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No Legal Advice

The information on Groklaw is not intended to constitute legal advice. PJ is a paralegal, not a lawyer. Even when lawyers write or contribute to articles, it is still not legal advice, because the lawyers authoring the articles are not your lawyers.

What's New

2 stories in last 48 hours

COMMENTS last 48 hrs

Psystar's New Strategy: the... [+25]

The Dell amicus brief, PDF ... [+98]

Psystar files suit against ... [+63]

The Hon. Ted Stewart and th...


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Psystar's New Strategy: the Florida Complaint, as text
Sunday, August 30 2009 @ 08:43 PM EDT

I think I've figured out Psystar's new strategy from reading carefully its new Florida complaint [PDF] against Apple.

There's a morphed antitrust claim, yes a new one, and a new defense. Overall, the Florida strategy seems to be an attempt to keep Psystar in business, a new business using only Snow Leopard, if California grants Apple's request for a permanent injunction. Psystar is viewing any such injunction as covering only Leopard, not Snow Leopard.

I'll show you what I mean, bit by bit. It's complex, and I view this complaint as more sophisticated than the one in California.

Where to begin? How about the new antitrust allegation?

read more (7263 words) 25 comments  View Printable Version
Most Recent Post: 08/31 12:35AM by Anonymous

The Dell amicus brief, PDF and text, HP's as PDF (i4i v. Microsoft)
Saturday, August 29 2009 @ 12:20 PM EDT

Seattle PI's Nick Eaton has provided the PDF of the Dell amicus brief, at last! Webster was going to run to the court today for us, when I saw journalists quoting from the brief but not giving us the PDF to read it for ourselves. We don't just want to know what reporters think is important. We want to know for ourselves what *we* think is important. For that, we need the PDFs.

Thank you, Seattle PI. However, the brief has been so heavily redacted, even reading the PDF doesn't give you much of an idea why Dell thinks the injunction would be disruptive. It asks in the alternative that the time to make necessary changes be extended to 120 days, if the court affirms the injunction, which seems a reasonable request depending on the harm i4i presents and is able to establish. The court tries to balance the equities. Somebody is going to be hurt in this picture, obviously.

And that's the problem with software patents, if you think about it. There were no software patents when Microsoft was building its business. Now, there are. Is it better? Or is it so massively disruptive it should never happen to anyone? Yes, it's irony indeed that it is Microsoft being stung, in that it has been threatening to do to Linux exactly what is now happening instead to Microsoft. And to the extent Microsoft has used that argument to gain a business leg up, any such advantage is now wiped away. It's now clear that patent troubles can happen to anybody. Absolutely anybody, no matter what you do or who you are or how hard you try to avoid it. And the results are so damaging, they shouldn't happen to anyone, not even to Microsoft, although heaven only knows it feels like reaping what it has sown to me.

It's strange that the US Court of Appeals for the Federal Circuit doesn't make these documents digitally available, in a case that Microsoft and Dell/HP say threatens to affect the public directly. I don't see in this brief any arguments or evidence that an injunction will affect the public, actually, just the businesses. We can continue to use the same software we used before the injunction, since i4i has chosen not to go after prior users. You can still use Microsoft Word if you like it. But since the argument is being made that the public is going to be affected, we naturally want to read the documents filed.

I hope the court changes its policy soon. No wonder people invent things like RECAP. My contribution to the public good is that I've done the amicus brief as text for you.

read more (1310 words) 164 comments  View Printable Version
Most Recent Post: 08/30 11:58PM by Anonymous

Psystar files suit against Apple in Florida - What Are They Thinking? - Updated
Friday, August 28 2009 @ 11:23 PM EDT

Psystar has filed suit against Apple in the U.S. District Court for the Southern District of Florida in Miami, asking for a declaratory judgment that it's legal for them to sell Apple's upcoming Snow Leopard on their nonApple hardware. I know. There is already litigation between these parties in California. What are they thinking?

They are thinking they'll sue in Florida over Snow Leopard, instead of Mac OSX Leopard. Get it? It's entirely different, they claim, technically and legally.

But that's not what it's really about, in my view. What it's about now, stage front and center, is what I told you I suspected the California litigation was really about: it's about first sale. This is, then, I believe, a legal effort to destroy the GPL. This is the second such effort. SCO was the first. Somebody really, really wants to destroy the GPL, not just Apple's business reputation.

read more (1625 words) 288 comments  View Printable Version
Most Recent Post: 08/30 09:20PM by Ed L.

SCO 8K Acknowledges its New Reality
Friday, August 28 2009 @ 10:52 AM EDT

SCO's true situation is here, in the latest 8K:
Item 1.03 Bankruptcy or Receivership. On September 14, 2007, The SCO Group, Inc. and its wholly owned subsidiary, SCO Operations, Inc. (collectively, the “Debtors”), filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code in the Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). The Debtors’ Chapter 11 cases are being jointly administered under Case No. 07-11337(KG).

On July 27, 2009, the Bankruptcy Court held a hearing and took evidence on cross-motions consisting of (a) the Debtor’s Motion for the Sale of Property Outside the Ordinary Course of Business Free and Clear of Interest and for Approval of Assumption and Assignment of Executor Contracts and Unexpired Leases in Conjunction with Sale (the “Sale Motion”), and (b) the Motions of Novell, IBM and the Office of the United States Trustee for conversion of Debtors’ reorganization under Chapter 11 to a liquidation proceeding under Chapter 7 of the Bankruptcy Code (collectively, the “Conversion Motions”).

On August 5, 2009, the Bankruptcy Court issued its Memorandum Opinion, and denied all of the Conversion Motions and the Sale Motion. Instead, the Bankruptcy Court opted to appoint a Chapter 11 Trustee, and entered an Order directing the Office of the United States Trustee to do so. Pursuant to this Order, the Office of the United States Trustee would select, and the Bankruptcy Court would thereafter consider and approve, a Chapter 11 Trustee.

On August 25, 2009, the Bankruptcy Court issued its order approving the appointment of Edward N. Cahn, Esquire, as Chapter 11 Trustee. Mr. Cahn is a former chief U.S. district judge for the Eastern District of Pennsylvania. He has extensive experience in the area of complex litigation, including intellectual property. Mr. Cahn received an honorary doctorate from Lehigh University in 2002. He was a Tresolini Lecturer in Law at Lehigh University. Mr. Cahn holds degrees from Yale Law School and Lehigh University, where he graduated magna cum laude.

Pursuant to the Bankruptcy Code, and subject to the supervision and approval of the Bankruptcy Court, the Chapter 11 Trustee will have authority over the Debtors’ assets and affairs and the future course of the Debtors’ litigation against Novell, IBM. et al.

As you know, Darl McBride testified at trial in SCO v. Novell that he always files truthfully with the SEC, so you can take this to the bank: "...the Chapter 11 Trustee will have authority over the Debtors’ assets and affairs and the future course of the Debtors’ litigation against Novell, IBM. et al." So that is who speaks for SCO now.

125 comments  View Printable Version
Most Recent Post: 08/30 12:25AM by softbear

The Hon. Ted Stewart and the Hon. Tena Campbell
Thursday, August 27 2009 @ 01:43 PM EDT

I have gotten emails asking me to explain what the appeals court ruling means. Other than what I already wrote, the simple truth is this: nobody knows, most especially me, at this point. It's so complicated, with the trustee being appointed. I see clearly, I think, what SCO's plan was in their vision of a perfect outcome, including in AutoZone, but now the appointment of the Chapter 11 trustee changes so much. And we don't know yet if there will be any attempts to further appeal or ask for en banc review. So, we will have to wait and see what happens. As soon as I can make out anything from the mist, I'll surely tell you what I see. But I can't write what I don't know.

In the meantime, would you like to meet the two new judges assigned? I don't even know if those assignments are permanent, in that one of the new judges assigned used to work for Sen. Orrin Hatch, and Hatch's son represents SCO, so who knows? Could there be another recusal? It's conceivable. Let's assume that things are set in stone, though, for now, and let me introduce you to the Honorable Ted Stewart and the Honorable Tena Campbell.

read more (1442 words) 181 comments  View Printable Version
Most Recent Post: 08/30 11:56AM by The Mad Hatter

The i4i-Microsoft Appeal - HP and Dell Ask to File Amicus Briefs in Support of Microsoft - Updated
Wednesday, August 26 2009 @ 10:51 AM EDT

HP and Dell have asked the court to allow them to file amicus briefs in support of Microsoft's Emergency Motion to Stay Permanent Injunction Pending Appeal in the i4i patent litigation.

I can't show you the documents yet, as they are not yet available electronically. I'm sure you could write them in your mind quite readily, though. They will say their businesses will be deleteriously affected if they can't ship Word, and the world as we know it will halt if the judge doesn't turn this around and block the injunction at least until the appeal can be heard.

read more (8217 words) 336 comments  View Printable Version
Most Recent Post: 08/28 09:36PM by Anonymous

SCO's Chapter 11 Trustee Appointed and Approved
Tuesday, August 25 2009 @ 05:56 PM EDT

Here he is:

08/25/2009 - 898 - Appointment of Chapter 11 Trustee (Notice of Appointment of Edward N. Cahn, Esquire) Filed by United States Trustee. (McMahon Jr., Joseph) (Entered: 08/25/2009)

08/25/2009 - 899 - Motion to Approve Application of the Acting United States Trustee for Order Approving Appointment of Chapter 11 Trustee Filed by United States Trustee. (Attachments: # 1 Exhibit A -- Declaration of Edward N. Cahn, Esquire # 2 Proposed Form of Order # 3 Certificate of Service) (McMahon Jr., Joseph) (Entered: 08/25/2009)

08/25/2009 - 900 - Order Approving Appointment Of Chapter 11 Trustee. (related document(s) 898 ) Order Signed on 8/25/2009. (BMT) (Entered: 08/25/2009)

Mr. Cahn is now in charge of the SCO litigation decisions.

read more (466 words) 424 comments  View Printable Version
Most Recent Post: 08/29 08:55PM by Anonymous

Psystar has to pay Apple $5000 for bringing discovery motion
Tuesday, August 25 2009 @ 02:26 AM EDT

Well, Psystar is continuing to hit its head against the wall. There is a minute entry, letting us know that there was a discovery hearing on the 20th, about Psystar's motion to compel, and the judge has ordered the parties to file supplemental briefs, and "Defendant shall pay plaintiff $5,000 in attorneys fees for bringing the motion". Defendant is Psystar:
08/24/2009 - 96 - Minute Entry: Discovery Hearing held on 8/20/2009 before William Alsup (Date Filed: 8/24/2009). Supplemental briefs due by 8/27/09. Deft shall pay pltf $5,000 in attys fees. (Court Reporter Sahar McVickar.) (dt, COURT STAFF) (Date Filed: 8/24/2009) (Entered: 08/24/2009)

I feel safe in saying that the new strategy is working about as well as the prior strategy, namely not. This was the motion [PDF] where Psystar claimed Apple executive Phil Schiller arrived "totally unprepared" for the deposition, and Apple said that he sat for two depositions, and Psystar walked out of the second one midstream ("Mr. Schiller was fully prepared to discuss the non-quantifiable, irreparable injury to Apple but Psystar's counsel chose to not ask those questions and terminated the deposition instead.")

The judge asking for supplemental briefs is interesting. I'm thinking the judge was disturbed by something he heard at the hearing, but we'll have to wait to find out the details once the briefs are filed on the 27th.

190 comments  View Printable Version
Most Recent Post: 08/27 05:38PM by Anonymous

SCO v. Novell appellate decision: $$ from Sun deal affirmed as Novell's; rest remanded for jury trial - updated 5Xs
Monday, August 24 2009 @ 02:22 PM EDT

The appeal decision [PDF] in SCO v. Novell is in:
For the foregoing reasons, we AFFIRM the district court’s judgment with regards to the royalties due Novell under the 2003 Sun-SCO Agreement, but REVERSE the district court’s entry of summary judgment on (1) the ownership of the UNIX and UnixWare copyrights; (2) SCO’s claim seeking specific performance; (3) the scope of Novell’s rights under Section 4.16 of the APA; (4) the application of the covenant of good faith and fair dealing to Novell’s rights under Section 4.16 of the APA. On these issues, we REMAND for trial.
The issue was whether it is appropriate to decide matters on summary judgment, and this court thought the APA was complex enough and ambiguous enough that a jury trial is more appropriate. Here's the heart of it all:
But so long as sufficient evidence could lead a rational trier of fact to resolve the dispute in favor of either party, granting either party's dueling motions for summary judgment would be inappropriate.
I think that means Chapter 7 looms, because SCO was counting on the appeal to overturn on the issue of the money that the Utah decision gave Novell from the Sun license deal, and that didn't happen. Of course, there could be new investors. But the odd thing is, SCO management is no longer in control of any decisions, as pointed out in its recent 8K:
Pursuant to the Bankruptcy Code, and subject to the supervision and approval of the Bankruptcy Court, the Chapter 11 Trustee will have, upon appointment, authority over the Debtors’ assets and affairs and the future course of the Debtors’ litigation against Novell, IBM, et al.

So, it's back to Utah! Unless Novell tries to appeal higher, of course, or asks for a full en banc rehearing. And it's up the the Chapter 11 trustee, once appointed, to decide what he thinks would be the next step, including Chapter 7. SCO's world has changed since it filed this appeal.

read more (16122 words) 557 comments  View Printable Version
Most Recent Post: 08/29 08:03PM by Anonymous

Apple v. Psystar takes a darker turn in discovery - Updated
Sunday, August 23 2009 @ 12:47 PM EDT

Psystar has a new lawyer, as you know, and there is action aplenty as the case moves forward in discovery. There are several filings in Apple v. Psystar to tell you about, and this story has taken a darker turn.

Psystar's new lawyer seems to be setting out on a new strategy, and we see shifts on the Apple side as well. This is actually typical to some extent when lawyers change midstream, particularly if what was tried already wasn't working. The new guy has his own plan, and so things are a-changing. The discovery battles are stepping up, now that Psystar has left bankruptcy protection. And Psystar's tone has changed from whiny to aggressive.

Psystar answers Apple's discovery complaints about missing code, code which Apple alleges was deliberately destroyed. Psystar's response [PDF] is essentially that it didn't know it was supposed to keep it, so ... so what? It admits it doesn't have some early versions of master copies, didn't keep them, and blames the previous attorney for failure to advise Psystar to retain everything. But then it makes a claim that you may find surprising, saying if Apple found dsmos, Netkas, or AppleDecrypt on any early Psystar computers, as alleged, Psystar didn't put it there intentionally. It doesn't use any of them and never has, it says.

It may not surprise you, then, to learn that Apple has filed a letter brief [PDF] in which it tells the court that it doesn't trust Psystar to honor a protective order, so it is willing to drop its claims for lost profits, if necessary, because to pursue that particular claim, Apple would need to provide in discovery some very private financial data Psystar is asking for, and it doesn't trust Psystar not to make it public because of something Psystar wrote on its website. Apple says that Psystar has been less than candid with the court and with Apple in the past, and Apple feels it must take steps to protect itself. This is in response to Psystar asking the court for a third opportunity to depose Apple's Philip Schiller (Psystar terminated its last crack at him midstream, Apple says), and Apple asks that this request be denied. Significantly, it tells the court that Psystar's account of what happened at the last deposition "is misleading, leaves out key facts and should be denied." If not denied, if Psystar's discovery request is granted, Apple then reserves its right to pursue lost profits after all.

In short, there is a real breakdown in trust. But I suspect it's also a shifting of the ground under the case, as the new Psystar lawyer takes over the steering wheel.

read more (5818 words) 204 comments  View Printable Version
Most Recent Post: 08/26 07:12PM by Anonymous

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