge Dale A. Kimball: Bench Trial held on 5/1/2008. Court opened at 8:32 AM with all parties present. Testimony of witnesses was heard and evidence rec'd. Depositions of John Hunsaker and Jay Petersen published. Trial will continue at 9:00 AM 5j/2/08. Court recessed at 2:03 PM. Attorney for Plaintiff: Stuart Singer, Edward Normand, Mauricio Gonzalez, Jason Cyrulnik; Attorney for Defendant: Michael Jacobs, Eric Acker, David Melaugh. Court Reporter: Becky Janke/Kelly Hicken. (kmj) (Entered: 05/01/2008)

So they didn't finish today, evidently, after all, so there will be more tomorrow. And there are some filings in the SCO bankruptcy as well, which we'll have up shortly. Our eyewitnesses should be filing after that. Is this fun or what?

I just heard from Chris Brown and there's a docket entry from Day 2 of the SCO v. Novell, now morphed into Novell v. SCO, trial. Today was also the hearing in the afternoon on the summary judgment motions. We'll have a longer report from Chris, and I think others, to follow. Darl took the stand today, called by Novell.

At last! First word arrives. I have quick notes from Chris Brown, one of our eyewitnesses, and there is the following court entry on PACER: #530 Bench Trial - Begun
Minute Entry for proceedings held before Judge Dale A. Kimball: Bench Trial held on 4/29/2008. Trial opened at 8:30 AM with all parties present. Both parties invoked the witness exclusion rule. Opening statements were made by Mr. Jacobs and Mr. Singer. Testimony of witnesses was heard and evidence rec'd. Depositions of Joseph LaSala and Christopher Sontag were published. Court recessed at 2:08 PM. Attorneys for Plaintiff: Stuart Singer, Edward Normand, Brent Hatch, Jason Cyrulnik; Attorneys for Defendant: Michael Jacobs, Eric Acker, David Melaugh. Court Reporter: Becky Janke/Kelly Hicken. (kmj)

So, no David Boies.

SCO and Novell have each now filed their Proposed Findings of Fact and Conclusions of Law. What's that? Well, when a judge reaches a decision and issues his or her decision, there is also a list of the facts he or she considers established at the trial, and the legal facts established. An example of the latter would be to find that the APA created an agency relationship between SCO and Novell regarding SVRX royalties. Judge Kimball asked the parties to file on the day the trial began, and so they have.

SCO's filing is 54 pages, with some cases attached. Novell's is 21. I'm sure you can figure out why SCO's is longer. The parties can file revised versions, of course, depending on what comes out in evidence at trial, but this gives the judge an overview of how each side thinks he should rule. It also helps us to get a taste of what is enfolding in the courtroom in Utah as we speak, because the filings are a map to what each side hopes to prove. And it will be a help to the appeals court later.

The trial in SCO v. Novell -- which has morphed into exclusively Novell's counterclaims against SCO -- begins tomorrow morning, and the parties have filed a Joint Pretrial Stipulation [PDF] and then an Amended one [PDF]. For purposes of this trial, Novell is the plaintiff and SCO the defendant, so Novell will be going first. Thanks to the Stipulation, we know how the trial is structured. Each side will limit itself to 10 hours. It's 10 hours sort of like football, though, so don't imagine it will all be over in, say, a long day or two days. A football team might have a minute left on the clock, but it takes a half hour to play it out. Similarly here, 10 hours each doesn't count things like conferences with the judge at the bench and things like that. It will go like this:

• Novell's opening statement
• SCO's opening statement
• Novell's affirmative witnesses
• SCO's affirmative witnesses
• Novell's rebuttal witnesses, if any
• SCO's sur-rebuttal witnesses, if any
• SCO's closing statement
• Novell's closing statement

They've also exchanged lists of witnesses they will call and in what order, and they agree that if there are to be any changes, they'll each make an effort "in good faith" to notify each other with at least 24 hours' notice, if possible.

I know what you're thinking. SCO. Good Faith. Hardy Har. But Novell got SCO to agree that this stipulation isn't a green light to suddenly add surprise witnesses. If SCO tries anything like that, the stipulation can be pointed to, and SCO will need to present a very good reason. Still, I wouldn't be amazed if there were a surprise or two here or there which SCO will say it couldn't help. They have a history of loving surprises.

To me, the biggest surprise is that so far as we know, SCO isn't calling any witnesses, like Microsoft or Sun, to tell the court what its SCOsource license was for. SCO needs somebody to say it was for UnixWare. That's a huge and stunning blank.

Here is Novell's Objection to SCO's Motion to Approve an Expense Reimbursement to York [PDF] as text. The document when filed referenced an April 2nd hearing date, but as you know it was delayed until April 18th, and then SCO asked for another delay until the May 15th omnibus hearing. That means it won't be heard until after the SCO v. Novell trial, which might very well result in SCO having no money to give to York or in fact to anyone but Novell. In that sense, the delay makes sense, because no one, including SCO, knows what the outcome of that trial will be.

The objection is filed by Novell and its subsidiary, SUSE Linux GmbH. Clearly, they don't believe this SCO motion has a prayer of being granted, and they mince no words:Last Winter, the Debtors asked for just such relief for York Capital Management ("York") in connection with their "emergency" motion to approve bidding procedures for a proposed sale of substantially all their assets to York, but they withdrew the request because they never did reach any kind of sale agreement with York. No matter, it seems, for now the Debtors seek an expense reimbursement for York anyhow. This request is a vintage performance by the Debtors in these cases, except that this time they seek to make an outright gift of the estates' assets rather than approval of just another really bad deal they have chased in ceaseless pursuit of their dreams of a litigation bonanza against Novell and others. The Court should deny the Motion....

The Motion clearly fails to meet the standards for approval of a breakup fee or a section 363(b) sale. There has been no benefit to the Debtors' estates. York's participation in the process did not attract any other bidders; indeed, it did not result in a sale to anyone, including York. In fact, it did not even result in signed contract between York and the Debtors. In fact, to the contrary, all that happened is that the Debtors spent money needlessly on a proceeding that was, to all intents and purposes, stillborn had it not been for the stubbornness of the Debtors' management and the avarice of York....

Under these circumstances, moreover, the Motion reflects not sound business judgment, but a total lack of any judgment at all. No debtor can make a gift of estate money such as the Motion effectively represents.

The way SCO spins these reorganizations to the media, you might get the impression, and a few in the media have, that a reinvigorated SCO is ready to get back in the ring with buckets of fresh money and renewed strength as a consequence. But if you read what is actually happening with these proposed deals in court, it's a very different story.

We have the Order [PDF] now with the schedule for the upcoming bankruptcy omnibus hearings, and it goes like this:June 17 at 2 PM - Re quarterly fees
July 15 at 10 AM
August 13 at 10 AM
September 16, at 10 AM

What are they for? I have no idea, other than the first one, but I assume we'll find out closer to the dates. Not that they stick to announced schedules anyway. SCO has such a time getting ready.

And Dorsey & Whitney acknowledge a clerical error resulted in 5 pages of billings being inadvertently omitted from its 5th bill's Exhibit D [PDF], the one from February. So they submit the missing pages [PDF] now. I confess it made me look that little bit more closely.