In better news they've tightened the standards making non-obviousness a higher bar.  What effects these have in practice remains to be seen.   I

Today, a commenter purporting to be Kevin McBride posted a comment on the Patently-O blog. The commenter cited his “own experience as co-counsel in a rather well-publicized software case (SCO v. IBM)” as support for his position on “community review” of software patents.

Read the comment.

According to James Hart's Sat, Mar. 03, 2007 article in The Kansas City Star, “Judge's order blocks articles about BPU”, a county circuit judge has ordered an unconstitutional prior restraint upon two Kansas City, Missouri newspapers. He writes:

A judge barred The Kansas City Star on Friday from publishing an article based on a local utility's confidential document addressing its power plant upgrades.

Jackson County Circuit Judge Kelly Moorhouse also ordered the newspaper and The Pitch newsweekly to remove articles from their Web sites Friday night.

The posted article links to the purported temporary restraining order.

The article notes:

In Near v. Minnesota, the U.S. Supreme Court ruled that government attempts to censor the media are presumed unconstitutional.

Over the years, the court has repeatedly ruled that courts can try to prevent the dissemination of information only if it presents a "clear and present danger" or a serious and imminent threat to the administration of justice.

Mr. Chief Justice Hughes delivered the opinion of the court in Near v Minnesota (1931).

Today, ACLU of Northern California Technology and Civil Liberties Policy Director Nicole Ozer writes in the Bytes and Pieces weblog under the headline, “BlackHat Presenters Threatened with Patent Suit for Exposing RFID Vulnerabilities”. According to her post, the ACLU's Ms. Ozer will present at the BlackHat Convention instead of the threatened researchers from IOActive.

IOActive also has a press release concerning the withdrawal of their previously scheduled presentation.

The ACLU presentation will be on Wednesday at 1:45 p.m. in Washington, D.C.

In SCO's Memorandum in Opposition to IBM's Motion for Summary Judgment on its Claim for Copyright Infringement (IBM's Eighth Counterclaim) on pp.9-10 (pp.15-16 in PDF), The SCO Group claims:

30. The licensing clauses of all the UNIX Licenses are worded similarly. (Ex. 49 ¶ 30.) The UNIX Licenses thus are agreements pertaining to UNIX and not to Linux. (Id.; IBM Ex. 324 at 181-82.)

31. SCO has not sought to collect royalties or licensing fees for, or to impose any restrictions on, the use of Linux or any of IBM's allegedly copyrighted works. (IBM Ex. 284 ¶ 9; Ex.49 ¶ 30.) SCO has never attempted to license or sublicense Linux or any IBM copyrighted work, or any other GPL-licensed source code. (Ex. 49 ¶ 30.)

(md5: ffc729aa188600600720ec9b0b58b7e4 IBM-954.pdf)
(Groklaw text)

But in Exhibit 423: “Transcript of July 21, 2003 Conference Call, titled ‘The SCO Group Conference Call to Provide Updates on IBM lawsuit, UNIX Ownership and Copyrights’”, The SCO Group's CEO Darl McBride says:

[...]

SCO is trying to find ways to help customers solve this problem, balanced against our own legal rights to stop infringing use of Linux. Under US and international copyright law, end users are subject to injunctive relief and damages for improper use of copyrighted works. With registration of its Unix copyrights, SCO now has broad legal rights against end-users with respect to infringing use of the Linux 2.4 kernel release and any future release of the Linux 2.6 kernel. However, we intend to use these rights carefully and judiciously.

In the past week, many Linux users have asked us how they can immediately resolve issues with Linux without litigation. This is clearly the path SCO prefers to take in resolving its issues with end-users of Linux. Therefore, as a viable alternative to legal enforcement against Linux end users, SCO is prepared to offer a license for SCO's UnixWare 713 product for use in conjunction with any Linux offering. Specifically, SCO will hold its licensees harmless and will covenant not to sue such licensees for running Linux in binary format on any CPU licensed under a valid SCO UnixWare 713 license. This licensing format will assure that Linux users are able to run Linux in full compliance with SCO's underlying intellectual property rights.

In making this license available to end users, SCO does not waive any of its rights against IBM or others. This UnixWare 713 license offering is designed to give immediate relief to customers using Linux, so that customers can focus on their business issues without concerns of violating SCO's intellectual property rights in Unix.

The pricing of such license will be dependent on customer's past and future usage of Linux and the number of servers that currently run Linux. [...]

(md5: 7d020aa6803a9aed45440a0715a6d73b IBM-835-Exhibit_423.pdf)
(Groklaw alternate transcript)

So, in 2003, according to The SCO Group's CEO, the license that they called a “UnixWare 713 license” was designed for customers using Linux, with pricing dependent on usage of Linux, and the license covenanted “not to sue such licensees for running Linux in binary format”.

But in 2007, The SCO Group “never sought to collect royalties or licensing fees for, or to impose any restrictions on, the use of Linux or any of IBM's allegedly copyrighted works”?

According to Grace Leong's Tuesday, August 14, 2007 Daily Herald story, “SCO stock nosedives after court ruling”:

Meanwhile, the overall sentiment at the Lindon company was described by one employee as one of "absolute shock," as its executive management and newly appointed public relations company, New York-based Coltrin & Associates, evaluated the situation Monday.

According to their website, Coltrin & Associates was the PR firm for the Salt Lake Olympic Committee (SLOC) during the SLOC bribery scandal.

On their Client Referrals page, Coltrin & Associates leads off with some glowing praise from “Mitt Romney, Former CEO for the 2002 Olympic Winter Games”. Note political connections between Orrin Hatch and Mitt Romney.

An article about the AT&T v MS case which is to be heard before SCOTUS with the delicious irony that the SFLC has entered and amicus brief supporting Microsoft.

This case, by all accounts I have read will ask the Supremes to decide upon software patents.   As I understand, back in the 90's a court ruled that software can be patented if it is integral to the operation of an invention.  The patent office, however, interpreted that as a green light for software patents generally despite a history of court decisions otherwise pointing the other way.

This is the kind of case and discussion which deserves elaboration and exposition here.  Unfortunately, ASB, I've been busy (and a little burnt out - I enjoy writing programs more than English, and the SCOX history has been wearying).

In a June 8, 2007 column, FindLaw's Writ columnist Jule Hilden advocates junking copyright law's ‘First Sale’ doctrine. She writes:

[...]

The First Sale Doctrine Must Die

First, I believe content companies will have to effectively modify — through federal legislation — the traditional first-sale doctrine in copyright law.

This doctrine holds that once a product has been bought, it can be legally resold by the purchaser - on and on, through its whole useful life, with no further payment to the copyright holder. Now, for music and movies, that useful life may last forever, and the number of potential buyers can be huge.

Accordingly, companies must at least explore means to ensure that they can reap revenue from multiple users, or even from a single user's multiple uses of their content. To gain the ability to protect that approach through the law, requires junking the first-sale doctrine.

[...]

Read the rest of Hilden's column.

“PR's 'pit bull' takes on open access: Journal publishers lock horns with free-information movement” by Jim Giles, Nature:

Eric Dezenhall has made a name for himself helping companies and celebrities protect their reputations, working for example with Jeffrey Skilling, the former Enron chief now serving a 24-year jail term for fraud.

Now, Nature has learned, a group of big scientific publishers has hired the pit bull to take on the free-information movement [...]

From e-mails passed to Nature, it seems Dezenhall spoke to employees from Elsevier, Wiley and the American Chemical Society at a meeting arranged last July by the Association of American Publishers (AAP). [...]

In an enthusiastic e-mail sent to colleagues after the meeting, Susan Spilka, Wiley's director of corporate communications, said Dezenhall explained that publishers had acted too defensively on the free-information issue and worried too much about making precise statements. Dezenhall noted that if the other side is on the defensive, it doesn't matter if they can discredit your statements, she added: "Media messaging is not the same as intellectual debate".

(Published online: 24 January 2007; Corrected online: 25 January 2007)

Read the rest of the article from news @ nature.com.

According to a Monday, January 29 SCO press release (also via PRNewswire):

The SCO Group, Inc. ("SCO") (Nasdaq: SCOX), a leading provider of UNIX(R) software technology and mobile services, today with HP announced [...]

The two companies [...]

This SCO Group press release, containing contact information for “Blake Stowell of The SCO Group, Inc., bstowell@sco.com, +1-801-932-5703”, ends with about three grafs of “About SCO” background, and zero (0) —none, nada, nilch— grafs about HP.

The Salt Lake Tribune reported on that same Monday, “SCO to enter Russian market”:

Utah's SCO Group is joining with Hewlett Packard to market mobile communication services in Russia.

[...]

Of course, when I hear “HP”, I think of Hewlett-Packard.

Lawyers, Truth, and Honesty in Representing Clients by Peter J. Henning, Wayne State University Law School, Notre Dame Journal of Law, Ethics and Public Policy, Forthcoming:

Abstract:
To say that the rules governing lawyers do - or should - reflect a commitment to truth is a worthy goal, but it misapprehends how the professional standards should be applied. Many accuse lawyers of being liars with little devotion to the truth, while the law imposes on them a fiduciary obligation to put their clients' interests ahead of their own. References to "truth" tend to obfuscate rather then clarify the role of the lawyer. The core of the lawyer-client relationship is trust, protected by the attorney-client privilege that prevents an attorney from being compelled - with limited exceptions - to reveal what a client communicated in the course of the representation. That privilege, of course, frustrates the search for the truth because the lawyer ordinarily may not reveal what has been learned during the representation of the client, even after the client's death. Dedication to the truth cannot be the lawyer's paramount goal when every attorney is equally compelled to keep the truth hidden, at least if it is in the client's interest and there is no basis to avoid the protection afforded client communications.

Finding the truth is the object of the judicial system, but it is not the governing principle for the lawyer. Instead, the focus for the lawyer should be honesty in dealing with clients, opponents, and the system. The principle of honesty governs the attorney in all forms of representation, not just when he is acting on behalf of a client in the course of an adjudication. While truth and honesty are certainly related, they are not identical. In this article, I use honesty to cover assertions - both verbal and non-verbal - by the attorney on behalf of a client, such as expressions of fact, legal argument, or a negotiating position. While truth is focused more on determining the existence of an historical fact, honesty focuses on the accuracy and authenticity of the lawyer's current assertions on behalf of the client. An attorney's honesty will assist a tribunal in ascertaining the truth, yet that is not the core function of the lawyer acting on behalf of a client. Whenever a lawyer communicates, whether it is to the court, to an opposing party or attorney, or even to a client, that communication must be honest.

[...]

(Via White Collar Crime Prof Blog)

I've been too busy doing transcriptions to get more than half-way through this paper yet, but it provides some interesting context for ¶ 153:

153. In 2002, Caldera International changed its name to The Sco Group, Inc. For the court's reference, Caldera International, The SCO Group, Inc., and Plaintiff refer to the same company. Ex. 269 ¶ 7.

(p.48 / p.3 in part 2 PDF; emphasis added)

Note http://www.sco.com/scoip/lawsuits/ibm/complaint3.06.03.html:

Plaintiff, Caldera Systems, Inc., a Delaware corporation doing business as The SCO Group ("SCO"), complains of Defendant International Business Machines Corporation ("IBM") and alleges [...]

(emphasis added)

According to the Tuesday, February 13, 2007, Daily Herald, “SCO PR director resigns, joins Omniture”:

Blake Stowell has resigned from his position as public relations director of the SCO Group to join Omniture Inc.

[...]

Stowell, who has been with the Lindon software and mobile applications provider for five and a half years, is replaced by Ryan Stephenson. He is SCO's PR manager.

Read the rest of the story.

According to Dan Lyons, writing in a February 13, 2007 Forbes story, “SCO Vs. Blogger:

SCO tried last week to serve a subpoena to [Pamela] Jones at a house in Darien, Conn., where they believe she's been living, but the attempt was unsuccessful, according to a person close to the matter, who spoke on condition of anonymity.

[...]

Jones did not respond to e-mail inquiries from Forbes. On Saturday, she posted an item on her "Groklaw" blog telling readers that she would be taking a "health break" for an unspecified amount of time. She did not mention SCO's attempts to serve her with a subpoena.

From: nedu@netscape.net
To: tech@guardian.co.uk
Subject: A Dickens of a copyright case at last approaches its endgame
Date: Sun, 11 Feb 2007 2:17 PM

Hi,

I'd like to congratulate Wendy M Grossman on her Thursday February 8, 2007 article, "A Dickens of a copyright case at last approaches its endgame".

http://technology.guardian.co.uk/weekly/story/0,,2007595,00.html

One minor nitpick, though. In the eighth paragraph she wrote, "Then the networking company Novell bought the rights to 'Unix' from AT&T, and sued BSD." This is incorrect.

Instead, the complaint in Unix System Laboratories, Inc. (USL) v. Berkeley Systems Design, Inc. (BSDi) (Civil Action No. 92-1667 (DRD)), filed in the United States District Court for the District of New Jersey, is dated April 20, 1992.

See a copy of this complaint at: http://sco.tuxrocks.com/Docs/USL/920420.complaint
or at: http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/920420.complaint.txt

It wasn't until eight months later, on December 20, 1992, that AT&T and Novell signed a letter of intent for Novell's purchase of AT&T's UNIX System Labs, and it wasn't until February 16, 1993 that the two companies announced they had signed a definitive purchase agreement.

See: http://web.archive.org/web/20051215194047/www.att.com/news/0293/930216.ula.html

Novell's purchase wasn't complete until June 14, 1993.

See: http://web.archive.org/web/20050209110146/www.att.com/news/0693/930614.ulb.html

Thus, Novell did not initiate the lawsuit against BSDi, as Ms. Grossman's article incorrectly claims.

Other than that, though, and maybe one or two other little teensy details, it's a good article. Again, congratulations. A history this complicated isn't easy, and overall, Ms. Grossman's article seems more or less roughly accurate.

I know some of you have been working on different projects to compile the many legal documents related to SCOX's many lawsuits (often to ensure an archive or mirror exists).  Does anyone have a complete list of all the documents?  Anyone know exactly how many documents exist at present (preferably broken down by lawsuit, eg. SCO v IBM, SCO v. Novell, Red Hat v. SCO, etc.)?

Over on the SCOX Yahoo! board they were discussing the fact that PJ over at GL is taking a break and they were wondering about setting up some alternative documents sources, especially going forward.  I have an idea to help with that (especially for those with Pacer access who may be obtaining the documents), but if I do it I would really prefer to have the complete history available.  So I'm trying to get a better grasp on what kind of scope such an effort might require.

TIA,

Summary of the story on the Microsoft v AT&T case from Anne Broache, CNET, “High court wrestles with software patent questions”.

But read the transcript of oral argument before the Supreme Court. It would be an absolutely hilarious thread on Usenet or Yahoo!. In the Supreme Court —after you're done chuckling— it's just slightly sickening to realize that these people not only take themselves seriously, but have the power to make other people take them seriously.

According to a press release today from The SCO Group, “The SCO GROUP Announces Board Member Not Standing for Re-Election”, one of their directors, Ed Iacobucci, will no longer be serving on their board:

During his tenure on SCO's Board of Directors, Mr. Iacobucci has served on SCO's Compensation Committee and Litigation Oversight Committee.

According to the release, Mr. Iacobucci's service will be discontinued “at the conclusion of the Company's Annual Meeting, which is currently scheduled for April 26, 2007”.

http://www1.investorvillage.com/smbd.asp?mb=1911&mn=49986&pt=msg&mid=3485275

Quickly looking through the news today, a bizarrely memorable phrase caught my eye and arrested my attention. ZDNet UK, in an opinion leader titled, “The politics of open source”, described the infamous Darl McBride as: “Darl McBride, the philosopher-king of SCO.”

In context, the curious turn of phrase apparently described something different:

Open source has been described as "communistic" by Darl McBride, the philosopher-king of SCO.

ZDNet UK didn't stop there. They went further:

<blockhead>We'd go further . . .</blockhead>

Put down your coffee cup and shoo the cats off your lap.... Here is today's QOTD.

Montana's Supreme Court upholds a district court's $9.9 million punitive damages award against a large law firm for malicious prosecution and abuse of process. The jury had originally awarded $20 million in punitive damages.

Justice James C. Nelson delivered the court's opinion in Seltzer v Morton (12 Mar 2007):

¶179 At oral argument, counsel for GDC attempted to minimize the reprehensibility of the firm's conduct by arguing that litigation is a common occurrence and the “essence of the system” is to reach a verdict on the merits. Among other things, counsel argued:

Clients bring demands letters to me every day . . . and sometimes they settle, sometimes they say: “Bring it on. In a court of law you're going to lose.” . . . I believe that, in court, ya know, “bring it on”—if they've got a good lawsuit, a jury will find one way, if they don't, a jury will find the other way. And that's the essence of the system.

We take exception to this notion. The “essence” of our judicial system is not simply the resolution of disputes; rather, it is the resolution of legitimate disputes. Baseless lawsuits prosecuted in furtherance of ulterior motives have no place in our courts. Moreover, the sort of saber-rattling, chest-thumping approach typified by the comment of GDC's counsel, trivializes the devastating effects on the health, reputations, and fortunes of the real people who are maliciously and abusively sued. For the ordinary citizens who are the victims of such a lawsuit, it may be the most horrific experience of their lives. Indeed, those effects are not merely the collateral damage of some run-of-the-mill litigation battle between attorneys. Rather, the defendants in such cases are the innocent casualties of the war. That is why the “essence of the system” with respect to such lawsuits is to provide recourse for the victim and levy punishment against the perpetrator by way of actions for abuse of process and malicious prosecution. Thus, the “essence of the system” was evident in the instant suit by Seltzer's recovery of compensatory damages and the jury's assessment of a severe punitive sanction against GDC.

¶180 In short, GDC's use of the judicial system amounts to legal thuggery. This behavior is truly repugnant to Montana's foundational notions of justice and is therefore highly reprehensible. Thus, in accordance with Montana's legitimate interest in punishment and deterrence, we conclude that a particularly severe sanction comports with due process.

(pp.92-3)

This lengthy opinion is well-worth reading.

(Via Paul Davies, WSJ.com)

A Century of Mormon Theory and Practice in Church-State Relations: Constancy Amidst Change by W. Cole Durham, Brigham Young University, J. Reuben Clark Law School, and Nathan B. Oman, College of William & Mary Law School.

Abstract:
The Church of Jesus Christ of Latter-day Saints (the Mormons) has the dubious distinction of having passed through the most prolonged and intense confrontation between church and state in American history. The earliest history of the Mormons was marked by hostile and violent confrontations with their neighbors as they were driven from state to state. After forming their own commonwealth in the remoteness of the American Great Basin, they faced further confrontation, this time with a federal government bent of eradicating the Mormon practice of plural marriage and the unique economic and political institutions and practices that the Mormons had created. In 1890, the church publicly abandoned plural marriage and the legal pressure abated. During the course of the twentieth-century the legal challenges faced by the church largely centered on its aggressive international expansion, which brought the Mormons into contact with legal regimes all over the world. This paper argues that despite the dramatic changes in Mormon church-state practices there is nevertheless a consistent and coherent approach focusing on the theological imperative to maintain the independence and continuity of the church's institutional structure.

(Via Nate Oman.)

In Nevada and Utah news...

According to Mark Waite, writing in a Pahrump Valley Times article (12 Jan 2007), the NNSA has recently issued a revised environmental assessment for the Nevada Test Site's planned ‘Divine Strake’ test. He reports that the comment period ends February 7, 2007.

It does not appear that Linden, Utah will be significantly affected by the Divine Strake blast.

Of course, you never really know how any complex device will work until you test it.

Redwood v Dobson, in the United States Court of Appeals for the Seventh Circuit:

Before EASTERBROOK, Chief Judge, and ROVNER and WOOD, Circuit Judges.

EASTERBROOK, Chief Judge. This is a grudge match.

[...]

The judgment is affirmed. Attorneys Charles L. Danner, Marvin Ira Gerstein, and Roger B. Webber are censured for conduct unbecoming a member of the bar, and attorney Richard Klaus is admonished for conduct unbecoming a member of the bar.

(Via Illinois Trial Practice Weblog.)

Microsoft inks more Novell-like patent-infringement deals

Personally, I have not had such a problem with the MS-Novell deal like some people. I do think the worst part of it has been the FUD opportunity it created for MS.

Can't say I'm too terribly interested in Fuji Xerox, but I do find Samsung interesting as I have an mp3 player from them. One of the reasons I picked it (and am seeking another one) is the support for the OGG format. Interestingly enough, some recent research seems to show that Samsung is starting to remove that capability from newer models - at least out of the box and in the U.S. Kind of makes me wonder what may be going on in the background, especially with regard to file formats and patents.

On a slightly related note, Groklaw is blocking attempts to access their RSS feed from this site.  That is why it no longer updates.

http://biz.yahoo.com/prnews/080214/lath092.html?.v=101