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Declaration of David P. Rodgers - as text
Tuesday, October 05 2004 @ 06:32 AM EDT

Here's the Declaration of David P. Rodgers [PDF], another in the mountain of declarations IBM has submitted in support of its motion for partial summary judgment on the breach of contract claims.

Thanks go to Frank Sorenson and Douglas Mosman for doing the transcribing, HTML and proofing.

Mr. Rodgers was in the 1980s the Sequent executive who signed the license agreement between AT&T and Sequent, and in this declaration he sets out his understanding of the grant of rights he understood Sequent had under the licensing terms. Note he is not currently a Sequent/IBM employee. He mentions three documents he signed for Sequent, which you may wish to have handy for reference, including "the Software Agreement (Agreement Number SOFT-00321) [PDF], the Sublicensing Agreement (SUB-000321A) [PDF], and the Substitution Agreement (XFER-000321B) [PDF].

He makes several important points:

  • On Section 2.01 of the Software Agreement, he says: "I did not understand this language to give AT&T Technologies the right to assert ownership or control over modifications or derivative works prepared by Sequent, except to the extent that the licensed Unix software product was included in such modifications or derivative works."

  • " . . .Dynix was originally created using Berkeley Software Design ("BSD") Unix as a base and not AT&T Technologies' Unix System V."

  • "Sequent had no obligation to keep confidential any modification or derivative work developed by Sequent that did not include Unix System V source code."

  • ". . . Sequent was not required to keep a software product confidential if it became 'available without restriction to the general public'. . . . I believe that any number of books and other materials have been published regarding the Unix software, and that the information contained in those materials at least would not be subject to the confidentiality restrictions in the Software Agreement."

That information about Sequent being based on BSD, not Unix System V is highly significant, and to me, at least, new information as far as this case is concerned.

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

SNELL & WILMER LLP
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]

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.

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

_______________________________

EXHIBIT 100

______________________________________

DECLARATION OF DAVID P. RODGERS

I, David P. Rodgers, declare as follows:

1. From July 1983 until December 1996, I held various positions at Sequent Computer Systems, Inc. ("Sequent"), including Vice President of Engineering from 1983 through 1988. Since October 2001, I have been employed as Senior Vice President of Engineering at IP Unity Corp.

2. During the time I served as Vice President of Engineering at Sequent, I executed several agreements with AT&T Technologies, Inc. ("AT&T Technologies") for the licensing of certain Unix software and related materials. In particular, I executed the following agreements between Sequent and AT&T Technologies:

• the Software Agreement (Agreement Number SOFT-00321) dated April 18, 1985 (the "Software Agreement")

• the Sublicensing Agreement (Agreement Number SUB-00321A) dated January 28, 1996 (the "Sublicensing Agreement"),

• the Substitution Agreement (Agreement Number XFER-000321B) dated January 28, 1986 (the "Substitution Agreement").

True and correct copies of these agreements, referred to herein as the "Sequent Agreements", are attached as Exhibits 1, 2 and 3 to this Declaration.

3. This declaration is submitted in connection with the lawsuit entitled The SCO Group, Inc. v. International Business Machines Corporation, Civil Action No. 2:03CV-0294 DAK (D. Utah 2003). Except as stated otherwise, this declaration is based upon personal knowledge.

4. Section I of this declaration sets out my understanding of the grant of rights under the license agreements pursuant to which Unix software and related materials were licensed to Sequent by AT&T Technologies. Section II sets out my understanding of the confidentiality provisions of the license agreements. Section III sets out my understanding of certain exceptions to the confidentiality provisions.

I. Basic Grant of Rights to Unix System V.

5. Although I did not personally negotiate the Sequent Agreements with representatives of AT&T Technologies, I carefully reviewed the agreements myself and with other Sequent employees before executing them and have personal knowledge of the parties' understanding of, and intent behind, the terms and conditions of the agreements.

6. It was my understanding that the licensing agreements that I executed were standard form agreements used by AT&T Technologies to license Unix software products to its users. The Software Agreement granted Sequent the right to use Unix software products, including source code, for its internal business purposes. The agreement further granted Sequent the right to modify Unix software products and to prepare derivative works based upon such products.

7. Section 2.01 of the Software Agreement states that Sequent's "right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided that the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT". I did not understand this language to give AT&T Technologies the right to assert ownership or control over modifications or derivative works prepared by Sequent, except to the extent that the licensed Unix software product was included in such modifications or derivative works. I would never have signed an agreement that would grant ownership or control to AT&T Technologies over modifications or derivative works prepared by Sequent to the extent those modifications or derivative works contained no part of the Unix software product licensed from AT&T Technologies.

8. As I understood the Software Agreement between Sequent and AT&T Technologies, Sequent was free to use, copy, distribute or disclose any modifications or derivative works developed by Sequent, provided that it did not copy, distribute or disclose any portion of the licensed Unix software product source code (except as otherwise permitted by the licensing agreements).

9. It is my understanding that Sequent's Dynix products might include some small parts of the licensed Unix System V source code, although I do not personally know whether it does or not. I also do not know whether Dynix is so similar to Unix System V that it may properly be viewed as a "derivative work" based on Unix System V, particularly in light of the fact that Dynix was originally created using Berkeley Software Design ("BSD") Unix as a base and not AT&T Technologies' Unix System V. In any event, as I understood the Sequent Agreements, Sequent was free to use, copy, distribute, or disclose Dynix (including source code), provided that it did not copy, distribute or disclose any Unix System V source code that might be contained therein (except as otherwise permitted by the licensing agreements).

II. Confidentiality Restrictions in the License Agreements.

10. The standard form licensing agreements proposed by AT&T Technologies imposed certain confidentiality restrictions on Sequent.

11. Section 7.06(a) of the Software Agreement included the following language concerning confidentiality:

LICENSEE agrees that it shall hold all parts of the SOFTWARE PRODUCTS subject to this Agreement in confidence for AT&T. 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 of LICENSEE to whom such disclosure is necessary to the use for which rights are granted hereunder.

As discussed below in Section III, Sequent's confidentiality obligation was subject to important exceptions.

12. It was my understanding that the purpose of this confidentiality provision from the perspective of AT&T Technologies was to protect the Unix System V source code that it was licensing. Although there is reference in Section 7.06(a) to "methods or concepts", I had no understanding at the time that AT&T Technologies was interested in protecting anything other than the Unix source code.

13. As I understood the agreement regarding confidentiality, Sequent had no obligation to keep confidential any information embodied in any of the software products provided to Sequent, provided that Sequent did not disclose source code (except as otherwise permitted by the license agreements). In addition, as I discuss above, Sequent had no obligation to keep confidential any modification or derivative work developed by Sequent that did not include Unix System V source code. Sequent was free to use, copy, distribute or disclose such modifications and derivative works, provided that it did not copy, distribute or disclose any portions of the licensed Unix source code (except as otherwise permitted by the license agreements).

III. Relief from Confidentiality Restrictions.

14. The confidentiality provision of the Software Agreement provided that Sequent was not required to keep a software product confidential if it became "available without restriction to the general public". As I understood the agreement, Sequent would be free to disclose, without any restriction whatsoever, information that became available without restriction to the general public by acts not attributable to Sequent or its employees.

15. Although I do not recall any particular definition being given to the term "available without restriction to the general public" at the time the Software Agreement was executed, I believe a number of circumstances would meet the definition. For example, a software product or any part of a software product would be considered "available without restriction to the general public" if it was lawfully published by someone outside of Sequent. I believe that any number of books and other materials have been published regarding the Unix software, and that the information contained in those materials at least would not be subject to the confidentiality restrictions in the Software Agreement.

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

Executed: November 5, 2003.
Saratoga, California

____[signature]____
David P. Rodgers

  


Declaration of David P. Rodgers - as text | 220 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please.
Authored by: Harry Clayton on Tuesday, October 05 2004 @ 06:34 AM EDT
You know the drill.

---
Linux: There is no infringing code or Manuals.

[ Reply to This | # ]

OT, Links, etc.
Authored by: Harry Clayton on Tuesday, October 05 2004 @ 06:38 AM EDT
In this thread.

Thank you.


---
Linux: There is no infringing code or Manuals.

[ Reply to This | # ]

This is a bridge
Authored by: Anonymous on Tuesday, October 05 2004 @ 06:47 AM EDT

[ Reply to This | # ]

Declaration of David P. Rodgers - as text
Authored by: belzecue on Tuesday, October 05 2004 @ 07:06 AM EDT
Help me out with para 9, and I'm using a SCO slant here:

1) Dynix *might* include some parts of the licensed Unix System V source code

2) Dynix *might* be similar enough to Unix System V to be classed as a
"derivative work" based on Unix System V

3) Dynix was based on BSD, Not Unix System V

4) Sequent could copy, distribute, or disclose Dynix provided that it did not
copy, distribute or disclose any Unix System V source code contained therein
(except as otherwise permitted by the licensing agreements)

Is he saying that Dynix might contain some Unix V because it was built on BSD
and BSD contains some Unix V? But because that very code is already free and
clear inside BSD then Dynix is free and clear?

[ Reply to This | # ]

BSD kernel, BSD and SYSV userland
Authored by: miquels on Tuesday, October 05 2004 @ 07:09 AM EDT
I used a Dynix system around 1990. It was definitely a BSD kernel, with a BSD
userland, but the version I used also had a sysv-compatible userland. You could
switch between the two with the 'att' and 'bsd' commands.

It wasn't all that well implemented though - the BSD side had NIS enabled, but
the ATT (sysv) side knew nothing about it. Result: "att su +" gave you
a root shell.

[ Reply to This | # ]

Declaration of David P. Rodgers - as text
Authored by: Anonymous on Tuesday, October 05 2004 @ 09:48 AM EDT
I think he is saying:

1. Dynix was based on BSD
2. Sequent acquired a Sys V license
3. Some Sys V code may have been merged into Dynix, but Dynix was still
basically BSD code and only specific chunks of Sys V code would have been merged
in.

As I recall, Dynix did at one point have a dual universe sort of system, in
which a user could choose whether they were using BSD or ATT style of
interaction. (That meant things like the option flags for various programs
changed, and a different selection of programs was available in your PATH.)
Dynix did merge the universes somewhat (unlike Pyramid, where you had to really
work hard to use a BSD program from the ATT universe and vice versa).

John Macdonald

[ Reply to This | # ]

BSD Comment, - A Reason.
Authored by: rsteinmetz70112 on Tuesday, October 05 2004 @ 10:04 AM EDT
One reason for stating that Dynix is BSD based is that the basic functionality
Sequent added to Unix that was released to Linux was originally implemented in
BSD, not Sys V, so Linux is just another port. I think everything IBM
contributed falls into this same category. Perhaps someone more familiar with
the history can confirm that.

That undercuts the SCOG derivative theory, if anything it is a derivative of BSD
and there is precedent in the BSD case that work developed in BSD and moved to
Sys V is not owned by ATT. The parallel is exact and judges love precedent, it's
a shame that case was settled and not decided.

IBM's lawyers did a great job of crafting this affidavit to cover their exact
legal points. I see a problem however. A lot of his "understanding" is
subject to striking on exactly the same grounds IBM used against SCOG. It is
hearsay, based entirely on what someone else told him, not on his personal
knowledge, although as the signer it does represent his intent.

I hope there is another affidavit from the someone who actually talked to ATT
about this.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

Declaration of David P. Rodgers - as text
Authored by: Anonymous on Tuesday, October 05 2004 @ 10:19 AM EDT
5. Although I did not personally negotiate the Sequent Agreements with representatives of AT&T Technologies, I carefully reviewed the agreements myself and with other Sequent employees before executing them and have personal knowledge of the parties' understanding of, and intent behind, the terms and conditions of the agreements.

Would this not just invalidate it as being hearsay?

Anybody can say they have personal knowledge of what somebody said or what they thought the parties involved thought.

[ Reply to This | # ]

Another chink in the wall, agressively patched
Authored by: AllParadox on Tuesday, October 05 2004 @ 10:32 AM EDT
There are still two floating issues regarding IBM's CC10: could it be true that,
possibly, maybe, perhaps, on a long shot, using TSG's unique interpretation of
"derived", there is UnixSysV code in Linux? And, could deep diving
TSG analytical experts find the original derivations of UnixSysV code if they
were just allowed access to all the source repository of AIX/Dynix?

Here is a positive, specific answer: No.

With this affidavit, there is no longer even a presumption that Linux might
contain "TSG-style-derived" code. Dynix was derived from BSD.
AT&T vs. BSD was settled long ago, so "BSD is derived from Unix"
is not even an issue.

This is not a matter of changing a few names and rearranging some sentences to
get a different appearance on the same work. It is not the same work,
absolutely. Dynix then had its own changes, independent from UnixSysV. It would
be no more helpful to review the entire repository for AIX/Dynix than it would
be to review the entire repository for Windows.

If TSG wishes to continue to claim that there is UnixSysV derived code in Linux,
they must first specifically identify the matching code plus derivation, then
show that they have ownership. This is a reasonable first-step requirement to
prevent a punitive "fishing expedition" by TSG attorneys.

This TSG demonstration of matching code must all be completed no later than one
month ago, in time for IBM to receive it and review it prior to the September
15, 2004 hearing.

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

None of this matters -- SCO has no copyrights
Authored by: Anonymous on Tuesday, October 05 2004 @ 11:00 AM EDT

Come on, people.

None of this matters. It doesn't matter if IBM really did copy System V line for
line into Linux. It doesn't matter if IBM really did copy System V line for line
into Dynix. It doesn't matter if IBM really did copy System V line for line into
AIX.

SCO has no copyrights for System V. There is no 204(a) writing. SCO has no
standing to complain about ANYTHING regarding System V.

I don't understand why this board and others keep arguing about System V
derivatives. SCO has NO rights to System V. Nada, zilch, zero.

[ Reply to This | # ]

"Treated Like" Vs "Becomes"
Authored by: darkonc on Tuesday, October 05 2004 @ 05:26 PM EDT
The license says that materials containing licensed code should be treated like they are covered software product -- not that they "become" software product. They could have easily said 'becomes', but they did not, and -- given that they wrote the license, such an 'omission' is construed in IBM's and Sequent's favour.

And that would be without taking into account the comanion letters.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Methods and Concepts
Authored by: floyds_void on Tuesday, October 05 2004 @ 09:17 PM EDT
To me, the weak link in the declaration is pp. 11, 12:

11. Section 7.06(a) of the Software Agreement included the following language concerning confidentiality: LICENSEE agrees that it shall hold all parts of the SOFTWARE PRODUCTS subject to this Agreement in confidence for AT&T. 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 of LICENSEE to whom such disclosure is necessary to the use for which rights are granted hereunder. 12. It was my understanding that the purpose of this confidentiality provision from the perspective of AT&T Technologies was to protect the Unix System V source code that it was licensing. Although there is reference in Section 7.06(a) to "methods or concepts", I had no understanding at the time that AT&T Technologies was interested in protecting anything other than the Unix source code.

To me, this methods and concepts argument is the last straw that SCO is clinging to and although it is dealt with here, it isn't a slam dunk in your face you're stoopid response.

Can anyone explain what force of law this phrase has ?? In the wording, it seems to be separate from copyright, or is that literal copyright ?? It's not a TradeMark(tm) (but SCO has used it enough that they ought to consider it). Other wording seems to rule out patent conflicts. What is the import of this phrase ??

Thanks

[ Reply to This | # ]
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