SCO Motion that this is responding to is here. We have Steve Martin to thank for doing the work for us. Enjoy!

3. In these discussions, SCO also refused to say whether it intended to assert, at some future date, that Novell infringed post-APA code and to pursue claims on that basis. In short, SCO isn't actually willing to dismiss its claims with prejudice, in order to get a "final" judgment; it is willing to table them and then ramp them up again if it wins on appeal. How SCO imagines that offer would result in a "final" judgment under the final judgment rule is hard to discern. Novell says that what SCO wants is a judgment that is "final enough -- but not too final".

Apple says something quite simple and, as far as I'm concerned true, that Apple has no obligation to help Psystar compete against Apple. After all, Apple is not dominant in the field of computers, and Psystar's business model proves it: Psystar's very business model is premised on the fact that Apple's computers compete directly with personal computers using different operating systems. In its Counterclaims Psystar admits computers with the Macintosh operating system ("Mac OS") are one of many types Psystar sells to consumers: "PSYSTAR manufactures and distributes computers tailored to customer choosing. As a part of its devotion to supporting customer choice, PSYSTAR supports a wide range of operating systems including Microsoft Windows XP and XP-64 bit, Windows Vista and Vista 64-bit, Linux (32 and 64-bit kernels), and the MacOS." Counterclaims, ¶ 15, lines 8-11 (emphasis added). Since customers are choosing between these computer systems, the systems necessarily compete with one another. For these reasons and others, Psystar's effort to assert antitrust claims premised on the existence of a relevant product market restricted solely to Apple's products fails as a matter of law.

Moreover, the ultimate goal of Psystar's Counterclaims is an order from this Court compelling Apple to help competitors, like Psystar, by forcing Apple to license its proprietary software to those competitors for use on their own computer hardware. Psystar's effort is contrary to law and must be rejected. Neither the federal nor the state antitrust laws require competitors to stop competing with, and instead to start helping, each other. So it asks that all of what it terms Psystar's "deeply flawed antitrust counterclaims" be dismissed with prejudice.

I gather the hope is, if the takeover were to succeed, that SC 34 would get to maintain ODF as well as Microsoft's competing parody "standard," OOXML. How totally smooth and shark-like. Under the guise of "synchronised maintenance", without which they claim SC 34 can't fulfill its responsibilities, they get control of everything. So utterly Microsoft. Microsoft yearns for interoperability, it seems. More like yearning for ODF's air supply to be ... well, you know. Microsoft never seems to change, does it? Yoo hoo! EU Commission! Are you watching? You can read all the public resolutions of the ISO/IEC JTC 1/SC 34 Plenary Meeting, 2008-10-01, held in Jeju, Republic of Korea. It will either make you laugh or throw up. I did both. Sequentially.

No. Really.

If you'll try to pay attention, I'll try to make it enjoyable.

"A lawsuit no doubt may be used as a powerful instrument of coercion or retaliation."
~ Bill Johnson's Restaurants v. NLRB, 461 U.S. 731, 440 (1983).

"Most useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company or product by using its trademark."
~ New Kids, 971 F.2d at 306-07.

* * *

Jones Day is a very reputable and very large law firm. The firm has 2200 lawyers [according to an August press release more than 2300]. So you can imagine how it feels to find out a huge firm like that wants to sue you. You've seen how easy it is for a determined bully firm to keep a legal bogo-ball in the air almost indefinitely without breaking a sweat; now imagine it happens to you, and you're not IBM or Novell. You are just a small startup. Jones Day has, indeed, sued real estate news site BlockShopper over a headline mentioning the firm and for linking to lawyer bios on Jones Day's website in articles revealing what homes a couple of Jones Day lawyers bought, alleging trademark infringement and dilution.

I know. But let's face it. Some folks haven't yet quite grokked this whole Internet pipes thing.

Those of you who hate trademark law will lap this up, of course, but that isn't my purpose. In fact, I haven't been able to find a single article about the case that doesn't view it as Jones Day misusing trademark law or at least stretching it beyond what is normal. Wait. I don't want to get sued. Let's just call the plaintiff the So and So firm, shall we?

The bigger Groklaw gets, the harder it gets to find things, unless you happen to know what you are looking for very specifically already, so this is trying to address that problem.

Let me explain a bit more about Archive Explorer, including what I have been doing for weeks trying to get things organized so it would work well for you. I need to tell you about a few quirks too. And at the end Erwan will provide instructions.

I gather from the minutes that SCO asked for the stay to remain in place, which surprises me, but then again, nothing SCO does should surprise me any more.

Review of MySQL in a Nutshell, Second Edition
~ reviewed by Steve McInerney

I originally reviewed MySQL in a Nutshell, the first edition, in July 2005, but with the Second Edition released in April, it seemed worth taking another look. The first thing I noticed is that, compared to the First Edition, the second is about 40% bigger. But is it just extraneous fluff or useful information?

Useful. Very.

As you know, they had the status hearing today, and we'll have a transcript for you when it's available. Meanwhile, time to dig out the kites, so you can fly them in the wind SCO creates with its mighty spin on what happened in court in Utah in SCO v. Novell.

We tried to ask Bender everything you'd want to know, like has Microsoft -- like some wicked witch cursing the newborn princess in a fairy tale -- ruined everything yet? Is Sugar/Linux being given last rites on the XO? What about the Intel Classmate push to rule the developing world's laptops for schools? Did they win that smarmy race?

I haven't closely analyzed the services language yet, but my concerns about the EULA have been addressed. Bottom line: Now, you can install and use Firefox without having to agree to a EULA. The services have been separated out. If they were opt in instead of opt out, I'd be happier, but this is acceptable to me. There may be further tweaks, I understand, but I think it's time to acknowledge that Mozilla is behaving very well indeed now and demonstrating a desire to get this right.

We're still working on this. There's been a bunch of helpful feedback. We appreciate this. We think we've integrated the feedback into something that's a good solution; different from out last version in both its essence and its presentation and content.

We've come to understand that anything EULA-like is disturbing, even if the content is FLOSS based. So we're eliminating that. We still feel that something about the web services integrated into the browser is needed; these services can be turned off and not interrupt the flow of using the browser. We also want to tell people about the FLOSS license - as a notice, not as as EULA or use restriction. Again, this won't block the flow or provide the unwelcoming feeling that one comment to my previous post described so eloquently.

We expect to have the materials that show this plan posted tomorrow morning.

So that sounds promising. I don't think the EULA content was FLOSS based, actually, and I'll show you why I don't think so. I hope it will be a positive contribution to the general discussion.

• For Novell: Adam Lewis, Morrison & Foerster, & Sean Greecher of Young, Conaway
• For SCO: Arthur Spector, Berger Singerman & Kathleen Makowski, Pachulski Stang
• For Mesirow: Lyle Bauch and James Feltman (by phone)
• For Tanner: Scott Robinson (by phone)
• Pro Se: Al Petrofsky (by phone)
• For IBM: Gabriel R. MacConaill, an associate at Potter Anderson
• For US Trustee: Joseph McMahon
• For Dorsey & Whitney: Robert Mallard

We'll have a transcript by tomorrow or the next day, in the normal course. SCO also filed its monthly operating reports for July, finally.

In SCO's just filed Debtors' Reply to Novell's Response to Debtors' Third Motion to Extend Exclusivity [PDF], SCO says one reason is the turmoil in the financial markets. There currently is no deal with Stephen Norris Capital Partners. But SCO needs more time, because there could be someday. "Despite the declining economic climate, Messrs. Norris and Robbins continue to work with the Debtors to pursue a transaction." So, we just need to be patient. Norris is flying to the Middle East shortly and they've had meetings in London and Paris, but investors are nervous, we learn, due to the current turmoil in the markets, and they feel they'd like more legal certainty in this picture first. Like a definite date for SCO to file an appeal.

Ah. Do hold your breath, SCO. Do.

I thought SNCP had buckets of ducats of its own and a pipeline to Middle East princes and stuff. Wasn't that the story? It has to be true. Reporters printed it as true. No? SCNP are just some guys scurrying about looking for investors for SCO?

So, the honorable SCO wants more time to work things out, find a "transaction partner", and exit Chapter 11 with SCO shareholders holding their own and creditors paid in full with interest. Except for Novell, methinks. They never seem to be at the head of the line, do they?

Poor SCO. Everything conspires against it reaching its ethical goals. I swoon with laughter.