69 - Filed & Entered: 07/03/2008
Minute Order
Docket Text: MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 7/3/2008. IT IS HEREBY ORDERED that the parties shall submit a status report to the Court no later than Monday, July 14, 2008. (no image attached) (Copies have been distributed pursuant to the NEF - TKH)

Here's what it could mean: the judge has been reading the funny papers; or SCO or Autozone raised an issue it wants addressed. If I had to bet money, I'd say the first, that the judge was going through his case log and wants to know what's going on. It's been almost a year since SCO filed for bankruptcy, after all. It filed a Notice of Bankruptcy, but there was no order, that I see, shutting down the case.

And SCO has announced that SCOForum is being postponed until October 1. According to Heise, the reason is that there is a "new investor" offering to help it out of Chapter 11. I have no idea whether this means the Stephen Norris deal is dead or what it means. I can guess it means SCO is telling us a lot of stories, one after another, and so far none of them pan out.

The judge seems to think that what he has ordered will protect user privacy, but of course, I think he is mistaken. Again, lack of tech cluefulness strikes. For some of the reasons why it will not protect user privacy, you can read Kurt Opsahl's article. He hopes Google will appeal the order, believing that it violates the federal Video Privacy Protection Act (VPPA), and it is certainly possible Google will appeal. But do you get now why I have been conducting Summer School in Fair Use? Justia has the entire docket (except for the new order) available to the public, so you can read all about it as your homework assignment.

Speaking of fair use, here's Harvard Business Review's concept -- up to 500 words from their articles. Refreshing, no?

They plan to contribute proceeds, if they win, to the open source community. “We are grateful to the open source community, many of whom have contributed significant prior art in our ongoing case against Trend Micro,” Dean Drako, president and CEO of Barracuda Networks, is quoted as saying in the press release, which I'll share with you. That would include us. This news follows the media reports that a Groklaw member came up with some very valuable prior art for Barracuda on top of all that you guys turned up as a group.

You know how Red Hat said when it first started to file for patents that it was exclusively for defense purposes? Here's an example of when some software patents can come in handy.

Here are the facts of the case. Some folks made a movie, a documentary, and they got sued for using 15 seconds of the John Lennon song "Imagine" without permission. The case is Lennon v. Premise Media. That's Lennon as in Yoko Ono Lennon, joined by John's two sons and EMI Records. EMI sued in state court, and the Lennons in federal, both for copyright infringement and they threw in some trademark infringement claims too. I think that was mainly insurance, though. Lawyers do that. And there was a dispute as to who had the right to the copyrights.

The plaintiffs in both cases had asked the courts to issue a preliminary injunction to shut down the movie, which had already been released, and pull back previously released copies off the market, so the 15-second clip could be cut out. And they wanted the usual bucket of money. But it wasn't just about money; it was also about control, about having a say in how a work is used. The district court denied their motion.

It seems the EU Commission has a kind of news aggregator of its own, which it calls European Media Monitor, with several different services, and Copiepresse filed a lawsuit against the EU Commission for copyright infringement for linking to its members' Most Holy IP in the aggregation without asking for permission first.

Well, the Court of Seizures, which is a fine name for a court, threw out the Copiepresse complaint on jurisdictional grounds. Copiepresse says it won't appeal "for strategic reasons", but it will move the case to the civil court. I don't know how much that will help them. The Court of Seizures was persuaded by the EU Commission that its news search engine services are perfectly legal.

And indeed, he speaketh truth, yea verily. SCO *is* unique, happily. But that is also the problem. It's harder to spot a problem you've never confronted before. And this judge certainly doesn't seem to realize what he's dealing with. Or if he does, he doesn't care. That may be in part because in bankruptcy court, one gets used to less than noblemen, I suppose. His job is to get them back on their feet, if possible. But I don't honestly think that's all that is going on.

But he certainly got an earful at this hearing, this judge, and not only from Novell. The US Trustee also speaks plainly enough that SCO's lawyer protests, calling it a broadside attack on his client. You and I would just call it truth, and in fact the judge deflects the criticism.

Also the transcript of the June 17 hearing is now available. And Dorsey & Whitney have submitted another bill going back to April.

From the transcript, we see the first words out of the judge's mouth, after "good morning", is about the quarterly fees: "Yes, I'm prepared to approve those." And then, after all the lawyers on the phone for the fee applications decide to leave since there is nothing for them to say, the court turns to Arthur Spector to present SCO's need for an extension of time to file a reorganization plan. "It's a pleasure to be back," Spector says, as he begins. "Good to have you back," Judge Gross responds. I believe that captures the tone of the day perfectly. I'll comment more on the transcript when we post it as text.

After NetApp sued Sun, we responded with six reexamination requests on the patents asserted by NetApp. Reexamination is a procedure in which a party submits documents (prior art) relating to a patent to the US Patent Office (PTO) and asks that it reconsider whether that patent should have ever been issued. If the PTO agrees and determines there is a “substantial new question of patentability" (SNQP) it will grant the request and reopen the patent examination process on that patent. Included in our requests was a significant amount of highly relevant prior art that was not considered by the PTO when it first granted the NetApp patents. (By the way, to those of you who submitted prior art - "thank you!”)

Over the last two months, the PTO has granted the first five of our reexamination requests, finding in all the cases that multiple “SNQP” exist for each patent (one request filed in June is still pending).

That would include you guys, prominently so, and I wanted you to know your efforts were effective and appreciated. But there's another part I wanted to highlight. It has to do with ethics.

It's primarily because of what I learned from this testimony that I took a long time to write an analysis of the trial. I was, frankly, too angry to trust myself to write about it until I had some time to cool off some.

We learn two primary things from Jones' testimony: first, what a cynical role Sun played in the SCO saga, and second, that all the time SCO was calling on the world, the courts, the Congress -- nay heaven itself, if I may say so -- to sympathize with it over the ruination of its Most Holy Intellectual Property by it being improperly open sourced into Linux, not that it turned out to be true, it had already secretly given Sun the right to open source it in OpenSolaris. Remember all that falderol about SCO being contractually unable to show us the code, much as it so desired to do so, because of being bound to confidentiality requirements? What a farce. SCO had already secretly given Sun the right to open source Solaris, with all the UNIX System V you can eat right in there.

The simple fact is, I gather from Jones' testimony, Sun could have prevented the harm SCO sought to cause by simply telling us what rights it had negotiated and received from SCO prior to SCO launching its assault on Linux. Yet it remained silent. When I consider all folks were put through, all the unnecessary litigation, and all the fear and the threats and the harmful smears, including of me at the hands of SCO and all the dark little helper dwarves in SCO's workshop, I feel an intense indignation like a tsunami toward Sun for remaining silent.

I love this company. They take on patent trolls and win. What do they sell? "Machine vision sensors and systems"? Whatever that is, I'll take ten.