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Declaration of Kathleen Bennett - Freely Downloading Linux From SCO's Website
Saturday, September 18 2004 @ 05:01 AM EDT

Here is the Declaration of Kathleen Bennett, in which she tells about downloading Linux from SCO's website twice, first in January and again in August, from four different locations. Of course, the point is to show that SCO is still distributing IBM's copyrighted code in the Linux 2.4 kernel, and doing it without a valid GPL license.

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

SNELL & WILMER, L.L.P.
Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler, Esq.
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation



IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

     Plaintiff/Counterclaim-Defendant,

-against-

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

     Defendant/Counterclaim-Plaintiff
DECLARATION OF
KATHLEEN BENNETT IN
SUPPORT OF IBM'S MOTION FOR
PARTIAL SUMMARY JUDGMENT
ON BREACH OF CONTRACT CLAIMS


Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

I, Kathleen Bennett, declare as follows:

1. I am currently employed by International Business Machines Corporation ("IBM") as a Senior Software Development Manager in the Austin, Texas office of its Linux Technology Center. The IBM Linux Technology Center ("LTC") is a worldwide development team inside IBM that collaborates with the community of software developers and computer users involved with Linux, the open source computer operating system.

2. I submit this declaration in connection with the lawsuit titled The SCO Group, Inc. v. International Business Machines Corporation, Civil No. 2:03CV-0294 DAK (D. Utah 2003). Unless stated otherwise, I make this declaration based upon personal knowledge.

3. I have been employed by IBM for 18 years, and have been involved in open source computing and Linux the last 3 years. I am presently responsible for managing the following departments within the LTC: Linux Kernel, Linux on xSeries, Linux RAS (Reliability, Availability and Serviceability) Development, and Linux Security Development.

4. On January 9, 2004, I observed while a member of my team of IBM programmers at my direction accessed via the Internet the following four SCO web pages, and downloaded code:

(1) http://linuxupdate.sco.com/scolinux/update/RPMS.updates;

(2) http://Linuxupdate.sco.com/scolinux/SRPMS;

(3) http://linuxupdate.sco.com/scolinux/update/RPMS.scolinux; and

(4) ftp://ftp.sco.com/pub/updates/OpenLinux/3.1.1/server/CSSA-2002-026.0/SRPMS.

5. The code posted and made available for download via the Internet from SCO's website included, among other things, the source code for the Linux 2.4 kernel, which contains source code contributed to Linux by IBM for such technologies as IBM's Enterprise Volume Management System ("EVMS") and Journaled File System ("JFS").

6. My team and I accessed the SCO's website from the Internet, using a standard computer and web browser. Any person with access to the Internet, a standard web browser and a personal computer or laptop could access the SCO's website and download Linux source code, just as my team and I did. No special expertise would be necessary.

7. On August 4, 2004, my team again visited the SCO web pages listed in Paragraph 4, and confirmed that all of the code described in Paragraph 5 was still available for download from SCO's website.

8. I declare under penalty of perjury that the foregoing is true and correct.

Executed: August 5, 2004

Austin, Texas

____[signature]_____
Kathleen Bennett


  


Declaration of Kathleen Bennett - Freely Downloading Linux From SCO's Website | 178 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT here please
Authored by: Anonymous on Saturday, September 18 2004 @ 06:06 AM EDT
This comment intentionally left blank

;)

[ Reply to This | # ]

Errors here please
Authored by: Anonymous on Saturday, September 18 2004 @ 06:07 AM EDT
Including all spelling mitsakes

[ Reply to This | # ]

  • 404 - Authored by: Steve Martin on Saturday, September 18 2004 @ 06:56 AM EDT
    • Me too: 404 - Authored by: ak on Saturday, September 18 2004 @ 07:02 AM EDT
    • 404: me too - Authored by: Anonymous on Saturday, September 18 2004 @ 08:11 AM EDT
    • 404 - Authored by: PJ on Saturday, September 18 2004 @ 08:30 AM EDT
Declaration of Kathleen Bennett - Freely Downloading Linux From SCO's Website
Authored by: brenda banks on Saturday, September 18 2004 @ 06:22 AM EDT
i just love the way IBM handles this case.details details details
and what do you know? facts
scox accuses people of copyright infringement and look at who is caught
redhanded doing the infringing
ROFLOL
WTG PJ and Groklaw


---
br3n

irc.fdfnet.net #groklaw
Mike "Moogy" Tuxford, 1951-2004. Rest in peace.

[ Reply to This | # ]

SCO Linux source pulled from FTP servers
Authored by: Anonymous on Saturday, September 18 2004 @ 06:32 AM EDT
Yes, it has gone (as of Sept. 14) due to their ongoing litigation. However, it was still there as of January this year, more than 6 months after SCO sued IBM. Source: TuxRocks

SCO FTP sites (for curious people):

[ Reply to This | # ]

Declaration of Kathleen Bennett - Freely Downloading Linux From SCO's Website
Authored by: brenda banks on Saturday, September 18 2004 @ 06:50 AM EDT
i just love the way IBM handles this case.details details details
and what do you know? facts
scox accuses people of copyright infringement and look at who is caught
redhanded doing the infringing
ROFLOL
WTG PJ and Groklaw


---
br3n

irc.fdfnet.net #groklaw
Mike "Moogy" Tuxford, 1951-2004. Rest in peace.

[ Reply to This | # ]

What is IBM doing with this
Authored by: Anonymous on Saturday, September 18 2004 @ 06:56 AM EDT
One of the arguments that we used to hear was that SCO released their stuff
under the GPL and therefore couldn't sue anyone for copyright infringement. On
the other hand, the downloads are now being looked at as infringement of IBM's
copyrights. I'm confused.

[ Reply to This | # ]

Why invalid GPL license?
Authored by: Sandtreader on Saturday, September 18 2004 @ 07:01 AM EDT
I may be missing something fundamental here, but why do you say SCO was
distributing code without a valid GPL license?

Surely this particular act of distribution was perfectly fine under the GPL,
just as it would be for any other OSS distributor - the real point being that
SCO can't simultaneously claim the GPL is invalid/unconstitutional etc. and
still get away with distributing IBM's (and everyone elses) code under it.
Alternatively, that even if there were any SCO code in Linux 2.4, they have
themselves irreversably released it under GPL anyway. Either way, this requires
us to state that what they did _was_ valid under the GPL.

Or are you contending that their right to distribute under GPL been terminated
due to their (threatened) actions against Linux users? That seems a weaker
position, to me.

[ Reply to This | # ]

MS Can WE Check Your Software
Authored by: Anonymous on Saturday, September 18 2004 @ 07:03 AM EDT
MS Can WE Check Your Software
http://news.zdnet.com/2100-3513_22-5371664.html

Thanks Microsoft, Linux needs the new converts your program will
generate.

[ Reply to This | # ]

  • RIAA Attempt?? - Authored by: Anonymous on Saturday, September 18 2004 @ 01:18 PM EDT
  • "sneeches" - Authored by: Anonymous on Saturday, September 18 2004 @ 05:34 PM EDT
SCO appear to have removed the OpenLinux
Authored by: dobbo on Saturday, September 18 2004 @ 07:21 AM EDT

It would appear that SCO have now removed SCO Linux from their FTP server.

lftp ftp.sco.com:/pub/updates> ls
-rw-rw-r--   1 ftp  ftp 
1124 Jun 25 14:01 Legal_Notice
drwxrwxr-x  70 ftp  ftp  2048 Aug 31 16:57
OpenServer
drwxrwxr-x  61 ftp  ftp  2048 Jul 30 19:32 OpenUNIX
lrwxrwxrwx   1
ftp  ftp     8 Apr 13 21:03 OpenUnix -> OpenUNIX
-r--rw-r--   1 ftp  ftp  
499 Aug 31 15:47 README
drwxrwxr-x  80 ftp  ftp  2048 Jul 30 19:32
UnixWare
-rw-r--r--   1 ftp  ftp  1273 Mar 30 18:53 mirrors.xml
drwxrwxr-x  77
ftp  ftp  2048 Jun  3  2002 sse

And the legal notice at that level reads:

"NOTICE: SCO has suspended new sales and distribution of SCO Linux until the intellectual property issues surrounding Linux are resolved. SCO will, however, continue to support existing SCO Linux and Caldera OpenLinux customers consistent with existing contractual obligations. SCO offers at no extra charge to its existing Linux customers a SCO UNIX IP license for their use of prior SCO or Caldera distributions of Linux in binary format. The license also covers binary use of support updates distributed to them by SCO. This SCO license balances SCO's need to enforce its intellectual property rights against the practical needs of existing customers in the marketplace.

"Dear SCO customer,

"Starting on November 1, 2003, SCO will institute new procedures for you to access binary updates and source rpms. If you own an SCO licensed copy of Linux (such as such as OpenLinux, eDesktop, etc.), it will be necessary for you to register (or re-register) in order to continue to receive support files. During the registration process you will receive instructions on how the new access procedure will work."

I also had a look at the top level directory:

lftp ftp.sco.com:/> ls
-rw-rw-r--   1 ftp  ftp   899
Aug  8  2003 Legal_Notice
drwxr-xr-x   2 ftp  ftp  1024 Mar 14  2000
bin
drwxr-xr-x   2 ftp  ftp  1024 Mar 14  2000 etc
drwxr-xr-x   2 ftp  ftp  1024
Nov 19  1999 lib
drwxrwxr-x  35 ftp  ftp  1024 Jul 22 21:13 pub
-rw--w-r--   1
ftp  ftp   220 Sep 19  2003 welcome.msg

And the text of the legal notice at the top level reads:

"NOTICE: SCO has suspended new sales and distribution of SCO Linux until the intellectual property issues surrounding Linux are resolved. SCO will, however, continue to support existing SCO Linux and Caldera OpenLinux customers consistent with existing contractual obligations. SCO offers at no extra charge to its existing Linux customers a SCO UNIX IP license for their use of prior SCO or Caldera distributions of Linux in binary format. The license also covers binary use of support updates distributed to them by SCO. This SCO license balances SCO's need to enforce its intellectual property rights against the practical needs of existing customers in the marketplace.

"The Linux rpms available on SCO's ftp site are offered for download to existing customers of SCO Linux, Caldera OpenLinux or SCO UnixWare with LKP, in order to honor SCO's support obligations to such customers."

I see that in this top level notice SCO say they are still offering SCO Linux and Caldera OpenLinux in RPMs format. I wonder where they are and how you get hold of them.

PJ and the other legal brains here: If SCO to honour support contracts are still offering Linux in binary form only to their clients are they not still required by the GPL "to give any third party, for a charge no more than [their] cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code" (GPL-2 3-b)? Which rules here: there support contracts or the need to stop distributing Linux for their various literation?

[ Reply to This | # ]

This is between a rock and a hard place senario
Authored by: Anonymous on Saturday, September 18 2004 @ 08:35 AM EDT
IBM has SCO cornered with this. SCO has denied the GPL so they could further
their case. IBM has copyrighted code in there and is saying the only way you
can distribute our code is with a valid GPL license.

So on one hand, if SCO wants to move forward against Linux, it has to deny the
GPL but then they are put in jeapordy from IBM's counterclaim that SCO is
violating IBM's copyrights.

But if they accept the GPL so they can protect themselves from IBM's lawsuit,
however they can't make the argument the GPL is invalid cause they just made it
valid.

Rock and a hard place...

[ Reply to This | # ]

The SCO Group, Inc. | Support | How to access RPMs and SRPMs for OpenLinux:
Authored by: Anonymous on Saturday, September 18 2004 @ 10:33 AM EDT
http://www.thescogroup .com/support/linux_info.html contains the new instructions from SCO, about registering and so forth.

[ Reply to This | # ]

Catch-22
Authored by: B1ff! on Saturday, September 18 2004 @ 10:46 AM EDT
"Of course, the point is to show that SCO is still distributing IBM's
copyrighted code in the Linux 2.4 kernel, and doing it without a valid GPL
license."

isn't sco required by gpl to continue to supply source code for material that
they had previously distributed under gpl?

can they stop distributing any of this code without violating the terms of gpl?


ibm is wants sco to stop distribuing ibm contributions under gpl. but gpl says
sco has to continue making the source of it prior distributions available.

now matter how i try to lay this out, it doesn't make sense. unless ... nah it
still doesn't make sense.

[ Reply to This | # ]

Hmmm... Are they (potentially) OBLIGATED to keep it available?
Authored by: inimicus on Saturday, September 18 2004 @ 12:40 PM EDT
See the GPL 3(b), and the last paragraph of 3 ("If distribution of executable or object code is made by offering access to copy from a designated place, then offering equivalent access to copy the source code from the same place counts as distribution of the source code, even though third parties are not compelled to copy the source along with the object code.").

Having never bought/gotten SCO's distribution of Linux, I don't know what means they chose to comply originally with the GPL.

It'd be amusing if they were in such a Catch-22...

---
Truth never damages a cause that is just - Mohandas Gandhi

[ Reply to This | # ]

  • No - Authored by: Anonymous on Saturday, September 18 2004 @ 09:31 PM EDT
    • No - Authored by: Darkside on Sunday, September 19 2004 @ 04:16 AM EDT
      • No - Authored by: Anonymous on Monday, September 20 2004 @ 01:10 AM EDT
Actually, this could be the doom of SCO
Authored by: Anonymous on Sunday, September 19 2004 @ 03:31 AM EDT
Okay, IANAL and all that stuff, but after reading many of the commments, it
seems to me, that several points are being missed.

First, SCO can blather all they want to about the GPL not being valid or being a
virus. It does not violate their rights under the GPL, because the GPL does not
provide for that. It just makes them idiots and incurs the ill-will of the
community.

Second, GPL permits licensees to profit from making the code available to other
parties so long as they are charging for the cost of providing ancillary
services such as the cost of distribution media, contributing manuals, and such.
It prohibits a licensee from charging a fee for licensing GPL code and software.
This is exactly what SCO is doing under the terms of the SCOSource initiative.

Unless under subpoena or by some other means, whenever SCO acquires a copy of
Linux, they do so as a licensee of the GPL. When they attempt to license Linux
for a fee to a third party, they are violating the GPL and their rights to
distribute are terminated.

Now it can be argued that they are only attempting to license the intellectual
property that belongs to them, but this provision does not work. Rights to use
code knowingly contributed under the GPL cannot be terminated unless the
licensee violated the GPL. Also, SCO cannot claim that they are only licensing
the alleged but non-existing infringing code purported to have been contributed
to the kernel. Because they refuse to notify the maintainers of the locations of
allegedly infringing code so that it can be removed, SCO is in effect trying to
license the entire kernel. That means that they are trying to profit off the
copyrighted material and intellectual property of persons like IBM, Linus
TOrvalds, Andrew Morton, et al., without any authority to do so. This is
patently illegal and a perfect example of copyright infringement.

Now it seems to me that in the eighth counter-claim, if and when IBM prevails, a
sort portion of the GPL will have been tested as a matter of law, and it will
set a precedent by which all other kernel contributors can also successfully sue
SCO. Have you seen the credits list lately? That is huge number of potential
litigants against SCO, and could very put SCO out of business, since even a
person who has contributed only one line of code could potentially prevail.
Furthermore, to win a suit, all one pretty much has to do is reference the PSJ
on the 8th counterclaim, use this declaration and SCO's press-releases on its
much touted sale of SCOSource licenses to the ISP (can't remember the name).

Not it also seems to me that thanks to this declaration, it can successfully be
argued that SCO has know knowingly contributed the allegedly infringing code
under the GPL. Remember, the deep-divers have identified all of the infringing
code to SCO some time ago. Since we now have a delcaration that SCO was
distributing the code under the GPL long after they "knew" it
contained infringing code, it can reasonably be argued that code has been
knowingly distributed under the GPL.

Pater Phil

[ Reply to This | # ]

Declaration of Kathleen Bennett - Freely Downloading Linux From SCO's Website
Authored by: Nick.Barnes on Monday, September 20 2004 @ 08:10 AM EDT

Hmmm. IBM's case not up to their usual high standard here. She's saying a couple of things which do not appear to be "personal knowledge". Unless she did a whole lot more checking than she says, the latter part of paragraph 5 is speculation (did she download the sources and check that they contained the IBM-contributed code?). The meat of paragraph 6 ("Any person with access to the Internet...") is also speculation.

I want to see IBM grind SCO into dust properly, not trip up on this sort of thing.

[ Reply to This | # ]

  • Wrong - Authored by: Anonymous on Monday, September 20 2004 @ 12:55 PM EDT
Groklaw © Copyright 2003-2013 Pamela Jones.
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Comments are owned by the individual posters.

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