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Declaration of Edward Normand - as text
Saturday, December 04 2004 @ 04:55 AM EST

Here's the Declaration of Edward Normand [PDF], as text. Thanks go to fudisbad for transcribing it for us. Mr. Normand offers his Declaration in support of SCO's 56(f) motion [PDF; text], and Mr. Normand's job is to present to the court the discovery that SCO feels it still needs to do and why it hasn't so far been able to do it. We've heard that song before, of course, and so has the judge, but he comes up with new reasons why SCO, once again, needs a delay before the court decides IBM's motion for partial summary judgment on the contract claims.

For one thing, SCO would like to depose the small army of declarants who supported IBM's position on the interpretation of the license, hoping to get some more names of further witnesses to testify on the matter. They have certain facts, they say, they'd like to use to confront IBM's declarants. SCO realizes they already deposed Otis Wilson and David Frasure, but they didn't realize they had the earlier BSDi depositions of Wilson and Frasure until after the deposition, and they'd like to have at it again.

It seems IBM is no longer answering SCO's love letters demanding that they produce everything and then the kitchen sink, so they'd like the court to order the kitchen sink turned over, so SCO will know all declarations and affidavits IBM has. They suspect IBM is only revealing the ones that help them. Heavens. I'm sure *that* never happens in litigation.

SCO reveals that Novell gave them some documents from the BSDi litigation and offered to let SCO inspect documents related to license agreements on November 19. SCO thinks it can cook up some issues from that as well.

As for Novell's waiver of SCO's IP rights, SCO has submitted some declarations, like Ed Chatlos's, which SCO characterizes as stating that the parties never intended Novell to have such rights. They continue to refer to him in the category of "chief negotiators," despite Mr. Chatlos not being involved in the entire negotiation process. SCO would like to take further depositions of other parties to the negotiations.

Finally, SCO would like to depose the folks at IBM who got all the evidence of SCO's continuing distribution of Linux and try to prove that IBM hacked SCO's password-protected website. Good luck with that. They think that is the only evidence IBM has of continued distribution.

Translation by PJ: they know they are likely to lose as things now stand, and they need to beat the bushes to find better declarations than what they have submitted so far, to which I would say a hearty Amen. Whether the court enjoys eternal litigation as much as SCO seems to, well, we'll just have to wait and see. Meanwhile, this motion will inevitably lead to some delay, if only because of when it was filed. Delay is SCO's middle name in this litigation, and here they go again.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER [address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP,

Plaintiff,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant.

Case No. 2:03CV0294DAK

Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

DECLARATION OF EDWARD NORMAND

1. I am a member of the law firm of Boies, Schiller & Flexner LLP, counsel for Plaintiff The SCO Group, Inc. ("SCO") in the above-captioned matter. Unless otherwise indicated, I make this declaration based upon personal knowledge.

2. I submit this Declaration in support of SCO's Memorandum in Opposition to Defendant/Counterclaim-Plaintiff IBM's Motion for Summary Judgment on SCO's Contract Claims, dated November 30, 2004.

3. I explain below that SCO has been unable to make full discovery in this matter and why IBM's motion is therefore premature under Federal Rule of Civil Procedure 56(f). I explain the discovery that SCO reasonably believes will further enable it to justify its opposition to IBM's Motion for Summary Judgment.

4. SCO has previously explained in detail for this Court and for the Magistrate Court why SCO has been unable to date to take (among substantial other discovery) the discovery I address below. In an effort to avoid redundancy, I adopt those prior submissions and arguments by reference, specifically including the memoranda, affidavits, and argument concerning SCO's opposition to IBM's motion for summary judgment on its Tenth Counterclaim, SCO's 56(f) motion concerning the same, and SCO's motion to enforce the scheduling order, which were all submitted to this Court, as well as the submissions concerning SCO's memorandum regarding discovery and renewed motion to compel, the discovery motions currently pending before Magistrate Judge Wells.

5. SCO has deposed only some of the witnesses on whose declarations IBM relies to argue its narrow interpretation of the license software agreements is correct as a matter of law. The declarations of IBM's key declarants - including Otis Wilson, David Frasure, Geoff Green, Ira Kisterberg, and David Rodgers - have been contradicted by their own testimony in this case as well as by the declarations SCO has provided from Martin Pfeffer, Burt Levine, Mitzi Bond, and Evelyn Davis. In addition, the sworn deposition testimony of Mr. Wilson and Mr. Rodgers in previous litigation flatly contradicts their declarations for IBM in this case. Based on these inconsistencies and contradictions in IBM's evidence, SCO reasonably believes that it will obtain from remaining depositions additional evidence to oppose IBM's motion.

6. SCO also reasonably expects to obtain from remaining depositions the names of other witnesses, particularly members of the UNIX intellectual property licensing group, who can testify to their understanding of the scope of the use and disclosure restrictions in the software license agreements and the basis for their understanding.

7. SCO has intended to and believes it is entitled to confront IBM's declarants with the facts discovered from AIX programmers who, because they had access to the UNIX source code, were in a position to implement and potentially circumvent the restrictions on licensees in the software agreements at issue.

8. In March and April 2004, IBM produced approximately 670,000 pages of documents to SCO. IBM thereafter noticed the depositions of Otis Wilson and David Frasure. Only after the depositions had been taken (over SCO's objection to their premature timing) did SCO discover that IBM's production of documents included the deposition transcripts of Mr. Wilson's and Mr. Frasure's flatly contradictory sworn testimony in prior litigation. SCO reasonably believes that the more efficient and fair way to have proceeded in the first instance would have been to permit SCO to receive and process the information relevant to the testimony of those witnesses before their depositions.

9. SCO has learned that IBM obtained a declaration from Martin Pfeffer which IBM did not disclose with its other declarations supporting its Motion for Summary Judgment. In response, in a letter dated October 28, 2004, SCO asked IBM to disclose all declarations, witness statements, and affidavits in its possession, custody, or control concerning any subject matters covered by the declarations that IBM had selectively disclosed. IBM not only has declined to produce any such material, but has not even responded to SCO's letter requesting it. In light of Mr. Pfeffer's most recent testimony, which contravenes IBM's narrow interpretation of the restrictions in the software agreements, and in light of IBM's failure to disclose his declaration, SCO reasonably believes that the declaration Mr. Pfeffer gave to IBM, and any other declarations that IBM declined to produce, would further raise issues of material fact precluding summary judgment.

10. On October 8, 2004, SCO subpoenaed Novell, Inc. and Paul, Hastings, Janofsky & Walker LLP (Novell's counsel in the litigation in which Otis Wilson and David Frasure gave their contradictory testimony) for the production of documents related to the BSD litigation and the software license agreements. On November 11, Novell, responding for both parties, delivered to SCO only documents concerning the BSD litigation. On November 15, Novell informed SCO's counsel that documents related to the license agreements would be available for inspection in Provo, Utah, on Friday, November 19, just four days before SCO's November 23 deadline to file its opposition to summary judgment. Based on the declarations SCO will submit with its opposition, as well as the contradictory testimony of IBM's declarants regarding the meaning of the license agreements, SCO reasonably believes that the documents that Novell has only recently produced will bring to light evidence giving rise to issues precluding summary judgment.

11. With respect to IBM's claim that Novell has waived SCO's intellectual property rights, SCO has submitted declarations from the chief negotiators of the 1995 Asset Purchase Agreement ("APA') and the 1996 amendment thereto (Ed Chatlos, Jim Wilt, and Steve Sabbath), who state therein that the parties never intended for Novell to have the right to waive, or to direct or require SCO to waive, any of SCO's intellectual property protections under the SVRX licenses. Based on these declarations, as well SCO's reading of the APA under settled principles of contract construction, SCO intends to take the depositions of other participants in the negotiations and reasonably expects that the testimony of the other participants will be consistent with the declarations by the chief negotiators.

12. With respect to IBM's claim that SCO has waived its own rights, SCO intends to take depositions of, among others, the IBM employees responsible for accessing SCO's password-protected website - the sole ground for IBM's contention that SCO has made certain source code impermissibly available. SCO reasonably expects that such testimony will confirm that the evidence that SCO has submitted showing that IBM obtained access to that code only by improperly by-passing SCO's log-in procedure and hacking onto SCO's website.

November 30, 2004

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

____[signature]_____
Edward Normand


CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc. hereby certifies that a true and correct copy of
DECLARATION OF EDWARD NORMAND was served on Defendant International Business
Machines Corporation on this 30th day of November, by depositing it in U.S. Mail, first class,
postage prepaid, to their counsel of record as indicated below:

Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]

Attorneys for Defendant/Counterclaim Plaintiff IBM Corp.

___[signature]_____


  


Declaration of Edward Normand - as text | 214 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Correcctions here
Authored by: Anonomous on Saturday, December 04 2004 @ 05:01 AM EST
s/Correcctions/Corrections/

-Anonomous.

[ Reply to This | # ]

OT Here
Authored by: Naich on Saturday, December 04 2004 @ 05:08 AM EST
Ooh! I get to do this one. Excellent.

[ Reply to This | # ]

Surely at some point the judge is going to ask
Authored by: Anonymous on Saturday, December 04 2004 @ 05:32 AM EST

"On what grounds did you begin this litigation?", because right now it couldn't be more obvious that SCO are fishing if they turned up wearing rubber waders and a hat full of lures.

Excuse my ignorance, but aren't you supposed to have a case before you decide to cost a court and your victim time and money by bringing a suit?

[ Reply to This | # ]

Martin Pfeffer reference
Authored by: PeteS on Saturday, December 04 2004 @ 06:33 AM EST
From paragraph 9:

In light of Mr. Pfeffer's most recent testimony, which contravenes IBM's narrow interpretation of the restrictions in the software agreements, and in light of IBM's failure to disclose his declaration, SCO reasonably believes that the declaration Mr. Pfeffer gave to IBM, and any other declarations that IBM declined to produce, would further raise issues of material fact precluding summary judgment.

Well now, that's interesting. It's certainly not the impression I got when reading Martin Pfeffer's declaration

I read it more as a declaration of legal weasel words (as AllParadox might say) that really do nothing to actually contradict IBM's position.

It seems merely to say that the license states what it is by it's clear wording, and fails to meet the bar of contradicting IBM's position that code written or licensed by IBM from third parties was beyond the purview of the license from AT&T.

PeteS

---
Artificial Intelligence is no match for Natural Stupidity

[ Reply to This | # ]

Songs and six pence.
Authored by: Stumbles on Saturday, December 04 2004 @ 06:42 AM EST
This SCO song is really getting old. This is pretty much all they have
done since the beginning..... continually asking for more and more and
more discovery. I don't think I could be a good judge as I would have
slapped SCO with some kind of legal order to get on with their case.
Oh, wait there is the two court orders to show their evidence. Never
mind.

Can SCO scrape lower than the bottom of the barrel now? I'd say
making unsubstantiated claims IBM hacked their website is just about
it. Just how stupid does SCO think IBM is? They should have already
gotten a clue with the performance of their lawyers.

---
You can tune a piano but you can't tuna fish.

[ Reply to This | # ]

Official "The SCO Group" Positions
Authored by: PeteS on Saturday, December 04 2004 @ 07:15 AM EST
Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group".

Main posts must use the name and position of the poster at "The SCO
Group".
Main posters must post in their official capacity at "The SCO Group".

Sub-posts will also be allowed from non-"The SCO Group" employees or
attorneys. Sub-posts from persons not connected with "The SCO Group"
must be very polite, address other posters and the main poster with the
honorific "Mr." or "Mrs." or "Ms.", as
appropriate, use correct surnames, not call names or suggest or imply unethical
or illegal conduct by "The SCO Group" or its employees or attorneys.

This thread requires an extremely high standard of conduct and even slightly
marginal posts will be deleted.

PJ says you must be on your very best behavior.

If you want to comment on this thread, please post under the off-topic thread,
"OT", found above.



---
Artificial Intelligence is no match for Natural Stupidity

[ Reply to This | # ]

Witness statements and the Rules
Authored by: marbux on Saturday, December 04 2004 @ 08:31 AM EST
9. SCO has learned that IBM obtained a declaration from Martin Pfeffer which IBM did not disclose with its other declarations supporting its Motion for Summary Judgment. In response, in a letter dated October 28, 2004, SCO asked IBM to disclose all declarations, witness statements, and affidavits in its possession, custody, or control concerning any subject matters covered by the declarations that IBM had selectively disclosed. IBM not only has declined to produce any such material, but has not even responded to SCO's letter requesting it. In light of Mr. Pfeffer's most recent testimony, which contravenes IBM's narrow interpretation of the restrictions in the software agreements, and in light of IBM's failure to disclose his declaration, SCO reasonably believes that the declaration Mr. Pfeffer gave to IBM, and any other declarations that IBM declined to produce, would further raise issues of material fact precluding summary judgment.
This paragraph raises more questions than it answers. The fact that it does not exhibit the referenced letter to IBM's lawyers raises an eyebrow, as the failure to do so leaves important relevant considerations unaddressed.

First, I'll assume that IBM will admit in response that such a declaration exists. However, the fact that SCO's lawyers want it does not mean they are entitled to it.

Second, a request in a letter may or may not satisfy the specific requirements of a formal discovery request. Under Fed. R. Civ. P. 34(b), a request to produce documents or other things must include certain information:

The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.
So it's fair to wonder whether the letter set the time, place, and manner of production, as well as the precise description of what it is that SCO's lawyers asked to be produced. If the letter did not specify a time for IBM to respond, IBM is at minimum arguably under no duty of timely response. Moreover, because the witness statement is potentially exempt from disclosure (discussed below), and because the court has already set a date for the parties to exchange privilege logs, the court's order likely takes precedence over any response time set by SCO's letter.

Third, the federal courts have been uniform in holding that phrases such as "concerning any subject matters" are too vague and ambiguous to satisfy the particularity requirements of a discovery request. See e.g. Chubb Integrated Systems v. National Bank of Washington, 103 F.R.D. 52, 58 ( D.D.C. 1984)("[p]ertaining or relating to is too vague"); Goodell v. Rehrig International, Inc., 683 F. Supp. 1051 (E.D. Va. 1985) (similar), affirmed, 865 F.2d 1257 (4th Cir. 1989).

Fourth, counsel for SCO is at least constructively aware that witness statements taken by or for opposing counsel are presumptively immune from discovery as attorney work product:

(3) Trial Preparation: Materials.

Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

Fed. R. Civ. P. 26(b). (Emphasis added.) That witness statements prepared in anticipation of litigation or for trial have a qualifiedly immunity from discovery has been beyond question since the Supreme Court's seminal decision in Hickman v Taylor, 329 U.S. 495 (1947). Law students all study this case and its progeny as part of their introductory civil procedure classes. Basic understanding of the principles involved and their limits is essential to a lawyer's investigation and preparation of a case.

SCO's objection to partial summary judgment on grounds that it should first have access to the relevant witness statement would have far more credibility had SCO first moved for an order requiring production of the document, exhibiting its discovery request and supporting affidavits, and making the required showing of need and hardship. That it has not done so speaks volumes about the SCO lawyers' evaluation of their entitlement to the relevant witness statement.

---
Retired lawyer

[ Reply to This | # ]

Rule 56(e) and 56(f) confusion
Authored by: tgf on Saturday, December 04 2004 @ 08:57 AM EST
Okay, so I'm sure this got discussed to death back in September,
when SCOG were filing 'incompatible' combinations of rule 56
motions, but I've now forgotton, and I hope someone can remind me.

SCOG have just filed both a PSJ opposition motion and a rule 56(f)
(need more discovery) motion. But I thought the idea of the rule
56(f) motion is that it is filed _in_lieu_of_ the PSJ opposition
motion, on the basis that the PSJ defendent takes the gamble that
the Judge agrees that the PSJ cannot be decided without that
additional discovery -- have I got that right or wrong?

There is also the issue of the rule 56(e) which ISTR is the please
"dismiss this ridiculous [P]SJ motion" motion, or is my memory
playing tricks on me?

So, I would be very grateful if someone can answer one or both of
those questions, please.

Tim

---
Oxymoron of the day:
Microsoft innovation

[ Reply to This | # ]

Deposition testimony... in previous litigation flatly contradicts their declarations for IBM?
Authored by: Anonymous on Saturday, December 04 2004 @ 08:57 AM EST
RE: "In addition, the sworn deposition testimony of Mr. Wilson and Mr.
Rodgers in previous litigation flatly contradicts their declarations for IBM in
this case."

Caldera/SCOx is trying to build it's own backdoor to facts that are older than
they are!

What SCO is saying is that they don't understand that the educational license
and the commercial license were different. They again are looking at BSDI
statements and testimony that were about an educational license... Where the IBM
case is about a commercial license that WAS a different license at the time.

In the BSDI case, where USL was trying to use "concept and methods" to
claim code that BSD had written, the evidence now shows that USL was trying to
steal the rights to something that they had, basicly, allowed to wander into the
public domain... AND USL was trying to steal code that BSD developed independent
of USL, and USL lost this arguement as when USL tried to get an injunction vs
BSDI to stop the distribution of the BSD UNIX... the judge denied their request
for an injunction.

SCOx is trying to steal back something that one judge already has said that USL
(the former holder of UNIX rights before SCOx) could not. The reasons were
obvious to that judge then and should be obious tot this judge now!

Read this RULING on USL's request for injunction:
http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/930303.ruling.txt

From this :
http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/bsdisuit.html

Then read this:
The 1994 USL-Regents of UCal Settlement Agreement - PDF and text
http://www.groklaw.net/article.php?story=20041126130302760




[ Reply to This | # ]

How many bites do they get?
Authored by: tangomike on Saturday, December 04 2004 @ 10:05 AM EST
In the 'small army'(PJ's phrase?) of deposants/depositions didn't TSCOG have
someone present at all these? Was their rep asleep (it's happened in court
remember)? Or is this just another example of little to no preparation by
BS&F?

I have to say that whether it's conscious delaying tactics or just extraordinary
incompetence, BS&F are really creating a reputation for themselves. Anybody
who seriously wants to bring a suit should avoid Boies, Schiller and Flexner.

---
The SCO Group's secret project to develop Artificial Stupidity has obviously
succeeded!

[ Reply to This | # ]

Modified Linux kernel
Authored by: Kalak on Saturday, December 04 2004 @ 11:43 AM EST
Has anyone installed the .src.rpm to see if SCO/Caldera applied any patches,
thus modifying the kernel? Assuming they made this w/o planning on hiding their
tracks, the changes would be listed in the spec file in the .src.rpm. I'd look
myself, but I don't have a copy of the src.rpm from SCO. Can someone check or
post a link?

---
Kalak: I am, and always will be, an idiot.
Also, I stayed at a Holiday Inn Express last night.

[ Reply to This | # ]

Who are you going to believe me or your lying eyes?
Authored by: jim Reiter on Saturday, December 04 2004 @ 03:52 PM EST


Normand writes:

11. With respect to IBM's claim that Novell has waived
SCO's intellectual property rights, SCO has submitted
declarations from the chief negotiators of the 1995 Asset
Purchase Agreement ("APA') and the 1996 amendment thereto
(Ed Chatlos, Jim Wilt, and Steve Sabbath), who state
therein that the parties never intended for Novell to have
the right to waive, or to direct or require SCO to waive,
any of SCO's intellectual property protections under the
SVRX licenses. Based on these declarations, as well SCO's
reading of the APA under settled principles of contract
construction, SCO intends to take the depositions of other
participants in the negotiations and reasonably expects
that the testimony of the other participants will be
consistent with the declarations by the chief negotiators.

If I read Mr. Normand correctly, TSG intends to prove, in
depositions, that the Parties to the APA did not mean the
wording in APA 4.16 (b) even after amending it in
amendment 2. Unbelievable and this is a lawyer talking.
What a piece of work!

I started my business career in heavy construction. My
word and a handshake was sufficient in many cases to make
a contract.

Apparently, in todays world a written and signed contract
is not considered binding in some circles.

I do not know why anyone would ever want to do business
with anyone associated with the TSG side of this case,
lawyers included.


[ Reply to This | # ]

Middle name
Authored by: Anonymous on Saturday, December 04 2004 @ 04:15 PM EST
SCO... Delay... Litigation

mmmm... doesn't sound so bad, actually.

[ Reply to This | # ]

  • but technically - Authored by: Anonymous on Monday, December 06 2004 @ 07:09 PM EST
Declaration of Michael Davidson
Authored by: rsteinmetz70112 on Saturday, December 04 2004 @ 06:24 PM EST
Can someone please point me to this declaration? It is referenced in SCOG's
latest filing but not attached or as far as I can find availible on one of the
standard sites.

---
Rsteinmetz

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

[ Reply to This | # ]

Declaration Rules, Why a current lawyer?
Authored by: Anonymous on Saturday, December 04 2004 @ 08:50 PM EST
Why would a declaration from a current member of your legal team be used?
Wouldn't you just provide all of this type of material in an organized memo in
support or opposition to the relvant claims?

I'm confused.

[ Reply to This | # ]

Question about Court Costs
Authored by: _Arthur on Saturday, December 04 2004 @ 09:32 PM EST
I have question for AllParadox, Marbux, and others familiar with the US
judicial system.

This is a Civil case. I understand that is thus a pay-as-you go case, with all
Court costs borne by both Litigants.
How much does 1 month of active litigation costs ? I'm not talking about
lawyers, I'm talking about court costs; the waste of valuable Judge time,
courtrooms, clerks and so on...

Can we estimate it? How high are the court costs so far, $2M each ?

?

_Arthur

[ Reply to This | # ]

Declaration of Edward Normand - as text
Authored by: blacklight on Saturday, December 04 2004 @ 10:54 PM EST
The Edward Normand declaration is nothing more than an attempt to manufacture
conflicts of fact to defeat IBM's PSJ and manufacture prospective conflicts of
fact to delay resolution of IBM's PSJ.

[ Reply to This | # ]

Did we say that?
Authored by: Christian on Sunday, December 05 2004 @ 12:04 AM EST
SCO says
With respect to IBM's claim that SCO has waived its own rights, SCO intends to take depositions of, among others, the IBM employees responsible for accessing SCO's password-protected website - the sole ground for IBM's contention that SCO has made certain source code impermissibly available.

Emphasis added. To bad for SCO that in their Memorandum in Opposition to IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (Eighth Counterclaim) they say

The last sale of Linux Server 4.0 was on May 31, 2004.

This is of course well after they started their Linux licensing program. IBM's downloading of the kernel from SCO is irrelevant, as SCO admits to distributing it. There is no difference between distributing to customers and distributing to the general public on a web site as far as the GPL is concerned.

SCO also admits that this sale was "a few months after determining that Linux was tainted with misappropriated SCO code." Did SCO intentionally distribute the Linux kernel after they realized that it was infected by magic UNIXness? Yep.

[ Reply to This | # ]

Could SCOX's meritless legal case be used against the principles in a shareholder damages suit?
Authored by: globularity on Sunday, December 05 2004 @ 05:40 AM EST
It just occurred to me SCOX's legal filings may be pretty good evidence that it
never had a case and the principle officers knew that they never had a case but
didn't inform shareholders. Knowingly filing a meritless suit which could ruin
the company is a pretty negligent thing to do. A much as SCOX's shareholder
probably are getting what they deserve, it would be nicer to see them suing Darl
and the board for the scam perpetrated on them.

My A$0.02

mark

---
Australia: A first world country with second rate rate leaders and 3rd world
ambitions.

[ Reply to This | # ]

IBM Hacking SCO?
Authored by: Anonymous on Sunday, December 05 2004 @ 07:02 AM EST

I suppose this is a reference to the "blank password" popup that
appeared on their web-site.

Unfortunately for SCO, I don't think their lawyers knew enough about RFCs and
anonymous access. Aside from the fact that a trial by jury ain't gonna buy this
one.

Note that by convention for many years, anonymous FTP access used username:
anonymous password: <optional E-mail>

It should be noted that anonymous access is disabled by the server
administrator. If this worked at the time, I think SCO is going to have a very
hard time arguing that they disabled anonymous access to their FTP site.

[ Reply to This | # ]

Pfeffer
Authored by: codswallop on Sunday, December 05 2004 @ 08:34 PM EST
We keep coming back here. With Mr. Pfeffer's declaration, things become clearer.

AT&T was talking out of both sides of its corporate mouth. Its original legal position was similar to SCO's claims minus the most ridiculous bits like inevitable mental contamination. I've quoted the most interesting bits.

1)

"USL would not acquire ownership over material that a licensee independently created merely because the licensee included that material in a "SOFTWARE PRODUCT,"
This obviously hurts SCO's case unless they can show IBM based their code on licensed Unix code - thus the request for all the source code control info. This still requires the court to buy into the SCO/AT&T theories.

2)

any modifications or derivative works "based on such SOFTWARE PRODUCT") would be subject to the restrictions set forth in AT&T's confidentiality provision, regardless of the licensee's ownership interest in any part of such "SOFTWARE PRODUCTS."
a) modifications goes beyond derivative works.

b) AT&T is slanting it's case according to its audience. The legal staff wants to keep the most restrictive possible terms, while marketing hides legal's interpretation from the customers.

3)

licensee "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
"Methods and concepts" may have been obsolete, but I doubt Otis Wilson would have had any luck convincing legal too remove the language. The letter agreement struck this language, but added:
Nothing in this agreement shall prevent LICENSEE from developing or marketing products or services employing ideas, concepts, know-how or techniques relating to data processing embodied in SOFTWARE PRODUCTS subject to this Agreement, provided that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into any such product or in connection with any such service and employees of LICENSEE shall not refer to the physical documents and materials comprising SOFTWARE PRODUCTS subject to this Agreement when they are developing any such products or service or providing any such service. 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 or its employees, LICENSEE's obligations under this section shall not apply to such information after such time.--

Given this, SCO's case against IBM has to have one or more of the following arguments to survive:

a) The letter agreement isn't valid

I don't see this getting anywhere, but cf. below.

b) The letter agreement doesn't affect the Dynix code.

I can't see how IBM's agreement wouldn't cover any code they owned regardless of origin. There's also the possibility that Sequent consulted the AT&T source. This would bring the code under the control of the letter agreement substitute language.

c) IBM violated the terms of the substitute language in coding the material they donated to linux, AND the relaxation of restrictions doesn't cure any past behavior, even though the behavior would only violate the license at the time of publication, since it was not an offense to refer to the Software Product for internal use.

4)

it was AT&T's intent to prevent through its UNIX license agreements the unauthorized use and disclosure of more than just literally copied UNIX source code. AT&T intended to protect, and through its standard license agreements expressly protected, its UNIX business by preventing anyone from using AT&T's proprietary material in UNIX including by literally or non-literally copying UNIX source code, disclosing methods or concepts from UNIX, and/or exploiting licensees' access to the technology in UNIX) without paying UNIX license fees to AT&T

This is certainly clear enough.

5)

any agreements (including any side letter agreements) that AT&T entered into with one of its UNIX licensees would have no legal effect on the contractual obligations of AT&T vis--vis any of its other UNIX licensees.

This has to be aimed at the Sequent code.

6)

I do not recall any instance during my tenure in which either AT&T or USL agreed (in any license agreement or supplement or modification thereof) to reduce its protection under a UNIX license to prevent the unauthorized use or disclosure of only source code. Any such change would have been a significant and material change to the standard terms of AT&T's license agreement and, in 1985, clearly would have required my, or to a lesser extent Burt Levine's, approval. I do not recall any such proposed or actual modification to the standard license agreement.
This looks like the start of an attack on the letter agreement. It was signed by David Frasure acting for Otis Wilson. If he didn't have the authority to relax the terms in question, would it matter? Both sides acted as if they thought it was valid. Later on the amended the replacement language. Steve Sabbath signed amendment X for Santa Cruz and James Tolover did so for Novell. Amendment X was signed on 10/17/96.

---
IANAL This is not a legal opinion.
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity.

[ Reply to This | # ]

Declaration of Edward Normand - as text
Authored by: Anonymous on Monday, December 06 2004 @ 12:14 PM EST
"...SCO enjoys eternal litigation..." ?

Only as long as the lawyers get paid.

P.J.

Have you ever seen a lawyer drop a large case because the client failed to
make payments?

Curious in Never Never Land.

[ Reply to This | # ]

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