The US District Court for the District of Colorado has just granted a motion for summary judgment in Golan v. Holder you will want to know about. It is a very big deal. Anthony Falzone, Executive Director of the Fair Use Project at Stanford's Center for Internet and Society, who led this effort, says, "It is the first time a court has held any part of the Copyright Act violates the First Amendment and the first time any court has placed specific constitutional limits on the government's ability to erode the public domain." I read it as saying that nothing, not any treaty, not even the Berne Convention, can trump the US Constitution.

That's what I love about it.

Novell has responded [PDF] to SCO's Objections to Novell's Bill of Costs, submitted as the prevailing party in SCO v. Novell.

Novell defends its Bill of Costs generally, in all the four categories that SCO listed objections to -- room rental fees, video fees, other deposition costs, and deposition costs concerning the SCO v. IBM litigation. Novell says it will withdraw a paltry $2,522.74 in conference room charges, but defends all the rest of its costs. SCO had objected to $50,586.14 in Novell's costs out of the total of $124,331.70, so a $2,522.74 reduction isn't much.

SCO also is objecting to video syncing fees -- syncing the video with the transcripts, so as to make the video searchable by keyword. SCO had cited a case -- In re Williams Secs. Litig.-WCG Subclass -- but Novell points out the case actually supports Novell, which we had noticed too. Novell attaches it as Exhibit 3 [PDF], and we have it here as plain text.

SCO *didn't* contest, Novell points out, most of the bill of costs, and it didn't contest that each of the depositions for which Novell seeks to recover costs were "reasonably necessary to the litigation of the case", which is the standard.

We also have some boring filings in the bankruptcy, like an 18th bill from Tanner. 18th. It covers March, so here's hoping Tanner is lining up some new customers. I'm thinking this revenue stream might not spring eternal.

Two notices of dismissal have been filed with the courts -- Microsoft's in Washington State, and TomTom's in Virginia, each dismissed without prejudice, ending both patent litigations. "Without prejudice" means that either could ramp it up and do this some more in the future, should circumstances arise that made it necessary. But in most cases, it means the litigation, or whatever, is over. Remember when SCO withdrew "without prejudice" its emergency motion to sell its assets, or Novell's assets, depending on your point of view? We never saw that again, did we, despite it being withdrawn "without prejudice".

Since the Microsoft-TomTom agreement supposedly promises Microsoft and TomTom won't sue the other for 5 years, I am guessing that this is protection just in case somebody ... anybody... should fail to stick to the agreement's terms. Not that *that* could ever happen with an agreement with Microsoft. No doubt you've followed the company's history, so you know their word is their bond. It's what they are famous for, business ethics. But you know how picky lawyers are. They like to plan for any contingency, however unlikely.

But in some distant alternate universe, where Microsoft might be kicking competitors to the curb by hook or by crook, were Microsoft to sue TomTom despite promising not to, TomTom could pull out its complaint. Similarly, if TomTom failed to do what it has promised, presumably Microsoft might be interested in trying to rip TomTom's face off in resumed litigation. So to speak. Not that this one worked out very well for Microsoft, as I see it, but since Microsoft is apparently unable to change any spots, I assume they'd try to butt their head through the same brick wall again.

The Linux Foundation's Jim Zemlin got the same message from the TomTom story that I did: just get rid of Microsoft's FAT LFN filesystem: The technology at the heart of this settlement is the FAT [LFN] filesystem. As acknowledged by Microsoft in the press release, this file system is easily replaced with multiple technology alternatives. The Linux Foundation is here to assist interested parties in the technical coordination of removing the FAT filesystem from products that make use of it today. OK. Sounds like a plan. There clearly is no "new" Microsoft, and they have evidenced now a lack of interest in any real interoperability with FOSS. Bruce Perens offers a list of applications to watch out for: All of that talk about interoperability with Linux coming from them? It was just talk, because they've shown that anyone who tries to interoperate with Microsoft technology even as simple as the FAT filesystem will eventially be sued, or pushed into licensing, for their efforts. The way they act, the Microsoft-internal definition of "interoperability" must be "making the whole world owe us."

And so, you should be wary of FAT, Office Open XML, .NET (including Mono), Silverlight, and of Microsoft's participation in standards committees that don't have a clear royalty-free committment, or, as is the case for Office Open XML, when the royalty-free committment is less than complete. These technologies leave the door open for submarine patents to sink your business. Ah, yes. Mono. Once again. And OOXML. Might governmental agencies wish to particularly take note of OOXML in light of the TomTom settlement? I would think so. And .NET and Silverlight. Perhaps you can think of others.

I can't believe there's yet more major news, all in one day. But there is, from the bankruptcy front. SCO's period of exclusivity is over, as you can see from the minutes of today's hearing [PDF]. Look at number 1 on the list under the heading "Proceedings" and you will see the word: "DENIED". This was regarding the SCO motion [PDF] to extend the period of exclusivity, its 4th, the motion that Al Petrofsky objected to pro se, as you can see on the Notice of matters on the agenda for today.

So now IBM and Novell and the US Trustee's office and any creditors -- they can one and all come up with plans, not just SCO, and may the best one win, so to speak.

Software Freedom Law Center has put out the following statement, which is harmonious with everything else I've been able to glean: Settled, But Not Over Yet

Today's settlement between Microsoft and TomTom ends one phase of the community's response to Microsoft patent aggression, and begins another. On the basis of the information we have, we have no reason to believe that TomTom's settlement agreement with Microsoft violates the license on the kernel, Linux, or any other free software used in its products. The settlement neither implies that Microsoft patents are valid nor that TomTom's products were or are infringing. There's more. Red Hat's legal eagles have put out a statement too, the meat of which is this: "Red Hat was not a party to this case. Even so, without a judicial decision, the settlement does not demonstrate that the claims of Microsoft were valid."

TomTom and Microsoft have settled the patent litigation. Actually, both of them. Here's TechFlash's coverage. According to the Microsoft press release, TomTom will remove functionality regarding the FAT patents within two years, which is no big deal, frankly, and in the meantime, they are covered "in a manner that is fully compliant with TomTom's obligations under the General Public License Version 2 (GPLv2)": Peter Spours, Director of IP Strategy and Transactions at TomTom N.V., stated: "This agreement puts an end to the litigation between our two companies. It is drafted in a way that ensures TomTom's full compliance with its obligations under the GPLv2, and thus reaffirms our commitment to the open source community." However, Microsoft calls it a patent agreement. Of course, Red Hat showed a way that it can be done, but is that what has happened here? I don't know yet, but I'll let you know if and when I know more details. If so, it's a major step in retreat for Microsoft's bully campaign or, alternatively, it's a major step forward in Microsoft's more mature handling of GPL issues.

I think it can't be like the Red Hat deal, though, because TomTom is removing the Linux functionality. That leaves not paying a royalty. But the news is that they are paying. Wait. One other possibility, a Novell-like deal? Indeed Ina Fried on CNET gives a hint that is something similar: As part of the deal, as TomTom will pay Microsoft for patent protection related to mapping patents and file-management patents that Microsoft claimed were infringed by TomTom's use of the Linux kernel....

In the case of the three file management patents, Microsoft is providing an agreement not to sue customers for their use of TomTom's products. As long as TomTom stays under GPLv2, this might squeak by. But it's hardly ideal. I'd have preferred that TomTom not settle so that the FAT patents could get tested in court, but it's not my dime.

Erwan has put together for us a chart of all the motions in SCO v. Novell that were decided prior to trial in the August 10, 2007 Order and the final two motions decided after trial in the July 16, 2008 Order. Since SCO is appealing that order, based in part on the idea that some motions should not have been decided on summary judgment and needed to go to trial before a jury, it seems a good time to organize them all, so you can follow the arguments in the appeal, particularly if you are thinking of attending oral argument. Novell will file its response shortly, and oral argument will be on May 6, 2009 at 9:00 a.m. in Courtroom I, Byron White U.S. Courthouse, Denver, CO.

If you are thinking of attending, and you can, here's the scoop: cell phones that take pictures will be confiscated at the entrance. Laptops are allowed. Observers may attend any hearing of interest without prior registration. Map. As with all judicial centers under Colorado law and federal law, the Byron White US Courthouse is a federal government building which means no permitted concealed weapons, photo ID is required for entrance, and you may be subject to electronic search at the entrances. The court recommends that you call the day before or check the website for the "Argument Calendar" and that you are at the door, ready to go in at least 15 minutes before the session you are interested in is scheduled to start.

It's Sunday, so let's not think about SCO.

Would you like to take a leisurely day trip with me, instead, so I can show you what's been happening in the Google/YouTube-Viacom litigation? There's been a hearing on a motion to compel discovery with some humorous elements to share with you, among other tidbits, that will show you a really effective lawyer at work educating the judge, who admits she's not a techie, on what might work well technically in resolving issues.

The big picture is that Google/YouTube has told the court that it would like to do discovery to prove one of its main points in the litigation, that Viacom is in a better position to police its own copyrighted materials, rather than trying to shift that burden on to YouTube, a mere service provider. [ Update: Here's a very thorough explanation in ABA Journal of the issues in this litigation.]

In support of its discovery motion, YouTube points out that sometimes copyright holders like Viacom and its partners selectively enforce copyright infringement, uploading their own copyrighted materials to YouTube for marketing purposes while at the same time they, or their agents, are sending YouTube cease and desist orders. YouTube would like to do discovery to show that sometimes Viacom knows that its content is on YouTube but, for promotional purposes, and does not ask to remove it, and that since Viacom acquiesces sometimes to its content appearing on YouTube and sometimes it doesn't, it makes it impossible for a service provider like YouTube to tell by simply looking whether any particular video clip is or isn't allowed to be there. The copyright holder is uniquely in a position to know what is and isn't allowed, because only it knows both what it owns and what others can and can't do with it.

There are some filings in the SCO v. Novell litigation. SCO is objecting to some of Novell's Bill of Costs. If you recall, Novell filed their Bill of Costs back on December 10, 2008, after final judgment was entered in the SCO v Novell litigation. SCO then moved the Court to stay taxation of costs, a motion Kimball recently denied. In that Order, Kimball gave SCO ten days to file this objection, and here we are. And in the second filing, the court tried to mail something to Jonathan Lee Riches, but the post office evidently couldn't find him. In prison. "Mail returned as undeliverable... unable to forward." Uh oh.

: D

SCO's argument is based on characterizing certain items as not covered by the statute, 28 U.S.C. § 1920, saying some of the costs are unnecessary, being for Novell's convenience and comfort only.

Like transcripts. They are covered by the statute, but Novell listed $7,592.11 for costs for renting deposition rooms. "These costs are not taxable under the statute," SCO asserts.

SCO would like Novell to be put through the very educational experience of being sued for absolutely no wrongdoing whatsoever, according to what the court decided, and then having to pay the expenses for defending itself.

This is just like the last time SCO filed a reorganization plan.

It's just been announced [PDF] that Monday's hearing, originally scheduled as a hearing on SCO's Amended Joint Plan of Reorganization [PDF] and the related Disclosure Statement [PDF] and Motion for an Order [PDF] confirming a scheduling hearing, etc., will instead be just a status hearing.

What? Issues? With a SCO reorganization plan?

You can get a hint of the depth of them by reading Exhibit A [PDF] attached to the latest Berger Singerman bill, showing the breakdown of time spent on them, to the tune of approximately $13,000. Look at the subhead beginning on page 14, "Plan and Disclosure Statement," and you'll see a long list of activity at Berger Singerman, with meetings and phones calls and conferences and emails and strategy sessions. How to respond to IBM's and Novell's various objections? You'll see that Joseph McMahon of the US Trustee's office appears in the list also, so there have evidently been discussions going on, but if they'd figured out solutions to all the issues, they wouldn't need a status conference. No doubt this reflects the seriousness of the objections raised.

SCO's 10Q for the quarterly period ending January 31, 2009 is now available, and it paints a glum picture indeed:  The Company incurred a net loss of $459,000 for the three months ended January 31, 2009, and during that same period generated cash of $337,000 from its operating activities. As of January 31, 2009, the Company had a total of $1,836,000 in cash and $3,766,000 in restricted cash, of which $1,500,000 is designated to pay for experts, consultants and other expenses in connection with the litigation between the Company and IBM, Novell and Red Hat (the "SCO Litigation"), $2,266,000 is payable to Novell for the post bankruptcy petition retained binary royalty stream. They seem to be losing their customers: Revenue from the UNIX business decreased by $1,775,000, or 36%, for the three months ended January 31, 2009 compared to the three months ended January 31, 2008....Our sales of UNIX products and services are primarily to existing customers. So... they are selling mostly to prior customers, who are leaving them at a noticeable clip. Um. This is the wonderful asset that SCO hopes to base its bankruptcy reorganization play on? I'm sure their money is safe, though. Wait:The Company has $250,000 of cash that is federally insured. All remaining amounts of cash as well as restricted cash exceed federally insured limits. Huh? How about more than one bank? Or a fund that is in TARP and can ensure it all? I mean, restricted cash owed just to Novell is $2,266,000, and it's not insured? That's not all they owe, either. Whazzup widdat?

There are a lot of filings to catch up on in the SCO bankruptcy, the usual bleeding of the patient with bills and such. Also the monthly operating reports for January from SCO, and the transcript [PDF] from the December hearing which was embargoed until March but is now available. We had put it in the Bankruptcy Timeline page, while I was busy working on other things, but someone asked for it today, so I'll highlight that it is available, in case others missed it. If you check Groklaw's Timeline pages, you'll generally be able to find the document you are looking for. No matter what else is or isn't going on, we keep that updated.

I must say, the transcript couldn't be less interesting, unless you enjoy watching mutual admiration societies and hearing the judge tell SCO's attorneys they are doing an excellent job on the claims process, despite it being an ordeal. It's an awkward conversation, to my taste. See what you think. It will certainly help the attorneys should there ever be a question about their interminable bills, I suppose.

Funny. When I think 'SCO' and 'ordeal' in the same sentence, their attorneys excellence in the bankruptcy claims process isn't what pops into my mind. : D

The real question is, can they write up an excellent reorganization plan that will actually get airborne, one that doesn't stiff creditors Novell and IBM?

I found something eye-poppingly interesting. Do you remember at the SCO v. Novell trial, where John Maciaszek testified that there was never a charge for earlier versions of Unix/UnixWare? That going all the way back to AT&T days, the earlier products were thrown in free? I have gotten hold of a contract where it seems to me that the licensee was charged for earlier products. Yes. $400 a copy.

Update: And now I find on page two confirmation of Otis Wilson's testimony in SCO v. IBM that modifications were never claimed by AT&T.

I wanted to highlight this press release, instead of just putting it in News Picks, to make sure you see it and understand the significance of it. It's a press release from Open Invention Network, the Linux Defenders 911 folks, and they announced today that TomTom is now a licensee. That means it comes under the protection of OIN, it makes all its patents available royalty-free to anyone else in the OIN network or who agrees not to assert its patents against the Linux System: OIN has accumulated more than 275 strategic, worldwide patents and patent applications. These patents are available to all licensees as part of the patent portfolio that OIN is creating around, and in support of Linux. I'd say the Microsoft/TomTom battle just got bigger, and TomTom is in a stronger position than it was, although TomTom itself has a number of patents of its own, including reportedly a number it purchased in 2007 for just such a moment as this, according to GPS:Over the years TomTom has built up a strong IP portfolio of navigation patents both through acquisitions and its own research activity. Because TomTom came rather late to the navigation space, when it started facing lawsuits (against Garmin) the Dutch company was in need of early, broad patents for cross licensing situations. Some of these were bought from Horizon navigation in June 2007 for $29 million. Within the patent set named in this litigation two were bought from Visteon and the two others from Horizon Navigation. That article opines that this will all end in a settlement, but I doubt it, since the GPL makes it impossible to pay any royalties for patents on GPL'd code. That doesn't mean no resolution is possible, as Red Hat showed the way to do that without violating the GPL. I doubt that Microsoft would be willing to do a deal like that, though, since it would make its FAT patents and all the rest it is aiming at TomTom available to one and all (in the Linux world) forever more royalty-free.

FSF, with Ray Beckerman serving of counsel, have asked to file an amicus brief in the Sony v. Tenenbaum case. I thought you'd like to read it. The plaintiffs oppose the motion, and Tenenbaum supports it. So that means the court will decide if the amicus will be accepted or not.

The purpose of the brief is this:We are submitting this brief to bring to the Court's attention some of the growing body of authority suggesting that the State Farm/Gore due process test applicable to punitive damage awards is likewise applicable to statutory damages, and in particular bars the suggestion that each infringement of an MP3 file having a retail value of 99 cents or less may be punishable by statutory damages of from $750 to $150,000 -- or from 2,100 to 425,000 times the actual damages.1 So it's more support for the concept of proportionality and asking the court to consider the Constitutionality of statutory damages in copyright cases involving noncommercial individuals.

[ Update: Ray Beckerman sends a correction. He says the reasoning of the four cases and two law review articles and the brief is equally applicable to commercial copyright infringement defendants.]

Can you believe it? This is so great!! Morrison & Foerster are representing TomTom in a new patent infringement lawsuit TomTom has just filed against Microsoft! I love covering their cases. Patent law is usually soooo boring to me, but these guys will keep me awake, and no doubt if I pay attention, I'll learn a lot.

I'd already decided to cover the lawsuit Microsoft filed against TomTom in Seattle last month, and we'll cover this one too. Eventually one or both sides will probably file a motion to consolidate the two cases, either in Washington State, where Microsoft filed, or in Virginia, where TomTom has just filed its Complaint [PDF]. But they could also just lope along on two separate tracks. So far, Microsoft's statement, on both TechFlash, linked above, and in part on Bloomberg, indicates they want to stay on their home turf:"We are reviewing TomTom's filing, which we have just received," said Horacio Gutierrez, Microsoft deputy general counsel, in a statement released by the company today. "As has been the case for more than a year, we remain committed to a licensing solution, although we will continue to press ahead with the complaints we initiated in the U.S. District Court for the Western District of Washington and the International Trade Commission."

[ Update: If, like me, you were wondering why Virginia, this article explains the advantages to filing in what was the first state to be called The Rocket Docket. I assume TomTom figures Microsoft might want to drag things out, since it can afford to do that and TomTom less so, and Virginia apparently handles patent cases very, very fast.]

What does it mean? It means TomTom intends to fight and fight hard. Microsoft always does that. So, it'll be a real dogfight. And we're probably going to get to see some fabulous lawyering on both sides. Not to make anybody nervous or anything, but it's exciting to see lawyers who really know what they are doing.

I have a bit more on Caldera, now calling itself SCO Group, releasing SysV init, with the source, in more products, beyond just OpenLinux Lite which I wrote about the other day. I got access to some other Caldera products, and here's the story on SysV init in Caldera OpenLinux 2.3, OpenLinux Server 2.3, and the Linux Technology Preview CD Caldera published in 2000, which included Linus kernel 2.4, all of which I have CDs for.

In connection with completing our records on Groklaw, we've set up a permanent page for our coverage of Project Monterey, a major theme in the SCO v. IBM litigation. Here are some press releases to add to our collection, which confirm all that we already knew or suspected about Project Monterey.

Why does it matter now? Because eventually, the SCO v. IBM litigation will ramp up again, after the SCO bankruptcy is over, and SCO claims that some of its Project Monterey claims survived the decision in SCO v. Novell that Novell retained the UNIX and UnixWare copyrights in the Novell/Santa Cruz deal in 1995. IBM denies that any of SCO's Project Monterey claims survive. You can fully trace both sides' positions on our new permanent Project Monterey page. It's also worth doing so as to complete and preserve the historical record, which has already partially 'disappeared'.

Professor Charles Nesson of Harvard Law School, the attorney for Joel Tenenbaum, has filed a motion to dismiss (here's the memorandum of law [PDF] in support of the motion) on behalf of his client, the defendant in SONY BMG Music v Tenenbaum. I thought you would find it interesting because he argues that statutory damages for noncommercial defendants under copyright law are unconstitutional, unreasonable, and way out of proportion to any alleged injury to the plaintiffs here, which at most is, he argues, de minimis: Punitive damages for infringement authorized by the Copyright Act, 17 U.S.C. § 504(c), represent an unconstitutional abrogation of due process when enforced against a noncommercial defendant. The damages prescribed by the statute bear no reasonable relation to actual harms resulting from Joel Tenenbaum's individual alleged infringement. I have no idea if the motion has a prayer of being granted, actually, particularly given the increasingly tense mood [PDF] in this litigation, but it's surely a valid question to ask. The US Justice Department has asked for more time [PDF] to decide if it should file a brief in support the plaintiff's statutory damages theory. Before you say blech, stop and consider what is on the table here. Tenenbaum is claiming that the US Copyright Act is unconstitutional. The implications are huge, and the DOJ wanted time to read Tenenbaum's motion to dismiss first, so as to respond meaningfully to it, or not, depending on its analysis. It will let the court know its decision on the 23rd.

I thought I'd give you some resources, so you can follow the arguments being made in this motion. And I have done the memorandum of law as text for you.