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"Every Step You Take, Every Move You Make, I'll Be Watching You" - Broderick Affidavit
Friday, June 18 2004 @ 06:01 PM EDT

A Groklaw volunteer, eggplant37, ran by the courthouse in Michigan to see what was there that might interest us. The court is still in the 19th century as far as digitalization is concerned. There was a strange glitch, which he describes:

"Just got back in from my run up to Oakland County 6th Circuit to get the paperwork. Odd thing was, the opposition briefing paperwork was missing almost everything. I have a coversheet with the motion title, a table of contents page and then pages listing the table of authorities. Everything -- all the briefing language -- is missing. The clerk that I spoke to couldn't come up with a good explanation and did go to the trouble of pulling the file, which also only included the four pages I described above.

"However, I did get another bit of paperwork -- 40 pages with exhibits -- titled 'Affidavit of William Broderick,' which from my initial short skimming read will give us some insight into what they're arguing in their opposition briefing."

He'll try again on Monday. Meanwhile, I submit for your enjoyment, the affidavit of SCO's Director of Software Licensing to what I can't help but think will be listed in the judge's stories to her grandchildren someday as the stupidest lawsuit that ever came before her.

Update: Here's the Broderick Affidavit and the Memorandum of Law it was attached to, as PDFs. Here's Exhibit A[PDF], the 1988 license between AT&T and Chrysler Motors.

SCO says in effect that DaimlerChrysler may have stopped using their software 7 years ago, but the license terms survive, so they still have to answer all SCO's questions, because you never know. They maybe didn't throw the software away when they stopped using it. Or employees who had access to the software might have done bad things with it. Without certification, how can SCO "ensure that the technology was properly maintained and controlled, rather than copied, or transferred, or removed by a departing employee in violation of the terms of the License Agreement"? Maybe they talked in their sleep, ya know, and the wife wrote down the code and gave it to Linus in a plain brown wrapper in a park. Or... well, you get the idea. It's unbelievably funny, listening to them list every possible technical detail of what is purportedly required of licensees, and the hearing should be an absolute sketch. For just one example, in paragraphs 33 - 36, SCO acknowledges that while licensees are required to submit to annual certification, there is no deadline in the license for how fast you must reply. SCO set 30 days as being reasonable. DC didn't comply within the deadline SCO set but which isn't specified by the contract. That's the level of discussion here.

Any business that would rather use a license like this than the GPL just isn't thinking clearly. SCO has done Linux adoption a wonderful favor by this lawsuit, by publicizing just how horrible proprietary licenses are, when someone tries to hold the licensee strictly to every stupid detail of every possible clause of the license. It's hilarious, and eye-opening. SCO may imagine that their business is dropping off because of slander of title. It might just be that nobody in their right mind wants to do business with a company that would bring a lawsuit like this nutty, albeit malicious, one.

******************************************

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

THE SCO GROUP, INC.,

    Plaintiff,
-vs-

DAIMLERCHRYSLER
CORPORATION,

    Defendant.
Civil Action No. 04-056587-CK
Honorable Rae Lee Chabot

Joel H. Serlin (P20224)
Barry M. Rosenbaum (P26487)
SEYBURN, KAHN, GINN, BESS AND SERLIN, P.C.
Attorneys for Plaintiff
[address]
[phone]
James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
DYKEMA GOSSETT PLLC
Attorney for DaimlerChrysler
Corporation
[address]
[phone]


AFFIDAVIT OF WILLIAM BRODERICK
    WILLIAM BRODERICK, being duly sworn, deposes and says:

  1. I am the Director of Software Licensing at the SCO Group, Inc. ("SCO"), and I submit this affidavit based on my personal knowledge and in opposition to DaimlerChrysler Corporation's ("Daimler") Motion for Summary Disposition. If sworn as a witness, I can testify competently to the facts stated herein.

  2. I have been employed by SCO as the Director of Software Licensing since May 2001. I have been involved in sales and licensing of the UNIX software for SCO and its predecessors since 1991. Generally, my responsibilities include managing all software licensing activities, including reviewing and monitoring licensees' compliance with the obligations of their respective license agreements.

  3. The License Agreement with Daimler

  4. SCO is the exclusive licensor of software licenses for its version of the UNIX computer operating system.

  5. UNIX is a computer operating system that serves as a link between computer hardware and the various software programs (applications) that run on the computers.

  6. UNIX was originally developed by AT&T Bell Laboratories ("AT&T") and was licensed to various companies, such as International Business Machines and Hewlett-Packard, Inc., through various license agreements, for their use in commercial applications.

  7. The UNIX license agreements restrict the licensees' use of UNIX and protect AT&T's retained rights.

  8. Through a series of corporate acquisitions, SCO presently owns all right, title, and interest in and to UNIX and all related license rights.

  9. On September 2, 1988, Chrysler Motors Corporation, a predecessor in interest to Daimler, and AT&T Information Systems, Inc. entered into a Software Agreement, numbered SOF-01341 ("License Agreement"), by which Daimler obtained certain limited rights to use UNIX and UNIX System V source code (collectively "UNIX"). Attached as Exhibit A is a true and correct copy of the License Agreement.

  10. The License Agreement is still in effect and has not been terminated by any party.

  11. The License Agreement governs Daimler's internal use of UNIX.

  12. Section 2.01 of the License Agreement provides:

  13. [SCO]1 grants to LICENSEE a personal, nontransferable and nonexclusive right to use in the United States each SOFTWARE PRODUCT identified in the one or more Supplements hereto, solely for LICENSEE'S own internal business purposes and solely on or in conjunction with DESIGNATED CPUs for such SOFTWARE PRODUCT. Such right to use includes the right to modify such SOFTWARE PRODUCT, and to prepare derivative works based on such SOFTWARE PRODUCT, provided that any such modification or derivative work that contains any part of a SOFTWARE PRODUCT subject to this Agreement is treated hereunder the same as such SOFTWARE PRODUCT subject to this Agreement is treated hereunder the same as such SOFTWARE PRODUCT. [SCO] claims no ownership-interest in any portion of such modification or derivative work that is not part of a SOFTWARE PRODUCT.
    See Exhibit A, § 2.01.

  14. The License Agreement defines Software Product to include UNIX. See Exhibit A, § 1.04 and Schedule pages 1-7.

  15. The License Agreement defines Designated CPU as "any CPU listed as such for a specific SOFTWARE PRODUCT in a Supplement to this Agreement." See Exhibit A, § 1.03.

  16. At the same time the parties executed the License Agreement, Daimler licensed a Cray, XMP/14se, serial number 511, located at Technical Computer Center, 12800 Oakland Avenue, Highland Park, Michigan 48288, as the Designated CPU under the Agreement ("Software Agreement Supplement No. 1"). See Exhibit A, Software Agreement Supplement Number 1.

  17. Under the License Agreement, Daimler agreed to limit its right to export UNIX. Section 4.01 of the License Agreement provides:

  18. LICENSEE agrees that it will not, without the prior written consent of [SCO], export, directly or indirectly, SOFTWARE PRODUCTS covered by this Agreement to any country outside of the United States. LICENSEE also agrees that it will obtain any and all necessary export licenses for any such export or for any disclosure of a SOFTWARE PRODUCT to a foreign national.
    Exhibit A, § 4.01.

  19. Under the License Agreement, Daimler agreed to maintain the confidentiality of UNIX. Section 7.05(a) provides:

  20. (a) LICENSEE agrees that it shall hold all parts of the SOFTWARE PRODUCTS subject to this Agreement in confidence for [SCO]. LICENSEE further agrees that it shall not make any disclosure of any or all of such SOFTWARE PRODUCTS (including methods or concepts utilized therein) to anyone, except to employees and contractors of LICENSEE to whom such disclosure is necessary to the use for which rights are granted hereunder. LICENSEE shall appropriately notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee. If information relating to a SOFTWARE PRODUCT subject to this Agreement at any time becomes available without restriction to the general public by acts not attributable to LICENSEE, its contracts or employees of either, LICENSEE's obligations under this section shall not apply to such information after such time.
    Exhibit A, § 7.05(a).

  21. Daimler also agreed to prevent others from using or having access to UNIX. Section 2.06 of the License Agreement provides:

  22. No right is granted by this Agreement for the use of SOFTWARE PRODUCTS directly for others, or for any use of SOFTWARE PRODUCTS by others, except LICENSEE'S contractors pursuant to Section 2.02, unless such uses are permitted for a particular SOFTWARE PRODUCT by a specific provision in the Schedule for such SOFTWARE PRODUCT. For example, use of a SOFTWARE PRODUCT in a time-sharing service or a service-bureau operation is permitted only pursuant to such a specific provision.
    Exhibit A, § 2.06.

  23. Daimler further agreed in the License Agreement not to assign or transfer UNIX. Sections 7.08 and 7.09 of the License Agreement provide:

  24. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by LICENSEE and any purported assignment or transfer shall be null and void.

    Except as provided in Section 7.05(b), nothing in this Agreement grants to LICENSEE the right to sell, lease of otherwise transfer or dispose of a SOFTWARE PRODUCT in whole or in part.
    Exhibit A, §§ 7.08 and 7.09.

  25. To monitor compliance with the terms of the License Agreement, including those listed above, Daimler agreed to provide certified assurances of its compliance with the Agreement to SCO. Section 2.05 of the License Agreement provides:

  26. On [SCO's] request, but not more frequently than annually, LICENSEE shall furnish to [SCO] a statement, certified by an authorized representative of LICENSEE, listing the location, type and serial number of all DESIGNATED CPUs hereunder and stating that the use by LICENSEE of SOFTWARE PRODUCTS subject to this Agreement has been reviewed and that each such SOFTWARE PRODUCT is being used solely on DESIGNATED CPUs (or temporarily on back-up CPUs) for such SOFTWARE PRODUCTS in full compliance with the provisions of this Agreement.
    Exhibit A, § 2.05.

  27. Section 2.05 requires Daimler to certify a list of Designated CPUs.

  28. Section 2.05 further requires Daimler to certify that its use of UNIX fully complies with each provision of the License Agreement.

  29. In the event Daimler stops using UNIX, the License Agreement permits Daimler to terminate the License Agreement by certifying that it has discontinued using UNIX and that it has returned or destroyed all copies of UNIX. Section 6.02 provides:

  30. LICENSEE may terminate its rights under this Agreement by written notice to [SCO] certifying that LICENSEE has discontinued use of an returned or destroyed all copies of SOFTWARE PRODUCTS subject to this Agreement.
    Exhibit A. § 6.02.

  31. Under Section 6.02, Daimler's mere cessation of the use of UNIX does not terminate the License Agreement.

  32. Even if Daimler ceases to use UNIX and properly terminates the License Agreement, its obligation to maintain the confidentiality of UNIX remains in effect. Section 7.06 provides:
  33. The obligations of LICENSEE, its employees and contractors [to maintain confidentiality] under Section 7.05(a) shall survive and continue after any termination of rights under this Agreement or cessation of a SUBSIDIARY's status as a SUBSIDIARY.
    Exhibit A, § 7.06.

    Daimler's Migration to Linux

  34. When Daimler first entered into the License Agreement, Daimler and many other companies relied on UNIX as the core operating system to run their computers.

  35. More recently, however, an operating system known as Linux, which was first publicized in 1991, has been transformed from a non-commercial operating system into a commercial operating system. Neither SCO, Daimler, nor the original parties to the License Agreement could have contemplated the use of Linux as a commercial operating system at the time they entered into the License Agreement.

  36. SCO claims that, in material respects, Linux is a variant, derivation, and/or modification of UNIX.

  37. Daimler has utilized Linux since at least October 2002.

  38. SCO believes that Daimler and many other licensees of UNIX have violated the terms of their license agreements by, among other things, improperly copying, modifying, using, and distributing UNIX or parts or derivatives of UNIX in connection with the creation, and use of Linux.

  39. SCO has sought assurances and certifications from other 750 licensees of UNIX regarding their compliance with the terms of their license agreements.

  40. SCO's Requests for Certification of Compliance with the License Agreement
  41. On December 18, 2003, I wrote to the Chief Executive Officer of Daimler requesting assurances and certifications from Daimler regarding the computers subject to the License Agreement and Daimler's full compliance with the provisions of the License Agreement (the "SCO Letter"). Attached hereto as Exhibit B is a true and correct copy of the SCO Letter.

  42. In accordance with Section 2.05, the SCO Letter requests that Daimler assure and certify as follows ("the SCO Requests"):

    1. You have held, at all time, all parts of the Software Products (including methods and concepts) in confidence for SCO.

    2. You have appropriately notified each employee to whom you have disclosed the Software Products, and taken steps to assure that such disclosure was made in confidence and must be kept in confidence by such employee. Please provide evidence of your compliance with this obligation. This evidence may include, but not be limited to, nondisclosure agreements, employee policies or manuals, or other such evidence of compliance.

    3. Neither you nor your employees with access to the Software Products have contributed any software code based on the Software Products for use in Linux or any other UNIX-based software product.

    4. Neither you nor your employees have used any part of the Software Products directly for others, or allowed any use of the Software Products by others, including but not limited to use in Linux or any other UNIX-based software product.

    5. Neither you nor your employees have made available to export, directly or indirectly, any part of the Software Products covered by this Agreement to any country that is currently prohibited from receiving supercomputing technology, including Syria, Iran, North Korea, Cuba, and any other such country, through a distribution under the General Public License for Linux, or otherwise.

    6. Neither you nor your employees have transferred or disposed of, through contributions to Linux or otherwise, any part of the Software Product.

    7. Neither you nor your employees have assigned or purported to assign, any copyright in the Software Products to the General Public License, or otherwise for use in Linux or another UNIX-based software product.

    See Exhibit B at 2-3.

  43. The License Agreement does not provide a time period within which a certification under Section 2.05 is required to be provided following such a request.

  44. The SCO Letter demanded that Daimler respond to the SCO Requests within 30 days.

  45. If a licensee is in compliance with all the requirements of the License Agreement, and there is a policy in place at the licensee that tracks and controls the handling of third-party software, and the licensee's employees are kept informed of the License Agreement's requirements, then 30 days is more than sufficient time for a licensee to provide the certification requested by SCO.

  46. Daimler failed to provide any assurances or certifications or to otherwise respond to the SCO Letter within 30 days.

  47. On March 3, 2004, 75 days after the SCO Letter was sent, SCO commenced a lawsuit to enforce its rights under the License Agreement.

  48. Section 2.05 and the SCO Requests are the most practical way for SCO to monitor and ensure compliance with the License Agreement.

  49. Daimler's refusal to respond in a timely manner is very prejudicial to SCO. There are thousands of licensees of UNIX SCO had made good-faith attempts to contact over 750 of those licensees to secure assurances of their compliance with the terms of their licenses. If each licensee disregards the request or unilaterally determines that it may respond whenever it wants, SCO may have to spend extraordinary resources and potentially commence hundreds of court actions to enforce its rights. It would be impracticable and costly for SCO to have to sue each one to obtain basic assurances of performance.

  50. Daimler's Untimely Response to SCO's Request for Certification

  51. On April 6, 2004, more than a month after SCO's Complaint was filed and 110 days after the SCO Letter was sent, Norman A. Powell, Senior Management of Tech Services at Daimler, provided a response to the SCO Letter (the "Daimler Response"). Attached hereto as Exhibit C is a true and correct copy of the Daimler Response.

  52. The Daimler Response, however, neither responds to the SCO Requests nor provides the assurances and certifications required by Section 2.05 of the License Agreement.

  53. The Daimler Response does not list any Designated CPUs and does not certify that Daimler is in full compliance with the provisions of the License Agreement. The Daimler Response provides only that because Daimler has not used UNIX for seven years, it does not need to list any Designated CPUs and is in compliance with the License Agreement. The Daimler Response states:

  54. On behalf of DaimlerChrysler Corporation, I hereby certify that, as of the date indicated above, there is no DESIGNATED CPU, or any CPU, in which the SOFTWARE PRODUCT licensed under the subject Agreement is being used. this has been the case for more than seven years. As a result, no list of the location, type and serial number of any DESIGNATED CPU is relevant or possible.

    I further certify that DaimlerChrysler Corporation's use of the SOFTWARE PRODUCT licensed under the subject Agreement has been reviewed. No SOFTWARE PRODUCT licensed under the subject Agreement is being used or has been used for more than seven years, and as a result DaimlerChrysler Corporation is in full compliance with the provisions of the subject Agreement.

    The terms DESIGNATED CPU, CPU, and SOFTWARE PRODUCT are used in this letter with the meanings defined in the subject Agreement. I represent that I am authorized by DaimlerChrysler Corporation to make this certification.

    Exhibit C (emphasis added).

  55. (omitted in original)

  56. The License Agreement does not condition Daimler's certifications upon Daimler's current use of UNIX.

  57. Even if Daimler has stopped using UNIX, it still must provide the assurances and certifications required by Sections 2.05 and 6.02 of the License Agreement, including a list of Designated CPUs and a certification of its full compliance with the confidentiality, termination and other provisions of the Licensing Agreement.

  58. Daimler has never sought to terminate the License Agreement by notifying SCO and certifying that it has ceased using UNIX and has returned or destroyed all copies of UNIX.

  59. Daimler's Failure to Provide a List of Designated CPUs

  60. The Daimler Response states that the list of Designated CPUs is not relevant. That is incorrect. There are several reasons why the list of Designated CPUs is important ad relevant, regardless of whether Daimler is still using UNIX.

  61. One of SCO's most important assets is the intellectual property consisting of its UNIX technology. SCO implements significant measures to ensure that it can control the dissemination of that intellectual property and utilize it to generate revenue.

  62. One such measure is requiring that licensees identify the specific computer on which they will install and utilize the UNIX technology.

  63. Knowing the specific computers hosting UNIX technology allows SCO to track the dissemination of its intellectual property.

  64. By requiring licensees to identify CPUs running UNIX, the License Agreement implements another level of control by requiring the licensees themselves to control the use and dissemination of UNIX technology.

  65. In addition, part of the license fee is based on the number of CPUs on which a licensee installs SCO's UNIX technology. By imposing additional cost per Designated CPU, the License Agreement further incentivizes licensees to control the dissemination of UNIX technology.

  66. Requiring licensees to track and notify SCO of the Designated CPUs also permits SCO to properly earn a fair revenue stream from a licensee's use of UNIX technology.

  67. In addition, if a licensee does not know which computers are licensed for UNIX technology, it will be difficult, if not impossible, for that licensee to ensure that the technology was properly maintained and controlled, rather than copied, or transferred, or removed by a departing employee in violation of the terms of the License Agreement.

  68. Requiring licensees to certify the Designated CPUs, even if UNIX technology is no longer in use, or the formerly Designated CPUs are no longer in use, allows SCO to track a licensee's prior use, compare it to the permitted use and paid-for use, and determine if the licensee properly disposed of the UNIX technology at the time it terminated its use of UNIX.

  69. Daimler was fully aware of its obligations to maintain current and accurate identifications of the licensed Designated CPUs. On April 14, 1992, Daimler entered into two supplements to the License Agreement to change the Designated CPUs. Software Agreement Supplement Number 2 provided for the deletion of the Cry XMP/14se, Serial Number 511, in Highland Park, Michigan, which was the original Designated CPU under the License Agreement, and replaced it with a Cray Y-MPZE/216, Serial Number 1604, also in Highland Park, Michigan. Attached hereto as Exhibit D is a true and correct copy of the Software Agreement Supplement Number 2.

  70. On the same date, Daimler entered into Software Agreement Supplement Number 3, which deleted as a Designated CPU the Cray Y-MP2E/216, Serial Number 1604, in Highland Park, Michigan, and replaced it with a Cray X-MP8i/464, Serial Number 1702, in Auburn Hills, Michigan. Attached hereto as Exhibit E is a true and correct copy of Software Agreement Supplement Number 3.

  71. The Daimler Response fails to provide any information about these Designated CPUs. That failure prevents SCO from determining where the UNIX technology resided last, whether Daimler properly controlled it or properly disposed of it, and whether it properly paid for its use.

  72. Daimler's Failure to Certify Compliance with Other Requirements of the License Agreement

  73. The Daimler Response also fails to meet the other certification requirements of Section 2.05. Merely by stating that it no longer uses UNIX, Daimler provides no information about its compliance with all the provisions of the License Agreement.

  74. The SCO Requests are intended to obtain Daimler's certification of full compliance with the other provisions of the License Agreement.

  75. The SCO Requests are derived from or directly track provisions of the License Agreement. For example, SCO Requests 1 and 2 directly track the confidentiality obligations and proposes, but does not demand, what types of evidence may be available. Requests 3 and 4 track and combine the obligations of §§ 2.01, 2.02, 2.06 and 7.07. Because SCO believes UNIX technology is wrongfully being used in connection with Linux, it specifically asks Daimler about such use. Request 5 directly tracks § 4.01. Request 6 directly tracks § 7.09 and Request 7 directly tracks § 7.08. Because the transfer of UNIX technology to Linux is relevant, SCO directly asks Daimler about Linux.

  76. Daimler employees, engineers and technicians have had access to and worked on UNIX source code and technology for over 15 years.

  77. It is my understanding that in order to exercise their rights under the License Agreement, Daimler personnel would have gained a detailed understanding of UNIX source code and the methods and concepts contained therein.

  78. Daimler personnel have used that knowledge and expertise to modify UNIX to meet Daimler's commercial needs.

  79. Daimler is now using Linux, a product that SCO contends wrongfully incorporates its intellectual property rights in UNIX technology.

  80. Daimler's certification that it is not currently using UNIX says nothing about whether it exported UNIX, whether it assigned UNIX, whether it transferred UNIX or any derivation of UNIX, or whether it properly maintained the confidentiality of UNIX and provided the appropriate notification to its employees regarding these confidentiality obligations.


1 "SCO" is substituted for "AT&T" throughout the quotations of the Licensing Ageement herein because SCO is AT&T's successor-in-interest to the license as well as the intellectual property rights protected therein.


(signature)
William Broderick



Sworn to before me this
15th day of June, 2004


(signature)
Notary Public

  


"Every Step You Take, Every Move You Make, I'll Be Watching You" - Broderick Affidavit | 443 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
corrections here, please, for pj
Authored by: rejiquar on Friday, June 18 2004 @ 06:39 PM EDT
.

---
sylvus tarn
rejiquar works

[ Reply to This | # ]

OT, URTLs, etc
Authored by: Anonymous on Friday, June 18 2004 @ 06:47 PM EDT
all that kinda stuff

[ Reply to This | # ]

"Every Step You Take, Every Move You Make, I'll Be Watching You"
Authored by: HawkEye on Friday, June 18 2004 @ 06:47 PM EDT
WOW

Doesn't this

3. SCO is the exclusive licensor of software licenses for its version of the UNIX computer operating system.

kinda blow a hole in all their other cases ? Not exactly an admission of owning the software is it, an exclusive licensor ??

Just a thought :)

---
Regards

Neil

[ Reply to This | # ]

OT and links here
Authored by: PolR on Friday, June 18 2004 @ 06:48 PM EDT
Please make links clickable

[ Reply to This | # ]

42
Authored by: Anonymous on Friday, June 18 2004 @ 06:52 PM EDT
The Daimler Response does not list any Designated CPUs and does not certify that
Daimler is in full compliance with the provisions of the License Agreement. The
Daimler Response provides only that because Daimler has not used UNIX for seven
years, it does not need to list any Designated CPUs and is in compliance with
the License Agreement. The Daimler Response states:

On behalf of DaimlerChrysler Corporation, I hereby certify that, as of the date
indicated above, there is no DESIGNATED CPU, or any CPU, in which the SOFTWARE
PRODUCT licensed under the subject Agreement is being used. this has been the
case for more than seven years. As a result, <EMPHASIS>no list of the
location, type and serial number of any DESIGNATED CPU is relevant or
possible.</EMPHASIS>

Hahaha, so in other words : Even if you don not use this software in order to
comply you HAVE TO supply a list of CPUs ... Go and install our UNIX again ASAP
!!!

Sorry, got to wipe the coke off my keyboard ...

[ Reply to This | # ]

while you were out...
Authored by: gdeinsta on Friday, June 18 2004 @ 06:58 PM EDT
Neither you nor your employees have made available to export, directly or indirectly, any part of the Software Products covered by this Agreement to any country that is currently prohibited from receiving supercomputing technology, including Syria, Iran, North Korea, Cuba, and any other such country, through a distribution under the General Public License for Linux, or otherwise.

...

Cr[a]y XMP/14se, Serial Number 511, in Highland Park, Michigan, which was the original Designated CPU under the License Agreement

The 80s called - they want their supercomputers back.

[ Reply to This | # ]

Blantant Lies Below
Authored by: maco on Friday, June 18 2004 @ 07:00 PM EDT
---->

[ Reply to This | # ]

Seven years ago, Isn't that OldSCO time?
Authored by: malkerie1 on Friday, June 18 2004 @ 07:02 PM EDT
If DC stopped using Unix seven years ago isn't that before Caldera/SCO bought
the liscensing business from SCO/Tarantella? If so.. how would they know that
DC hadn't ended the agreement?

Just a thought
-Michael

---
--------
I See Penguins!

[ Reply to This | # ]

Here's the list of CPUs
Authored by: Pat Pending on Friday, June 18 2004 @ 07:06 PM EDT
They should have sent:




  • ---
    Thanks again,

    [ Reply to This | # ]

  • "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: Anonymous on Friday, June 18 2004 @ 07:14 PM EDT
    I get it. Even though DC stopped using the software and stated they are not
    using it anywhere and haven't for 7 years, somehow they are supposed to provide
    a list of PC's its installed on. Hello SCO, anybody home? They just said they
    aren't using it anymore so THERE IS NO LIST OF INSTALLED PCs!!!!

    Then, DC is supposed to comply with the other "obligations" set forth
    by SCO which aren't in the Licensing agreement anywhere. Since SCO hasn't proven
    anywhere they own code in Linux, I don't see how DC or any other licensee can
    reasonably respond to the rest of the garbage SCO sent out. They are supposed to
    certify those things that a) The original license never said they had to track
    and b) as far as the licensee knows, Linux is a completely separate piece of
    software that they didn't license from SCO. They simly complied with the
    original terms and certified they aren't using it at all.

    By SCO's thinking, if you stop using their product but don't tell them in
    writing, you are automagically screwed when SCO comes knocking for their
    certification.

    What a complete crock. I hope the judge laughs SCO out of the courtroom.

    [ Reply to This | # ]

    I refuse to believe...
    Authored by: drh on Friday, June 18 2004 @ 07:16 PM EDT
    I refuse to believe he gave this deposition with a
    straight face.

    Can the judge send newSCO back to school for remedial
    reading classes?


    ---
    Just another day...

    [ Reply to This | # ]

    Point 45 - on total crack, or too successful?
    Authored by: valdis on Friday, June 18 2004 @ 07:20 PM EDT
    So in Point 42, we have:

    On behalf of DaimlerChrysler Corporation, I hereby certify that, as of the date indicated above, there is no DESIGNATED CPU, or any CPU, in which the SOFTWARE PRODUCT licensed under the subject Agreement is being used. this has been the case for more than seven years. As a result, no list of the location, type and serial number of any DESIGNATED CPU is relevant or possible.

    Not to be swayed by reality, point 45 says:

    Even if Daimler has stopped using UNIX, it still must provide the assurances and certifications required by Sections 2.05 and 6.02 of the License Agreement, including a list of Designated CPUs and a certification of its full compliance with the confidentiality, termination and other provisions of the Licensing Agreement.

    Is SCO trying to say "We don't care that you don't have any to itemize, itemize them anyhow?". Or maybe SCO is just upset that DaimlerChrysler cut into the SCO revenue stream when it took point 52 to heart:

    In addition, part of the license fee is based on the number of CPUs on which a licensee installs SCO's UNIX technology. By imposing additional cost per Designated CPU, the License Agreement further incentivizes licensees to control the dissemination of UNIX technology.

    [ Reply to This | # ]

    Sheesh!
    Authored by: wvhillbilly on Friday, June 18 2004 @ 07:23 PM EDT
    Looks to me like these guys belong in a nut house, not as officers of a
    corporation.

    This has to be insanity!

    ---
    What goes around comes around, and it grows as it goes.

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: Anonymous on Friday, June 18 2004 @ 07:32 PM EDT
    DC gave SCO a full list of all their computers using Unix. That list just
    happens to be zero. Why bother with any paperwork. Zero is zero. All I can
    say to the rest of it is "wow". Now, I know the judge is going to be
    laughing inside about this. I know he can't really do that outloud in a court
    of law. But on the serious side, this is costing people lots of time and money.
    I certainly hope SCO gets more than a slap on the wrist...

    [ Reply to This | # ]

    How many responded?
    Authored by: ihawk on Friday, June 18 2004 @ 07:34 PM EDT
    There is mention a couple of times in this that SCO requested their
    certifications from 750 licensees - I wonder how many actually responded. I'll
    bet it wasn't 749. How many others have they sued for non compliance. What? Was
    that a "zero" that I heard?

    What a troupe of clowns!

    [ Reply to This | # ]

    Where's the beef?
    Authored by: Bystander on Friday, June 18 2004 @ 07:34 PM EDT
    SCO brings a lawsuit against DC because they didn't respond to a letter in what
    they consider a reasonable amount of time? Could any judge take this case
    seriously, when DC ultimately produced exactly what the contract called for in
    response to SCO's overreaching request? The only damages SCO seems to be
    claiming are potential costs they would incur if they were forced to sue
    hundreds of other companies for answers to their letters. Where are the real
    damages to SCO from having to wait a few months for a reply from DC, in light of
    the fact that they had no prior contact for over seven years? How will the court
    feel about wasting its time on such a trivial matter?

    It seems clear from the contract language that DC needed only to have the proper
    authority certify that they were in compliance with the terms of the contract.
    There is no requirement to provide additional information, especially about a
    separate product obtained from a different vendor. If SCO believed otherwise,
    they should have brought suit against DC for specific actions breaching the
    agreement. Failure to provide information not called for in the contract cannot
    be grounds for assuming that the contract was being violated. Since SCO is not
    claiming that DC violated any provision of the contract other than responding
    promptly to their letter, it seems the case should have properly ended once the
    mandated reply was received by SCO.

    Additionally, it would be impossible for DC to certify that they were not
    violating conditions not specified in the contract, but that were included in
    the letter sent from SCO. No one can make a certification about facts they are
    unaware of, and no one except SCO appears to be clear about what they claim is
    infringing material.

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: blacklight on Friday, June 18 2004 @ 07:36 PM EDT
    So the terms of the SCOG license go on forever, like a vampire that just won't
    die. SCOG's refusal to drop lawsuits that are headed nowhere is equivalent to
    starting wars that are unwinnable from the day the first shot fired. We can
    shake our heads in at SCOG's high handedness and stupidity. However, the more
    resources SCOG pours into futile, unwinnable fights, the less resources SCOG has
    available for causing mischief elsewhere.

    If I were SCOG, I'd be watching every penny right now - what with the IBM
    litigation shaping up like a boiler that's about to explode.

    [ Reply to This | # ]

    Furniture or Super-Computer?
    Authored by: Anonymous on Friday, June 18 2004 @ 07:36 PM EDT
    This is what a Cray XMP series computer looks like:

    http:// www.spikynorman.dsl.pipex.com/CrayWWWStuff/Cfaqp5.html#xmp

    [ Reply to This | # ]

    SCO: buy my software - lawsuit included free!
    Authored by: RedBarchetta on Friday, June 18 2004 @ 07:39 PM EDT
    If SCO licensed software for various term lengths, like 1 or 2 years, I would
    think the licensee would also be paying for just those term lengths. Once the
    term expires, the software user would renew the license by paying more $ to SCO,
    or discontinue use, thereby relieving them of the license fee.

    If Dahlmer-Chrysler just decided to quit using the software one day, that means
    they also would have discontinued payments to SCO.

    So, if SCO didn't receive money, it would be proper to assume that DC was no
    longer a user of SCO software. That would have been the assumption of most
    rational companies. But who said The SCO Group was a rational company?




    ---
    Collaborative efforts synergise.

    [ Reply to This | # ]

    Darwin Awards for Corporate Suicide...
    Authored by: Anonymous on Friday, June 18 2004 @ 07:40 PM EDT
    Ok, if it has been over seven years since the last audit then what is the big
    hurry to comply with the request? It seems that responding within the timeframe
    set down by SCO its self ( seven years) is entirely reasonable. Also, doesn’t a
    statute of limitations apply here as well? In either case it isn't clear which
    part of 0/zero/nada CPU's SCO can't comprehend. I agree with PJ, this should
    break a record of some kind. Perhaps SCO can make the Darwin Awards for
    corporate contributions.

    [ Reply to This | # ]

    They got one thing right...
    Authored by: Anonymous on Friday, June 18 2004 @ 07:53 PM EDT
    Perhaps it was an accident, but paragraph 3 does state:

    SCO is the exclusive licensor of software licenses for its version of the UNIX computer operating system.
    (emphasis added)

    It is this "version of the UNIX computer operating system" that is referred to in the contract language as SOFTWARE PRODUCTS.

    Yet the remainder of the affadavit proceeds to obfuscate the matter entirely by using the term UNIX where SOFTWARE PRODUCTS should have been used instead.

    If one substitutes SOFTWARE PRODUCTS for UNIX, the failed logic of the case becomes clear. For instance, paragraph 29 becomes:

    SCO believes that Daimler and many other licensees of SOFTWARE PRODUCTS have violated the terms of their license agreements by, among other things, improperly copying, modifying, using, and distributing SOFTWARE PRODUCTS or parts or derivatives of SOFTWARE PRODUCTS in connection with the creation, and use of Linux.

    It is then up to SCO to prove that Linux contains, in whole or in part, "SOFTWARE PRODUCTS or parts or derivatives of SOFTWARE PRODUCTS". Claiming, as in paragraph 65, that Linux "incorporates [SCO's] intellectual property rights in UNIX technology" is overly broad -- the case depends not on general "intellectual property rights in UNIX technology" but on the specific claim that Linux is a derived work.

    OK, SCO, I've told you what you need to accomplish. All you have to do is prove that Linux is derived from SOFTWARE PRODUCTS. I'm waiting...

    [ Reply to This | # ]

    The Three Stooges Practice Law
    Authored by: Anonymous on Friday, June 18 2004 @ 07:55 PM EDT
    This is going to be even better than expected.

    We can already guess that failure to list the CPUs, even if there are actually
    none applicable to the agreement is still a breach. Can't wait for the claim for
    damages. Next up in Wonderland: to reasonably exclude that no CPU has the
    product in use, SCO will demand though discovery a full listing of all CPUs with
    the corresponding installed OS, world wide, of course. Next up after that? An
    Autozone style lawsuit.

    Didn't I see "The Three Stooges Practice Law that" was just like
    this?

    More, More, More... Hurry, Hurry, Hurry....

    [ Reply to This | # ]

    Aren't affidavits supposed to be personal knowledge
    Authored by: Anonymous on Friday, June 18 2004 @ 07:56 PM EDT
    IANAL but I was under the impression affidavits were supposed to be based on
    personal knowledge, that the person affidaviting could testify about at trial

    Aside from the general ridiculousness of this, I'm amazed that SCO's director of
    licensing would have personal knowledge of what is in Daimler Chrysler's mind,
    not to mention of:

    > 28.Daimler has utilized Linux since at least October 2002.

    [ Reply to This | # ]

    Not IP AGAIN!
    Authored by: dkpatrick on Friday, June 18 2004 @ 07:59 PM EDT
    "65. Daimler is now using Linux, a product that SCO contends wrongfully
    incorporates its intellectual property rights in UNIX technology."

    While SCO has removed IP as a complaint against IBM, they haven't dropped the
    idea. Instead they flog companies less able to defend themselves against the
    claim. In theory, it seems, SCO could at bind Daimler up in the IP claim,
    forcing Daimler to challenge SCO on the IP position, etc. etc.

    If not Daimler then some other poor company.

    The legal system, unfortunately, let's companies like SCO put forth a ridiculous
    claim, forcing the defendant to spend time an energy replying.



    ---
    "Keep your friends close but your enemies closer!" -- Sun Tzu

    [ Reply to This | # ]

    How not to sell your products
    Authored by: Anonymous on Friday, June 18 2004 @ 08:01 PM EDT
    Who will ever want to do business with that company? That kind of high-profile
    lawsuit against an automotive giant is really great publicity for SCO's
    "products"... These guys are failures at marketing, customer
    relations AND their legal department sucks. As they head towards bankrupcy,
    they really are making a superb case for the use of open source.

    [ Reply to This | # ]

    Pleadings Have Been Sealed!!!
    Authored by: Anonymous on Friday, June 18 2004 @ 08:18 PM EDT
    Sealed Pleadings

    I got inside information that the pleadings have been sealed because they are
    just too silly and embarrassing to the SCO lawyers.

    Groklaw at work...

    [ Reply to This | # ]

    Where SCO is Going With This
    Authored by: Anonymous on Friday, June 18 2004 @ 08:21 PM EDT
    From these bullet points, I see the following:

    Point 11 - The Contract calls for DC to treat any derivative works as part of
    the Licensed Software Product

    Point 27 - "SCO claims that, in material respects, Linux is a variant,
    derivation, and/or modification of UNIX."

    Ergo, SCO is claiming that DC's use (and the use by any other UNIX licencee) of
    Linux constitutes a use of UNIX under their license, and therefore is subject to
    the CPU and reporting requirements of the main license. BUT, the license forbids
    the use of UNIX on any other than the designated CPU's, therefore using Linux on
    a desktop PC is a violation of the master license.

    THIS is what SCO wants DC to report: Each CPU that runs Linux.

    Of course, to be a valid request, they first need buy-in on the following
    improbabilities:

    1. Linux is a derivative work of UNIX (something that is not clearly true, and
    is probably clearly not true outside of the SCOverse)
    2. That acquisition of ANY UNIX variant from a supplier other than SCO
    automatically falls under the terms of the Cray UNIX license.
    3. That Linux, as such a variant, falls under the scope of the Cray UNIX
    license.
    4. That DC's use of Linux on non-designated CPU's, even though the Cray UNIX
    instance is long out of use, constitutes breech of the Cray UNIX license.

    All in all, I think I have a much better chance of seeing a pink dragon fly by
    my window than seeing SCO be successful in this effort.

    [ Reply to This | # ]

    Deceptive use of UNIX definition
    Authored by: globularity on Friday, June 18 2004 @ 08:29 PM EDT
    Another poor quality filing from SCOX, correct SCOX's deceptions in their filing
    and they don't have a case except maybe not answering a letter!

    3. SCO is the exclusive licensor of software licenses for its version of the
    UNIX computer operating system.

    A truthful statement which contradicts their dispute

    5. UNIX was originally developed by AT&T Bell Laboratories
    ("AT&T") and was licensed to various companies, such as
    International Business Machines and Hewlett-Packard, Inc., through various
    license agreements, for their use in commercial applications.

    The deception begins, Neglect to mention UNIX becoming a standard.

    6. # The UNIX license agreements restrict the licensees' use of UNIX and protect
    AT&T's retained rights.

    A lie, UNIX is a standard, <UNIX> shoud read <SCO's licensed UNIX
    variants>

    10. The License Agreement governs Daimler's internal use of UNIX

    Another deception, <UNIX> should read <SCO's licensed UNIX
    variants>

    Anyway substite <SCO's licensed UNIX variants> for <UNIX> and you
    will get a much more accurate contract.

    27. SCO claims that, in material respects, Linux is a variant, derivation,
    and/or modification of UNIX.

    Possibly true but SCO's licensed unix variants are definitely variants and
    modifications of UNIX

    If anybody is interested I can do a search and replace to modify SCO's deceptive
    filing to be IMHO accurate and
    their case will look vary flimsy just on the basis of this filing. It is a bit
    large to put up again!

    SCOX's attempt to decieve should be brought to the judges attention.

    My A$0.02

    Mark

    [ Reply to This | # ]

    PJ is right, downright silly
    Authored by: kawabago on Friday, June 18 2004 @ 08:35 PM EDT
    It is so stupid I think the judge is going to look at the SCO attorney and say
    "Is this a joke?"
    License terms that continue to exist indefinitely and which can be picked up and
    used as a weapon by a parasitic white-collar extortion ring like the SCO Gang.
    Hmmm sounds eerily like the patent system.

    [ Reply to This | # ]

    Huh?
    Authored by: Lev on Friday, June 18 2004 @ 08:44 PM EDT
    42. The Daimler Response [...] does not certify that Daimler is in full compliance with the provisions of the License Agreement. The Daimler Response provides only that [...] Daimler [...] is in compliance with the License Agreement.
    Yeah, that's the ticket...

    [ Reply to This | # ]

    • Huh? - Authored by: jmc on Saturday, June 19 2004 @ 04:34 AM EDT
    IBM can't buy this kind of advertising
    Authored by: Anonymous on Friday, June 18 2004 @ 08:44 PM EDT
    ... and if IBM salesman are half the vicious pitbulls they used to be, they will
    be carrying this document around to show customers
    What_Happens_To_People_Who_Sign_Contracts_With_SCO, and asking "would you
    buy a used match from this asylum?"

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: tredman on Friday, June 18 2004 @ 08:54 PM EDT
    Didn't he leave out the part about the SCO letter being sent to the wrong
    address, by non-certified post?

    I didn't just make that up, did I? Somebody tell me that I'm correct in
    remembering this...

    Tim

    [ Reply to This | # ]

    Deliberate mendacity or simple grammatical error?
    Authored by: Anonomous on Friday, June 18 2004 @ 09:26 PM EDT
    65. Daimler is now using Linux, a product that SCO contends wrongfully incorporates its intellectual property rights in UNIX technology.

    This sentence can be converted from an infuriating fraudulent claim to a universally acceptable truth by simply interchanging the order of two adjacent words:

    65. Daimler is now using Linux, a product that SCO wrongfully contends incorporates its intellectual property rights in UNIX technology.

    Perhaps Darl is not an incorrigible pathological liar. Perhaps he is just dislexic.

    -Anonomous.

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: m_si_M on Friday, June 18 2004 @ 09:32 PM EDT
    Mr. Broderick, thank you so much for this wonderful parody. My favourites are §§
    47 - 58. But lawsuits are a serious thing, so I'd really like to see the real
    affidavit. Oh, it was ...

    Noooooooooooooooooooo

    ---
    C.S.

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: ujay on Friday, June 18 2004 @ 09:34 PM EDT
    Has Daimler Chrysler been paying a License fee to SCO or their predecessor for 7
    years when they no longer have been using the product.

    I'll go out on a limb, and presuppose that they were not paying licensing fees,
    which would in itself automatically make their license void.

    Where was SCO for all those years when they supposedly had a licensee who was
    not paying for the license?

    Just how stupid are these clowns?



    ---
    Programmer: A biological system designed to convert coffee and cheesies into
    code

    [ Reply to This | # ]

    Novell's rights
    Authored by: Anonymous on Friday, June 18 2004 @ 09:43 PM EDT
    Remaber this from the APA between Novell and Santa Cruz Operation. Could Novell
    step in and waive SCO's purported rights? That is if they haven't already.

    "(b) Buyer shall not, and shall not have the authority to, amend, modify or
    waive any right under or assign any SVRX License without the prior written
    consent of Seller. In addition, at Seller's sole discretion and direction, Buyer
    shall amend, supplement, modify or waive any rights under, or shall assign any
    rights to, any SVRX License to the extent so directed in any manner or respect
    by Seller. In the event that Buyer shall fail to take any such action concerning
    the SVRX Licenses as required herein, Seller shall be authorized, and hereby is
    granted, the rights to take any action on Buyer's own behalf."

    [ Reply to This | # ]

    Thanks to SCO lawyers
    Authored by: Anonymous on Friday, June 18 2004 @ 09:57 PM EDT
    I would like to thank SCO lawyers (!) for giving me a serious injection of
    laughter.

    Kevin and BSF, may not be very good lawyers, but they are certainly good
    comedians. I would suggest that if they ever tire of attempting to monetize
    Linux, they consider a career on stage.

    On a different note, thank you to PJ and eggplant for the prompt delivery of
    SCOmedy.

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: vruz on Friday, June 18 2004 @ 09:59 PM EDT
    okay, the contract reads silly and overcontrolling at best.

    but... who the hell in Daimler thought this could possibly be a deal to sign
    ??????

    it takes two for a dumb contract such as this.

    oh well !!!


    ---
    --- the vruz

    [ Reply to This | # ]

    Footnote #1 and Novell
    Authored by: brian on Friday, June 18 2004 @ 10:03 PM EDT
    "1 "SCO" is substituted for "AT&T" throughout the
    quotations of the Licensing Ageement herein because SCO is
    AT&T's successor-in-interest to the license as well as the
    intellectual property rights protected therein."

    That is SCO's take and we all know Novell's take is just
    the opposite. I've said it before and I'll say it again.
    SCO can't proceed on this or the AZ case unless it
    prevails in the Novell case. These should be stayed until
    the Novell case is flushed out then dismissed because SCO
    OWNS NO COPYRIGHTS! Sorry folks but I get pissed when I
    read drivel like this and even more pissed that my tax
    dollars have to support it (court staff, time, and
    energy). All these cases should be put on hold until it is
    determined exactly who owns the supposed "valuable IP". If
    SCO can't show it owns the copyright then they should be
    dismissed with SCO left to pay for the court time and
    expense for filing a false claim.

    Just my rant....

    B.

    ---
    #ifndef IANAL
    #define IANAL
    #endif

    [ Reply to This | # ]

    Boies' eyesight?
    Authored by: Anonymous on Friday, June 18 2004 @ 10:41 PM EDT

    Help my feeble non-legal mind.

    Kimball doesn't see any copyright conveyance from Novell, and people are saying
    he has virtually invited Novell to file for summary judgment. Correct me if I'm
    wrong, but Kimball seems to think this should be obvious.

    So, if Kimball can't see a copyright conveyance, how, in good faith, could Boies
    see one and bring a lawsuit?

    [ Reply to This | # ]

    Finally! It all makes sense!
    Authored by: Anonymous on Friday, June 18 2004 @ 10:59 PM EDT
    We've all known for over a year that TSG has no case, that they embarked on this
    whole charade to induce IBM to buy them out and it backfired, and we've all
    wondered how they were going to extricate themselves from this mess when IBM
    called their bluff. Now we see their brilliant strategy!

    They're going to plead insanity!!

    [ Reply to This | # ]

    Incomprehensible
    Authored by: Totosplatz on Friday, June 18 2004 @ 10:59 PM EDT

    From Point 11: [SCO] claims no ownership-interest in any portion of such modification or derivative work that is not part of a SOFTWARE PRODUCT.

    Hunh? I just really do not understand these SCOflaws!

    ---
    All the best to one and all.

    [ Reply to This | # ]

    Oh brother.....
    Authored by: MikeA on Friday, June 18 2004 @ 10:59 PM EDT
    Who is going to write the book about all this. There IS going to be a book, right?

    It seems like SCO is confused about exactly what they are trying to go after in this filing.....on the one hand they are sticking to their (water)guns on the whole certification thing, but at the same time they are hinting that they are also trying to start another AutoZone argument. My guess is that they are unsure and throwing that out there to see what happens since their certification attack is useless. Much like they did with IBM: they will drop it and change arguements. sigh. At least it will be funny to read the court transcript. Maybe they can have Kevin argue that one too:

    Kevin McBride: "Your Honor, it is virtually impossible to prove that the Defendant has no computers which aren't running our software. Even if we did a complete audit of every computer in every office, we would have no way of knowing that they hadn't hidden a computer from us which was NOT running our software."

    Judge: "Isn't it in your interest to find only the computers that ARE running your software?"

    Kevin McBride: "That is what the Defendant would like everyone to think, but that is false. DaimlerChysler has certified that they have our software running on zero computers, none, not a single one. The ONLY way to prove that this is true is to inspect every computer that they do not have our software on, to make sure it really doesn't have the software on it.

    Judge: "I'm confused. What's the difference?"

    Kevin McBride: "Well, it's impossible to prove a negative, your Honor."

    Judge: "Then don't. I should warn you that I am having serious difficulty in following your claims of wrongdoing. However, should you wish to amend your pleadings by the next...."

    Kevin McBride: "Linux! They've been using stolen code from our IP on all of their computers with Linux!"

    Judge: "Can you prove this?"

    Kevin McBride: "Well, your Honor, it is virtually impossible to know where the stolen code is being hidden unless...."

    etc., etc., etc....

    It would be a complete waste of time, but I would be very tempted to challenge SCO on the details that they have asked 750 companies to certify also. How many have responded? How many are following this court case and drafting letters to SCO saying "We certify we are no longer using your lousy software - you can have it back. We are switching to Linux."?

    ---
    Change is merely the opportunity for improvement.

    [ Reply to This | # ]

    Did I get this right?
    Authored by: Nick on Friday, June 18 2004 @ 11:01 PM EDT
    Looking at this affidavit, and trying my best to follow SCO's logic, do I
    understand what he is arguing? It sounded as if he is saying that it doesn't
    matter if DC doesn't use their product now, they used to use it and were
    under our license terms at the time they were using it. So now we want DC to
    certify what workstations were using our software *back then* so we can see
    if they were following the license terms *back then.*

    In other words, are they arguing that DC's response was incomplete because
    it doesn't matter if they aren't using their product now? They also want to
    know how they used their product back when they said they were using it.

    [ Reply to This | # ]

    Unicos source license
    Authored by: Anonymous on Friday, June 18 2004 @ 11:05 PM EDT
    FWIW

    It was probably typical for Cray owners to get Unicos source. However, to do so
    one had to have a source license from AT&T even though you would never
    bother to get source from AT&T.

    Of course, we all know that Crays were a real hotbed of early Linux development
    effort, so there may be some substance to SCO's allegations :-)

    rhb
    (who remembers seeing the Y-MP at work but can't remember if he ever logged on)

    [ Reply to This | # ]

    Who is complying and who isn't?
    Authored by: Anonymous on Friday, June 18 2004 @ 11:18 PM EDT
    From Software Agreement Number SOFT-01341:

    4. This Agreement and its Supplements set forth the entire agreement and
    understanding between the parties as to the subject matter hereof and merge all
    prior discussions between them, and neither of the parties shall be bound by any
    conditions, definitions, warranties, understandings or representations with
    respect to such subject matter other than as expressly provided herein or as
    duly set forth on or subsequent to the date of acceptance hereof in writing and
    signed by a proper and duly authorized representative of the party to be bound
    thereby. No provision appearing on any form originated by LICENSEE shall be
    applicable unless such provision is expressly accepted in writing by an
    authorized representative of AT&T-IS.

    <snip>

    VI. TERM

    6.03 If LICENSEE fails to fulfill one or more of its obligations under this
    Agreement, AT&T-IS may, upon its election and in addition to any other
    remedies that it may have, at any time terminate all the rights granted by it
    hereunder by not less than (2) month's written notice to LICENSEE specifying any
    such breach, unless within the period of such notice all breaches specified
    therein shall have been remedied; upon such termination LICENSEE shall
    immediately discontinue use of and return or destroy all copies of SOFTWARE
    PRODUCTS subject to this Agreement.

    *********

    Unless newSCO can produce signed agreements with DC stipulating additional
    provisions, DC's response would seem to meet compliance requirements, and DC
    would be under no obligation to provide any other answers or certifications
    demanded.

    Section 6.03 provides for a period of not less than (2) months following written
    notification before termination of all rights. As newSCO is acting after only
    (30) days following written notification, newSCO would seem to be the one not
    abiding by the terms of the agreement.

    Thus, DC would seem to be complying with the terms of the agreement while
    newSCO would seem not to by complying with the terms of the agreement.

    [ Reply to This | # ]

    • The next step? - Authored by: Anonymous on Saturday, June 19 2004 @ 12:02 AM EDT
      • The next step? - Authored by: Anonymous on Saturday, June 19 2004 @ 11:03 AM EDT
    Hand Picked by David Boies
    Authored by: Anonymous on Friday, June 18 2004 @ 11:24 PM EDT

    I recall that the SCO Group delayed their promised end user actions because David Boies was "hand picking" whom to sue.

    So, PJ, what do you think now of the estemed Dr. Boies?

    [ Reply to This | # ]

    Point 16 - 7.05 (a) last sentence
    Authored by: Anonymous on Friday, June 18 2004 @ 11:26 PM EDT
    In Point 16 SCOG quotes 7.05(a) from the contract. They seem to ignore that the
    last sentence says "If information relating to a SOFTWARE PRODUCT subject
    to this Agreement at any time becomes available without restriction to the
    general public by acts not attributable to LICENSEE, its contracts or employees
    of either, LICENSEE's obligations under this section shall not apply to such
    information after such time."

    I would argue that it is available to the general public and that DC had nothing
    to do with it being public. Thus DC has no obligation under 7.05(a), so why is
    SCOG quoting it?

    Sorry if someone else has already mentioned this.

    Pugs

    [ Reply to This | # ]

    Is this just a false affidavit?
    Authored by: Anonymous on Friday, June 18 2004 @ 11:36 PM EDT
    Is this just a false affidavit in part?

    My question concerns the fact that this guy states he has personal knowledge of various facts. However unless he was working at DC or watching their daily activity,(and in one case seeing into their mind), I don't see how he could have personal knowledge of several facts. (this is before we get into the minutae of definitions of UNIX etc.)

    Here is where he says he has personal knowledge
    1. I am the Director of Software Licensing at the SCO Group, Inc. ("SCO"), and I submit this affidavit based on my personal knowledge and in opposition to DaimlerChrysler Corporation's ("Daimler") Motion for Summary Disposition. If sworn as a witness, I can testify competently to the facts stated herein.


    The parts in bold, are the main points which I would have thought it would rather hard of him, as a SCO employee, to have personal knowledge of:

    28.Daimler has utilized Linux since at least October 2002.

    56.Daimler was fully aware of its obligations to maintain current and accurate identifications of the licensed Designated CPUs. On April 14, 1992, Daimler entered into two supplements to the License Agreement to change the Designated CPUs. Software Agreement Supplement Number 2 provided for the deletion of the Cry XMP/14se, Serial Number 511, in Highland Park, Michigan, which was the original Designated CPU under the License Agreement, and replaced it with a Cray Y-MPZE/216, Serial Number 1604, also in Highland Park, Michigan. Attached hereto as Exhibit D is a true and correct copy of the Software Agreement Supplement Number 2.

    62.Daimler employees, engineers and technicians have had access to and worked on UNIX source code and technology for over 15 years.

    63.It is my understanding that in order to exercise their rights under the License Agreement, Daimler personnel would have gained a detailed understanding of UNIX source code and the methods and concepts contained therein.

    64.Daimler personnel have used that knowledge and expertise to modify UNIX to meet Daimler's commercial needs.

    65.Daimler is now using Linux, a product that SCO contends wrongfully incorporates its intellectual property rights in UNIX technology.


    I realize he may have read case studies or something of DC using Linux since October 2002, but to me at least that sounds like 2nd hand information, and not personal knowledge.

    [ Reply to This | # ]

    REALLY outdated hardware - stats
    Authored by: pyrite on Saturday, June 19 2004 @ 12:06 AM EDT
    Here is what I could gather from the internet about how absurd this whole thing
    is - look at this hardware.

    Instead of measuring in Mhz, the supercomputers' processors are typically
    measured in "flops", or "floating point operations per
    second" - these days its typically "gigaflops".

    So... the first Cray they talk about - the Cray XMP-14se - it has 1 CPU, running
    at approximately .25 gigaflops on that CPU, and the memory measured in
    "megawords" (the XMP-14se was apparently 8 megawords), but the
    equivalent in megabytes would be 64 megs of RAM. Not a whole lot.

    OK - the next one YMP-2E/216

    216 means two processors, 16 megawords - the Y processors were faster, somewhat,
    according to a Cray FAQ website - about .33 gigaflops apiece, 16 megawords is
    rougly equivalent to 128 megs of ram.

    next one - X-MP-8i/464

    The X processors are slower, but there are more of them - 464 is 4 CPU, 64
    megawords, so about 1 gigaflop and roughly the equivalent of 512 megs of RAM.

    OK - let's look at newer hardware - an Apple Xserve server, with the new 64-bit
    dual G5 processors, fits in a 1U rackmount, processors running at 2.0GHz can do
    over 30 gigaflops, with up to 8 gigs of RAM.

    From the www.top500.org - top 500 supercomputers in the world - the #1 is the
    Earth Simulator Center in Japan - peak performance is 40 Teraflops.

    BMW in Germany has a "HyperPlex" of 256 "nodes" of HP
    "SuperDome" UNIX supercomputers that is #412 on that list; it is
    listed as having a peak performance of 672 gigaflops.

    So here is a comparison chart:


    Cray XMP-14se - approx. 0.25 gigaflops - approx. 64 megs ram
    Cray YMP-2E/216 - approx 0.30 gigaflops - approx. 128 megs ram
    Cray XMP-8i/464 approx. 1 gigaflop - approx. 512 megs ram
    Apple Xserve G5 1U rackmount 2x2Ghz - up to 30 gigaflops - up to 8 gigs ram
    BMW's HP SuperDome Hyperplex (256 units) - approx. 672 gigaflops peak
    Earth Simulator Center in Japan (NEC) - approx. 40 teraflops peak

    It's funny, actually - quite amusing, if you think about it. How about a
    computer with 64 megs of ram that probably would barely fit in your house and
    quite possibly require some industrial sort of direct connection to the power
    line - Oh, yeah, we have that CPU serial number on file - absolutely.

    [ Reply to This | # ]

    Not Ancient Unix...Ancient History!
    Authored by: dmscvc123 on Saturday, June 19 2004 @ 12:10 AM EDT
    Geesh, SCO is stuck somewhere a few centuries BC before zero was invented. Why
    can't SCO understand simple mathematical concepts...first they don't know how to
    count months or weeks and now they don't know the meaning of zero.

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: Anonymous on Saturday, June 19 2004 @ 12:15 AM EDT
    I think this is more of a feign to set a trap. The point that stuck out the
    most to me is SCO's insistance of knowing the full history of what happened to
    the Unix source. It might appear silly reading the legal documents, but they
    want to establish lack of diligence. They're looking to prove that DC has not
    kept thorough records. If DC can not account for the location of their Unix
    source for the past seven years (even if it went poof when they pulled the
    plug), what else have they not kept record of? Could they have misappropriated
    the licensed product? SCO appears to want to be able to make the claim that
    Unix was moved to Linux. That DC's use of Linux requires licensing because DC
    can not prove through thorough records that Unix was completely disposed of
    (including all knowledge within the heads of live people). SCO can not prove
    that DC has used Unix IP with Linux, so they're attempting to turn the case in
    to showing that DC can not prove they didn't.

    [ Reply to This | # ]

    How SCO reads DESIGNATED CPUs
    Authored by: Anonymous on Saturday, June 19 2004 @ 12:34 AM EDT
    The key to understanding why SCO says that an empty list of designated CPUs is
    how they parse:

    On [SCO's] request, but not more frequently than annually, LICENSEE shall
    furnish to
    [SCO] a statement, certified by an authorized
    representative of LICENSEE, listing the
    location, type and serial number of all DESIGNATED
    CPUs hereunder and stating that
    the use by LICENSEE of SOFTWARE PRODUCTS subject to
    this Agreement has
    been reviewed and that each such SOFTWARE PRODUCT is
    being used solely on
    DESIGNATED CPUs (or temporarily on back-up CPUs) for
    such SOFTWARE
    PRODUCTS in full compliance with the provisions of
    this Agreement.


    Now the common sense version is DESIGNATED CPUs are only relevant if they have
    the software product on them, and the licensee is supposed to certify they are
    only using the software product on the designated CPUs in compliance with the
    agreement.

    SCO parses this paragraph differently

    They see at least 2 *separate* requirements in this paragraph (we don't know
    without seeing the motion if SCO merges 2a and 2b and 2c, or parses them
    separately)

    Requirement 1: listing the location, type and serial number of all DESIGNATED
    CPUs hereunder

    Requirement 2a: stating that the use by LICENSEE of SOFTWARE PRODUCTS subject
    to this Agreement has been reviewed

    Requirement 2b: and that each such SOFTWARE PRODUCT is being used solely on
    DESIGNATED CPUs (or temporarily on back-up CPUs) for such SOFTWARE PRODUCTS

    Requirement 2c: in full compliance with the provisions of this Agreement.


    Yes it's a tortured reading, but I'm pretty sure that this is how they are
    reading it, otherwise we end up with SCO agreeing with DC and commonsense
    (neither of which seems to be the case)

    [ Reply to This | # ]

    Eats, shoots and leaves
    Authored by: overshoot on Saturday, June 19 2004 @ 01:05 AM EDT
    We're misreading 65:
    Daimler is now using Linux, a product that SCO contends wrongfully incorporates its intellectual property rights in UNIX technology.
    After reading Eats, shoots and leaves I realize that this should be parsed as
    Daimler is now using Linux, a product that SCO contends wrongfully incorporates its intellectual property rights in UNIX technology.
    So it appears that SCOX is finally admitting that their "intellectual property in technology" contention is wrongful.

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: vito on Saturday, June 19 2004 @ 01:16 AM EDT
    [SCO]1 grants to LICENSEE a personal, nontransferable and nonexclusive right to
    use in the United States each SOFTWARE PRODUCT identified in the one or more
    Supplements hereto, solely for LICENSEE'S own internal business purposes and
    solely on or in conjunction with DESIGNATED CPUs for such SOFTWARE PRODUCT

    SCO granted nothing to DC. AT&T did. since IANAL, it seems to me that this
    shoud refer to AT&T and [NEW]SCO should should mention that. They should
    refer to the transfer of the licenses, or is this done in another part?

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: Anonymous on Saturday, June 19 2004 @ 01:30 AM EDT
    This isn't a criminal case. Innocent until proven guilty does not apply.
    Though, I do believe the plantif has the burdon of proof.

    However, by demonstrating lack of documentation and implying potential for harm
    to have been done, SCO then can dig deeper. What they can most likely prove
    is that DC is using similar applications (or performing similar functions) on
    Linux machines as the Unix super computer did. Then, with a murky recorded
    history of the last seven years and an impressionable jury, try to connect the
    dots in migration of custom applications written for a Unix platform moving to
    Linux.

    Questions such as: If Linux is so much like Unix and you're running the same
    tasks, can't it be assumed you're using the same programs as before? How did
    that code get from the Unix machine to the Linux machine? Can you prove that
    none of that Unix IP migrated with it? You don't have records to prove that it
    did not.

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: Anonymous on Saturday, June 19 2004 @ 01:30 AM EDT
    It's kind of funny to see how the author tries desperately to act as if he hates
    software patents, but since they are there, he is trying to learn to live with
    it...

    [ Reply to This | # ]

    Ancient media?
    Authored by: Anonymous on Saturday, June 19 2004 @ 01:46 AM EDT
    One more potential nail in the coffin for this case. Suppose that Daimler do
    still have a copy of the UNIX(R) source code that they received from AT&T
    all those years ago. Further suppose that some employee unaware of the
    restrictions on the uses to which the precious source code can be applied
    decides to look at it before making a change to the Linux(R) source code. This
    hypothetical employee might take the tapes containing the UNIX code, and hunt
    high and low around Daimler for a tape drive onto which they could be read ...
    back in the old days people used 10 inch diameter spools of 0.5 inch wide tape
    recorded at 800, 1600 and eventually 6250 bits per inch. But the only working
    tape drives that can read these tapes are now in museums, and specialist data
    recovery companies.

    -Tony

    [ Reply to This | # ]

    I'm hiding in a cupboard, trembling!
    Authored by: davcefai on Saturday, June 19 2004 @ 02:07 AM EDT
    I used to run System V/68K on a Motorola machine. Ditched it in 1999 as the
    whole lot was non Y2K compliant. Replaced it by a Windows NT4 based system with
    all the custom software rewritten.

    Now this week I booted Knoppix on a PC which is only a yard away from the NT
    machine. I have no doubt that SCO will make the obvious connection and send the
    goons around.

    [ Reply to This | # ]

    Lyrics
    Authored by: ubi on Saturday, June 19 2004 @ 02:25 AM EDT
    I felt inspired by the article's title.

    The following should be sung to the tune of
    "Every Breath You Take" by The Police
    (with apologies to Sting). Feel free to improve it...

    Every fee you take,
    Every lie you make,
    Every trust you break,
    Every step you take,
    We'll be watching you.

    Every courtroom day,
    All the FUD you say,
    Every game you play,
    Each motion you stay,
    We'll be watching you.

    Oh can't you see?
    GNU/Linux is free
    --As we try to teach--
    Not like beer, like speech.

    All slanders you make,
    All goodwill you break,
    "Evidence" you fake,
    Every claim you stake,
    We'll be watching you.

    Since Linux you've been lost without a trade,
    We dream at night that you soon will simply fade
    Under the Canopy of a long cold night.
    But you would rather stay in this hopeless fight.
    We keep on waiting, waiting, waiting--please!

    Oh can't you see?
    It's not "me-me-me."
    We're now wide awake.
    You're an obtuse fake.

    All libels you write,
    All good souls you fight,
    "Evidence" you fake,
    Every claim you stake,
    We'll be watching you.

    Every trust you break,
    Every step you take,
    We'll be watching you.

    We'll be watching you,
    We'll be watching you,
    We'll be watching you,
    We'll be watching you...

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: Anonymous on Saturday, June 19 2004 @ 02:37 AM EDT
    i love point 52

    the License Agreement further incentivizes licensees to control the
    dissemination of UNIX technology.

    it sure did, right down to zero.

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: Anonymous on Saturday, June 19 2004 @ 02:48 AM EDT
    Anyone else noticed this?

    40. On April 6, 2004, more than a month after SCO's Complaint was filed and 110 days after the SCO Letter was sent, Norman A. Powell, Senior Management of Tech Services at Daimler, provided a response to the SCO Letter (the "Daimler Response"). Attached hereto as Exhibit C is a true and correct copy of the Daimler Response.

    I can't find it mentioned anywhere that the reason DC replied late was because SCO sent the letter to the wrong address!

    Or have i missed something? Shouldn't a very key piece of information like that be included in this filing?

    Greebo

    [ Reply to This | # ]

    It's a trap!
    Authored by: Anonymous on Saturday, June 19 2004 @ 03:17 AM EDT
    SCUMX is going to assert that DC is lying!

    SCUMX is eventually going to say You LIED to US! You said you are not using
    [SCO] Unix on any CPU's! Our IP is all over your Linux servers!
    Millions of lines!
    Our API's or ABI's or A something I's!
    All that NUMA and RCU stuff that IBM put in. And JFS too. (We don't buy that JFS
    was ported from OS/2 if it was then OS/2 is ours too.)
    You did not terminate your license! You are in VIOLATION of your Unix source
    license!
    Now please list all CPU's running Linux, per our new license terms.
    We will send you a bill for use of our IP on your Linux servers from October
    2002 to today.
    Please send a blank check to Darl McBride, Lindon UT.
    Remember, we will use contracts against you!
    Your IP is our IP!
    LICENSE OR LITIGATE!

    [ Reply to This | # ]

    • It's a trap! - Authored by: Anonymous on Saturday, June 19 2004 @ 03:26 AM EDT
      • It's a trap! - Authored by: kbwojo on Saturday, June 19 2004 @ 06:07 PM EDT
        • It's a trap! - Authored by: Anonymous on Saturday, June 19 2004 @ 11:38 PM EDT
    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: geoff lane on Saturday, June 19 2004 @ 03:57 AM EDT
    The SCO Group asserts in many documents submitted to the courts that "SCO is a successor in interest to AT&T".

    Has this been established? Can TSG demonstrate this?

    After all, AT&T sold Unix to Novell who sold certain rights to market and develop Unix to the Santa Cruz Organisation who sold their Unix server division to Caldera who changed their name to The SCO Group.

    After Novell, all SCO or TSG have is the right to market and develop a particular fork of the original Unix sources (a high percentage of which still retain AT&T copyright notices.)

    There are other forks of the AT&T sources owned by Sun, IBM, SGI and others. These companies bought out their license from Novell and SCO, not TSG. In the case of Sun they actually jointly developed the code with AT&T. Does TSG have any interest in these deals which return no royalties and require no management.

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: Anonymous on Saturday, June 19 2004 @ 05:41 AM EDT
    Is DC able to respond to this as part of the legal process?

    Isn't an affidavit supposed to be a sworn statement of facts? The DC lawyers
    would be able to disagree with almost every statement made.
    For a start, they licensed a thing called "SOFTWARE PRODUCT" clearly
    defined in the original licence, not a thing called "UNIX".

    The argument that the UNIX standard is similar to SOFTWARE PRODUCT, and Linux is
    similar to UNIX, therefore Linux falls under the same licence, won't slip by
    even the most uninformed judge.

    Yet another bad move by SCO.

    [ Reply to This | # ]

    "Every Step You Take, Every Move You Make, I'll Be Watching You"
    Authored by: blacklight on Saturday, June 19 2004 @ 06:07 AM EDT
    I was wondering why SCOG is persisting with the DC lawsuit, which is pretty much
    a lost cause: the probable answer is that SCOG is a natural born bully. They
    will push that lawsuit and say anything in their filings until they see signs
    from the judge that their lawsuit is a lost proposition. At that point, they
    will either try to forestall paying court costs in exchange for dropping their
    suit or they will drop their suit in a hurry before the judge starts striking
    off the abusive interpretations.

    [ Reply to This | # ]

    Printed in July 20th 1998 Fortune
    Authored by: dyfet on Saturday, June 19 2004 @ 09:00 AM EDT
    Mr. Gates comments also appeared in print, in the July
    20th 1998 issue of Fortune magazine. Senior Silveire's
    comments were published in Carta Capital magazine.

    [ Reply to This | # ]

    This is FABULOUS!
    Authored by: Anonymous on Saturday, June 19 2004 @ 11:41 AM EDT
    Really FABULOUS

    SCO is telling all prospective customers that they may be
    liable for million$ if they ever become a customer!
    And there is probably only one good way to excape,
    terminate the license and wait 7 years for statute of
    limitations to kick in.

    ATTN all prospective SCO customers! This could happen
    to you if you use AIX or Linux, or if SCO gets any other
    revenue enhancing ideas.

    ATTN current SCO customers! Terminate that unused
    SCO $oftware license NOW! The sooner you terminate,
    the sooner (2011) you will be free of any liability.
    [Make sure you use registered mail in case SCO
    misplaces your termination.]


    Oh, Thanks SCO!
    Really, thanks.

    Thank you for showing us just how expensive a non GPL
    license can be.

    Can anybody put dollar amounts to the liability costs
    for each of the terms of a SCO license?


    Have you ever actually read those software licenses
    that you blindly accept? Have you ever wondered what
    the liability costs of each term could be?

    Have you ever actually considered the cost of observing
    each term of a licanse?

    Have you ever considered that you should be terminating
    every unused license to clear your liability?


    ATTN *ALL* software licenseses! You should start
    explicitly terminating all unused/lapsed licenses.

    Will all software licensors be able to establish that
    you are now clear of license liability?

    (How much will it cost SCO [& Microsoft] to keep
    track of all terminated customer licenses?)


    [ Reply to This | # ]

    Never mind, the court will remember this
    Authored by: Anonymous on Saturday, June 19 2004 @ 12:12 PM EDT
    I don't think there will be any laughter in the court when this document is
    read. They will remember this,

    http://www.groklaw.net/article.php?story=20040501011806928

    (sorry, still can't master clickable)

    "DAIMLERCHRYSLER CORPORATION'S MEMORANDUM OF LAW
    IN SUPPORT OF ITS MOTION FOR SUMMARY DISPOSITION

    STATEMENT OF UNDISPUTED FACT

    On or about December 18, 2003, SCO sent a letter addressed to the "Chief
    Executive Officer of Chrysler Motors Corporation" in Highland Park,
    Michigan purporting to seek a certification from DaimlerChrysler pursuant to
    Section 2.05 of the License Agreement. See Cmpl. Exhibit B (SCO Letter).


    However, the SCO Letter actually demanded that written certification pursuant to
    Section 2.05 "must include certifications that:

    <snip:- SCO's attempt in their letter to unilaterally vary the terms of a
    contract between two other parties>


    By its terms, Section 2.05 of the License Agreement does not require
    DaimlerChrysler to respond to the Licensor's request for certification within 30
    days of receipt. See Cmpl. Exhibit A (License Agreement) § 2.05.


    No other provisions of the License Agreement imposes a requirement that
    DaimlerChrysler respond to a certification request within 30 days of receipt of
    such request. See generally Cmpl. Exhibit A (License Agreement).


    Section 2.05 of the License Agreement specifies <snip:- the real terms of the
    contract>


    SCO did not contact DaimlerChrysler after sending the SCO Letter and prior to
    initiating this lawsuit.


    Instead, SCO filed its Complaint on March 3, 2004, claiming it had been
    "compelled" to do so by DaimlerChrysler's "refusal" to
    respond to the SCO Letter. See Cmpl. ¶¶ 4-5, 26-27.


    DaimlerChrysler responded to the SCO Letter on April 6, 2004."



    Here is part of the Letter from DaimlerChrysler Corporation, Susan J. Unger, Sr.
    Vice President & CIO
    Information Technology Management of April 6, 2004 to Bill Broderick Pointed out
    that

    "SCO is not a party to the SA, and DaimlerChrysler has no knowledge of any
    assignment of the rights of the Licensor under the SA to SCO. According to our
    records, the SA was assigned from AT&T Information Systems Inc. to UNIX
    System Laboratories, Inc. on or about November 1, 1990. Notwithstanding these
    facts, SCO has filed its suit against DaimlerChrysler. SCO's suit appears to be
    based on an uninformed and inaccurate assessment of DaimlerChrysler's conduct.
    As a result, and without waiving any of its rights under the SA or under
    applicable law, including without limitation its right to assert that SCO has no
    rights under the SA, that SCO has no right to seek the certified statement that
    its letter requests, that Licensor has waived any right to seek a certified
    statement under the SA, and that SCO has intentionally filed a meritless lawsuit
    for purposes of restraining competition, DaimlerChrysler provides the attached
    information to SCO."

    So, to summarise, an incompetant company sends a letter to the wrong company at
    the wrong address attempting to change the terms of a contract between two other
    parties and insisting on a response to these new terms within 30 days. Without
    contacting the company to find out the reason for a lack of response, they rush
    to the courts. When the company explains to SCO that SCO have no standing, SCO
    refuses to own up to incompetance and withdraw the charge.

    IANAL, but I would expect the courts to consider that either SCO got much more
    than they were entitled to and should STFU, or, after looking at their business
    plan and public statements that they were just out to make money out of
    malicious litigation.

    Either way, no laughing matter.

    Ian Al

    [ Reply to This | # ]

    ok, but then where is the Open Group?
    Authored by: Anonymous on Saturday, June 19 2004 @ 03:25 PM EDT
    7. Through a series of corporate acquisitions, SCO presently owns all right,
    title, and interest in and to UNIX and all related license rights.

    [ Reply to This | # ]

    Misc. points
    Authored by: Night Flyer on Saturday, June 19 2004 @ 04:04 PM EDT
    Quotes and comments:

    "3. SCO is the exclusive licensor of software licenses for its version of
    the UNIX computer operating system."

    Interesting. This is the first time I have seen my interpretation of the true
    situation in print, i.e.: SCO only has control over who is licensed to use
    "its version of the UNIX operating system." There is no mention of
    copyright or ownership.

    Note also: the use of singular in 'its version', not 'its versions'. I thought
    there was SysV-R5, Unixware and different versions of each but maybe my
    understanding is in error.

    "7. Through a series of corporate acquisitions, SCO presently owns all
    right, title, and interest in and to UNIX and all related license rights."

    How can you contradict yourself on a critical point so soon in a legal document?
    Wouldn't it be better to wait a few pages, hoping the readers would have
    forgotten what they read previously?

    "9. The License Agreement is still in effect and has not been terminated
    by any party."

    Actually there might be a point here, but if someone had not paid me for a
    license fee for 7 years, and I hadn't checked into it until now...

    There might be an argument that there was not proper closure of the contract
    years ago and, under section 22, SCO is due a response from DC that no SCO-UNIX
    is in use and all copies of UNIX are returned or destroyed.

    In any event, DC subsequently stated that it had not used SCO UNIX in that time
    and, unless SCO has reasonable evidence to the contrary, it seems to me that SCO
    is conducting something between a fishing trip and harrassment. (I think taking
    the issue to court moves it closer to the harrassment end of the spectrum.)

    "11. Section 2.01 ...(snip)... Such right to use includes the right to
    modify such SOFTWARE PRODUCT, and to prepare derivative works based on such
    SOFTWARE PRODUCT, provided that any such modification or derivative work that
    contains any part of a SOFTWARE PRODUCT subject to this Agreement is treated
    hereunder the same as such SOFTWARE PRODUCT subject to this Agreement is treated
    hereunder the same as such SOFTWARE PRODUCT. [SCO] claims no ownership-interest
    in any portion of such modification or derivative work that is not part of a
    SOFTWARE PRODUCT. ..."

    This CLEARLY answers a question I had earlier about ownership and control of
    programs DC wrote (or acquired) to run on the UNIX operating system. If there
    is no SCO code in it, "[SCO] claims no ownership-interest in any portion of
    such modification or derivative work that is not part of a SOFTWARE
    PRODUCT".

    Bottom line? I'm on Daimler's side on this.

    After I post this I will search to see if there is a similar, 'clear' clause
    related to IBM-SCO.




    [ Reply to This | # ]

    From LOON, to BUFFOON
    Authored by: Anonymous on Saturday, June 19 2004 @ 08:45 PM EDT
    This is so riddled with lies it's hard to know where to start. It begins with:

    "... I can testify competently to the facts stated herein."

    I'll leave "competency" for another day to avoid embarassing the
    lunatics. But how do you testify to "facts stated herein", when there
    are NONE that apply to SCO? It's hard to find a single sentence that isn't an
    outright lie, a fabrication of overactive imagination, or just plain stupid.

    This is what shareholders paid $11 Million for?

    [ Reply to This | # ]

    This affidavit is an amended complaint!
    Authored by: ChrisP on Saturday, June 19 2004 @ 11:11 PM EDT
    Many people have pointed out the numerous ways this affidavit is just wrong.
    That's because y'all are looking at it the wrong way. :-)

    TSG have realized that their original complaint won't fly, given DCs Motion to
    Dismiss, but they cannot at this point change the suit. So what to do? Easy.
    Disguise the amended suit, based on DCs Motion and letter, as an affidavit
    attached to TSGs Memorandum in opposition to the Motion to Dismiss. Then the
    reason for some of the nonsense becomes clear.

    Had TSG acted in good faith and tried to resolve the issue before running
    straight to court, this affidavit is what the complaint might have looked like
    after negotiations had broken down.

    DC might reply with its own affidavits, perhaps giving information about the
    fate of the Crays etc. to take some of the sting out of TSGs response, but
    memoranda to court motions are hardly the right place to do this kind of thing.

    ---
    SCO^WM$^WIBM^W dammit, no-one paid me to say this.

    [ Reply to This | # ]

    • I doubt it - Authored by: Anonymous on Saturday, June 19 2004 @ 11:18 PM EDT
    derivative works reasoning
    Authored by: Anonymous on Sunday, June 20 2004 @ 01:13 PM EDT
    newSCO is setting up a nice and confusing web of reasoning about derivative works. I think they are following this reasoning:

    • Linux contains derivative works of Unix. (This still has to be proven.)
    • DC license agreement says that derivative works should be threaten the same as the original software by DC.
    • DC is using (and therefore copying or doing anything else that is not allowed by the license with) Linux.
    The conclusion of all of this is that DC is violating their license agreement.

    The flaw in newSCO reasoning is that the license is about derivative works made by DC. newSCO wants us to believe that the license is also applicable for derivative works made by others.

    H@ns

    [ Reply to This | # ]

    Usual Byzantine licenses vs. GPL and the like
    Authored by: Anonymous on Sunday, June 20 2004 @ 01:41 PM EDT
    Indeed, I often find myself recommending rather heavily *against* my employers
    putting their collective foot into the license on some bit of software. The
    long-term requirements, the level of ambiguity, and the unnatural restrictions I
    typically find are simply too scary compared with the simplicity and safety of
    "use it, share it, and any changes you publish belong to the
    community." I've had to advise many times that, in my non-lawyer's
    opinion, a license attached to some program means that it is literally not
    possible for us to use the product in a way that does not violate the license,
    because of the way our business operates. And I'm happy to say that my
    superiors take these warnings seriously.

    [ Reply to This | # ]

    This is a TSCOG "Non-literal contract" interpretattion.
    Authored by: tangomike on Sunday, June 20 2004 @ 02:05 PM EDT
    This is another TSCOG multiverse view, just like 'nonliteral copying'.

    I'm betting DCC gets their summary judgement, which is a bit of a shame, because
    it would have been fun to read the transcript of the examination under oath of
    Mr. Brodderick's statements here.

    This is in several aspects perjury. The only explanation is that this will be
    used to try to prevent DCC or the court from extracting large sums of money
    from TSCOG for even bringing this suit. Presumably the lawyers here also expect
    it will save them from serious court sanctions.


    ---
    To The SCO Group - please come back when you pass a Turing test.

    [ Reply to This | # ]

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