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The Declaration of Kenneth Brakebill - exhibits re the 4 new Novell SJ motions
Thursday, April 26 2007 @ 09:25 AM EDT

Now we learn that Darl McBride has been deposed by Novell as recently as March 27, 2007. It's listed as an exhibit, one of 63 exhibits offered in support of Novell's four new summary judgment motions, in the Declaration of Kenneth Brakebill [PDF].

Unfortunately, the exhibits have all been filed at the courthouse in paper form. So patience, grasshoppers.

Some of the exhibits are filed under seal also. Like Eric Raymond and Rob Landley's "OSI Position Paper on the SCO v. IBM Complaint" dated March 15, 2003, "as produced by a third party in the SCO v. IBM litigation". No. I am not kidding. On that exhibit, I believe we may have a geek workaround. I'd tell you how I found it, but then I'd have to kill you. Me or Google. They might make an exception on that do no evil thing.

Nah. Google is your friend. Wait. I know what the explanation might be, other than the obvious, that it's a mistake. How about this? The March 15, 2003 version, the first draft, had some sooper sekrit writings in lemon juice, and somebody captured it off the screen before the words disappeared, and that's what is in the sealed exhibit. No? Seriously, it is possible the "third party" wrote some things on the copy and wouldn't want us to read what was written. Like, "Darl, take a look at this! It proves you have no case. Can you just pretend for as long as possible or at least until we find an idiot willing to sign a patent peace agreement with us? - Hugs and kisses. billg." Kidding. Relax.

Many of the exhibits listed we have already, like the APA. I'll gradually put in the links. Or hey, how about you guys do it and post the links and I'll just copy and paste?

But there are other exhibits I would pay money to see. Like the email Chris Sontag sent somebody the very day he was deposed by Novell. Before? Or after? To whom? About what? I am dying to know. How I wish this morning that I actually were a committee of IBM and Novell lawyers, so I could read that thing. And Jeff Hunsaker seems to have been a communicative busy bee, but all his emails are under seal too. We'll get what we can.

Here are the exhibits:

1: Second Amended Complaint [PDF][Text]
2. Asset Purchase Agreement [PDF] [Text]
3. Schedule 1.1(a) to the APA [PDF] [Text]
4. Schedule 1.1(b) to the APA [PDF] [Text]
5. Technology License Agreement [Text from SEC website]
6. SCO's August 2, 2000 press release [Text]
7. SCO's February 9, 2001 press release [Text from SEC website
8. SCO's May 7, 2001 press release [Text from LWN
9. SCO's 10Q for the quarter ending April 30, 2003 (excerpts) [Text from SEC website]
10. The Joint Proxy Statement and Prospectus of the Santa Cruz Operation and Caldera Systems, Inc. issued on March 26, 2001 (excerpts) [Text from SEC website]
11. Caldera' Form S-4 filed with the SEC on March 26, 2001 [Text from SEC website]
12. Declaration of Steven M. Sabbath, dated December 22, 2003 [PDF]
13. Tarantella's Form 10K for the fiscal year ended September 30, 2001 [Text from SEC website]
14. Memo titled "The Caldera Connection" dated October 31, 2000 (sealed)
15. Declaration of William M. Broderick in Support of SCO's Memorandum in Opposition to IBM's Motion to Compel Production of Documents on SCO's Privilege Log dated October 21, 2005 [PDF - page 14 of PDF] [Text]
16. Excerpts of the transcript of Darl McBride's deposition in the SCO v. IBM litigation on December 2, 2005.
17. Excerpts of the deposition of Kim Madsen taken on February 13, 2007 [PDF]
18. Santa Cruz Operation's 10K for the quarter ending September 30, 1994 (excerpts)
19. Letter from Novell to SCO dated October 7, 2003 [PDF from Novell website] [Text]
20. Letter from SCO to Novell dated October 9, 2003 [PDF from Novell website][Text]
21. Excerpts from the deposition of Robert Frankenberg taken on February 10, 2007
22. Operating Agreement signed by Novell and Santa Cruz Operation operative on December 6, 1995 [PDF]
23. Declaration of Michael J. DeFazio from SCO v. IBM, dated October 3, 2003 [PDF] [Text]
24. Letter from Brobeck, Phleger & Harrison to Novell Board of Directors dated December 6, 1995 (sealed)
25. Excerpts from the Burt Levine deposition taken on March 23, 2007
26. Amendment 1 to the APA [PDF] [Text]
27. Bill of Sale dated December 6, 1995 [PDF] [Text]
28. Amendment 2 to the APA [Text from SEC website]
29. SCO'S 10K for the fiscal year ending on October 31, 2006 [Text from SEC website]
30. Email from Jeff Hunsaker, dated December 3, 2002 (sealed)
31. Excerpts of the Jeff Hunsaker deposition taken on March 30, 2007 (sealed)
32. Email from Geoff Seabrook, dated January 13, 2003 (sealed)
33. Excerpts from the deposition of Alok Mohan taken February 23, 2007
34. Email from Jeff Hunsaker dated January 28, 2003 (marked as Exhibit 248 from his March 30, 2007 deposition) (sealed)
35. Email from Chris Sontag dated March 14, 2007 (marked as Exhibit 91 from the March 14, 2007 deposition) (sealed)
36. Excerpts from Chris Sontag's March 14, 2007 deposition
37. Gartner Research Note, "SCO's Suit Against IBM: An Update and Recommendations" from George Weiss dated April 27, 2005 (sealed)
38. Gartner Research Note, "What to Do During SCO's Protracted Lawsuit Against Linux" from George Weiss dated March 23, 2004
39. Email from Blake Stowell dated August 12, 2003 (sealed)
40. TechNewsWorld July 29, 2003 press release
41. OSI Position Paper on the SCO v. IBM Complaint from Eric Raymond and Rob Landley dated March 15, 2003 "as produced by a third party in the SCO v. IBM litigation") (sealed)
42. Email from Blake Stowell, dated May 21, 2003 and marked as exhibit 252 from the March 30, 2007 deposition of Jeff Hunsaker (sealed)
43. Email from Jeff Hunsaker dated August 5, 2003 and marked as exhibit 253 from Jeff Hunsaker's March 30, 2007 deposition (sealed)
44. Email from Jeff Hunsaker dated December 11, 2003 and marked as exhibit 1229 during Michael Olson's March 3, 2006 deposition (sealed)
45. Excerpts from the deposition of Michael Olson, taken in the SCO v. IBM litigation on March 3, 2006
46. Collection of charts produced by SCO
47. Email from Craig Bushman dated April 21, 2004 (sealed)
48. Letter from Gavin Roy to Philip Langer, dated January 21, 2004 (sealed)
49. Letter from McCoy Smith to Darl McBride dated June 12, 2003 (sealed)
50. Letter from Sylvia Khatcherian to Gregory Pettit dated March 24, 2004 (sealed)
51. Email from Gregory Pettit dated April 14, 2004 (sealed)
52. Letter from Patricia Romain to Gregory Pettit dated May 21, 2004 (sealed)
53. Letters from various third parties to SCO concerning SCO's "licensing" campaign against Linux users (sealed)
54. Press release "SCO Announces Availability of SCO IP License" [Text from Archive.org]
55. Pricing of SCO IP License for Linux Servers (sealed)
56. SCO Internal Product Announcement "SCO IP Compliance Program for Linux End Users" (sealed)
57. Excerpts from Novell's 3rd Set of Interrogatories to the SCO Group taken on September 29, 2006
58. Excerpts of SCO's Responses and Objections to Novell's 2nd and 3rd Sets of Interrogatories in the form that SCO produced to Novell on December 28, 2006
59. Email from Ted Normand to Kenneth Brakebill dated March 19, 2007
60. SCO's Responses to Novell's Interrogatory No. 15 produced by SCO to Novell on April 6, 2007.
61. Letter from Brakebill to Normand dated March 5, 2007
62. Email from Sashi Bach Boruchow to Brakebill dated April 17, 2007
63. Excerpts from the deposition of Darl McBride taken in the Novell litigation on March 27, 2007


  


The Declaration of Kenneth Brakebill - exhibits re the 4 new Novell SJ motions | 301 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: feldegast on Thursday, April 26 2007 @ 09:39 AM EDT
So they can be fixed

---
IANAL
My posts are ©2004-2007 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Off Topic
Authored by: MDT on Thursday, April 26 2007 @ 09:40 AM EDT
Clicky if you got it

---
MDT

[ Reply to This | # ]

OSI Position Paper on the SCO v. IBM Complaint
Authored by: Winter on Thursday, April 26 2007 @ 10:13 AM EDT
Can GL not get into trouble with publishing a sealed public document? ;-)

Browsing through the paper, it is shocking to see again how early in the case (4
uears ago!) it was clear the whole suit was a fraud.

We can also compliment all the other legal systems that threw out SCOs claims in
a few months.

Rob

---
Some say the sun rises in the east, some say it rises in the west; the truth
lies probably somewhere in between.

[ Reply to This | # ]

The Links for PJ thread
Authored by: T.H. on Thursday, April 26 2007 @ 10:25 AM EDT
Here we can post the links, for PJ to copy/paste. Is this format OK?

2. Asset Purchase Agreement [pdf] [Text]

[ Reply to This | # ]

I like the use of "SCO/Caldera"
Authored by: vb on Thursday, April 26 2007 @ 10:31 AM EDT

I like that the OSI paper uses the term "SCO/Caldera" to identify the
SCO Group. I wish that IBM had adopted that terminology.

Instead IBM falls into the SCO name trap and uses a mix of "SCO",
"SCO Group", "Santa Cruz", etc. When trying to unsort the
tangle of the SCO Group and the Santa Cruz Operation (SCO) names.

I think that the name "Caldera" should not fade away, as the SCO Group
would like. Using "SCO/Caldera" really nails it down.

[ Reply to This | # ]

Filing under seal is natural
Authored by: Anonymous on Thursday, April 26 2007 @ 10:45 AM EDT
This was probably filed under seal because some documents from SCO v. IBM need
to be, and they didn't want to bother checking which documents are confidential
and which aren't. Simply cheaper.

[ Reply to This | # ]

Exhibit 37
Authored by: pajamian on Thursday, April 26 2007 @ 10:48 AM EDT

37. Gartner Research Note, "SCO's Suit Against IBM: An Update and Recommendations" from George Weiss dated April 27, 2005 (sealed)

That seems to be incorrectly sealed as well. It is available for a fee of $95 USD from the Gartner.com archives.

Not sure if this direct link to the purchase page will work or not: SCO's Suit Against IBM: An Update and Recommendations

---
Windows is a bonfire, Linux is the sun. Linux only looks smaller if you lack perspective.

[ Reply to This | # ]

Relationship Between PSJs in SCO vs. IBM and SCO vs. Novell
Authored by: mwexler on Thursday, April 26 2007 @ 01:05 PM EDT
If the judge rules on who owns the copyrights to Unix in the SCO vs. Novell
case, can that be used to settle many of the summary judgment issues in the IBM
case?

Or do the summary judgment issues related to copyright need to be addressed
separately for each case because they have different evidence on the record,
etc?

If the decision on the summary judgments in Novell can be used in IBM, might the
judge be planning on doing Novell first, because once the copyright issues are
determined there, many of the issues in the IBM case will just "fall
out?"

[ Reply to This | # ]

Letters to Linux Users and Yarrors Law
Authored by: Anonymous on Thursday, April 26 2007 @ 02:24 PM EDT
Lets say a letter was sent from SCO to a user of Linux who operated in Utah. Let
us also say that this user had a relationship with IBM. This is likely to have
occured given the size of both sets.

Could IBM then sue SCO under Yarros law?

Especially if SCO's case is bogus.

[ Reply to This | # ]

Chris Sontag's e-mail
Authored by: Anonymous on Thursday, April 26 2007 @ 03:05 PM EDT
I wonder if the deposition exceprts might reveal some probable subjects for that
sealed e-mail:

36. Excerpts from Chris Sontag's March 14, 2007 deposition

The deposition excerpts are not sealed.

[ Reply to This | # ]

Filings under seal
Authored by: Anonymous on Thursday, April 26 2007 @ 04:38 PM EDT
You know, I thought this back when they produced the attachments of Groklaw. I
thought it would have been really funny if they had filed those pages of Groklaw
"under seal".

Well, I guess that has come true. Perhaps SCOG/Caldera should file the
dictionary "under seal" and say they own the copyright on the
dictionary and thus every book ever written.

[ Reply to This | # ]

Regarding Second Amended complaint - NeXT anyone
Authored by: Anonymous on Thursday, April 26 2007 @ 04:44 PM EDT
Quoting from the Second Amended complaint:

"49. From and after September 1995, SCO dedicated significant amounts of funding and a large number of UNIX software engineers, many of whom were original AT&T UNIX software engineers, to upgrade UnixWare for high- performance computing on Intel processors.

50. By approximately 1998, SCO had completed the majority of this task. That is to say, UnixWare had largely been modified, tested and "enterprise hardened" to use Intel-based processors in competition against IBM and Power PC chips, the Sun SPARC chip and all other high-performance computing UNIX platforms for all complex computing demands."

They seem to have left NeXT computers out of the equation. Using BSD Unix, NeXT engineers had ported Unix running atop a Mach Kernel. By 1993 NeXT was already porting this BSD based UNIX OS to MIPSD, PA-RISC, SPARC, and x86. This became OpenStep and ran on standard PC hardware. See A Brief History of NeXT.

SCO seems to have seletive memory or a highly selective view of computing history.

I appologize for any understatement.

Davdf

[ Reply to This | # ]

SCOX dropping like a rock
Authored by: Anonymous on Thursday, April 26 2007 @ 05:06 PM EDT
It looks like SCOX is dropping like a rock. Wonder if someone heard something. At 2pm this afternoon it just seemed to sink like a stone. http://finance.google.com/financ e?q=SCOX

[ Reply to This | # ]

The Declaration of Kenneth Brakebill - exhibits re the 4 new Novell SJ motions
Authored by: Anonymous on Thursday, April 26 2007 @ 06:46 PM EDT
The legal system has to be transparent in order to be accepted as fair.
Considering this need, shouldn't there be sanctions for filing public documents
under seal (thus obscuring the process)? Even assuming this particular copy
includes pertinent private notes, couldn't a redacted version be filed?

[ Reply to This | # ]

The Declaration of Kenneth Brakebill - exhibits re the 4 new Novell SJ motions
Authored by: dmarker on Thursday, April 26 2007 @ 08:40 PM EDT
A man I can understand. In another life & back in the late 1960s I was
trained as a System/360 Hardware CE at IBM. The Selectric typwriter was
initially used as the console on the early 360 family. We had to learn how to
service them. My cousin went into the Office Products div & was trained to
service just IBM typewriters - those OPCE guys knew them far better than we DPCE
guys.

Nice story (these days I am an IT Enterprise Architect spoecializing in SOA :)
)

DSM

[ Reply to This | # ]

Why sealed?
Authored by: reuben on Thursday, April 26 2007 @ 08:53 PM EDT
Since the OSI position paper was produced by a third
party, it may have been covered by a general agreement to
keep documents from that party under seal. If they
subpoena a third party and ask them for a general class of
documents, with a protective order, some of the responsive
documents might be things that are also publicly
available.

[ Reply to This | # ]

My Favorite Quote of the Day
Authored by: bstone on Friday, April 27 2007 @ 01:48 AM EDT

From Exhibit 20 -- Letter from Darl to Jack Messman, Novell CEO

Similar to analogous efforts underway in the music industry, we are prepared to take all actions necessary to stop the ongoing violation of our intellectual property or other rights.

And I wish the RIAA the same luck with their efforts as tSCOg is having with theirs. Of course, Darl missed an important part of the RIAA strategy. It might have worked out better if he went after kids and grandmothers instead of IBM and Novell.

And Messman's reply:

In the future, we hope SCO will adhere to standards of strict accuracy when stating its rights in UNIX.

Well, I guess we can't hope for that, but perhaps in the near future, Darl and company will be wishing they had listened to that request.

[ Reply to This | # ]

Addendum A
Authored by: Anonymous on Friday, April 27 2007 @ 08:24 AM EDT
IMHO the A exhibit is one document that all software engineers should read and
all people involved with the RIAA.

On that bases I posted a link to the article on three BB, one the local Linux
sig group, one of the OpenSuSE groups – there are a number of these groups, and
the OpenOffice group.

The first response on the OpenOffice group was most enlightening. Wish I had
keep the posting; I did not. It was a short one which lambasted IBM for stealing
SCO intellectual property wishing complete and utter failure to IBM.

One would normal be inclined to dismiss this person as a TROLL but on reflection
I think not. A TROLL if one recall was a hobbit that lived in a cave running out
to attack passers by with utter nonsense. While the nonsense was there the
attack was not so a TROLL it was not since this was being done under the
aspirations of so called enlightenment. That so called enlightenment is what is
bothering me. If there is an individual on an OpenOffice form that believes that
IBM is the bad guy SCO the good guys then one can almost be assuredly assume
that there are thousands or missions of other computer users with equivalent
opinions that are not enlightened enough to even understand that there is
excellent open source software for free (as in money) as a replacement to MS
Office and does not even take into consideration the millions that are of the
opinion that there is only one computer operating system which is of course is
manufactured by MS. To me that one posting explained volumes of why IBM and
Novel MUST drive SCO completely and totally in to OBVIOUS TO THE WORLD oblivion.
The knowledge of what MS is and what their attempts at world totalitarian
domination of information MUST be made obvious to the world not just to a group
of computer geeks.

[ Reply to This | # ]

OSI Position Paper is a must read
Authored by: GLJason on Friday, April 27 2007 @ 01:30 PM EDT
The OSI position paper is a must-read. People familiar with Unix operating system and history, as well as open source development and its history show clearly and concisely how SCO's statements misrepresent the facts. This is one of my favorite quotes:
If Darl McBride and complainants did not know at the time of the complaint that Caldera itself had played a lead role in the very development they accuse IBM of having unfairly and unlawfully pursued, they are incompetent. If they did know, their complaint appears to verge closely upon perjury.

They point out that SCO's Unix versions aren't "enterprise hardened", their market share makes them a nobody in the enterprise market (even if you count installations on single-processor boxes at McDonalds as "enterprise") and Linux had more or better enterprise features than either OpenServer or UnixWare, and earlier...

32-processor SMP was already implemented under Linux in 2000.[19] 24-processor operation, three times the 8-processor limit of UnixWare, was demonstrated in 1998 on a Sun E10000[20].

[ Reply to This | # ]

Federal Rule 11
Authored by: GLJason on Friday, April 27 2007 @ 02:00 PM EDT
Quote from the OSI position paper:
We further suggest that SCO's complaint is knowingly deceptive to a degree that recommends sanctions under the Utah and Federal Rule 11 of Civil Procedure.

[ Reply to This | # ]

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