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Transcripts of the IBM and Novell Hearings |
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Friday, June 25 2004 @ 04:17 AM EDT
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We have the transcripts of the two hearings, the SCO-IBM dispute over bifurcation of the patent claims and the dispute over whether to prolong discovery and the trial, and the SCO-Novell hearing about the motions to dismiss and to remand. I haven't had time to read the Novell one yet, but I didn't want you to have to wait. So here are the IBM hearing transcript of the June 8 hearing and the the Novell hearing transcript of the May 11 hearing.
I have had a quick look at the IBM hearing, and several things jump out. First, IBM wiped up the floor with SCO, despite the new SCO IP lawyer, Mr. Frei, being quite a smoothie, very quick on his feet. It isn't his fault he had to argue a losing case. He did a creditable job. IBM did a fabulous job of making sure this judge understands that SCO has virtually conceded that IBM has not taken any of UNIX System V code and put it in Linux, or as Mr. Marriott puts it: "After two motions to compel and two orders requiring disclosure, it's become clear, in fact SCO has effectively conceded, that it has no evidence that IBM took source code from the UNIX operating system and put it into Linux. Instead, the crux of the case, it is now clear, is that IBM, according to SCO, has taken its own code out of its own separate operating system." What the case is really about is whether SCO gets to control the entire world's derivative code that they didn't write and that they don't own the copyrights to, just because of a contract that SCO says they suddenly discover gives them that power, all with the apparent goal to make sure no large corporation with a license from AT&T ever gets to donate anything of significance to Linux.
It is a remarkable statement from IBM, and SCO didn't directly dispute it, although Hatch at one point earlier routinely mentioned that SCO's copyrighted code was put into Linux. SCO had two opportunities to dispute what IBM said but didn't, despite this being their motion, meaning they get more times to speak and rebut than IBM gets. It's like with the motion papers. Whoever brings the motion gets two bites of the apple: first you bring a motion, the other side answers, and then you get to respond. Same at the hearing. First SCO spoke, then IBM, and then SCO got to respond. Each got an extra 30-second chance at the very end, but no matter how you look at it, SCO got opportunities to argue against what IBM said and they never did that I can see. When I read the reports of the eyewitnesses who attended the hearing, I thought the Judge telling IBM's attorney to get to the point indicated some hostility. I don't now that I read the transcript. I see now that he was indicating that he knows what an operating system is, and he just wanted not to waste time on that and get to the relevant point. That is a good sign. The only reason, I now believe, that SCO got a delay at all, now that I've read the transcript, is because they argued they couldn't physically handle so many depositions in such a short period of time left, plus Mr. Frei arguing that they are down to very little discovery time and only three interrogatories, and they haven't even started patent discovery. IBM of course pointed out there was nobody preventing them, and even said they, SCO, have yet to notice even one deposition, which amazes me and speaks to how much of a hurry they are in, and now I see that Judge Kimball is just being prudent. By giving them a bit more time, it precludes SCO being able to argue on appeal that they didn't have time to prepare properly and, just in case SCO is really unable, you give them the benefit of the doubt. You definitely want to cut them off at the pass on any such argument on appeal. And whether or not they are responsible for the mess they are in -- and Hatch alludes to the games they played with discovery, without giving it that name -- you really don't want this case decided on anything but the merits, not on who can physically cover all the depositions. You will also note that we can guess what Judge Wells' order about handing over affidavits and declarations 48 hours prior to a deposition stemmed from. Of the three possibilities I laid out yesterday, I would say it looks like number one to me, tattling to mommy and being believed. SCO seems desperate here. They actually argue that IBM should offer to prove their case by bringing forth not what SCO asked for but what they meant, what they should have asked for if they had done a better job of framing the question. Here are the snips I thought were the most significant, starting with the new lawyer on the patent bifurcation, Mr. Frei, which he lost, and then Hatch and Marriott on the scheduling order, where SCO partially got a delay but not what they were asking for. I think you'll see why SCO really wanted to bifurcate the patent counterclaims:
Frei: The case needs to proceed at its own pace. . . .
But it looks like IBM filed the patent counterclaims to have a spillover effect in the rest of case as far as the jury deliberations are concerned. They have said clearly in their brief, and I quote:
SCO claims to respect the intellectual property rights of others. It has infringed
and is infringing on a number of IBM's copyrights and patents.
Just the risk of prejudice to the jury that if they think we infringed IBM's patents that somehow our claim doesn't have merit, the rest of our claim doesn't have merit, just that risk of confusion is enough to sever the case.
Hatch:
In addition to that matter, there's been, you know, as always at the beginning of the case, the complexity, when we're dealing with good attorneys and aggressive attorneys, there's been a considerable amount of jockeying that has affected the schedule. And part of that resulted in Judge Wells at one point staying discovery for a period of three months. And then at the end of that three months, giving one party 45 days to respond to some of the discovery the motion compel at the beginning of that. So that took about four and a half months out of it, as well. . . .
Marriott:
After two motions to compel and two orders requiring disclosure, it's become clear, in fact, SCO has effectively conceded that it has no evidence that IBM took source code from the UNIX operating system and put it into Linux. Instead, the crux of the case, it is now clear, is that IBM according to SCO has taken its own code out of its own separate operating system. And that, as they describe the contract case being the crux of the case is the case as they appear to see it.
SCO asserts essentially that it either owns or has the right to control a very significant chunk of the world's operating system source codes. All of the UNIX V family operating source code.
SCO acknowledges that IBM owns its own home-grown code, but contends it has the right to control that code. And SCO asserts the right to control, to license, the Linux operating system developed by thousands of developers over a decade. . . .
From the beginning of the suit SCO asserted that we had infringed SCO's copyrights related to the UNIX System V family operating system. And SCO doesn't own the copyrights for the IBM operating system and the copyrights with respect to Linux are owned by those thousands of individuals and corporations which have made contributions to Linux. But it asserts that IBM has infringed its copyrights. . . .
In the 15 months of this litigation, SCO has not noticed a single deposition of IBM. . . . Even today, Your Honor, SCO has still not identified in more than a year in litigation a single line, not a single line of the UNIX System V code, this is not UNIX System V code, a single line of the code from this family operating system which we're alleged to somewhat misappropriate.
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Authored by: PJ on Friday, June 25 2004 @ 05:21 AM EDT |
Pls. put any typos and other corrections here, so I can find them easily. Thank
you.[ Reply to This | # ]
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Authored by: jdg on Friday, June 25 2004 @ 05:38 AM EDT |
Place off-topic posts here.
---
SCO is trying to appropriate the "commons"; don't let them [IANAL][ Reply to This | # ]
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Authored by: mcstafford on Friday, June 25 2004 @ 05:49 AM EDT |
From page 21 of the IBM transcript:
"...it's about our allegations and contentions that IBM has moved
source code that _WAS COPYRIGHTED AND OWNED BY US_ under which IBM
had the contractual obligations not to use elsewhere, and they've moved it to
Linux."
Say WHAT? I don't seem to recall that they've come up with a single line of
code that "copyrighted and owned by" SCO that IBM has placed in
Linux. In fact, I seem to recall that they'd given up on that whole line of
thinking to concentrate on the "OBLIGATIONS NOT TO USE ELSEWHERE"
garbage.
Interesting that they've tried to glue those two lines of thinking together into
some kind of frankenstein argument here... [ Reply to This | # ]
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Authored by: gormanly on Friday, June 25 2004 @ 06:17 AM EDT |
I'm reading the Novell one and transcribing as I go - anyone else working on
this?[ Reply to This | # ]
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Authored by: Jude on Friday, June 25 2004 @ 07:01 AM EDT |
Just the risk of prejudice to the jury that if they think we infringed IBM's
patents that somehow our claim doesn't have merit, the rest of our claim doesn't
have merit, just that risk of confusion is enough to sever the case.
SCO
argues that awareness of IBM's patent claims would prejudice the jury WRT SCO's
own claims.
However, SCO's intensive efforts to publicize their own
complaints against IBM has probably
made it impossible to find a jury for
the patent claims that would be unaware of SCO's original complaints.
SCO
appears to be arguing that SCO must be protected from possible jury prejudice,
despite
the fact that SCO's behaviour has made it practically impossible for
IBM to get similar protection.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, June 25 2004 @ 07:27 AM EDT |
Interesting point on Page 24 (line 18) of the Novell transcript - it talks about
the transfer of "The Unixware Business", not Unixware as a whole.[ Reply to This | # ]
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Authored by: Anonymous on Friday, June 25 2004 @ 07:59 AM EDT |
p27: "the Unix operating system, your Honor, was first developed in the
beginning in 1969 by AT&T and Bill Lattery."
I was wondering who this mysterious programming genius "Bill Lattery"
was - I had always associated Unix with Thompson and Ritchie at AT&T.
Couldn't be "Bell Laboratory" now could it?
[ Reply to This | # ]
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Authored by: Kevin on Friday, June 25 2004 @ 08:05 AM EDT |
[SCO's lawyers] actually argue that IBM should offer to prove their
case by bringing forth not what SCO asked for but what they meant, what they
should have asked for if they had done a better job of framing the
question.
Moreover, their own actions - in the Court record -
are
inconsistent with the argument. SCO requests the names of
everyone who has
been on IBM's Linux project. IBM provides
7200 names. SCO complains that the
names of Sam Palmisano and IBM's Board of Directors aren't on the list. IBM
responds by expanding the list to 8000. And now SCO argues that what it
really wanted was the names of the 250 programmers that some old IBM
press release mentioned.
Complaining that IBM's first response was
insufficiently detailed, and then complaining that it was a blatant attempt to
drown SCO in detail? That goes beyond desperation.
Does SCO think that Judge
Kimball and Magistrate Wells don't talk to one another? Or is SCO seriously
asking us to believe that IBM's directors are kernel hackers in addition
to
being financiers?
Damned lies. (Don't assail my language. "Damned" is
precisely the correct technical term.) --- 73 de ke9tv/2, Kevin (P.S.
My surname is not McBride!) [ Reply to This | # ]
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Authored by: winnetuxet on Friday, June 25 2004 @ 08:50 AM EDT |
From the SCO v. Novell Hearing May 11, 2004
Mr. Michael Jacobs (Atty for Novell): You have two of the many SCO cases that
are now filed around the country.
Judge Kimball: So I've read.
Mr. Jacobs: And they're alleging copyright infringement in SCO v. IBM. So I just
want you to have in mind what you're doing here may have some bearing on your
other case. I think it would be useful to walk you through the asset purchase
agreement because...
Judge Kimball: I can solve them both by some ruling here?
Looks to me me like Judge Kimball already has a good idea of how to dispense
with both cases. Notice it was he that suggested the idea![ Reply to This | # ]
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Authored by: Anonymous on Friday, June 25 2004 @ 09:13 AM EDT |
Can someone tell me what "SCO has not noticed a single deposition of
IBM" means in plain english?[ Reply to This | # ]
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Authored by: Anonymous on Friday, June 25 2004 @ 10:03 AM EDT |
The phrase the judge used, "when we're dealing with good attorneys and
aggressive attorneys," struck me. You think he was characterizing two or more
law firms, on different sides of some case he drew? And if so, which attorneys
do you think were on which side?[ Reply to This | # ]
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Authored by: Kelledin on Friday, June 25 2004 @ 10:37 AM EDT |
Anyone transcribing the IBM hearing yet? If not, I'm
on it.
--- <Lionel Hutz> I'll be defending...The SCO Group!!!??? Even if I
lose, I'll be famous! [ Reply to This | # ]
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Authored by: kenryan on Friday, June 25 2004 @ 10:38 AM EDT |
<underwear mode=kevlar> <!--asbestos is too scratchy-->
I never thought I'd have agreed with *anything* SCO
had to say, but after reading the transcript and
thinking it over...
IMHO I think Kimball should have gone ahead and let SCO
bifurcate the patent stuff from the rest of the case.
I don't think it would have mattered a bit in the long
run.
First, I'm not thrilled in the first place about patents
being used as weapons, even against folks like this. I
know our broken patent system allows it (arguably
encourages it) but as someone who dreams of starting a
technology company the whole notion gives me the
heebie-jeebies.
Second, is it truly necessary to scorch, salt, irradiate,
*and* cast a pox on SCO's earth? I suppose the value it
does have is to serve as warning that anyone else trying
this stunt will also face IBM's full broadside...
Third, I think there is a valid point in that due to the
patent system brokenness, where the defendant has the far
greater burden to invalidate or otherwise defend against
the claims than the patent holder has to prove infringement.
The presumption of validity means the defendant has a whole
lot of work to do. Even if SCO has the entire rest of the
case resolved *today* IMHO they still have a significant
uphill effort to fight the patent fight (assuming there's
anything left after being scorched, salted and irradiated).
---
ken
(speaking only for myself)[ Reply to This | # ]
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- It can still be bifurcated... - Authored by: tangomike on Friday, June 25 2004 @ 11:10 AM EDT
- Timing - Authored by: jdg on Friday, June 25 2004 @ 11:13 AM EDT
- Timing - Authored by: kenryan on Friday, June 25 2004 @ 11:27 AM EDT
- Scorched earth not optional - Authored by: Anonymous on Friday, June 25 2004 @ 11:26 AM EDT
- Broken Patents - Authored by: math geezer on Friday, June 25 2004 @ 11:38 AM EDT
- Patents as defensive tactic - Authored by: ujay on Friday, June 25 2004 @ 12:51 PM EDT
- Should have been bifurcated...No - Authored by: Anonymous on Friday, June 25 2004 @ 01:09 PM EDT
- Patents are properly part of this case - SCO brought it up first - Authored by: Anonymous on Friday, June 25 2004 @ 01:09 PM EDT
- So, you're asking this judge to fix the entire broken patent system? - Authored by: Anonymous on Friday, June 25 2004 @ 01:20 PM EDT
- Isn't the patent issue needed to demonstrate 'unclean hands'? EOT - Authored by: Anonymous on Saturday, June 26 2004 @ 04:14 AM EDT
- *LMAO* at underwear comment - Authored by: Anonymous on Saturday, June 26 2004 @ 06:35 PM EDT
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Authored by: hhind on Friday, June 25 2004 @ 11:14 AM EDT |
I have been seeing hints that Judge Wells is much more involved in the
day-to-day aspects of discovery than what is indicated in the record.
Yesterday I speculated on this a bit
with regards to the fact that she held a teleconference hearing on June 7 to
deal with the protective order, and then on June 8 (same day as the hearing
before Judge Kimball) held another teleconference to deal with the 48 hour
notice for depositions. As we now see from the transcript (p. 45) it is clearer
that PJ's option 1 "somebody tattled to mom about a late affidavit" is obviously
the most likely.
My question is, Is there any record available of the
interactions of the parties with Judge Wells? Are these teleconferences
recorded/transcribable, or are they similar to conversations in the Judge's
chambers that the public is not allowed access to? [ Reply to This | # ]
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Authored by: Anonymous on Friday, June 25 2004 @ 11:25 AM EDT |
...to comply with discovery. They really did. SCOG desperately wants to find
the copied code. While that statement is technically correct, it paints a
misleading picture.
A bank robber's good faith effort to run away as fast as he can't doesn't mean
he's fully acting in good faith. SCOG's global actions are in bad faith, even
though they may at times try to do the odd thing right.
SCOG's argument on this can be summed up as "we tried really really really
hard to show that IBM was bad, and we couldn't. Make them tell us! They
know they were bad!"
Going back to the core of this, though, even if SCOG is 100% right about what
IBM was doing with AIX code and with their tortured contractrual
interpretations, they are still morallly wrong. IBM wrote that code, IBM added
that functionality, IBM developed the ideas and methods that they are adding
to Linux. Even if IBM signed a ridiculous contract that gives SCOG perpertual
control rights over anything that inhaled a whiff of SYSV, they have no moral
right to it.[ Reply to This | # ]
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Authored by: frk3 on Friday, June 25 2004 @ 01:12 PM EDT |
O.K., this is not going to be some insightful analysis, not about points
missed (by either side), etc.
Now, maybe I am wearing big blue colored
biased sunglasses, but I can't help but think that near the end of the hearing,
TSG's arguments fall into the category of something like:
Mom, tell him to
stop, he is looking at me, and I have told him to stop looking at me on numerous
occasions, and you also told him to do so twice. And, even though he is not
looking at me, his head is turned in my direction, and even though his eyes are
closed, I still think he is peeking at me. Make him stop. Waaaaaaaaaaaaaaaaaa!
(instert temper tantrum). [ Reply to This | # ]
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Authored by: wvhillbilly on Friday, June 25 2004 @ 01:33 PM EDT |
Hatch's argument for SCO from the Novell
transcript:
. . . Simply put, the 204(a) is the same. It
doesn't apply any standards at all. Just like Jasper, its only requirement is
there be a writing. And I don't think there can be really honest dispute that
there is a writing here.
It looks like here Hatch's argument
is that just any old writing will do. He very conveniently ignores that the
writing must contain language specifically transferring the copyright and
specifying what is being transferred. If I understand Hatch's argument
correctly, Novell could have written, "Kiss my foot," and that would have been
enough to transfer the copyrights.
I don't think so.
--- What
goes around comes around, and it grows as it goes. [ Reply to This | # ]
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Authored by: seanlynch on Friday, June 25 2004 @ 02:14 PM EDT |
THE COURT: That's the dream I was speaking of earlier
MR. HATCH: Yes. I
think the reason the lawyers are here, Your Honor, and it may actually be a
dream for clients that we finally quit doing our work. But the reality is we're
humans, too, and the schedule I think becomes a little onerous
physically.
Also I think...
MR. MARRIOT: Objection, Your
Honor!
THE COURT: Mr. Marriot, this is not a trial. You may respond but not
object.
MR. MARRIOT: Yes, Your Honor, but I must point out that some of my
colleagues were once human, but now they are the Nazgul.
THE COURT: Duly
noted, continue Mr. Hatch.
"italics indicate my own fabrications" [ Reply to This | # ]
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Authored by: Vaino Vaher on Friday, June 25 2004 @ 02:46 PM EDT |
Imagine the possability that SCO may be right regarding their interpretation of
the copyright being transfered.
They hint that there is more evidence to come (depositions, documents, press
releases etc).
But this lawsuit was about 'slander of title'! If there is so much yet to prove,
and it is not obvious from the very begining, there can not be any slander of
title. If Novell had good reason to belive what they said then the case is over!
And that is regardless of who acutally owns the copyright!
Now, SCO has always tried to delay. In this case they are in a desperate hurry!
They have to prove that they own the copyright. But that can not be done in this
lawsuit! To the best of my understanding they will have to take Novell to court
over the copyright issue, not 'slander of title'. In this case the time works
against SCO!
Maybe Novell should ask for the process being stayed instead of dismissed! That
would make SCO sweat![ Reply to This | # ]
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Authored by: GLJason on Friday, June 25 2004 @ 03:59 PM EDT |
Hatch talking for SCOX at the top of page 50:
[Judge
Wells] said, look, you say, IBM, you've got to have SCO go first. SCO, you say
you have to have IBM go first. I don't know (emphasis mine) But I'm
going to make a call. It's right in the order. It's as plain as day. It
doesn't say what they say, you're the plantiff. I'm going to make you go
first.
Hatch, who argued the above in court, was at the hearing
that this
transcript is from. Judges don't make rulings on the flip of a coin. They
don't order a motion to compell and at the same time ORDER the stay of discovery
from the other party until it is completed just because they feel like it. In
her ruling, Judge Wells made it clear she took into consideration the motions of
both parties, supporting documents, and relevant case law. Apparently she
accorded more weight to IBM's arguments. This was her opening thoughts before
arguments were heard, and what the essence of her ruling
was:
Based upon my review of those items, I would tell you what my
intention is today so that we can then focus the argument towards that
particular end. As I've stated, and based upon my review of those items
mentioned, it would be my intention to grant defendant IBM's motion to compel
answers as to both sets of interrogatories, and to require plaintiff SCO to file
responses to these interrogatories or affidavits indicating that they are unable
to do so and why within 30 days of the entry of this order. I would further
intend on directing that IBM's responses should correct those deficiencies that
are set forth in the defendant's addendum which was filed on 11-4 of this year,
and that is to include answers to Interrogatories No. 12 and 13. Now, in the
interim, it would also be my intention to otherwise postpone all other discovery
until such filings have been and compliance has been achieved.
I
don't know about the judges here, but I would be VERY offended if a lawyer was
putting words into my mouth in another court. I think Kimball should call Wells
and ask her what her thoughts were when granting IBM's motion to compell and
initiating the stay in discovery. I'd bet anthing she won't tell him "I just
didn't know who to let go first..."[ Reply to This | # ]
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Authored by: wvhillbilly on Friday, June 25 2004 @ 04:59 PM EDT |
From SCO v Novell, Mr.
Hatch says
We're going to find that Novell transferred
copyrights to us at the time of closing.
That won't fly.
According to the APA schedule 1b, all copyrights were specifically
excluded from the assets that were transferred at the time of closing.
Amendment 2 which was executed at some time after the closing (if it is valid at
all), merely modified the exclusion on certain, unspecified copyrights. It did
not convey anything, and there is no schedule of what specific
copyrights, if any, would have been conveyed if there had been a
conveyance.
IANAL, but I have learned much about legal matters from reading
Groklaw. [And, no, I didn't stay at a Holiday Inn Express!] --- What goes
around comes around, and it grows as it goes. [ Reply to This | # ]
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- Hatch fudges - Authored by: Anonymous on Friday, June 25 2004 @ 06:31 PM EDT
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Authored by: Graywing on Friday, June 25 2004 @ 05:34 PM EDT |
Don't know if anyone will read this but I was reading the IBM transcript and
noticed a bit of dispute of the interrogratory that resulted in IBM providing a
list
of 7200 names of the people that had access to the code. IBM says if
merely
answered the request and SCO says thats not what they asked for. Well
with
a little digging:
From SCO's SCO Memorandum in Support of
Motion to Compel
"Idenetify all persons who have or had access to
UNIX source code, AIX
source code and Dynix source code, including derivative
works,
modifications, and methods. For each such person, set forth precisely
the
materials to with he or she had access."
IBM's Response was
:
"In addition to the forging general objetions IBM specifically to
this
interrogatory on the grounds that it is overbroad, unduly burdensome, and
seeks information that is irrelevant and not reasonably calculated to lead to
admissible evidence. IBM also objects to this interrogatory on the grounds
that the phrase 'derivative works, modifications, and/or methds,' as used in
this Interrogatory, is vague, ambigous, and unitelligible. IBM further objects
to this Interrogatory as overbroad to the extent it seeks the identification
of
'all' persons who have had access to the subject code and information.
Subject to as limited by, and without waiving the forgoing general and
specific objections, IBM provides the following, based upon a reasonable
search of IBMS's records: a listof persons (including current and former IBM
employees, IBM contractors and employees of IBM vendors) who may have or
may
have had access either to AIX source code or to AIX changes and fix
records
(Attachment B); a list of persons at IBM who may have current assess
to Dynix
code (Attachment C); and a list of persons (current and former IBM
employees)
who may have or may have had access to UNIX System V source
code (Attachment
D).
By my reading of both the interrogratory and the response and
the verbal
battle at the motion hearing IBM gave them ""all personsons have or
had
access
to UNIX source code, AIX source code and Dynix
source"
SCO's Lawyers once again forget what they said. Next you will
hear them tell
the judge "Well that's what we said but what we meant was..."
just like my
little sister used to do.
--- Ahh!! The mind what a
wonderful trap. [ Reply to This | # ]
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Authored by: Anonymous on Friday, June 25 2004 @ 05:34 PM EDT |
1) Would someone please explain exactly what a deposition is? Who benefits
from them? Why are they important? Why do they take so much time?
2) Is it a lot of work to convert these scanned PDF files into text or a pdf
file with text information (as opposed to text as a scanned picture)? Does it
have to be retyped or is there like a GPL'd OCR program that can parse them
quickly (GPL OCR ASAP ;) ). [ Reply to This | # ]
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Authored by: Anonymous on Friday, June 25 2004 @ 07:21 PM EDT |
I cannot locate the letter from May 28, 2003 that Mr. Hatch is quoting from:
"Novell challenged SCO's claims to UNIX patent and copyright
ownership and demanded that SCO substantiate its allegations that Linux
infringed SCO's property rights. Amendment 2 to the 1995 SCO-Novell asset
purchase agreement was sent to Novell last night by SCO. To Novell's knowledge,
this plan is not present in Novell's payment. The amount of energy support [sic]
SCO's claim that ownership to certain copyrights bringing [sic] did transfer to
SCO in 1992." [page 23 at 2-10]
Could it be an error in
transcript or did they misrepresented the facts to the court? I look at this http://ww
w.novell.com/licensing/indemnity/pdf/5_28_03_n-sco.pdf and cannot find
language even close to the quote. Was there another letter?
-- dennis [ Reply to This | # ]
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Authored by: Anonymous on Saturday, June 26 2004 @ 05:27 PM EDT |
Hatch quotes from section 7.06:
Licensee agrees that it shall hold all parts, NOT JUST
SOME OF THEM, BUT ALL PARTS of the software products ...
[in confidence] ...
(The words in caps are not in the agreement but were added
by Hatch. The words in brackets are in the agreement but
were not quoted by Hatch.)
Note that he stresses the wording about "all parts." What he
neglected to do was to check the side letter that IBM had
with AT&T, where section 7.06 is superceded by a new version
in which the wording about "all parts" is deleted:
7.06 (a) LICENSEE agrees that it shall hold SOFTWARE
PRODUCTS ... in confidence for AT&T.
This change in wording means that SCO cannot apply this
clause about confidentiality to any arbitrary bit of AIX,
whether it includes SVR4 code or not,
but rather one must first determine if any such bit
meets the definition of a derivative work (and a such
must be treated as part of the original software product)
before deciding if the clause applies.[ Reply to This | # ]
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