SCO Grp v. Novell Inc

Filing 866

NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of March 23, 2010-Jury Trial before Judge Ted Stewart, re 567 Notice of Appeal,. Court Reporter/Transcriber Patti Walker, CSR, RPR, CP, Telephone number [phone]. NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/10/2010. Redacted Transcript Deadline set for 5/20/2010. Release of Transcript Restriction set for 7/19/2010. (Attachments: # 1 Part Two, # 2 Part Three)(jmr) Modified by removing restricted text on 7/19/2010 (rks).

SCO Grp v. Novell Inc

Doc. 866 Att. 2

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THE COURT: MR. JACOBS:

Are we ready, counsel? Your Honor, I have had a chance to

review the transcript, and I believe that my characterization of the record was far more correct than Mr. Normand's. In the deposition that we're discussing, this is the deposition of April 27th, 2007, it's a 30(b)6 deposition, and Aaron Alter is the witness for the firm, for Wilson Sonsini. Aaron Alter was Mr. Braham's subordinate on the 1995 There are only a handful, less than

asset purchase agreement.

five, less than four privileged instructions in this whole deposition in which Mr. Alter is examined at length about all relevant aspects of the asset purchase agreement. In

particular, there is this -- there are these two relevant exchanges: Question. What did Wilson Sonsini and Novell

discuss in 1995 regarding the prospects of retaining intellectual property in UNIX and UnixWare? Mr. Perens -- he's the internal general counsel for Wilson Sonsini -- well, I'll have to instruct not to answer based on privilege. I

don't know if you -- if there's any waiver issue that you wanted to instruct us on. Mr. Brakebill, counsel for Novell. I

would ask him whether he knows, first of all, a 2130

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foundational question, and see whether there's any issue of instruction. Answer, the witness. recall. I don't personally

And while I am the Wilson designee here,

I would suggest in having read Tor's declaration -- bracket Tor Braham's declaration -closed bracket, that he was the primary negotiator, and I believe he answers that question quite specifically in his deposition. So that's the testimony on the 1995 transaction. Then as to Amendment Number 2, Your Honor, there is no instruction whatsoever around Amendment Number 2. Mr. Alter is asked: Question. Amendment Number 2, Mr. Alter.

Handing you a copy of previously marked as Exhibit 1009. Do you recognize this document? I do not. Is the question of the

Answer. Question.

negotiation and drafting of Amendment Number 2 a topic you're prepared to address today? Lacks foundation, counsel. Why don't you

ask him what role our firm had, if any, in this. The witness. I don't recall. Okay. So, Mark, I don't -I'm reading the

I don't recall.

trailer, and I'm trying to see if it was even a 2131

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Wilson document or whether Novell did it. Question by Mr. Normand. I take it you

didn't have any involvement with respect to Amendment -Answer. Question. If I did I don't recall. And do you know whether the

firm had any involvement with respect to Amendment Number 2? Answer. top of my head. Question. And I take it you don't know I also don't know that off the

whether Mr. Braham did. Answer. I did not -- I do not. I'm sorry.

In other words, no instruction around Amendment Number 2, no opposition to Mr. Normand inquiring of the law firm. Again, Mr. Braham has left. They have Mr. Braham's

declaration already. deposition.

They've chosen not to take Mr. Braham's There is no

And that's the state of the record.

privilege assertion of relevance here, Your Honor. THE COURT: MR. NORMAND: Mr. Normand? Three things, Your Honor. First,

Mr. Jacobs hasn't spoken to the 100 documents over which Novell has claimed a privilege concerning negotiation of the APA in the fall of 1995. Whether the assertion that privilege

is appropriate or not, the question is whether it would be 2132

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congruous to allow this witness to speak to Mr. Braham's intent when we haven't gotten discovery on all of the communications between Wilson Sonsini and Novell. Two, Mr. Jacobs quoted on Page 45 of the transcript. If you go to Page 48, there is a specific

question and a specific answer. Question. Did Wilson Sonsini ever tell other

than Mr. Bradford anyone from Novell that the copyrights in UNIX and UnixWare would not transfer? Mr. Perens. I'll instruct not to answer

on the grounds of attorney-client privilege. And three, Your Honor, we never disputed that there has been a selected waiver with respect to these communications about Amendment Number 2. Ms. Amadia put in a

declaration on it, and Mr. Braham put in a declaration on it. The issue is the witness reaching back in time saying, I spoke with Mr. Braham. He can't speak to, quote-unquote, Novell's

intent when we haven't got full discovery on Novell's intent. THE COURT: I understand the line of questioning

that Mr. Brennan would have liked to have pursued with Ms. Amadia was, as represented by Mr. Normand, what Mr. Braham, tell me, when I called him and asked him about the intention of the APA. It seems to me based upon what was

represented in the side bar as well as what has now been read 2133

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to me that that line of questioning was not permitted during the deposition. MR. JACOBS: you into error. I'm sorry, Your Honor. He's leading

There is a whole transcript about the intent

underlying the APA. THE COURT: We're not talking about the APA. We're

talking about Amendment 2, and it could be, more specifically, conversations between Mr. Braham and Ms. Amadia about Amendment Number 2. That is what no line of questioning was

allowed because of privilege. Isn't that a fact, Mr. Jacobs? MR. JACOBS: No, I don't think so, Your Honor. I

think the question on Amendment Number 2 and the role of Wilson Sonsini on Amendment Number 2 was specifically allowed and was referred to, and the witness Mr. Alter didn't know Mr. Braham's involvement in it. So there was no blockage of And Mr. Normand just

examination on Amendment Number 2. didn't make his record. MR. NORMAN:

I agree with what Mr. Jacobs just

said, and I explained to him on the break and I'll explain again, I want to be very clear about our position. been a selective waiver. There has

Ms. Amadia and Mr. Braham have both

spoken to their discussions regarding Amendment Number 2. Novell wants to put in Ms. Amadia's testimony of her discussion with Mr. Braham on the proposition that Mr. Braham 2134

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can speak to Novell's intent.

We have not gotten full

discovery on Novell's intent in 1995. THE COURT: Okay. That is a separate issue. That

is not what was represented at the side bar. MR. NORMAND: That is what I've been trying to say I'm sorry if I was unclear.

for 20 minutes, Your Honor. THE COURT: side bar.

That was not what was represented at

What was represented at the side bar was that a

question was posed to the witness in the law firm about Braham's conversation with Ms. Amadia, and there was a privilege exercised, and you were therefore not allowed to ask of the witness representing the law firm about that conversation. That was what was represented at the side bar. That's not what I meant to say. Is that what happened in the

MR. NORMAND: THE COURT: deposition? MR. NORMAND:

No.

What happened in the deposition

was we were not permitted to speak to Wilson Sonsini's, all of Wilson Sonsini's communications with Novell in 1995. THE COURT: All right. Okay. That's a different issue.

I will permit Mr. Brennan to reopen,

and he may ask this witness about conversations with Mr. Tor Braham. MR. NORMAND: Honor? 2135 Do you want to do that now, Your

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Your Honor. Q.

THE COURT: go to your cross. MR. BRENNAN:

Yeah.

We'll let him finish before you

Your Honor, if I could have

permission just to tell Ms. Amadia that I'm going to ask that question. THE COURT: bringing in the jury. MR. BRENNAN: Thank you. Do that now while Ms. Malley is

(Whereupon, the jury returned to the court proceedings.) THE COURT: Ladies and gentlemen, Mr. Brennan has And so though he

been given permission to ask some questions.

had said that he only had three more to go, this is specifically at the Court's permission and not a request. don't hold it against him if he's going to ask a few more questions to this witness. MR. BRENNAN: Thank you. You just made my day, And

BY MR. BRENNAN:

What I'd like to have you do,

Ms. Amadia, is focus back in time when Mr. Steve Sabbath, general counsel of Santa Cruz Operation, had approached you making a request that the asset purchase agreement be amended, and then what you undertook to do relative to deciding how to respond. And I believe you indicated that you spoke with Do you 2136

Tor Braham, who was the lawyer at Wilson Sonsini.

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recall that? A. I do, and I did. I spoke with Tor Braham, because

after reviewing the asset purchase agreement I -- it seemed very clear that copyright ownership was not intended to be transferred, and I wanted to understand from the drafter and the lead negotiator himself whether that was some kind of clerical error as it had been presented to me by Mr. Sabbath or whether that was intentional. that that was intentional. He indicated very clearly

There were good reasons for that.

And he directed me not to modify it. Q. And when you say he directed you not to modify it,

what did you understand him to mean in that regard? A. He said, don't change the schedule of excluded

assets such that the copyright ownership would transfer to Santa Cruz. MR. BRENNAN: your indulgence. THE COURT: Mr. Normand? CROSS-EXAMINATION BY MR. NORMAND: Q. A. Q. A. Q. Good afternoon, Ms. Amadia. I'm sorry. I didn't hear you. Thank you, Your Honor. I appreciate

Good afternoon. Oh, good afternoon. Now, you've testified that you perceived your job 2137

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in 1996 as to follow the business decision; is that correct? A. Q. Correct. And when you were determining what the intent was

under the asset purchase agreement, you didn't call any of the business negotiators of the asset purchase agreement; correct? A. Q. No, I did not. Now, you perceived your job as an attorney in 1996

to follow the intent of business negotiators; correct? A. Well, I didn't negotiate the original asset

purchase agreement, so I perceived my job as to follow the business intent of the business people in making any changes to that with respect to Amendment Number 2. Q. A. You said you called Tor Braham; correct? Yes. And I spoke with Jim Tolonen, as well, who,

as I said in my earlier testimony, is the lead business person involved in the transaction of Amendment X and Amendment Number 2. Q. And with respect to your discussion with

Mr. Braham, if Mr. Braham was wrong about what the business negotiators had intended under the APA, then what he told you about that intent was wrong; correct? A. Yeah, I suppose so; although I also received

direction from Jim Tolonen and from inhouse Novell counsel that was consistent with what Tor told me. one source for that understanding. 2138 So I didn't have

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Q.

And if what Mr. Tolonen had told you about what he

regarded as the intent under the APA did not reflect the intent of the business negotiators in 1995, then you had a misunderstanding of the business intent; correct? A. I -- yeah. My -- when I testified as to following

the direction of the business intent, it was as to changes or amendments to Amendment Number 2. Q. A. Your understanding -Okay. So I was going to follow the direction of

the business intent with respect to the modification to the asset purchase agreement. Q. Let me make sure I understand. I heard you say you

had three bases in which you concluded that you thought you understood in 1996 was the intent of the APA on the issue of copyright transfer; correct? A. Q. Uh-huh (affirmative). One, your discussion with Mr. Tolonen; two, your

discussion with Mr. Braham; and, three, your review of the asset purchase agreement; is that fair to say? A. Q. Yes. Now, you recognize that there was an issue with the

copyright exclusion language in the asset purchase agreement; correct? A. Q. Can you say that again? I recognize that --

That there was some issue with the language of the 2139

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copyright exclusion in the asset purchase agreement; correct? A. I was told by Steve Sabbath that there was an issue

with the copyright exclusion. Q. But you recognized that there was an issue with the Otherwise you wouldn't have

clarity of the language; correct?

agreed to enter into any amendment at all. A. No, I didn't think there was any issue at all with I thought it was very clear in the

the copyright exclusion.

asset purchase agreement in Schedule 1.1(a) and Schedule 1.1(b) that copyright actually was excluded. Q. So your testimony is that this paragraph in

Amendment Number 2 serves no purpose? A. Q. A. Oh, no. It serves a purpose.

What purpose did it serve? Well, understanding the context, we are trying to

negotiate Amendment Number X with Santa Cruz and IBM. Santa Cruz has threatened litigation. They're telling us we

need to agree to their terms on the buyout provision with IBM and future buyouts in order to avoid litigation. they throw in this alleged clerical error. And so in that context, trying again to settle this dispute and be able to move forward and let us run our perspective businesses, I saw the purpose of Amendment Number 2 with regard to altering the copyright section as appeasing them to make them understanding that we have no 2140 And then

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intention of suing them for copyright infringement for their rights to develop this code and run their business that they acquired. So again, I modified that section to affirm the

licenses that were already in the APA. Q. So your view was, your testimony is there was no

lack of clarity in the original APA, but you signed Amendment Number 2, anyway? MR. BRENNAN: statement. MR. NORMAND: questions. THE COURT: MR. BRENNAN: THE WITNESS: Well, number one, she did not sign. That was my objection. I did not think there was any lack of Your Honor, she can answer these Objection; mischaracterizes her

clarity in the original APA. Q. BY MR. NORMAND: But you did recommend to

Mr. Tolonen that he sign the language in Amendment Number 2 that changed the original asset purchase agreement; correct? A. I didn't view it as a change. I viewed it as

language to clarify it. Q. A. Q. A. But it did change it; correct? I still don't believe it changed it. You don't think it's a new language? It can have new language to shed additional light

without changing the underlying meaning, and that was what I 2141

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was intending to do. Q. A. And do you think Mr. Sabbath agrees with you? I think he should agree with me. I don't know

whether he does agree with me. Q. You just said in your testimony that you, and I'll

use your word, felt that Mr. Sabbath had agreed with your view on the issue of copyright ownership; is that right? A. Q. A. Yeah. But you're not sure if he agrees; right? Like I said, he didn't dispute it when I presented

the rationale of the changed language and the changed language, and he signed the document. Q. But it's possible that Mr. Sabbath believed that

the language you two had agreed to did confirm that copyrights had transferred; correct? A. Q. A. Q. I don't know how he could believe that. But you don't know what he believes; correct? Well, if we were going to amend the schedule -Yes or no? You don't know what he believes on this

issue; correct? THE COURT: Will you answer the question? If

there's something else that needs to be brought out, it will be brought out on redirect. THE WITNESS: Okay. I apologize.

What was question? 2142

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Q.

BY MR. NORMAND:

You don't know what Mr. Sabbath

believes with respect to the language you two ended up settling on with respect to Amendment Number 2; right? A. Q. I can't speak to what is in his mind, no. And you agree that the jury should consider the

actual words of Amendment Number 2 in deciding the parties' intent; right? A. Q. I do. Let me show you what's previously been marked as This is Santa Cruz' 1996 annual report.

SCO's Exhibit 137.

And, Mr. Calvin, can we go to the page. I'm showing you language, Ms. Amadia, stating that Santa Cruz stated in this 1996 annual report in December 1995, the company, Santa Cruz, acquired certain assets related to the UNIX business including the core intellectual property from Novell. Do you see that language? A. Q. A. Yes. Do you agree with that language? I don't -- I don't necessarily agree or disagree.

I think it's got some ambiguity in it. Q. You agree that copyrights are among the core

intellectual property of the UNIX; right? A. Q. I don't know that. I thought you said it was important to Novell that 2143

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they keep the UNIX copyrights. if it wasn't core? A.

Why would they have done that

It was important to secure the royalty stream from

the pre-asset purchase agreement code. Q. correct? A. Q. (Witness indicates by nodding head up and down.) And your testimony is that copyrights are not core You've said you're a software licensing attorney;

intellectual property concerning software? A. Well, again the use of the words intellectual I don't know what they mean by

property is ambiguous here.

intellectual property in this statement. Q. I'm asking you as a general legal matter, would you

agree that the copyrights are among the core intellectual property in any given piece of software? A. Q. In software? Yes, typically.

You were asked about your review of the asset Do you recall those questions?

purchase agreement. A. Q. Yes.

You recall reviewing Schedule 1.1(a) of the asset

purchase agreement sometime in 1996? A. Q. Yes. Mr. Calvin, could you bring that up. And if you

could bring up that Roman Numeral I with the top language, as well. 2144

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Do you recognize this, Ms. Amadia, as Schedule 1.1(a) of the asset purchase agreement? A. Q. I do. And Roman Numeral I identifies assets that were

being transferred to Santa Cruz; correct? A. Q. Correct. And those assets include, all rights and

ownership of UNIX and UnixWare including but not limited to all versions of UNIX and UnixWare and all copies of the UNIX and UnixWare including revisions and updates in process, and all technical, design, development, installation, operation and maintenance information concerning UNIX and UnixWare, including source code, source documentation, source listings and annotations, appropriate engineering notebooks, test data, test results as well as all reference manuals and support materials normally distributed by seller to end users and potential end users in connection with the distribution of UNIX and UnixWare, such assets to include without limitation the following: Do you see that language? Yes. Now, if there were no excluded assets scheduled to

the APA, this language would include the copyrights of UNIX 2145

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and UnixWare; correct? A. Q. A. I don't believe so, no. Why not? Well, if you scroll down there is a section in the

included asset schedule on intellectual property. Q. A. But I asked you about this language in Roman I. So you're saying if this is the only language in

the asset schedule? Q. A. Correct. No, I still don't believe it would. When I read

this then and as I read it now, it refers in my mind to the tangible media of UNIX and UnixWare and not speaking to the intellectual property or copyright. Q. So your testimony is that copyrights as a general

matter are not among the rights and ownership of UNIX and UnixWare; is that right? A. Q. A. Yeah. Let's look at -I mean, whenever you have a property right or you

have a right and a tangible thing, you know, you often will transfer all rights, title and interest. that title and ownership language is. Q. Although it doesn't say, all rights, title and That's what I think

interest; correct? A. No, it doesn't. 2146

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Q. A. Q.

It says, all rights and ownership; correct? It does. But you still say that copyrights are not among all

rights and ownership of a given -A. Let's just put it this way. As a technology

licensing practitioner, I would not rely on that language to imply that I had copyright ownership. Q. Now, you refer to Roman Numeral V, I believe it

Mr. Calvin, if you could bring up that language. That is the intellectual property language. Roman V is the language you're referring to? A. Q. Yes. And then that says: Intellectual property. Trademarks UNIX and

UnixWare as and to the extent held by seller excluding any compensation seller receives with respect to the license granted to X/Open regarding the UNIX trademark. Correct? A. Q. Yes. Is it your testimony that this is the only

intellectual property that you believe was included in Schedule 1.1(a) of the APA? A. Yes. 2147

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Q. A.

Now -Potentially -- well, yeah, because this is the

intellectual property section, so, yeah. Q. And you're a software licensing attorney. You said

that; correct? A. Q. A. Q. (Witness indicates by nodding head up and down.) You've heard of trade secrets in software; correct? Yes. So is it your testimony that trade secrets were not

included in the assets that Santa Cruz had acquired? A. Q. Well, if you go back to Section Roman Numeral I -Well, yes or no? Is it your testimony that trade

secrets were among the assets that Santa Cruz acquired? A. Q. A. Q. A. I don't think it's clear. You don't know? I don't think it's clear from the language. Do you have a view? Well, I can tell you that Amendment Number 2

attempted to clarify that and make it clear that whatever copyright rights, whatever specific rights under copyright law that Santa Cruz needed in order to exercise their rights to do this business that they did obtain them under the original APA. So if they needed trade secret rights in order to run

their business then they acquired them. Q. I'm not asking you about copyright, though. I'm 2148

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asking you about trade secrets. matter. A. Q.

That's a discrete subject

It's a discrete form of intellectual property; right? Yes. And there are no trade secrets identified in the

excluded assets schedule in the APA; correct? A. Q. Correct. So it falls that they must be included if they

exist in UNIX and UnixWare; correct? A. No. The excluded asset schedule is more, for lack So

of a better term, what we call belts and suspenders. really what is included or what are included in

Schedule 1.1(a), there really isn't an actual need to have a list of excluded assets except to indicate without, you know, any doubt that these things are not included. So the fact

that trade secrets aren't excluded doesn't mean they were included. Q. So your testimony is after the APA signed no one

owned the trade secrets in UNIX and UnixWare; is that right? A. No. After the APA was signed Novell owned the

trade secrets in UNIX and UnixWare. Q. But they're not in the excluded assets schedule. I

thought that's where you said the intellectual property was excluded. A. Q. It doesn't have to be in there. Why not? 2149

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A.

The excluded asset schedule typically is a list of

items that the parties think of and agree are not included, but it's not exhaustive. included assets. Q. exhausted? A. Because it's very clear in the section that refers Why would one be exhausted and one not be What's exhaustive is the schedule of

to the schedule that what is being sold is what is in Schedule 1.1(a). Q. So that long language I read at the beginning of

the Schedule 1.1(a) and bored the jury with, you don't regard that language which ends with the phrase, without limitation as being exhaustive; is that your testimony? A. No. I didn't say 1.1(a) wasn't exhaustive. 1.1(b) is It is.

It's limited to what is in that schedule. exhaustive. Q.

So your testimony is that Novell may have excluded

other assets that it did not identify in the excluded asset schedule? A. Q. Yes. And your testimony would be the same with respect

to know-how? A. I was just going to say, know-how is another way.

Know-how isn't mentioned in either included or excluded. Q. And so you presume that it is excluded if it's not 2150

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mentioned at all? A. Q. Yes. Let's look at the language of Amendment Number 2. And, Mr. Calvin, if you could bring up that Paragraph A. Now, I've heard you say that this paragraph was intended to confirm that Novell had retained the UNIX and UnixWare copyrights. testimony? A. Q. correct? A. Q. Correct. Your testimony is that you intended for Amendment Yes. Now, this language doesn't use those words; Is that a fair description of your

Number 2 to affirm, that was your word, that SCO has what you called a license, that was your word, under the asset purchase agreement; correct? A. Q. Correct. So you use the word "affirm." And the way you

would affirm a license is would be actually by saying in the document the word "license." A. Q. A. Q. Typically. But not here? Not here. The asset purchase agreement does not use the word 2151

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"license" in describing Santa Cruz' rights; correct? A. Well, that goes to the fundamental question of what When you grant someone the right to do It

is a license.

something with technology that you own, that's a license.

doesn't have to use the word "license" for it to be a license. Q. So your view is the asset purchase agreement sets

out an implied license; is that right? A. No. It sets out a license. It just didn't use the

word "license," which isn't required for it to be a license. Q. So other than by implication, how would you know

when you read the APA that there is a license if it doesn't use the word "license"? A. Because you specifically read the provisions that So it says, you have a

show you what you're allowed to do. right to take this code.

You have a right to develop You have a right to market it.

derivative works to this code.

You have a right to distribute it, et cetera. Q. A. Q. Now, you work in software licensing; correct? (Witness indicates by nodding head up and down.) You know that the phrase implied license is a term

of art; correct? A. Q. Uh-huh (affirmative). It's the words used to describe a license when the

word "license" is not used in a document; correct? A. I've heard it described that way, yeah. 2152

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Q.

So you would agree with me that if the asset

purchase agreement does not use the word "license," then any standard of proof license would have to be an implied license; correct? A. Well, I still think that it can be a license So an implied license is

without using the word "license."

often something that is, something that you gleam from it that you say, well, if I can do X, then I must be able to do Y, because I can't get to X without doing Y. That's not what I'm saying. I'm saying that the

APA explicitly said that Santa Cruz could do certain things, and that was an explicit license agreement, even though it didn't use the word "license." Q. Let me make this a easier. The APA is titled, The

Asset Purchase Agreement; correct? A. Q. A. Q. Uh -- huh (affirmative). The word "license" is not in the title; correct? Correct. And as far as you know, the word "license" is

nowhere used in the APA describing any rights that Santa Cruz has; correct? A. Q. Yes. Now, it comes time to Amendment 2, and you

testified that you wanted to be clear that Santa Cruz had acquired a license, but you do not use the word "license" in 2153

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Amendment 2 either; correct?

In fact, it says, the jury can

see, that Santa Cruz acquired the UNIX and UnixWare copyrights required for SCO to exercise its rights with respect to the acquisition of the UNIX and UnixWare technology. Do you see that language? A. Q. A. Q. Yes. That's the plain language; correct? Uh-huh (affirmative). And you don't clarify that someone has obtained a

license by amending an asset transfer provision; correct? A. Q. We did. Do you want to know why?

Your counsel can ask you why, and I've heard you

speak to why. A. Q. A. Q. Okay. But you didn't use the word "license"; correct? No. You could have signed something that said

Santa Cruz has a license, and you didn't sign something that says that; correct? A. Q. Correct. So your testimony that Paragraph A of

Amendment 2 which does not use the word "license" affirms that Santa Cruz had a license under the asset purchase agreement, which also does not use the word "license"; is that right? A. Several licenses under the APA, yeah. 2154

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Q.

So let me make sure I understood that.

Amendment

Number 2 Paragraph A clarifies that Santa Cruz had several licenses? A. Q. Uh-huh (affirmative). But it also doesn't use the phrase, several

licenses; correct? A. Q. Correct. And you know that Santa Cruz agreed to give Novell

over $100 million in payments under the asset purchase agreement; correct? A. Q. I believe so. So your testimony is that Santa Cruz agreed to give

Novell over $100 million in payments for an unwritten and implied license to use the copyrights; is that right? A. Q. No, that's not right. Your testimony is that they paid over $100 million

in payments, and part of the rights that they received was an implied, unwritten license to use the copyrights; correct? A. Q. A. No. What's incorrect? It's not an implied license. It was expressed. It

was very clear what they were getting the rights to do in my mind. Q. So it was an expressed license, but it doesn't use How is that possible? 2155

the word "license."

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A. Q. A. Q.

It was an expressed right to do something -Okay. -- which had a value. So expressed right is different from an expressed

license; correct? A. Not really. I mean, I look at copyrights as a So if you have -- you have certain

bundle of rights, okay?

rights under copyright law, and Santa Cruz was definitely given a number of those rights. Q. But they weren't given them in the form of a

description license; correct? A. Q. A. No, they were not. Now, as an attorney -But I don't think that has any difference in terms I'm not aware that it

of their ability to do those things.

would impact their ability to do it whether they used the word "license" or didn't. They still would have that right free

from, you know, any infringement claim from Novell that they're somehow infringing on their copyrights. Q. Let's look at the language in Paragraph A because This says:

I'm not sure I'm following what you're saying.

The copyrights and trademarks owned by Novell as of the date of agreement required SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technology. 2156

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work.

You're not here to testify what copyrights are required for SCO to exercise its rights, are you? A. Q. No. You understand that if SCO has only an implied

license to use the UNIX copyrights, then SCO cannot bring a lawsuit to enforce those copyrights, aren't you? A. Q. Can you repeat the question? You understand that if SCO has only an implied

license to use the UNIX copyrights that it cannot enforce those copyrights in court? background; right? A. Q. Yes. And enforcing the copyrights in a company software You understand that from your

is part of running a software business; correct? A. Potentially. It depends upon what your -- I mean, That wasn't the

in this case there are license rights. business that they really acquired. Q.

Well, if a company can enforce the copyrights and

the source code, then it cannot prevent third parties from misusing the source code; right? A. They could enforce a copyright after the derivative

They had ownership as to the derivative work. Q. But you agree they did not enforce under your view

of their rights the copyrights in UNIX that existed as of 1995; correct? 2157

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A.

Yeah.

I didn't believe and I still don't believe

from reading the APA that they had the right to license the underlying code. So I would believe the right to enforce the

copyright is part of that business. Q. Your understanding of the APA was that Santa Cruz

could not license the UNIX and UnixWare source code to third parties; is that right? A. In its form as of the signing of the APA? Only

under certain limited circumstances. Q. Your understanding was that after the APA

Santa Cruz could not license the versions of UnixWare that existed as of the time of the APA to third parties; is that right? A. Q. Yes. You agree that Amendment Number 2 revises the

excluded asset schedule of the asset purchase agreement; correct? A. Q. Can you say that again? You agree that Amendment Number 2 revises the

excluded asset schedule of the asset purchase agreement; correct? A. Q. Yes. Mr. Calvin, can we pull up that demonstrative? Ms. Amadia, is that in front of you on the screen? A. Yes. 2158

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 jury?

Q.

This is meant to depict the language in Amendment

Number 2 that we've been talking about replaces the language of the excluded assets schedule of the APA. is a fair representation of that? A. I can't read the original schedule on my screen. But let me get closer. I Do you think this

can only read the bubble language. Yeah. MR. NORMAND:

Your Honor, can I show this to the

We gave this to Novell this morning. MR. BRENNAN: Not precisely in this form. I don't

have an objection to this page.

There was another one, I

don't know whether they intend to use it, to which I have an objection, but I don't what's now before the Court. THE COURT: Q. All right. The jury may see this page.

BY MR. NORMAND:

Ms. Amadia, you recognize the

language on the left side of this demonstrative to be the language from the original excluded assets provision of the APA; correct? A. Q. Correct. And you would agree with me that the language on

the right is the language from Amendment Number 2 that replaces the old language; correct? A. Q. Correct. Now, you agree that under the plain language of

Amendment Number 2 Novell has included in the transfer of 2159

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assets the copyrights required for SCO to exercise its rights in UNIX and UnixWare; correct? A. Well, the way that I wrote and intended Amendment

Number 2 to be read is that this language was saying that whatever copyright rights Santa Cruz needed in order to exercise the rights it was given under the asset purchase agreement, then that would be -- they would have those rights. Q. Would you agree with me that it's a fair

interpretation of this language that Novell has included in the transferred assets the copyrights required for SCO to exercise its rights in UNIX and UnixWare? A. Well, so that -- yeah. Correct?

I suppose it's a reasonable

interpretation to say that if they required those rights under the original APA that they were transferred in this revised schedule. But the original language of this Amendment And

Number 2 in this section was presented by Steve Sabbath.

what we were attempting to do is work with the language that he had proposed and modify it in a way that was acceptable to us. We weren't -- so had I started from whole cloth in

drafting an amendment that was affirming SCO's license rights, I wouldn't have necessarily modified Schedule 1.1(b). I was intending to modify them in order to transfer copyrights, I would have definitely amended Schedule 1.1(a), which listed the included assets, and we didn't do that. Q. But in the terms of the question that I asked, 2160 And if

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

would you agree with me that it's reasonable to interpret this language as saying that among the copyrights included in the transfer are those that SCO needs to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies? Correct? A. Q. Yes. Now, let's pull up SCO 97. Ms. Amadia, have you seen Novell's press release dated June 6, 2003, on the issue of copyright transfer? A. Q. language? A. Q. No. Let me highlight the language for you towards the And because you haven't seen No, I haven't. Novell's attorneys haven't showed you this

bottom of the first paragraph.

this, let me read into the record a little bit of background. In a May 28th letter to SCO Novell challenged SCO's claims to UNIX patent and copyright ownership and demanded that SCO substantiate its allegations that Linux infringes SCO's intellectual property rights. And then at Number 2. 1995 SCO Novell

asset purchase agreement was sent to Novell last night by SCO. To Novell's knowledge, this amendment The amendment 2161

is not present in Novell's files.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1996.

appears to support SCO's claim that owners have certain copyrights for UNIX be transferred to SCO in

Do you see that language? A. Q. I do. Do you agree with that last sentence that I read

into the record? A. Q. No, I don't. I don't agree with the last sentence.

But you agree that that's a reasonable

interpretation of the language that is actually used in Amendment 2; correct? A. Without having the background knowledge of the

intent of the draftsperson and the business people in that transaction, I suppose it is a reasonable interpretation. I have that background knowledge, so for me it wouldn't be reasonable for me to interpret it that way. Q. And you said that the intent of the business people But

is relevant in determining the party's intent of the agreement; correct? A. Well, it certainly is as far as my job as an

attorney and what I was going to draft or agree to in a substantive agreement, yeah. Q. And with respect to this language that we've been

looking at, if Novell's general counsel approved the language of this press release you think his interpretation was 2162

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unreasonable? A. As I said, without having the background knowledge

of the intent of the draftsperson in Amendment Number 2 and the business intent in drafting that Amendment Number 2, I don't think that would be unreasonable. But I have that

knowledge, so to me it would be unreasonable. Q. In 2002 or 2003, did anyone from Novell ever ask Did they ever ask you to send

you about Amendment Number 2? them a copy of Amendment 2? A. Q.

Not that I recall, no. Now, you've previously said -- and let's go back,

Mr. Calvin, to Paragraph A of Number 2 and pull out that language. You previously said that you intended Paragraph A in Amendment Number 2 to set out what you called a process; correct? A. Q. A. said that. Q. You previously said in your declaration that this I'm sorry. Yes. No. I was actually referring to Paragraph B when I Paragraph A?

paragraph maybe sets out a process; correct? A. No. I don't -- I believe it was the buyout process

that I was referring to, which is Section B. Q. So it's not your view that Santa Cruz was under 2163

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some obligation if it wanted copyrights to go back to Novell and ask Novell to send it copyrights; is that right? A. Well, to the extent that they believe what was

required in order for them to exercise their rights under the APA was full copyright ownership, then they would need to do something beyond this. process. Q. A. Q. Yeah. Yeah. It would be fair to describe that is a form of But I guess that's what you mean by

process; right? A. I don't think that anyone -- well, I can't speak

for Steve Sabbath, but I did not believe that the original APA required for Santa Cruz to have full copyright ownership with all of the rights that are incident to full copyright ownership. So I didn't view this as something that was going

to trigger a process, because what I viewed it as is an affirmation of their licenses in the original APA. So I

didn't expect anything to come out of it in terms of a process of someone making any claim that they required copyright ownership. Q. But your view was that there was a process that had

to unfold before Santa Cruz could obtain copyright ownership; is that right? A. Like I said, my reading of the APA, my discussions 2164

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with Tor Braham and Jim Tolonen indicated to me that Santa Cruz had certain rights with respect to the technology and that the underlying copyright ownership was retained by Novell for good reason. And I did not anticipate that Santa

Cruz needed any more than those license rights, an affirmation of those rights in order to do their business. So, no, I think in my mind this cleared up any doubt as to whether or not they had the right to go and run the business, and that was all they needed was those license rights. Q. So I think I understand. Your testimony is if Santa Cruz did need them, if they were required, then they got them? A. Q. No, not exactly. So there's no process. And you say they didn't get

them at the time. A. I don't believe that they needed them, and I don't If, in fact, they thought they

believe that they got them.

needed them, I would imagine they would need to come back and have some form of amendment actually granting them with retroactive rights and amended bill of sale and everything tantamount to a transfer. mind. This was never a transfer in my

So, you know, I feel like I'm saying the same thing. Q. Now, this language in Paragraph A doesn't say

anything about Santa Cruz' obligations to come back to Novell; 2165

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correct? A. Q. No. It doesn't have any language that refers to any

process; correct? A. Q. Not that I can see. And we've gone through the fact that Paragraph A of

Amendment 2 revises the excluded assets schedule of the asset purchase agreement; correct? A. Q. Yes. And there's no other provision of the excluded

assets schedule that sets out any process; correct? A. Q. Not that I'm aware of. Let me ask you it a different way, Ms. Amadia.

Before Amendment 2 when Santa Cruz actually thought it did not own the copyrights, it already had the right to ask Novell to transfer them; correct? A. Q. I don't believe so. No. No.

Let's look at Section 4.12 of the APA. And

let's pull out that language at the top, Mr. Calvin. So, Ms. Amadia, this is from the APA Section 4.12, states: Each party hereto, at the request of another party hereto, shall execute and deliver such other instruments and do and perform such other acts and things as may be necessary or desirable for 2166

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effecting completely the consummation of this agreement and the transactions contemplated hereby. Do you see that language? A. Q. Yes. Do you see the language in the second line that

says, at the request of another party? A. Q. Yes. So under this provision Santa Cruz could have made

a request to Novell for the copyrights if they believed they did not own them; correct? A. Q. No, I don't believe so. You think that Santa Cruz literally could not ask

Novell in the form of a request, would you, please, transfer copyrights to us? A. I think they could ask, and I think they did ask.

I don't think Novell was obligated by this provision to grant them. Q. A. Well, I'm -I don't believe the original APA granted them, and

this provision addresses following acts in order to consummate the agreement and the transactions contemplated hereby. reading the actual language. I'm

And the agreement was an asset

purchase agreement of certain assets which did not include -Q. Well, I appreciate all of that, I do, and maybe my 2167

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question wasn't clear enough. A. Q. Okay. I'll try to ask a clear question, and see if we can And if you can't let me know.

get a yes or no. A. Q. Okay.

But my question was, didn't Santa Cruz have a right Whatever Novell did in response,

to make a request to Novell?

Santa Cruz could have made a request? A. Q. A. Do I have to say yes or no, or can I -If you can't say yes or no you can explain why. Absolutely. Whether or not this language was in

the agreement there's no law that prohibits Santa Cruz from making that request. Q. And Novell could have said no in response to the

question; right? A. Q. Correct. And none of that in your view changed after

Paragraph A of Amendment Number 2 was put in place; correct? A. Q. Correct. So Paragraph A of Amendment Number 2 never had

anything in Section 4.12; correct? A. Well, again, to the extent there's any document or

further assurance that they requested in relation to the licensees that they received under the original APA, then I think this section would require Novell to respond and perform 2168

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in good faith with respect to those licenses.

I believe they So I guess

still had that obligation under the original APA.

the answer is yes, there is no additional, there's no additional obligations that came about as a result of the Amendment Number 2. Q. Now, you don't think that Steve Sabbath after he

executed Amendment Number 2 thought he got nothing out of that paragraph amendment? A. No, I don't. I don't think he got nothing. I

think he thought he got what he needed, which would clear license rights to go forward, to use the code, to develop it, to, you know, own modifications to it, to do all of the things they intended to do to acquire the assets. Q. You think he thought he had clear license rights in

the form of the agreements that don't use the word "license"? A. Q. Yeah. Now, let's look at the draft language that we And I think that's

talked about that Mr. Sabbath sent to you. in, what was put in at T34.

Let's pull up that Paragraph A.

I think you said Mr. Sabbath told you initially in the beginning of the discussions that the purpose of the Amendment was to clarify that the UNIX and UnixWare copyrights had transferred; correct? I'm not saying you agreed with it,

but I'm saying that was your understanding of what he was proposing; right? 2169

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A. Q.

Yes. Let's look at this language. The language that

you're saying he sent to you said: All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of this Amendment Number 2, which pertain to the UNIX and UnixWare technologies and which SCO has acquired hereunder. Do you see that language? A. Q. Yes. You spent a little time with that language with

counsel, and unfortunately for the jury I'm going to ask you about grammar a little bit. The first part of this language says, all copyrights and trademarks; correct? A. Q. Correct. So if the language stopped there, then what you

would have is a situation where all copyrights and trademarks had been excluded; is that fair to say? A. Q. That's fair to say. The language goes on, and it begins with the word

"except," so that's an exception; correct? A. Q. Correct. All copyrights and trademarks except for the

copyrights and trademarks owned by Novell as of the date of 2170

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this Amendment Number 2. Now, that would have said that Santa Cruz acquired all of Novell's copyrights and trademarks; correct? A. Q. A. Q. Yes. Yes. Yes. Now, that's not what either you or Mr. Sabbath If it had stopped there?

intended; correct? A. It's not what he signed and what Novell signed,

either, yeah. Q. But Mr. Sabbath didn't intend to have anything

clarify that Santa Cruz had acquired Novell's NetWare copyrights; correct? A. Q. Correct. So this was, first two parts of this sentence,

they're simply inaccurate? A. Q. A. They're what? Inaccurate. Well, it wasn't ever intended to be read alone. So

as a draftsperson I take offense to it being called inaccurate, even though I didn't draft it. But it was never intended to be read -Q. I was hoping you wouldn't be offended. I mean, Steve drafted it.

Mr. Sabbath -A. It was intended to be read in context and 2171

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particularly in the context of a complete sentence, which it was written, but, yeah. Q. So we agree -- you know, I'm going to get to that But do we

third part, and I'm not trying to exclude it.

agree, if you read the first two parts what that language literally says is Santa Cruz had acquired all of Novell's copyrights and trademarks. And you didn't understand that's

what Mr. Sabbath intended; correct? A. Q. No. Yeah.

And then the last part explains the second part.

The last part says, which pertain to the UNIX and UnixWare technologies and which SCO has acquired hereunder. Now, all of Novell's copyrights and trademarks did not contain the UNIX and UnixWare technologies; correct? A. Q. Correct. There were Novell copyrights and trademarks that

pertained to NetWare; correct? A. Q. Yes. So this language that Mr. Sabbath sent you actually

didn't even reflect his intent, did it? A. Well, if it didn't reflect his intent, I don't know

why he presented it. Q. A. But what I'm getting at -I think he did. He was saying that he was

intending to transfer copyright ownership with respect to all 2172

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copyrights which pertained to UNIX and UnixWare that they claim to have acquired under the original APA. Q. Well, I guess I'm focussing on the comma, and

here's the grammar, the comma in the second line of the sentence, and, comma identifies, does it not, it identifies the copyrights and trademarks owned by Novell as of the date of the amendment as pertaining to the UNIX and UnixWare technologies? A. And that was not accurate, was it? It probably should have

Comma error, but yeah.

been that pertain, not which pertain. Q. Now, you agreed that if Novell had signed the

language that Mr. Sabbath sent to you, that would have provided that all of the UNIX and UnixWare copyrights were transferred; correct? it, but -A. Again, if I were Steve Sabbath, I would not have And again, I'm not saying you did sign

presented this language in and of itself and expected to retain copyright ownership from this language. Q. Let me ask it differently. The reason you didn't

sign this language, I thought I heard you testify earlier, because your view was if you had signed it, it would have made very clear that Santa Cruz had acquired all the UNIX and UnixWare copyrights. A. I don't know that I said that. MR. BRENNAN: I want to state an objection. That 2173

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mischaracterizes the witness' prior testimony. Q. A. BY MR. NORMAND: No. Well, if it does, explain that.

I think what I said, or I can at least say now

what I meant to say is it would have created an ambiguity that there was an intent to transfer copyright ownership. Q. And you think that the language that you ultimately

settled on with Mr. Sabbath contained no ambiguity? A. I think it did contain some ambiguity. And if

you're a transactional attorney and you understand the way these transactions work in the context of settling a threatened litigation, sometimes you're willing to live with a little bit of ambiguity in order to get a deal done. And I

don't think that the ambiguity was such that at the end of the day it wasn't clear. I mean, like I said, in a perfect world I never would have accepted Steve Sabbath's original language and even modify the excluded asset schedule. I would have started with But

basically some statement affirming the license grant.

knowing Steve Sabbath and who he was and what his reaction was going to be to a whole modification of his proposed language, that was not going to bring the deal forward and get the parties on to do their businesses, which is where we all wanted to be. initial drafts. Q. Let me ask you a different question in that vein. 2174 So I tried to work within the confines of his

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

And if we could go back, Mr. Calvin, to the excluded assets. Now pull up that language on Roman V.

So you agree, Ms. Amadia, that under the APA Santa Cruz did acquire trademarks of UNIX and UnixWare; correct? A. Q. Yes. Okay. And you said that Amendment Number 2

clarified the asset schedule of the APA; correct? A. Q. Yes. Well, yes.

So Amendment Number 2 confirmed that Santa Cruz had

acquired UNIX and UnixWare trademarks; correct? A. Can I actually see the language on Amendment

Number 2 at the same time, or can somebody present me with that document? Q. A. Sure. I think we can stack it up there. Section A of

Because I don't want to misspeak. That would be great.

Amendment Number 2. Q.

So as you look at it, I thought I heard you say

earlier that Amendment Number 2 was designed to clarify the excluded assets schedule. And it was meant to confirm what

assets Santa Cruz had and had not acquired; correct? A. Q. Uh-huh (affirmative). So Amendment Number 2 was not designed to say that

Santa Cruz had not acquired the UNIX and UnixWare trademarks; correct? 2175

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A.

Yes.

At the time that this section was being

modified, trademarks wasn't really top of line for either party. And -- but I don't think -- it certainly didn't intend

to take them away. Q. So the language now in Paragraph A, I hope I'm not

testing the jury's patience, but the language says that what was transferred to Santa Cruz were the copyrights and trademarks owned by Novell as of the date of the agreement required for SCO to exercise its right with respect to the acquisition of UNIX and UnixWare technologies. Do you see that language? A. Q. Yes. And you agree with me that that language identifies

the UNIX and UnixWare trademarks as having been transferred; correct? A. It doesn't expressly identify them. But to the

extent that the UNIX and UnixWare trademarks were required for SCO to exercise its rights under the APA, they were transferred through Amendment -- well, their transfer was clarified in Amendment 2. the APA. Q. And you said in response to my question earlier They actually were transferred in

that Paragraph A did not change that; correct? A. Q. Yes. So the way Paragraph A identifies UNIX and UnixWare 2176

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trademarks is by identifying them as required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies; correct? A. Yes. Well, the UNIX and UnixWare trademarks were

also listed in the schedule of included assets. Q. Now, but this language pertains to the excluded

assets schedule; right? A. Q. Right. And we've agreed, haven't we, that there are at

least some intellectual property rights that are not specifically identified in the included assets schedule in the APA? A. Yeah. Again, I view intellectual property rights

as you can dissect them into individual rights and licenses. So certainly we're saying under trademark law and under copyright law there were certain rights that SCO got licenses to or I guess acquired with respect to trademarks. Q. clear. A. Q. A. Yeah. This paragraph -Again, it all ties -- the whole purpose of Well, when you say, I guess acquired, I want to be

Amendment Number 2 in this language was to tie it back to the original assets purchase agreement. Q. So Santa Cruz got the UNIX and UnixWare trademarks 2177

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because they were acquired for its business; correct? A. got them. Q. Well, that's not what I heard you say. I want to If they were required for its business, then they

make sure we're being clear.

You said that they did get them

under the original APA; correct? A. Q. Yes. And you said that this Paragraph A does not change

that; correct? A. Q. Yes. Okay. Now, this Paragraph A on its face does not

draw any distinction between trademarks and copyrights; correct? A. Q. Correct. So if there are copyrights that are required for

SCO to exercise its rights, like the UNIX and UnixWare trademarks, they were transferred; correct? A. Q. Yeah. Ms. Amadia, you testified very briefly to the

negotiations that were among Novell and IBM and Santa Cruz in the first half of 1996; at least that's how I heard it; is that a fair description? A. Q. Uh-huh (affirmative). And that arose in a situation where Novell was

claiming to act on behalf of Santa Cruz; correct? 2178

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A. Q.

Correct. Novell had entered into an agreement with IBM and

said in the agreement, we're acting on behalf of Santa Cruz; correct? A. Q. Yes. And after Santa Cruz found out about that

agreement, Santa Cruz was upset; correct? A. Correct. Well, Santa Cruz was collecting the

royalty stream under all SVRX licenses including that agreement. So the way they found out about it was Novell's

agreement, it prevents them from being ready to receive the check. Q. But Santa Cruz did object to the agreement that

Novell had negotiated with IBM on behalf of Santa Cruz; correct? A. They did. They ultimately agreed to an amendment

that revised that, and that was Amendment Number X. Q. And there was really a dispute among Novell and

Santa Cruz throughout a lot of 1996; correct? A. I'm only aware of the dispute regarding

Amendment X. Q. correct? A. It did last several months. I don't know about the That's what I meant. It lasted several months;

year language.

But it did last several months. 2179

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Q.

And to your knowledge, throughout that whole

dispute with Santa Cruz, Novell never claimed to own the UNIX and UnixWare copyrights, did it? A. The issue never came up. Nobody made any claims as

to ownership. Q. And there came a time when IBM who had entered into

that agreement with Novell earlier became involved; in other words, there came a time when all three companies were involved in the discussion; correct? A. Yeah. The ultimate amendment was signed by all

three companies. Q. And do you recall whether during that process among

the three companies IBM insisted that Santa Cruz should agree to lift restrictions on IBM's software agreement because SCO could protect itself through its copyrights? A. Q. A. Q. No. You don't recall any discussion on that? I don't recall that. Let me show you to see if we can refresh your SCO 123.

recollection.

And, Ms. Amadia, I wanted to -- let's identify it at the top. I can't really speak to the internal substance of But do you see the title of

the document because it's not in. the document? MR. BRENNAN:

Do you have a copy that I may see? 2180

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

MR. NORMAND:

Yeah.

Sorry.

BY MR. NORMAND:

Do you see the language at the

very bottom that I think Mr. Calvin will pull up? A. Q. A. Q. Can I ask, who's the author of the document? I can't tell you. Okay. All I'm trying to do is refresh your recollection,

if you've seen this document. A. Q. Oh, okay. So take a second and look at it and let me know if

you recognize it. A. Q. A. Q. I don't recall seeing this document. It doesn't refresh your recollection at all? Huh-uh (negative). And you don't recall any discussion in which IBM

said that Santa Cruz could protect itself through its copyright ownership? A. Q. I don't recall. In 1996, Ms. Amadia, you had occasion to review the

asset purchase agreement; correct? A. Q. Correct. And you were at Novell in 1995 when the asset

purchase agreement was signed; is that right? A. Q. I don't know. Would you recall when -2181

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A.

I was there in 1995, and it was signed in 1995.

I

don't recall the exact month I started and the exact month it was signed. Q. But I was not involved in it at all. Do you recall reviewing either in 1995 or 1996 a

technology license agreement that was executed in connection with the asset purchase agreement? A. Q. I don't recall if I reviewed that. Do you recall reviewing a strategic development

agreement between Novell and Santa Cruz that was also executed in 1995? A. Q. No. Do you know whether the technology license

agreement uses the word "license"? A. I think it does, yeah. I've reviewed it now since.

But not at that time do I recall if I reviewed it. Q. A. practice. And what is your current job, Ms. Amadia? I'm an independent legal consultant. I have my own

And I represent companies in myriads of corporate

transactions including licensing transactions. Q. A. Q. this point? A. About 95 percent of my practice is licensing and Did you have an infertility law firm? I also have an infertility law practice, yes. So how much licensing software work do you do at

general corporate counsel work, and about 10 percent of my 2182

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practice is fertility, which is contract based, as well, but obviously deals with a different body of law. Q. Thank you, Ms. Amadia. THE COURT: MR. BRENNAN: Mr. Brennan? Yes, thank you, Your Honor.

REDIRECT EXAMINATION BY MR. BRENNAN: Q. Ms. Amadia, you may recall that Mr. Normand asked

you a whole series of questions regarding the thought process and intent of Steve Sabbath. questions? A. Q. Yes. I'd like to have placed before the witness It's not in evidence, Your Honor. I'll Do you recall those various

Exhibit Y23.

represent that this is the declaration of Steven M. Sabbath that was signed in the SCO -THE COURT: MR. NORMAND: Mr. Normand? This is going to raise some issues,

unless Mr. Brennan is speaking careful, I guess. MR. BRENNAN: Your Honor, clearly some of us were

speaking uncareful and opened the door wide open. THE COURT: No, he didn't, Mr. Brennan. The Court

is not going to allow you to use this in the way you hoped to. MR. BRENNAN: Just so I can be clear. Do we have I 2183

to do it in front of the jury or at side bar, Your Honor?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

do have a problem -THE COURT: I will inform you that your intent to

use this for a substantive purpose is not permitted under the rules. You can use it for impeachment, but this witness is

not being impeached by this document. MR. BRENNAN: Well, will the Court allow me to ask

any questions regarding the statements by Mr. Sabbath that he made under oath regarding the subject matter of the questioning that Mr. Normand directed? THE COURT: MR. BRENNAN: THE COURT: No. Thank you, Your Honor. For the reason I just stated, which

ought to be clear to you, Mr. Brennan. MR. BRENNAN: Q. Thank you. Now, you were asked by Mr. Normand You'll

BY MR. BRENNAN:

questions regarding the use of the word "license."

recall that Mr. Normand at that time declined to allow you to explain why the word "license" was or was not used in Amendment Number 2? A. Q. Uh-huh (affirmative). I'm going to give you that chance now. Will you

explain why the word "license" was not used in the Amendment Number 2? A. Again, I have had conversations with Tor Braham.

When I was told by Steve Sabbath that there was a 2184

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typographical error in the original APA, and it did not include transfer of copyright ownership. And what Tor

explained to me was that, no, it was not a typographical error, and there was no intent to transfer copyright ownership and that Novell had strong reasons to retain copyright ownership. you mind? Q. A. Q. Yes. I apologize. I was hoping that you could -So -- I may have missed part of your question. Do

I haven't eaten yet, so I'm getting kind of hungry. I think we're near the break. I was hoping you

could explain why the word "license" is not used in Amendment 2. A. Oh, yes. So what Tor explained to me was that the

original transaction was structured as an asset purchase agreement and that it morphed a little bit based upon the business dealings and consideration that b