In Judge Dale Kimball's recent order in SCO v. Novell, he accepted SCO's story about licensing practices. I think that was a mistake, and I'd like to show you why I think so. Here's what he wrote:UNIX licensees often distributed and used binary products that included code from multiple releases of System V. Novell and its successors required and allowed such licensees to pay only one set of royalties for the use or distribution of such a product. To identify the proper license under which such a product could be used or distributed and to calculate the appropriate royalty payments required for using or distributing such a product, Novell and its successors employed the "one line of code" rule.

Under the "one line of code" rule, Novell and then SCO determined whether there was as little as one line of code from the latest release of System V (including UnixWare) contained in a binary product and then calculated royalty payments for the entire product under that latest license. Novell and then SCO prohibited licensees from parsing out the relative amounts of code from different releases of System V and paying portions of the requisite royalties under multiple System V licenses.

Now let me show you what I found regarding how SCO, Santa Cruz, billed in complex situations, according to what it told the SEC.

The trial witness lists and exhibit lists filed by SCO and Novell at the beginning of the trial in April are available: 05/02/2008 - 535 - Trial Witness List. (kmj) (Entered: 05/08/2008)

05/02/2008 - 536 - Trial Exhibit List of Novell exhibits. (kmj) (Entered: 05/08/2008)

05/02/2008 - 537 - Trial Exhibit List of SCO exhibits. (kmj) (Entered: 05/08/2008)

It's worth going through them with a fine toothed comb, actually, because all of them together make up what the judge based his Order upon, and it's what the appeals court can consider, also, so if you spot anything that contradicts any factual conclusions, it's of interest. As you'll notice, the judge got to see more than we did, so if you find something online that matches the exhibit, it might be good to mention it. If any heroic soul can OCR it to get a text version ready, that would be wonderful.

I can't believe that we have to think about UnixWare and OpenServer again, but we do. So it's a good idea, if you spot anything of value, to keep a copy of the original, so it will be possible to prove things down the road. SCO doesn't allow Wayback to keep a record of its site, so that workaround doesn't work. That leaves you and me. If someday SCO sues someone over UnixWare or Open Server, we'll be glad we did the squirrel work. I have my first contribution to that effort.

I received a request from Tom Longley, Project Manager for Human Rights Information and Documentation Systems (HURIDOCS), a Geneva-based nonprofit. They're looking for someone to help them reengineer their database software, WinEvsys, to be released under a Free Software license. That page has tons of info, including a fact sheet and a demo and the software for download. This software is used internationally by a lot of human rights organizations to keep track of human rights abuses, of which there seems to be a never-ending supply.

It's time for a song for SCO to sing, to cheer itself up. Scott Lazar has come up with one. Hopefully Yoko won't sue us, because you sing it to a tune that sounds a lot like Yesterday. Feel free to hum along in your minds. There is no law yet forbidding thought music, so far as I know. And who here doesn't want to cheer SCO up?

We have the entire ISO/IEC recommendations document [PDF] as text now, the memo with attachments, including all four of the appeals against OOXML, sent by Alan Bryden, Secretary-General and CEO, ISO, and Aharon Amit, General Secretary and CEO, IEC to the Technical Management Board regarding the disposition of the four appeals. They suggest deep sixing them.

Thank you to everyone for helping. Erwan has pulled it all together for us, a massive job, and he's created an index also, so you can quickly find what you are looking for, all in one place. I'll make this a permanent page, after we finish one other part of the effort, to insert links to materials referenced. Update: The permanent page is available now here.

Meanwhile, some rather odd things have been happening in OOXML/ODF land. First, Alex Brown, the convenor of the BRM, has put out a * press release* entitled OOXML will take second place following Microsoft's announcement to support ODF, says Dr Alex Brown. He says this: According to Dr Brown, OOXML will now represent the "legacy" of MS Office documents that the world has accumulated to date, following Microsoft's announcement that its Office suite will add native support for ODF. Is he a spokesman for Microsoft now? And why would you need a standard if all it does is represent old proprietary documents from a single vendor? Then we get to the scary part.

The media is beginning to cover the Order in the SCO v. Novell trial. Here's a sampling:

• Information Week: "In a decision Wednesday, Utah District Court Judge Dale Kimball, who had previously ruled that Novell, and not SCO, owns the rights to Unix, found that SCO improperly collected Unix royalties that rightfully belonged to Novell. Kimball ordered SCO to pay Novell $2.5 million in restitution....SCO may have gotten off lightly...."
• The Inquirer: "However, Judge Kimball's ruling granted Novell only a fraction of the amount it sought at trial, which was more than $20 million. He accepted SCO's argument that its licence deal with Microsoft and its SCOsource licence sales were primarily about Unixware, although those necessarily implicated SVRX licences as well."

Remember when SCO began its media blitz? Stories everywhere. The world thought it was exciting to imagine Linux on the ropes. Now, when SCO is told it behaved improperly and must pay millions, only a few even note it. No one cares about SCO in failure, except for some who feel disgust, like Matt Asay.

What a strange ride it's been. You'd think the folks that wrote all those stories about SCO eating Linux's lunch would at least place a notice on their Corrections Page: "Um. About that lunch stuff, we were totally duped by SCO. They haven't won anything. The best they can do is not lose as big as they could have."

Wait. Hold the presses. Todd Weiss reports the SCO loss as a loss in an article titled SCO loses another round in Unix fight, must pay $2.55M to Novell in ComputerWorld: At the beginning of its massive legal fight against Linux in 2003, The SCO Group Inc. imagined a day when companies like IBM, Novell Inc. and others would pay it large amounts of cash for alleged infringements on SCO-owned Unix code.

Instead, even as those legal fights meander through U.S. courts, the tables were turned and SCO yesterday was ordered to pay $2.55 million to Novell for collecting Unix licensing revenue from Sun Microsystems Inc. that it wasn't entitled to collect.

That is what just happened. The company that told the world they couldn't wait for their day in court got it, and they lost. And there's more to come.

Anyway, we're still here, and we're not going anywhere. I know SCO is not over yet. Don't forget, the Novell litigation was a sideshow. Covering SCO is a marathon, not a sprint. The main event is IBM, still to come. And I expect SCO to have to pay through the nose to them for what turned out to be frivolous litigation, since the Order yesterday said that SCO has made no claims about UnixWare against IBM, and it doesn't own the copyrights to what it did sue IBM over.

I see everyone notices SCO got off light, and no word yet from Novell.

Judge Kimball rules in SCO v. Novell! Here it is [PDF] at last! I haven't read it yet myself, just quickly skimmed it enough to see that SCO owes Novell some money ($2,547,817 plus interest probably -- SCO can oppose -- from the Sun agreement) and it had no right to enter into the Sun agreement, but it did have the right to enter into the Microsoft and other SCOsource agreements. Requests for attorneys fees are separate, and that part comes next. Then appeals. I know you want to see it immediately, so let's read it together, and after it's clear, I'll come back and explain some more.

OK. I've read it now once through, and the big picture is this: Judge Kimball did not change anything in his August 10th order, which I was afraid might happen. He could have, had he heard anything that he didn't know when he made that order. So, SCO breached its fiduciary duty to Novell, converted funds, and so it has to pay. That is ironic, in that this case started with SCO accusing Novell of slander of title, and asking for millions in damages. Instead it has to *pay* Novell millions.

However, Judge Kimball accepted SCO's argument that UnixWare is the latest version of UNIX and that it was the foundation of all the other agreements, even though SYSV was also involved, or so SCO thought. He accepted SCO's argument that if SCO was wrong about owning the copyrights, and it was, then it's too bad for the licensees -- they just got less than they thought they were paying for, and that is a matter for them to work through with SCO. So if EV1, for example, wanted its money back, or part of it, it would have to sue SCO.

I think this is an appealable issue for Novell, but I don't know if they will bother. This was all about money, this trial, and very narrowly about whether SCO owed Novell anything from the Sun and Microsoft and SCOsource licenses. The rest was decided already on August 10th. And SCO doesn't have much money left, if any, so I would guess that if SCO appeals, Novell will raise issues it certainly can in this new order. And it's a bit hard to fit SCOsource into the APA, since it was just a strange and vague bird. But if SCO doesn't -- and to my mind the order seems designed to discourage it, since if they do appeal, they risk being found liable for even more money than now ordered -- Novell then has to figure out if it is worth it.

I'm very happy to tell you that it's just been announced that the Peer-to-Patent project, which is a cooperative project between New York Law School and the USPTO, has been extended after the first year's trial. It's also been expanded to include business methods patents! Yum. I can't wait to see you try to invalidate some of those.

And better still, Mark Webbink has been named Executive Director of a new Center for Patent Innovations: "I'm pleased to announce the new Center, which will lead the way in reforming the international patent system," said Mark Webbink, Executive Director of the new Center. "CPI will become a pioneer in the patent field, helping to create an environment of participation with patent examiners, scientists, and knowledgeable experts, thereby improving the understanding and effectiveness of patent systems. Establishing the Center for Patent Innovations was a natural progression for the Peer-to-Patent project."

By the way, there are some new applications up for review, I see. So if you know anything about booting utilizing email, client-initiated authentication, internet memory access, disambiguation in dynamic binary translation, creation of hanging protocols using graffiti-enabled devices, version control for application message models, or matching a slideshow to an audio track, this is your moment.

This is the first time the public has been involved in a project that actually can directly impact decisions by a US government agency. The press release says that the Law School has now launched a project to develop software specifically for the public to use to help improve the patent system.

You remember Mark Webbink, I'm sure. He was, for most of Groklaw's life, Senior Vice President and General Counsel at Red Hat. He's a great guy, and super competent, so this is wonderful news. Perhaps you remember he let me publish an article of his on Groklaw about understanding open source software way back in December of 2003.

What does this announcement mean to me? That all our efforts to understand patent law and how to effectively search for prior art have been for a practical purpose, so dry as a bone as the subject is, let's keep on trying. And it means the USPTO recognizes that they do need help from the FOSS community to get prior art to their examiners before damage is done. That was the stated purpose of the Peer-to-Patent project, after all.

Here is the Viacom-YouTube Google stipulation on privacy, technically called the Stipulation Regarding July 1, 2008 Opinion [PDF] that YouTube just announced, as text. [Update: It is now so ordered, signed by Judge Louis Stanton on July 17, 2008.]

The important part of the agreement is this: Google gets to substitute values for User IDs, IP addresses and Visitor IDs before handing the database over to Viacom. The parties will figure out next exactly how to do it so that unique values are substituted, so that you can still tell when one individual uploaded 10 zillion videos and 10 zillion individuals only 1 each. Viacom promises not to circumvent the encryption. The parties have not agreed about encrypting the records of any uploading by Google/YouTube employees in the course of their business activities, something I gather Viacom wants to get hold of as part of its quest to prove Google is responsible for infringing content, despite the safe harbor section of the DMCA:The parties do not agree whether the arrangements contained in Paragraph 1 should extend to records reflecting the business activities of the parties' employees and agents, including whether the obligations are reciprocal.

Ah! Reciprocal. Otherwise known as tit for tat. Google would like to know what Viacom employees have uploaded to YouTube if Viacom is going to ask for the records on Google employees. So, while the parties argue about all that, the records will be encrypted and turned over to Viacom, and then within two weeks the parties will try to work out the rest, and if they fail, either party can bring the dispute to court. I think you could say they've agreed in the big picture sense that they have agreed to go after each other while leaving end users out of it, so long as they are not employees of either party.

And someone sent me encouraging news of a decision in a patent infringement case by the US Court of Appeals for the Federal Circuit, Muniauction v. Thomson Corporation [PDF], on the subject of obviousness. It's interesting enough that I've done it as text also, right after the short Viacom/Google stipulation.

As you know, Red Hat and FireStar settled their patent litigation in June. One of the terms required confidentiality for 30 days, but that time period is over, so we now have the agreement [PDF] itself to study, minus only the clause on financial terms. Red Hat VP and Assistant General Counsel Rob Tiller announced the release of the document today: In the spirit of freedom and openness, we are happy to make the agreement public today here. We hope it will be a useful tool both in addressing existing legal threats and also in suggesting methods for addressing threats as yet unknown.

The agreement is, of course, a legal document. Some of the language is routine legal terminology, and some concerns the parties to the case and is of no general interest. On the other hand, the agreement has some important ideas expressed in terminology that may be unfamiliar to the non-lawyer reader, and so some explanation may be useful. Here are some pointers on where to find the juicy parts and how to figure out what they mean. To state the obvious, this is not intended as legal advice and should not be relied on as such.

I wrote about it back in June, based on Red Hat's press release, but now we have the agreement itself, so we can verify that the settlement covers everybody, upstream and downstream, and not just Red Hat and not just Red Hat customers, while at the same time satisfying the requirements of the GPL. Tiller explains the various clauses. So let's go over some of the pertinent language in detail. Tiller explains it, but I'm going to break it down a bit more, to make sure you understand. Of course, in doing that, there is always a chance that I will make a mistake, and I'm not a lawyer, so if there is any perceived difference between what I write and what Tiller wrote, he's correct. I'm just trying to explain legal terminology in ways that make it more accessible to you. If you still have questions, you can send them to press@redhat.com. Tiller says they'll try to address them in future posts on Red Hat's site.

Here's South Africa's appeal against OOXML as text, our final section of our text versions of the entire memo [PDF] sent by the heads of ISO/IEC to the Technical Management Board suggesting that the four appeals against OOXML, attached as exhibits, be denied. The TMB decides what to do next. I know. Such suspense.

We earlier covered the appeals by Brazil, and by Venezuela and India.

South Africa's conclusion gives us a fine overview of its point of view:In conclusion, South Africa challenges the validity of a final vote that we contend was based upon inadequate information resulting from a poorly conducted BRM. Moreover, we challenge the validity of a process that, from beginning to end, required all parties involved to analyze far too much information in far too little time, involved a BRM that did not remotely provide enough time to perform the appointed purpose of that procedure, and for which an arbitrary time limitation was imposed to discuss and resolve a significant number of substantial responses, despite the Directives not requiring any such limitation as to duration.

South Africa also believes that the process from beginning to end "has harmed the reputations of both ISO and the IEC" which in turn has also harmed the reputations of all member bodies. That is the saddest part, to me. ISO always had a fine reputation, and it has so many excellent people involved in standards work who have toiled for years tirelessly and competently. But it's a new day.

I guess the wait was too much for some. There is a pro se motion to intervene [PDF] filed in SCO v. Novell by a person who is known for targeting prominent folks in lawsuits. I refer you to Wikipedia for the details. I can't top them, nor am I in a position to verify them, other than to point you to the references. Justia has a list of cases. But read the motion for yourself, and then remind yourselves of how many times I have told you how important it is to never go into a courtroom without a lawyer to at least explain things to you.

There's a SCO status report [PDF] in SCO v. Autozone also, as per the judge's recently order. No fireworks there, but maybe it's in comparison it seems so staid and dull.

The one detail that stands out is a foreshadowing of what SCO's appeal in SCO v. Novell is likely to be about. They stress the decision by Utah to hold a bench trial instead of letting SCO have its day in court before a jury of their peers.

Should there be any such.

Here are the appeals to the ISO from India's Bureau of Indian Standards and Venezuela's standards body, FONDONORMA, regarding OOXML, as text, thanks to Steve Martin, once again, and Erwan. The PDF is here, if you wish to check it. India's section begins on page 13. Venezuela is on page 15. I've grouped them together because their issues are similar. We've seen and commented on Brazil's appeal and that same link takes you to a text version of the ISO/IEC's responses. If someone has time to help do a text version of South Africa's appeal, I'd appreciate it.

India, like Brazil, is bothered by not having the final text within a month, as per the JTC 1 directives, particularly when so many changes were voted on at the BRM. How can a national body know whether or not to appeal without a final text to analyze? So it asked that the window to appeal be extended, so that it had the opportunity to examine the final text. Venezuela challenges the entire process and says it undermines ISO's reputation. It raises the issue of a bad precedent being set, whereby large companies can exercise undue political pressure on a decision about a standard, instead of letting technical people work through and solve all the technical problems, which is what ISO normally has a history of doing quite well, from all I've heard:The result of DIS 29500 has harmed the reputations of both ISO and the IEC, as well as all they member bodies, and has generated a terrible precedent in which the interest of large multi-national organization, both in favor or against an specific proposal, may dominate the debate instead of the technical discussions necessary to produce the optimal solution on every specific problem.

That really gets to the heart of the problem, in my book. So this was a first, as far as Venezuela is concerned, and one that it worries will start a new trend. It provides a list of comments on technical problems it raised, or tried to, that it feels were not appropriately handled at the BRM.

Thanks to Groklaw's Steve Martin, we have Brazil's appeal against the approval of OOXML as an ISO standard, as text. It begins on page 11 of the ISO document [PDF] Groklaw published Wednesday, the recommendation memo to the TMB to toss the four appeals in the garbage. The memo lists Alan Bryden, Secretary-General and CEO, ISO, and Aharon Amit, General Secretary and CEO, IEC, as the authors.

I thought it would be good to have a text version of Attachments 1 and 2 to Annex A, attached to the cover memo of the ISO document. Here is how they describe Attachment 1:Attachment 1 contains a summary of the distinct grounds for appeal claimed in the four appeals, together with an explanation from the ISO and IEC CEOs for each one.

Attachment 2 is a continuation. So, they are a list of the various bases for the appeals. We can, therefore, compare their characterizations with the Brazil text, and we can see if we think their analysis makes any sense. We'll do the other three appeals as text too later, but let's start with Brazil's.

The bankruptcy hearing set for July 15 has been cancelled. That's the one about the moral yearning SCO feels to pay York some money. It's been moved to August 13 at 10 AM. I'd say that's one not to miss, whenever they have it.

There has been a bit of a dustup about KDE 4.0. A lot of opinions have been expressed, but I thought you might like to hear from KDE. So I wrote to them and asked if they'd be willing to explain their choices and answer the main complaints. They graciously agreed.

Here is the ISO document [PDF] reporting the recommendation of Alan Bryden, Secretary-General and CEO, ISO, and Aharon Amit, General Secretary and CEO, IEC, to the Technical Management Board (TMB) not to pursue the appeals filed against OOXML. You could subtitle the document, "Ode to Microsoft," I'd say, and here's their predictable bottom line:Recommendation

20. The processing of the ISO/IEC DIS 29500 project has been conducted in conformity with the ISO/IEC JTC 1 Directives, with decisions determined by the votes expressed by the relevant ISO and IEC national bodies under their own responsibility, and consequently, for the reasons mentioned above, the appeals should not be processed further.

I know you are not surprised. The same people who gave us OOXML were expected to tell us that they did a fabulous job. However, it does mean the appeals have been sent along to the TMB. The memo is dated June 30. You can read the filings by those who appealed -- Brazil, South Africa, Venezuela, and India -- as they are attached as exhibits, and decide for yourself if the rules were followed. I guarantee it will curl your lip. There is an August 4 deadline mentioned in the document for all the members of the TMB to take a position on the appeals, it says.

Viacom has a statement on its site now about the YouTube litigation it probably hopes will reassure you. Leaving out the anti-Google trash talk, it reads like this: A recent discovery order by the Federal Court hearing the case of Viacom v. YouTube has triggered concern about what information will be disclosed by Google and YouTube and how it will be used. Viacom has not asked for and will not be obtaining any personally identifiable information of any YouTube user. The personally identifiable information that YouTube collects from its users will be stripped from the data before it is transferred to Viacom. Viacom will use the data exclusively for the purpose of proving our case against You Tube and Google.

Viacom has been in discussions with Google to develop a framework to share this data. We are committed to a process that will not only comply with the Court's confidentiality order, but that will also meet our commitment to the strongest possible internet privacy protections.

That's some progress, if it's true, the part about Google redacting it first. But what's that part about Viacom didn't ask for it? They say the same thing on their homepage, where you can see this questionably true statement:Viacom has not requested any personally identifiable information from YouTube as part of the litigation.

Say what? I think it would be more truthful to say that they *did too* ask for it, Google asked them to let them redact, Viacom saw the public's reaction, and so it agreed. I gather Viacom has noticed that a lot of consumers, as they view us human beings, seriously hate Viacom's guts because of this over-the-top litigation.

Viacom may think they can say whatever they wish about what they asked for, since the details of their motion to compel were filed in a sealed memorandum. But we're not stupid, and we can read the Order, where the judge tells us what Viacom asked for. Let's review.

Viacom and YouTube/Google have agreed on terms regarding how to handle a problem. No. This one's not about you. We're still waiting to hear how that works out. But it indicates that the parties are able to work out issues involving confidentiality. It seems Viacom hired a firm that Google earlier had itself hired on a project, and there were concerns about leakage of info. The Stipulation was filed today, and here it is [PDF] for you.

Sean Daly has kindly prepared a text version of the EU-LEX notice of Microsoft's complaint against the EU Commission, found in the latest EU Official Journal.

Microsoft says the fine announced in February is too high. It should be annulled, and if not, they ask that it be reduced. Oh, and it would like the EU Commission to pay costs. Yes, the EU Commission is the defendant. It seems it neglected to believe Microsoft's experts about how valuable its patents are. And it accuses the Commission of accepting reports from the trustee, whom Microsoft hand-picked, by the way, based on "documents obtained through powers of investigation that the Court of First Instance held to be unlawful." Whoah. No more Mr. Nice Guy for Microsoft, I see.

Note that this is news to us, but not to the EU Commission, as this action was brought May 9th. So. Here we go again.