|
|
| Declaration of Evelyn Davis (SCO v IBM) - PDF and text - & Mitzi Bond - PDF |
 |
|
Friday, February 18 2005 @ 01:43 AM EST
|
Litigation is like a battleship. Once it is launched, it's very hard to turn it around. And so, while SCO copes with its delisting issues, the battleship plows on. So, I need to get back to SCO v. IBM, and here is another of the scanned documents we got from the court that SCO filed in support of its Memorandum in Opposition to IBM's Motion for Summary Judgment on SCO's Breach of Contract Claims, one of SCO's sealed documents. It's the Declaration of Evelyn Davis [PDF], who joined the company in the 70's and was an AT&T account executive and contract manager from 1984 to 1994. She doesn't say that she worked on the IBM account. She doesn't say she negotiated any contract or license with IBM. She tells us, like other witnesses for SCO, what she never heard or never experienced. That's backwards from a normal affidavit. What she tells the court, most peculiarly, is that she was trained by such folks as Otis Wilson, David Frasure, and Steve Vuksanovich, but then she contradicts their testimony. Her statements are so broad and sweeping, however, that it seriously undermines her credibility with me.
For example, she makes the claim that all of the licenses AT&T had -- governmental, educational and commercial -- "contained substantially the same core protections" in their terms. I don't believe that is so, and you can compare an educational license and IBM's commercial one or Santa Cruz's commercial license [PDF] for yourself and draw your own conclusions as to the value of her testimony. She also says that she isn't aware of any instance "in which AT&T agreed to reduce its protection under a UNIX license so as to restrict the unauthorized use or disclosure to just the UNIX source code." However, we've heard from her bosses that IBM did have such terms. For just one example, Otis Wilson told the court already that "we did not intend to exercise any control or restriction on those products that did not contain portions of the software products." One of them is wrong, flat out wrong. And since Mr. Wilson trained her, and was her superior, I think one may fairly assume he has it right. She also says AT&T wouldn't license its software in certain foreign countries where they were not sure their IP would be respected. And she tells the court that what was protected under the licenses, no matter how much a licensee changed the software or extended it, were the structures, sequences, patterns, ideas, methods, and concepts." In short, once you licensed their software, you were an indentured software servant to AT&T for the rest of your born days. She would have us believe that IBM, knowing that it intended to modify and extend the software and license it as a product, agreed to let AT&T control everything it ever wrote from that day forward in such modifications and derivatives, no matter how much work they themselves did, including ideas, methods and concepts. A companion Declaration of Mitzi Bond [PDF] parrots the same thing and states it even more baldly. Of course, we've heard from their superiors at AT&T already, including AT&T attorney Geoffrey Green, that none of this is the way they remember it. Obviously someone is wrong, either by mistaken memory, misunderstanding, or because of lying. The date of this declaration is after some of her superiors at AT&T gave IBM their declarations, and after IBM submitted its Motion for Partial Summary Judgment, which had all the affidavits that say the opposite of what Ms. Davis here states attached to it, so she certainly was in a position to know what they had said.
****************************
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 Eskovicz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (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, Inc.
Plaintiff,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant.
|
Case No. 2:03CV0294DAK
Hon. Dale A. Kimball
Magistrate Judge Brooke C. Wells
DECLARATION OF
EVELYN DAVIS
|
I, Evelyn Davis, declare as follows:
1. I submit this Declaration in connection with The SCO Group v. International Business Machines Corporation, No. 2:03CV0294DAK (D. Utah 2003).
2. I was employed in Greensboro, North Carolina, by AT&T or one of its subsidiary or successor entities from 1975 until 1994.
3. From approximately 1984 through 1994, I served as a UNIX Account Executive and Contract Manager. My primary responsibility was to license the UNIX operating system and to manage certain licensees' accounts. I received training to understand the intent and meaning of the standard software agreements under which AT&T and USL licensed the UNIX software product, and I regularly communicated that understanding to UNIX licensees and potential licensees.
4. I learned about the intent and meaning of the UNIX software license agreements through, among other things, formal training involving, among others, attorneys Marty Pfeffer and Burt Levine (who were our principal legal contacts) and supervisors Otis Wilson and David Frasure; as well as informal discussions with my fellow contract managers/account executives, including, among others, Steve Vuksanovich and Mitzi Bond. As a member of the UNIX licensing group, I regularly attended staff meetings, where we would discuss issues relating to the UNIX license agreements.
5. In UNIX, AT&T had developed a seminal innovation that was in high demand in the computer industry. Prospective licensees (including leading computer hardware manufacturers) desired to license and use AT&T's UNIX operating system to avoid having to spend substantial time and money developing their own software products from scratch. In response to that demand, AT&T agreed to allow its licensees special access to its proprietary UNIX product by licensing the UNIX operating system to them, but complimented that special access with specially designed, and broad, protections in its license agreements that would safeguard the valuable UNIX asset.
6. Based on the above-described training and discussions with my former colleagues, as well as my own reading of the UNIX software license agreements, I know that those agreements were designed and intended to protect AT&T's valuable intellectual property rights in UNIX with strict contractual protections. The license agreements effected these protections by restricting, among other things, the use, export, and disclosure of much more than just the literal lines of UNIX source code. For example:
a. the license agreements covered any works that resulted from our licensees' exercise of their contractual right to prepare modifications or derivatives of the UNIX product;
b. the agreements protected all of the innovations embodied in the licensed UNIX software, including, among other things, the structures, sequences, patterns, ideas, methods, and concepts; and
c. the agreements required each licensee to treat any work prepared with the benefit of having been exposed to our product -- regardless of how the licensee further developed or changed that product -- as if it were part of our original licensed product.
7. Like many AT&T and USL Account Executives and Contract Managers, I handled commercial, educational and governmental licenses. The terms of all of AT&T's UNIX license agreements -- commercial, educational and governmental -- contained substantially the same core protections for AT&T's technological innovations, and the training I received concerning those protections applied to all of those types of licenses.
8. In fact, it was my understanding that because these broad protections were so critical, AT&T decided against licensing the UNIX operating system in many foreign countries, where AT&T felt it was more difficult to ensure that the proprietary innovations of its UNIX product would be carefully guarded in accordance with the protections of its license agreements.
9. In my experience, AT&T was adamant in refusing to compromise its core intellectual property protections. Because our UNIX product was in such high demand, and AT&T's commitment to safeguarding that asset was so strong, it was not uncommon for Account Executives and Contract Managers to explain to potential licensees that our core intellectual property protections were not negotiable. I am not aware of any instance in which AT&T agreed (in any license agreement or any supplement, modification, or side letter thereto) to reduce its protection under a UNIX license so as to restrict the unauthorized use or disclosure of just the UNIX source code.
I declare under penalty of perjury that the foregoing is true and correct.
Executed: 11/4/04
Greensboro, North Carolina
___[signature]____
Evelyn Davis
|
|
|
|
| Authored by: Minsk on Friday, February 18 2005 @ 01:55 AM EST |
Please make link clickable:
<a href="http://the-url/">Label here</a>
and choose HTML Formatted under Post Mode[ Reply to This | # ]
|
| |
| Authored by: ankylosaurus on Friday, February 18 2005 @ 01:59 AM EST |
Thanks.
---
The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
|
- Corrections here, please. - Authored by: bcomber on Friday, February 18 2005 @ 02:27 AM EST
- Corrections here, please. - Authored by: AntiFUD on Friday, February 18 2005 @ 03:02 AM EST
- Not a correction, but thanks - Authored by: Anonymous on Friday, February 18 2005 @ 03:20 AM EST
- PJ - why don't you ever list the RETAIL UNIX product/license that AT&T did? Was it restrictive? - Authored by: Anonymous on Friday, February 18 2005 @ 07:51 AM EST
- Was this person aware of the AT&T newsletter to licensees that contradicts - Authored by: Anonymous on Friday, February 18 2005 @ 09:01 AM EST
- Corrections here, please. - Authored by: Anonymous on Friday, February 18 2005 @ 10:41 AM EST
- complimented -> complemented (eom) - Authored by: Anonymous on Friday, February 18 2005 @ 03:27 PM EST
| |
| Authored by: cmc on Friday, February 18 2005 @ 03:05 AM EST |
If what she says is true, then AT&T would have sued all the authors and
publishers who produced books (college textbooks and otherwise) about UNIX.
There are literally thousands of books on UNIX which contain UNIX source code as
well as UNIX structures, methods, and concepts. If this information was so
hush-hush as she would like us to believe, then there is no way that AT&T
would have allowed those books to be mass produced and viewable by the general
public.
I particularly like paragraph 9, wherein she says she is unaware of any
agreement by which AT&T reduced the license restrictions (the set of
restrictions that she seems to remember). Is she trying to say that IBM made up
the side letter? That the side letter did not, in fact, come from AT&T? Or
could it be that she simply didn't know everything that occurred at AT&T?
As someone not involved in the IBM contract, why is she even allowed to say
anything? Wouldn't it make sense for AT&T to have a different license for
IBM than they did for the University of California, for example? Compared to
others from AT&T (her superiors), her testimony certainly does not seem
plausible.
cmc
[ Reply to This | # ]
|
- Doesn't make sense - Authored by: Anonymous on Friday, February 18 2005 @ 04:02 AM EST
- Doesn't make sense - Authored by: Anonymous on Friday, February 18 2005 @ 06:31 AM EST
- Doesn't make sense - Authored by: rsteinmetz70112 on Friday, February 18 2005 @ 08:22 AM EST
- Yes it does! - Authored by: Anonymous on Friday, February 18 2005 @ 11:08 AM EST
- Incorrect - Authored by: Anonymous on Friday, February 18 2005 @ 07:31 PM EST
- Incorrect, - Authored by: Anonymous on Monday, February 21 2005 @ 11:10 AM EST
| |
| Authored by: ankylosaurus on Friday, February 18 2005 @ 03:52 AM EST |
There are some fairly big differences between Mitzi'z declaration and Evelyn's.
One is that Mitzi was an editor of '$echo'. Another is that Mitzi reports on
her testimony in the AT&T vs BSDI case - testimony that must have been
extensive since it runs to page numbers around 200. I wonder what was in pages
1-200, and from 232 upwards (and how far it went upwards). It would also be
interesting to know how Mitzi's testimony was treated during that case - was it
countered or undermined on cross examination, for example.
---
The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
|
| |
| Authored by: thauer on Friday, February 18 2005 @ 03:59 AM EST |
the agreements required each licensee to treat any work prepared
with the benefit of having been exposed to our product -- regardless of how the
licensee further developed or changed that product -- as if it were part of our
original licensed product.
Ah, so whoever saw the UNIX source
code ever is tainted for life and owns his/her soul to AT&T with
whatever he/she develops let it be C/C++, .Net, Java ... It is not easy to
argue that having had worked on UNIX for years no longer carries any benefit in
one's present professional activities.[ Reply to This | # ]
|
| |
| Authored by: Kaemaril on Friday, February 18 2005 @ 04:03 AM EST |
This seems downright implausible, given that AT&T never embarked on the
biggest legal crusade in history against the hundreds - if not thousands - of
people who, based on this theory, were breaking their licenses left, right and
centre.
I'm thinking IBM's legal boffins could tear this to shreds in around five
minutes flat, assuming they don't get it excluded (IANAL, but I'd be surprised
if they don't want rid of this...)[ Reply to This | # ]
|
- not necessarily - Authored by: Anonymous on Friday, February 18 2005 @ 04:30 AM EST
| |
| Authored by: Totosplatz on Friday, February 18 2005 @ 04:18 AM EST |
This sentence leaped out at me (first sentence, paragraph 5) "In UNIX,
AT&T had developed a seminal innovation that was in high demand in
the computer industry."
During the September 15 hearing before Judge
Kimball one of the attorneys for TSCOG used the phrase seminal innovation
in a manner that seemed ominous to me at the time; I believe it was Mr Frei. It
seemed ominous because it sounded then (as it sounds to me now) that these guys
actually believe they can get the cat back into the bag and reclaim ownership of
all sorts of stuff that has any vague resemblance to UNIX.
The
phraseology is so striking that I bet the words were just put right into her
mouth by some helpful TSCOG attorney or other. ---
All the best to one
and all. [ Reply to This | # ]
|
| |
| Authored by: soronlin on Friday, February 18 2005 @ 04:21 AM EST |
How about this twist.
I am not aware of any instance in which
AT&T agreed (in any license agreement or any supplement, modification, or
side letter thereto) to reduce its protection under a UNIX license so as
to restrict the unauthorized use or disclosure of just the UNIX source
code.
She is certainly aware of IBM's side letter. It
therefore follows that the side letter did not "reduce [AT&T's] protection
under a UNIX license so as to restrict the unauthorized use or disclosure of
just the UNIX source code". And that is what IBM are saying; the side letter
merely explained the licence. Dynix is in the clear.[ Reply to This | # ]
|
| |
| Authored by: Khym Chanur on Friday, February 18 2005 @ 04:54 AM EST |
| Since there's conflicting testimony amongst different declarations, is this
something that would have to be decided by a jury, and hence can't be decided by
a PSJ? If so, I don't see how a PSJ could ever be granted in a civil suit: the
opposing party can find sombody was was out of the loop to make
statements contradictory to the statements of people in the know, and then the
jury has to decide who was enough in the know to listen to or disregard their
testimony. ---
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 | # ]
|
| |
| Authored by: Steve Martin on Friday, February 18 2005 @ 07:32 AM EST |
I am not aware of any instance in which AT&T agreed (in
any license agreement or any supplement, modification, or side letter thereto)
to reduce its protection under a UNIX license so as to restrict the unauthorized
use or disclosure of just the UNIX source
code.
Hmmm... okay, let's take a look.
From
the AT&T Side
Letter:
"Regarding Section 2.01, we agree that
modifications and derivative works prepared by or for you are owned by
you."
Okay, indicative, but not necessarily
contradictory.
"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."
Okay, so this seems to my IANAL-type eyes to say
that it's okay for a licensee to develop a product employing "ideas, concepts,
know-how or other techniques ... embodied in SOFTWARE PRODUCTS" as long as
actual code is not copied. Seems pretty cut-and-dried to
me.
Further:
"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."
Now, I could be wrong, but this
seems to me to be a lessening of restriction on the licensee under a specified
circumstance. Bach's book came out in 1986, well within the time frame of Ms.
Davis' employment, so she certainly should have been aware of it, especially
since the book was "© Bell Labs".
---
"When I say something, I
put my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
|
| |
| Authored by: spuluka on Friday, February 18 2005 @ 08:15 AM EST |
| What we have here is a dispute on the facts by two groups present at the time of
the agreements. I think the side letter combined with the position ATT took in
BSD are going to tilt this away from these lower level people. But this is
clearly a dispute that a jury would have to decide who to
believe.
UNLESS:
Obviously someone is wrong, either by mistaken memory,
misunderstanding, or because of lying. The date of this declaration is after
some of her superiors at AT&T gave IBM their declarations, and after IBM
submitted its Motion for Partial Summary Judgment, which had all the affidavits
that say the opposite of what Ms. Davis here states attached to it, so she
certainly was in a position to know what they had said.
SCOX had the
information before taking these declarations, but who says they informed EITHER
of these two what their old bosses said? They could have interviewed these
folks cold with a set of leading questions and created these declarations from
there. I wonder if they have read the side letter and their bosses
declarations? Will they stand up to cross examination in court? Has IBM
deposed these two yet? ---
Steve Puluka
Pittsburgh, PA [ Reply to This | # ]
|
| |
| Authored by: elderlycynic on Friday, February 18 2005 @ 08:16 AM EST |
"Obviously someone is wrong, either by mistaken memory,
misunderstanding, or because of lying."
As I have posted before, that is wrong, and I am speaking
from personal experience. If you had added the extra
possibility of "corporate inconsistency within A,T&T",
your statement would have been correct. The other causes
may apply to some extent, but the main reason for all this
inconsistency is that A,T&T executives were THEMSELVES
inconsistent about what they meant by their OWN contract.
All of the A,T&T staff I dealt with definitely supported the
line taken by these statements (i.e. that the A,T&T contract
did lay claim to any IP developed by using Unix). I should
be quite happy to swear to that in court. What is more, I
pointed out to them what I knew of the intent of the A,T&T
executives (see below), and was told that they had been told
by A,T&T executives that the draconian clauses of the
contract applied as they were written and that I was wrong.
From VERY reliable, second-hand evidence, I know that was
not the intention of the senior A,T&T executives, and that
they routinely told licencees to ignore the more extreme
implications of the contract. Also, they were very aware
of licencees that developed IP using Unix and separated it
in breach of the letter of the licence. I.e. precisely what
BSD and IBM have said.
From reliable, but only third-hand evidence (i.e. legally
hearsay), I know that IBM arranged what IBM regarded as a
satisfactory resolution of the contract. I.e. I said to
someone at one stage removed from the negotiators "I can't
believe that you signed A,T&T's contract." and was told
"Yes, that made us gag and blocked the negotiation for ages,
but we eventually got a satisfactory interpretation of it
from A,T&T. Obviously, I can't say more."
It is possible that SCO bought the rights in good faith, and
that they honestly believed that they had a good contractual
case against IBM. Given the fact that they COULD have had
copyrights to some or all of Unix, but blew it by failing
to complete the legal rituals, why is it surprising that
they would have made another error of the same class?
However, that was when the case started. It is abundantly
clear that their case fell apart almost completely as soon
as it was investigated in detail, and their copyright claims
were clearly always complete drivel. Kimball said as much
in his order, where he said that there were disputable facts
on the breach of contract but he couldn't see any on the
copyright.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, February 18 2005 @ 09:05 AM EST |
these lower-level employees to create ( perhaps merely the appearance of ) a
difference of fact, thus requiring a jury to decide whose facts are the real
facts?
JR[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, February 18 2005 @ 09:15 AM EST |
Why can't Judge Kimball say to SCO: "You have one week to show me all
documents that transfer any Unix related copyrights to you." Then he could look
at the documents and presumably rule that none of them meet the requirements
under copyright law. Then he could throw out everything that relies on SCOX
owning copyrights. Then he could throw out all the discovery requests that are
no longer relevant. If he had done this a year ago SCOX might just be a bad
memory by now.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, February 18 2005 @ 10:50 AM EST |
| There is nothing said about code that does not include AT&T Unix.
Everything that she refers to is about the AT&T UNIX source code and
nothing else. See how many time she refers to the Unix code. Thus, this is in
perfect agreement with what we already know (thanks SCOG!).
In 6c there is
this the agreements required each licensee to treat any work prepared with
the benefit of having been exposed to our product . Note the word
exposed - this has a special meaning in computing as it means that the
'work' uses AT&T Unix. The trick is that we usually talk about exposing
function or variables of some code (such as a library, in this case AT&T
Unix) for other code ('work') to use. If the code does not need AT&T Unix
then it is not exposed to our product.
Her last line in 9
could be read anyway but I read it as only refering to the release of AT&T
source code not about the release of any code that does not include AT&T
source code.
I don't think anyone is wrong just misleading declaration
unless you understand the terminology. [ Reply to This | # ]
|
| |
| Authored by: blang on Friday, February 18 2005 @ 05:38 PM EST |
I'm thinking these testimonies are simply there for procedural reason, because
SCO desperately need to have a dispute of facts with the IBM testimonies.
In order for a case to go to jury trial there must be dispute in facts, and
without such disputes, it could be handled entirely by the judge.
So, my question is: If the "evidence" presented in one side of the
case is too thin, does the judge have the option to throw it out, or is he
required to let the jury decide on that evidence?
In any case, it appears to me that SCO's counsel is simply going through the
motions in order to keep the case alive, and keep on billing, and they have
given up hope about settlement or victory a long time ago.
Same thing with SCO corporate. They've already pledged the money to litigation,
and they know that the continued litigation is simply postponing the companys'
demise.
People like McBride's only goal is looking out for number one, not the dhare
holder, and the best way to do that is too keep the scam going, and carpe diem
at every chance they get to cash in the next months.
The board of SCO, if they have any integrity as human beings and business men
has no choice but:
1)Liquidate the company, to preserve the few remaining jobs not involved in the
litigation. Fire the crooks, and let the engineers who have clean hands carry on
the product. If they win ownership in the Novell case, donate the remaining SYSV
copyrights in a BSD license. Openunix, etc, can live on to serice existing
customer, and on the long term evolve into a service arm which helps small and
medium businesses with Open source Enterprise Infrastructure. Leave a small
portion of the remaining cash for this group.
2)Fire the entire executive team, as well as all employees involved in the
licensing scam. File criminal suits of embezzlement against the main
characters. File civil suits against th eembesslers to have compensatin repaid
to the company. Their public statements over the last few years would make it
easy to prove intent and malice. Plausible deniability will not work as a
defence because of all teh public statements of people who proved Darl & Co
wrong.
3)Fire the legal counsels, and break the contract with the Boies law firm on the
grounds that legal malpractrice enabled the contracts to be written, in addition
to conspiracy to commit fraud in cooperation with the SCO execs. Boies would
never be stupid enough to sue SCO, since the public dirty mudfest would kill
off their credibility as law firm instantly.
4)Put any money remaining into an escrow account.
5)Hire a legal counsel who's task is to settle with IBM, Redhat, Autozone and
DC. Admit guilt on all points, distribute the remaining money to the victims,
and have all settlements be public. (Hazy on these details, but that's about the
gist of it.) A requirement for 5). is of course that post-settlement, none of
the original crooks can gain a penny from SCOX or any sister/mother/child
company of SCOX.
[ Reply to This | # ]
|
| |
| Authored by: Christian on Friday, February 18 2005 @ 06:33 PM EST |
| Ms. Davis says "those agreements were designed and intended to protect
AT&T's valuable intellectual property rights in UNIX with strict contractual
protections."
This is inconsistent with SCO's theory of the case. She does
not say that the contract created a new class of rights. She says the
agreements were to protect intellectual property rights. The only
relevent rights that the contracts could be protecting (as opposed to creating)
are copyright and trade secret. So we can paraphrase her statement as "those
agreements were designed and intended to protect AT&T's valuable copyrights
and trade secrets with strict contractual protections."
Davis's statement of
the purpose of the agreements gives us no reason to think that the contract
restricts any actions by IBM that don't involve the copyrights or trade secrets
that belonged to AT&T.
This is of course what anyone but Darl McBride
would have said in the first place. [ Reply to This | # ]
|
|
|
|
|
