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| Declaration of Joan Thomas |
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Saturday, September 18 2004 @ 07:42 AM EDT
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Here is the Declaration of Joan Thomas, another declaration in support of IBM's summary judgment motion on the contract claims. She tells the court that AIX includes some items that prove that SCO's claims that all of AIX remains under their control, their interpretation of the contract, make no sense, because AIX includes three types of code that SCO can't reasonably expect to control:
- third-party code licensed by IBM for inclusion in AIX;
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code that was written by IBM software engineers (or outside contractors retained by IBM) for AIX; and
- code written by IBM software engineers (or outside contractors retained by IBM) originally for other software programs but that was later also included in AIX.
The first item on the list is particularly telling. It would be a novel contract, indeed, that would allow SCO to control code written by folks who were not party to the contract and never agreed to such terms. Actually, I don't think it would actually be a contract, since a contract implies a meeting of the minds. And note too that AIX, she testifies, includes code that was written by IBM for other programs first and only later included in AIX. How, then, can SCO claim to have any rights over such code?
******************************
SNELL & WILMER, L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
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
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DECLARATION OF
JOAN THOMAS 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
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I, Joan Thomas, declare as follows:
1. I am employed by International Business Machines Corporation ("IBM"), as Program Director, AIX and HPC Program Management and pSeries Software Development Operations.
2. This declaration is submitted in connection with the lawsuit brought by The SCO Group, Inc. ("SCO") against IBM, entitled The SCO Group, Inc. v. International Business Machines Corporation, Civil No. 2:03CV-0294 DAK (D. Utah 2003). I make this declaration based upon personal knowledge.
3. I have worked with the AIX operating system for more than two years. I supervise a team of software developers who are responsible both for writing code for the AIX operating system and for building and preparing for distribution new releases of the AIX operating system.
4. Each release of the AIX operating system consists of millions of lines of source code. For example, AIX 5.2.0 contains approximately 63 million lines of source code.
5. AIX contains code that was written by IBM software engineers (or outside contractors retained by IBM) for AIX, code written by IBM software engineers (or outside contractors retained by IBM) originally for other software programs but that was later also included in AIX, and code written by third parties and licensed to IBM for inclusion in AIX.
6. I declare under penalty of perjury that the foregoing is true and correct.
Executed: August 4, 2004
Austin, Texas
____[signature]____
Joan Thomas
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| Authored by: Anonymous on Saturday, September 18 2004 @ 08:07 AM EDT |
To start off with, there is another O'Gara shill article on LinuxInsider (or
whatever it is). No URL, because I was plain disgusted by what I read and is
probably worse than Enderle.[ Reply to This | # ]
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- OT The story of the golden cow - Authored by: Anonymous on Saturday, September 18 2004 @ 08:24 AM EDT
- Here's a new one from Microsoft - Authored by: pscottdv on Saturday, September 18 2004 @ 10:17 AM EDT
- Mambo OS update - Authored by: Anonymous on Saturday, September 18 2004 @ 10:31 AM EDT
- TSG Has Changed The (Their) Game Overnight - Authored by: Anonymous on Saturday, September 18 2004 @ 11:37 AM EDT
- O'Gara article link - Authored by: Anonymous on Saturday, September 18 2004 @ 11:54 AM EDT
- O'Gara article...more smoke... - Authored by: Anonymous on Saturday, September 18 2004 @ 12:37 PM EDT
- Arrhhh, they linked to me under O'Grady. - Authored by: Franki on Saturday, September 18 2004 @ 02:52 PM EDT
- O'Gara Article revisited - Authored by: dodger on Saturday, September 18 2004 @ 02:54 PM EDT
- Chesler and CC-10 - Authored by: Totosplatz on Saturday, September 18 2004 @ 03:23 PM EDT
- Oh my my! That could be interesting! - Authored by: Anonymous on Saturday, September 18 2004 @ 05:46 PM EDT
- OT Newsweek on the FiaSCO - Authored by: red floyd on Saturday, September 18 2004 @ 06:03 PM EDT
- CONTEST TIME! How would this all look if it were a Farside Cartoon? - Authored by: Anonymous on Sunday, September 19 2004 @ 12:03 AM EDT
- OT: Maureen O'Gara Lies... - Authored by: cfitch on Sunday, September 19 2004 @ 12:05 AM EDT
- OT Hay! Ho! Fact or fiction? - Authored by: Brian S. on Sunday, September 19 2004 @ 02:48 AM EDT
- I'm sorry coudn't stop laughing. - Authored by: Anonymous on Sunday, September 19 2004 @ 04:07 AM EDT
- MS' New USB Standard to Cripple Linux? - Authored by: kh on Sunday, September 19 2004 @ 04:48 AM EDT
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| Authored by: Powerin on Saturday, September 18 2004 @ 08:11 AM EDT |
The link to the declaration of Otis Wilson in the previous story leads to the
PDF of this declaration.[ Reply to This | # ]
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- Corrections.... - Authored by: Anonymous on Saturday, September 18 2004 @ 08:14 AM EDT
- Corrections.... - Authored by: Anonymous on Sunday, September 19 2004 @ 12:02 PM EDT
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| Authored by: blacklight on Saturday, September 18 2004 @ 08:35 AM EDT |
"How, then, can SCO claim to have any rights over such code?" PJ
PJ: do you want the logical answer, or the SCOG answer? If past behavior is any
guide, SCOG will make the claim to the rights first, enforce its claim by taking
the other party to court and substantiate its claim by an endless series of
delay-inducing tactics - and claiming that is winning in court right up to the
moment the adverse decision is rendered.
[ Reply to This | # ]
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| Authored by: blacklight on Saturday, September 18 2004 @ 08:50 AM EDT |
"5. AIX contains code that was written by IBM software engineers (or
outside contractors retained by IBM) for AIX, code written by IBM software
engineers (or outside contractors retained by IBM) originally for other software
programs but that was later also included in AIX, and code written by third
parties and licensed to IBM for inclusion in AIX." Joan Thomas
This item illuminates the fact that SCOG does not have foggiest idea what IBM's
version control procedures are because SCOG does not have the foggiest idea of
how the AIX workflow is constructed. This fundamental ignorance makes SCOG
particularly ill-positioned to pontificate accurately and even reasonably on how
IBM uses its various versions of CMVC to exert version control. The Chris Sontag
declaration is based upon that fundumental ignorance, and in turn the Chris
Sontag declaration is the cornerstone that supports SCOG's demands for more
discovery. For this reason, SCOG's demands are not calculated to yield discovery
because they are the wrong demands for the wrong discovery. House of cards?
Colossus with feet of clay? Goliath forgetting to put on the helmet on that
day?[ Reply to This | # ]
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| Authored by: Khym Chanur on Saturday, September 18 2004 @ 09:00 AM EDT |
| The first item on the list is particularly telling. It would be a novel
contract, indeed, that would allow SCO to control code written by folks who were
not party to the contract and never agreed to such terms.
SCO
could say that, if IBM licensed code from Acme Corp and put it into AIX,
SCO can control what IBM does with that code. So if IBM's license with
Acme allowed IBM to put that code in Linux, and IBM did so, that would be a
contract violation, but Acme itself could put the code into Linux without any
problems.
Of course, if SCO said something like that, it would be difficult
to see what sort of damages SCO could claim for IBM putting Acme code into
Linux. ---
Give a man a match, and he'll be warm for a minute, but set
him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry
Pratchett) [ Reply to This | # ]
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- Well.... - Authored by: Jude on Saturday, September 18 2004 @ 11:50 AM EDT
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| Authored by: Anonymous on Saturday, September 18 2004 @ 10:53 AM EDT |
A safe haven for all those waiting for SCO's grasroots supporting web site.
Show the world you exist!
(see, Groklaw can harbour all views)
Rob[ Reply to This | # ]
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| Authored by: pb on Saturday, September 18 2004 @ 12:47 PM EDT |
| Interestingly enough, there are third-party modules for
the Linux kernel that
don't fall under the GPL for precisely that
reason: they
don't constitute derived works, perhaps
because they weren't originally
written for Linux. The
only bit that may fall under Linux in that case is the
glue code in between. The classic example of this is the
NVIDIA drivers. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 18 2004 @ 04:41 PM EDT |
How far are court cases allowed to go before the plaintiff must show some
evidence? It seems like it shouldn't be possible for SCO to make a farce of the
court system like this.
Even before SCO shows any evidence, IBM has shown:
* SCO agreed to and distributed the code in question
under the GPL (at least in the past if not now)
* The code in question isn't even SCO's to begin with
* IBM's code can't be called a derivative work
of code SCO claims to have rights over...
* The rights SCO claims are in question
as well.. (Novell) - I think I remember Novell
being mentioned in the IBM case.
All the while, SCO is demonstrating a lack of sincerity in litigating... expert
witnesses (yeah right)? "We don't want to spend the money, but we'll sue
for billions?" Not to mention what appears to be lack of preparation on
their part.
If these actions were above reproach, then any company with more money could
simply litigate them to death, and claim victory in the marketplace!
[ Reply to This | # ]
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| Authored by: rand on Saturday, September 18 2004 @ 06:03 PM EDT |
| I started to put this up as off-topic, your Laugh Of The Day at SCOG's Expense,
but then it took an ominous turn.
You may have noticed, as I have, that as
recently as Sept 12, every page at sco.com included a copyright notice (see
Google cache,
here), but since the recent redesign, they're
gone.
As much as I'd like to
think
I had
a part in it, at first I thought: it's probably just an oversight. Curious,
though.
But now I notice that two of the pages I had referenced are gone
missing (well, one seems crippled, but it won't load). Luckily, there's still Google's
cache.
If you have/had any favorites at sco.com,
thescogroup.com, caldera.com, or calderasystems.com, you may want to check them
out. Stuff is disappearing again, especially things dealing with
Linux. ---
Eat a toad for breakfast -- it makes the rest of the day seem so
much easier (Chinese (I'm told) proverb) (IANAL and so forth and so on) [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 18 2004 @ 06:56 PM EDT |
That the story, although published at several locations on the net, has itself
added a little distance away from its publishers, by stating "Maureen
O'Gara believes ... " and "According to O'Gara ...". Even on her
own site the story starts like this. Making it a story of personal opinion and
does not reflect the attitudes and beliefs of its publishers.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 18 2004 @ 11:03 PM EDT |
| That should be HUGELY entertaining! [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 19 2004 @ 01:32 AM EDT |
This is the 2nd time in recent times, we've seen SCO make new claims of IBM
wrong doing in the press
First we had the allegation that IBM had a SVR3 license but implemented SVR4 in
AIX
Second we had this new one about alleged fraud in Monterey
The amazing part is these things never turn up in their filings. Where's the
motion for a 3rd amended complaint citing these new causes of action?
So what's going on here? SCO trying to get some free analysis from Groklaw?
Hype their case and their stock? Throw mud at IBM as their existing case turns
to dust?
If it's the free analysis option: Mark Heise, and Brent O. Hatch, if you're
reading -- these new claims sound even more ridiculous (IMHO) than the
we-know-there-are-a-million-lines-of-infringing-code-but-we-haven't-done-any-ana
lysis
And one other thing, Mark and Brent -- don't forget that allegations of fraud
need to be pled specifically according to the FRCP. And perhaps you'd also like
to consider the implications of the pleading requirements on any desired
discovery fishing expeditions.
As for Maureen, perhaps you'd like to consider two things:
1. Despite what you saw in your article about SCO's activities regarding the
copyright, why not read SCO's 2nd amended complaint, paragraph 179. SCO *has*
sued IBM for copyright infringement relating to "breaches" *AND*
"post termination" activities.
2. SCO have submitted *NO* admissable evidence in opposition to IBM's partial
summary judgement motion.
The proper response to a partial summary judgement motion (apart from accepting
it), is to respond according to FRCP rule 56(e) and/or rule 56(f)
SCO themselves admit they have offered *no* materials in response under rule
56(e) [showing facts in dispute]. They tell you this, in simple words that I'm
sure you'd understand, in their opposition to IBM's motion to strike materials.
SCO's only response is under rule 56(f) [seeking more discovery] - but none of
their materials are admissable on the 10th circuit (see IBM's reply in support
of motion to strike]
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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| Authored by: radix2 on Sunday, September 19 2004 @ 09:47 PM EDT |
http://www.caldera.com/images/company/SCO_Code_of_Conduct_and_Ethic
s_Policy-Final.pdf
Here is one [no employee shall...] conduct
business on behalf of SCO with immediate family members,
which include
spouses, children, parents, siblings and persons sharing the same home
whether or not legal relatives.
{I wonder what the relationship is
between Darl and Kevin?}
or another... [...Specifically, we are
committed to...]
prohibiting the unauthorized use,
reproduction, or
distribution of any third party’s trade secrets,
copyrighted information or
confidential information;
{GPL anyone?}
:)
[ Reply to This | # ]
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