The Linux Foundation Announces First Legal Summits

Industry?s top open source legal experts to crack open legal issues at exclusive Linux Foundation events

SAN FRANCISCO, September 12, 2007 ? The Linux Foundation (LF), the nonprofit organization dedicated to accelerating the growth of Linux, today announced it will hold two legal summits over the next 12 months. These conferences will provide the only vendor-neutral forums in which leading attorneys from open source companies and the community can collaborate to understand and solve legal issues surrounding Linux and open source software. The Summits will be hosted and led by the LF?s recently announced legal team Karen Copenhaver and Andy Updegrove.

The first LF Legal Summit will be held October 25 - 26, 2007 in Boston and will only be open to Linux Foundation members and their legal counsel, which will include representation from HP, IBM, Intel, Novell and other leading open source companies. At this invitation-only Summit, members will focus on the issues of greatest common interest with regards to open standards and licensing. Presentations and working sessions will focus on building a legal defense infrastructure for Linux and evolving intellectual property rights policies optimized to support open development models.

For companies and organizations interested in attending this member-only event but who are not currently LF members, please contact This email address is being protected from spam bots, you need Javascript enabled to view it

The next LF Legal Summit will be held in Spring 2008 and will be expanded to include legal experts from all backgrounds to join LF member counsel in a collaborative learning environment. This conference will fill a glaring need for many attorneys who are looking for practical legal guidance on the development and distribution of open source software and the legal framework within which standards can be created to serve both proprietary and open source software models. This Summit is expected to be an annual LF event.

?Many of today?s legal conferences unnecessarily scare or confuse open source users, developers and vendors,? said Jim Zemlin, executive director of The Linux Foundation. ?The LF is able to provide a forum in which it can bring together its members? legal counsel as well as its own legal team to translate issues into the straight-forward matters they really are and to bring practical education to a wider audience.?

LF legal advisors Copenhaver and Updegrove will leverage the LF?s neutral forum to provide the Linux ecosystem with important information on licenses, standards and patent issues in order to reduce any confusion and foster further innovation and adoption of Linux. Copenhaver and Updegrove will also work with the array of legal talent at LF member companies to coordinate legal resources to best respond to issues facing the platform and other open source projects.

Copenhaver is a partner in Choate, Hall & Stewart LLP ?s Business & Technology practice focusing on technology transfer and licensing of intellectual property with a specific emphasis on open source business models. Most recently, Copenhaver was executive vice president and general counsel at Black Duck Software, Inc.

Updegrove is a partner and founder of Gesmer Updegrove LLP, a Boston-based technology law firm, and has represented and helped structure more than 80 worldwide standard setting, open source, promotional and advocacy consortia over the past 20 years. He has also represented hundreds of both emerging as well as established technology companies, and is the founder and editor of both the popular website www.consortiuminfo.org and the widely-read Standards Blog.

To learn more about these Summits, please visit https://www.linux-foundation.org/en/Legal_Summit. You can also read the recently launched blog on open source legal matters at www.linux-foundation.org/blogs/legal. This blog will provide updates on these conferences as well as other open source legal matters.

About the Linux Foundation
The Linux Foundation is a nonprofit consortium dedicated to fostering the growth of Linux. Founded in 2007, the Linux Foundation sponsors the work of Linux creator Linus Torvalds and is supported by leading Linux and open source companies and developers from around the world. The Linux Foundation promotes, protects and standardizes Linux by providing unified resources and services needed for open source to successfully compete with closed platforms. For more information, please visit www.linux-foundation.org.
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Trademarks: The Linux Foundation and Linux Standard Base are trademarks of The Linux Foundation. Linux is a trademark of Linus Torvalds. Third party marks and brands are the property of their respective holders.

457 - Filed & Entered: 09/11/2007
Order on Motion to Strike
Docket Text: ORDER denying [390] Motion to Strike Exhibits; denying [405] Motion to Exclude Testimony. Signed by Judge Dale A. Kimball on 9-11-07. (sih)

That explains why today's hearing was cancelled, since the only motion still on the docket for the day was this motion regarding Novell's exhibits.

The comments have been officially published, although as .doc files, sigh. Here's the zip file to download). But I thought I'd make them available to you as HTML also, which is how the members got them to make sure everyone has access and because of my idea. I gather someone had to process all the comments to put them into doc format, so one help would be to make sure nothing was overlooked. Other tasks might be to see that duplicates are noted, that they are sorted into various categories, like tech or not, and then subcategorized, etc. I think that might prove helpful too in making sure everything is addressed.

But the real help is this: Alex Brown has written on his weblog about another sorting he'd find helpful as he tries to get the comments properly sorted:

One curiosity of the ballot results is the degree of skepticism accompanying the votes of approval. Normally an approval vote in an ISO ballot means that the technical content has been approved. However, some of the comments accompanying approval votes look to me like they crave resolution. Indeed, Greece has gone so far as to accompany its approval vote with the following statement:

"If the Ballot Resolution Group fails to resolve satisfactorily the issues, then ELOT will reconsider its position and may cast a vote of disapproval during the BRG meeting(s) according to article 13.8 of the JTC1 directives, or may even appeal to the final adoption of the Standard."

This introduces a complication for the BRM. As convenor, one of my responsibilities is to run the meeting in a such a way that it maximises the chances of approving a text. One natural way of doing this is to de-prioritise comments that accompanied an approval vote, on the basis that those countries are already happy with the text. However, for Greece this evidently isn't an accurate assumption - and the same may be true of other countries too. I need to find out which...

It occurs to me that this is exactly the kind of task that a computer might be helpful in achieving, so I'm throwing the idea out there in hopes that you guys might figure out a way to help him out. So, with that goal in mind, here is the zip file you can download to view the comments in the original HTML. The zip file is almost 3 MB, and the files are categorized by name of the organization, not by country. By that I mean, France's comments are categorized as AFNOR. So that's another sorting job.

It will also make it possible for the public to follow along as they address all the technical and other issues that blocked approval at the meeting in February and thereafter. Here's the process, explaining what happens in February, so you understand the importance of getting the sorting done well before the meeting begins.

Earlier today, IBM announced that they are stepping up their involvement in the openoffice.org community. IBM joining OpenOffice isn’t about IBM helping to clone MS-Office in an open source project. It’s more about throwing technical resources into the community as it currently stands in an effort to broaden public knowledge and consumption of an open document format. OpenOffice is quite mature, so much of these resources are going to work on new projects that embed the ‘OpenOffice Technology’ in new and innovative offerings. So this announcement is a bellwether of things to come. All the derivative works will share a common standard for document file formats…and it’s ISO 26300, OpenDocument Format.

During ODF Day at aKademy 2006 (KDE developers conference) last September, Rob Weir talked about building an ecosystem around an open document format. In fact, he stated that the adoption of an open document format could lead to a ?golden age? of document processing, both client and server side. With so much “marketing speak” in this presentation, it was difficult to see where he was going with this, but lights went on in the audience when he started talking about the the type of document processing that can only happen with an open document format (that ANYONE could implement against):

• Interactive document creation in a heavy-weight client application (office suite)
• Interactive document creation in a light-weight web-based application
• Collaborative (multi-author) editing
• Automatic document creation in response to a database query (report generation)
• Indexing/scanning of document for search
• Document scanning by anti-virus tools
• Other types of document scanning, perhaps for regulatory compliance, legal or forensic purposes
• Validation of documents to specifications, house style guidelines, accessibility best practices, etc.
• Read-only display of documents on machines without full editors (viewer)
• Conversion of documents from one editable format to another
• Conversion of a document into a presentation format, such as PDF, PS, print or fax
• Rendering of a document via other modes such as sound or video (speech synthesis)
• Reduction/simplification of a document to render on a sub-desktop device such as cell phone or PDA
• Importing data from an office document into a non-office application, i.e., import of spreadsheet data into statistical analysis software
• Exporting data from a non-office application into an office format, such as an export of a spreadsheet from a personal finance application
• Application which takes an existing document and outputs a modified version of that presentation, e.g., fills out a template, translates the language, etc.
• Software which adds or verifies digital signatures on a document in order to control access (DRM)
• Software which uses documents in part of a workflow, but treats the document as a black box, or perhaps is aware of only basic metadata
• Software which treats documents as part of a workflow, but is able to introspect the document and make decisions based on the content
• Software which packs/unpacks a document into relational database form

In general, multiple standard candidates can be a positive thing as standards are being formulated. However, once an open standard is accepted, it is to the advantage of the entire development community and the ecosystem to focus on and improve a single standard. Otherwise, tool developers will need to replicate their work for multiple standards and they will suffer the pain and expense of incompatibilities and conversions.

Kudos to IBM for putting resources into the game to back up their stand on open document formats. In the end, it will be the consumers of the technology that will benefit. Documents will not only have long and unencumbered lives, but innovation will flourish around mining the content of these documents.

SCO wants to keep as much of the money it took in from licenses since it began its anti-Linux campaign as it can, and it framed its jury instructions to try to achieve that goal, but unfortunately for SCO, Judge Dale Kimball has now told them as of Friday that there will be no jury and that he isn't going to entertain any rehash of matters he's already ruled on on August 10, which wipes away a lot of what SCO was striving for, and one must assume they'll follow his directive to save all that for the appeal. Their proposed jury instructions do give us a hint as to at least part of what SCO is likely to tell the appeals court.

One of the rulings the judge made was that "SCO was required to account for and pass through to Novell the appropriate SVRX Royalties according to the SVRX portions of [the] Agreements." This trial is about how much SCO owes Novell from the Sun and Microsoft license money, which the judge has already said are SVRX licenses, and he's also ruled that SCO owes Novell for any other SVRX money. The question now is, what about the other licenses, like the EV1 license? Are the SCOsource Linux licenses SVRX licenses too? And if so, to what degree?

The first thing that I thought of was, naturally, the affirmative defenses in the SCO v Novell litigation. Do you remember, when Novell accused SCO of slander of title, SCO pled the First Amendment as an affirmative defense? Yet, the fact that the First Amendment's free speech rights can be used as an affirmative defense surely doesn't mean it's therefore no longer a right. So I started with the conclusion that it is possible for an affirmative defense to also be a right. Free speech is a Constitutionally protected right. So, what about fair use? I didn't know, so I decided to try to find out.

• The SCO Group, Inc.'s ("SCO") Motion for Entry of Final Judgment Pursuant to Federal Rule of Civil Procedure 54(b) -- No, so there will be no immediate partial appeal.

• Novell's Motion to Strike Jury Demand -- Yes. No jury trial. Novell is seeking only equitable relief.

• Novell's Motion to Voluntarily Dismiss Its Third Claim for Relief - Granted, "with Novell having the right to renew such claim only in there event that there is any subsequent adjudication or trial in this action that retries its Fourth, Sixth, Seventh, or Eight Claims for Relief or there is any enlargement of the issues for trial beyond that contemplated by the August 17, 2007 Joint Statement". You'll recognize that as Novell's language, not SCO's. Note the "or".

• SCO's Motion in Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon - Moot. The jury won't be there. So the parties can talk about IBM and Groklaw all they want. The judge won't be prejudiced. He's heard it all already. Kidding. Not *all* they want. Here's the wording: "While a jury may have been prejudiced by certain remarks, the court is not. Given the issues remaining for trial, however, the court would expect such references to be quite limited and only in relation to matters of testimony and exhibits that may overlap."

• Novell's Motion in Limine No. 1 to Preclude SCO from Challenging Questions Already Decided as a Matter of Law - Granted. "To the extent that SCO is continuing to argue positions contrary to the court's order, Novell's Motion in Limine No. 1 is granted."

• Novell's Motion in Limine No. 2 to Preclude SCO from Contesting Licenses Conveying SVRX Rights are "SVRX Licenses" - Granted. "Therefore, SCO cannot be and is not precluded from arguing that the SVRX component is de minimis. SCO's attempt, however, at making a distinction between the license as a whole being an SVRX License and only the SVRX component of the license being an SVRX License is contrary to the court's finding that even an incidental license of SVRX is considered an SVRX License under the APA's broad definition of SVRX License. The court rejected SCO's arguments that the Sun and Microsoft Agreements were not SVRX Licenses because they licensed SVRX only incidentally. ... There is no relevance to evidence relating to legal determinations already made by the court. Disputes as to the court's interpretation of the contract should be left for appeal."

• SCO's Amended Motion in Limine Regarding Apportionment of Microsoft and Sun SCOsource Licenses - Mooted in part; denied in part. SCO had argued that there would be jury confusion, but there will be no jury, hence no confusion. That's the mooted part. As for the parties' dispute about who bears the burden of proof on the apportionment issue, the judge tells them they can submit trial briefs regarding legal issues such as burdens of proof.

• Novell's Motion in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument Regarding Apportionment of SCOsource Revenue - Denied. "Novell's motion is untenable given the court's ruling that the Sun and Microsoft Agreements contain an SVRX component and that the revenue attributable to that component must be ascertained at trial. SCO recognizes that it is bound by this ruling for purposes of the approaching trial. While Novell is introducing evidence as to the appropriate allocation, SCO shall be permitted to offer evidence and argument against Novell's position - whether that includes a different allocation, such as de minimis, or an argument that no apportionment is appropriate." Dr. Cargill can speak for SCO on the question of apportionment, but only to the extent already disclosed. "SCO, however, asserts that it properly disclosed Dr. Cargill as an expert, and it does not intend to submit any testimony from Dr. Cargill other than what it has already disclosed. Accordingly, the court concludes that Novell has no basis for precluding Dr. Cargill's testimony. Given SCO's representation regarding the scope of Dr. Cargill's testimony, the court finds that no limitation is necessary." Of course, SCO's language limited it already. The court found no prejudice to Novell in that case, and it will have the opportunity to rebut.

SCO has not won this judge over. No amount of dazzle will do it for them now. There will be no jury to be dazzled. And all the media reports about how SCO had filed an appeal were, as you can see with your own eyes, 100 percent wrong.

451 - Filed & Entered: 09/05/2007
Objections
Docket Text: OBJECTIONS to Novell's Proposed Supplemental Jury Instructions filed by Plaintiff SCO Group. (Normand, Edward)

452 - Filed & Entered: 09/05/2007
Objections
Docket Text: OBJECTIONS to [382] Witness List(Proposed) (Novell's Second Amended Rule 26 Pretrial Disclosures) filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A)(Normand, Edward)

Novell filed its equivalent objections [PDF] yesterday with regards to jury instructions.

Update: Some have been asking what the right-hand column means on the Exhibit A. You'll see a lot of "Best evidence" listed. That is referring to the best evidence rule, meaning it's the basis for the objection. Let me refresh your memory on that:

• Novell's Evidentiary Objections - article includes link to the best evidence rule, among others;
• New Novell Evidentiary Objections - includes info on untimeliness and relevance

You can find all the Federal Rules of Evidence here. Note that each rule has a number. You have to give a reason for objections, and that is what that right-hand column is doing. If you fail to object to a jury instruction, it can hurt you in an appeal, quite aside from naturally wanting the jury instructed favorably to your side. Here's an example, although in a patent context. The judge gives the parties the opportunity to file jury instructions and objections so as to help him formulate them in the most accurate way, but the parties can have a basis to appeal later if they think his final instructions, which he'll write in his own words, were in error.

I asked an opera singer, a friend of mine, who studied with the same coach as Pavarotti, what made the difference. Because there were many singers on that stage at that concert, and only one of them made my ears tremble pleasurably with their singing. Literally. He said it's a technique of tongue placement, placing it right behind the bottom teeth. It doesn't sound so romantic, telling it that way, but I assure you it's an experience I'll simply never forget, because it was unique. I'd never experienced it before, and I never have since. It's not every man who can say he can do something for a woman that is unique.

It's fair to say my favorite single piece of music is him singing Nessun Dorma. I wrote to him once, because I just had to tell him how I felt. I asked a friend to help me so I could write it in Italian. I wasn't looking to meet him or anything like that. I just wanted to tell him and share a thought or two. And he wrote me back, a very warm and friendly note. He'd written it on an old fashioned typewriter, the kind you have to bang on to get the keys to hit the ribbon, like my mom prefers. And he'd signed it personally. I still have it. Of course.

So when I read that he had died, I cried. Next, I started wanting to hear him sing once again. But I wanted to see him too. So I looked on the Internet, and I found two videos I decided I wanted to share with you, on a certain website that shall be nameless in this context, one of my favorite, Nessun Dorma, and another of him and James Brown (It's a Man's World) in a collaborative duet, Pavarotti in Italian, and Brown doing his thing. It's very special. But, then I was stopped in my tracks. My paralegal brain started working. I started thinking about copyright law.

• SCO's Motion in Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon [PDF]
• Novell's Memorandum in Opposition [PDF] and
• SCO's Reply [PDF]

It isn't always practical to do this, because of length, but this is a very short motion. So here they are. This is one of the motions that will be argued on September 11th, so those planning to attend can use this as a way to prepare before they go.

During the state of the Linux round-table discussion on the first day of the Linux Foundation Collaboration Summit, James Bottomley (Linux kernel developer) had asked the panelists what are the top two things each panelist would like from the Linux community. Among the panelists was Google’s Chris DiBona, who is the open-source program manager at Google. His response was interesting when he had said the following: “I would love to get either NVIDIA and ATI to actually give us the specs on the drivers we want or let’s just reverse engineer everything and do it ourselves.”

It looks like AMD may be making good on a promise made at the Red Hat Summit in May. AMD is working with the community to release a 2D-accelerated Linux graphics driver, with 3D acceleration being part of the future plans. The official AMD press release states: “In the coming months AMD also plans to accelerate efforts to address the needs of the open source community as well.” But what does this mean? Are they opening up the fglrx driver? Are they providing specifications? Are they just making a better binary blob so the open-source community will just want reverse engineer it more?

?As client computing on Linux continues to grow so has our support and focus on delivering best-in-class performance and compatibility for our products,? said Ben Bar-Haim, vice president of software, Graphics Product Group at AMD. ?In the second half of 2007 we plan to deliver the most significant enhancements for ATI Radeon graphics ever for Linux and reaffirm our commitment to consumer users and the community as a whole.?

With companies like Dell and Google encouraging AMD/ATI to offer open source 2D and 3D graphics drivers, it looks like there is finally enough pull in the market to make it happen!

For sure I don't want any patents getting approved that might be used against FOSS someday because I wasn't paying attention. My worry is that because we have been busy elsewhere, the Microsoft patent submission might slide by, get approved by default despite there being prior art we neglected to mention, and then the FUD machine can start up about how it's now a super strong patent that made it through a FOSS community examination. I can see some Microsoft blogger now: "Hey guys, this is so great. Groklaw approves of this patent and says it's valid."

EEK. What a nightmare! Please, get to work. There is only a month left to comment on that application.

As reported on consortiuminfo.org, the official vote tally is in and ISO/IEC DIS 29500 (Ecma 376 Office Open XML file formats) did not gain approval. However, you could never tell it failed by reading a Microsoft press release entitled Strong Global Support for Open XML as It Enters Final Phase of ISO Standards Process. This article simply emphasizes the unprecedented level of participation and highlights the “qualified” positive voting results.

Tom Robertson, general manager for Interoperability and Standards at Microsoft Corp states, “This preliminary vote is a milestone for the widespread adoption of the Open XML formats around the world for the benefit of millions of customers. Given how encouraging today’s results were, we believe that the final tally in early 2008 will result in the ratification of Open XML as an ISO standard.”

I’m not sure what milestone means in this case. Basically, the possible ratification of ISO/IEC DIS 29500 has now moved out to 2008. Microsoft states that technical input will enhance the standard. So, I suppose the next phase for the OOXML community is to address the technical flaws sited in the comments of the voting members.

At the end of the day, the world may actually end up with two open document standards. To support a vibrant ecosystem around an open document format, the standard chosen by developers must yield document security (free from vendor lock-in and proprietary extensions) and ubiquitous acceptance across operating systems and applications (free from legacy encumbrances). If Microsoft wishes to create a document format that is better able to address the problems of the many editable legacy documents created in their older proprietary formats, they are welcome to help extend the existing ODF ISO standard in order to add the capabilities they require.

The de facto acceptance of a standard is of far more importance than the ratification of a standard. Application developers can vote (and have voted) by developing office suites, document management systems, and tools around the existing ODF ISO standard.