Ah! The mandate rule. Since the judge, the Hon. Ted Stewart, highlighted it in one of his recent orders, as had Judge Cahn before him, Novell's response is, Fine. Let's all live by the mandate rule. Judge Stewart denied one of Novell's summary judgment motions, holding that the Tenth Circuit “remanded this matter to the Court for trial on those four specific issues identified in the mandate,” and that “[b]ecause of the specific nature of the mandate, the Court is not free to explore matters outside of it.”

So what's good for the goose should be good for the gander. Obviously, we'll find out now what Judge Stewart is made of, since it was his order that brings this motion in limine's argument to the fore. To deny Novell's motion, Judge Stewart has to more or less admit he goofed in his order on Novell's summary judgment motion on the slander of title special damages claim (or alternatively that he was too strict about the mandate rule in his order on Novell's 60(b) motion), which I earlier indicated I thought he had. What to do? What to do?

Now, judges are used to acknowledging their own errors, as it's part of their job to be reviewed by their superiors in the chain if not always by their betters. So that isn't likely to be a problem. I discern, then, that unless the fix is in, as they say, this motion in a normal universe would be granted. In short, I think we are about to find out if we are in a normal universe in Utah for the upcoming SCO v. Novell trial, beginning on March 8, or not.

But the much more important question is why Microsoft, America’s most famous and prosperous technology company, no longer brings us the future, whether it’s tablet computers like the iPad, e-books like Amazon’s Kindle, smartphones like the BlackBerry and iPhone, search engines like Google, digital music systems like iPod and iTunes or popular Web services like Facebook and Twitter.

It's Exhibit 7219 [PDF], and it's a flurry of emails from 2003, when the Microsoft top tier executives at Microsoft first heard about iTunes. Bill Gates said that Microsoft was "a bit flat footed again" by Steve Jobs and urged the troops to come up with something matching or better quick. Did they? Jim Allchin asked how in the world Jobs got the music companies to go along, and his assessment of the situation is short: "We were smoked."

And Judge Ted Stewart has issued his trial order for the trial in Utah in SCO v. Novell, which begins on March 8:

02/04/2010 - 626 - TRIAL ORDER with instructions to counsel: 15 day Jury Trial set for 3/8/2010 08:30 AM in Room 142 before Judge Ted Stewart. Final Pretrial Conference set for 2/25/2010 02:00 PM in Room 142 before Judge Ted Stewart. Signed by Judge Ted Stewart on 02/04/2010. (asp) (Entered: 02/04/2010)

Mark was at Red Hat and is now Visiting Professor of Law and Executive Director of the Center for Patent Innovations at New York Law School. He's also on the board of the Software Freedom Law Center. So whether you are a lawyer trying to understand FOSS licenses or a programmer trying to decide what license to use on your work, X marks the spot. The article is also available as a PDF.

I couldn't help but notice the part that SCO lawyers apparently didn't understand about GPLv2:

Finally, GPLv2 does not include an express patent license grant. Rather, in Section 6 the GPLv2 makes clear that no other restrictions can be imposed on recipients, which would include any restriction arising from a patent held by the distributing party. In section 7 the GPLv2 makes clear that, if conditions are imposed on the distributing party that would interfere with the rights granted under the license, the distributing party is not to redistribute the software.

You will also note that I am not alone in finding the Artistic License, the one that is in the toy trains litigation, an unholy mess, or as Webbink more tactfully puts it:

It is worth noting that the Artistic License, version 2 does not appear to be widely used at this time, and perhaps for good reason. I have included it here to indicate another variation in approach and to demonstrate the need for careful drafting.

And of course there are no MORs from the Chapter 11 trustee yet, despite their representation at the last hearing that they would file the MORs for October and November and hopefully December in January.

October. Did something happen in October that they would like us not to notice until after the March trial? I notice that October was the month SCO settled with AutoZone. Could that be it? We'll have to wait and see, but it's not usual to file for September, then skip a month, and then bill for November. And where exactly are SCO's filings with the SEC? What is going on?

02/01/2010 - 622 - Proposed Exhibit List and Witness List (Rule 26(a)(3) Disclosures) by Defendant Novell, Inc... (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit B, # 4 Exhibit C-1, # 5 Exhibit C-2)(Brennan, Sterling) (Entered: 02/01/2010)

02/01/2010 - 623 - Proposed Exhibit List and Witness List (Supplemental Rule 26(a)(3) Disclosures) by Plaintiff SCO Group.. (Normand, Edward) (Entered: 02/01/2010)

Here's Rule 26, which is the rule that governs such lists.

Some Authors Guild authors, like Garrison Keillor and Scott Turow are satisfied now, as are the families of John Steinbeck and Woody Guthrie, while others are not happy, and in fact, it's up to each one to decide. Except lawyers are in this, so there are now legal dustups. One author, Ursula Le Guin, has gotten hundreds of authors to sign a petition [PDF] asking the judge to exempt the US from the agreement. That would kill it, of course, but legal filings don't always tell you what a case is really all about. You may have noticed that in the SCO litigations.

The Indian Reprographic Rights Organization (IRRO), a copyright society in India is suing Google over its book scanning. They filed in New York, alleging copyright violations for scanning books without notifying the authors first. Larry Lessig has written the most thoughtful and on-point critique, and he hates aspects of it, specifically what is happening to fair use and to culture if you have to get permission now for use that was in the past not permissions-based, not that he blames Google as much as copyright law and the super-control technology now provides authors. It's well worth reading. The fair use issue was what I was unhappy about when the first version of the settlement was announced, if you recall. And I still feel the same way. But here's who I really blame: publishers. I see it as comparable to Apple trying to set up iTunes and having to deal with the music industry. Remember all that?

01/22/2010 - 3 - Filed (ECF) Appellee Apple Inc. Mediation Questionnaire. Date of service: 01/22/2010. [7205615] (JGG)

01/24/2010 - 4 - Filed (ECF) Appellant Psystar Corporation Mediation Questionnaire. Date of service: 01/22/2010. [7205736] (KDC)

It's a total he said/she said thing. Here's the only thing they agree about: "Both Psystar and Apple agree that this case is not suitable for mediation." But this form is of real interest, in that it gives us our first real indication of what Psystar's appeal is going to be about. It has filed a notice of appeal, but it won't file its brief until May. So this is our first substantive clue.