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More Delays Requested by SCO and Martin Pfeffer's Declaration
Tuesday, September 14 2004 @ 06:08 AM EDT

So many documents are showing up in this frantic motion practice SCO and IBM are embroiled in, it's hard to even read them all, let alone write about them. But I think we may summarize them like this: SCO would like more time before it has to walk the plank.

And an old AT&T attorney, Martin Pfeffer, who claims no direct involvement with the IBM contract that I can see in a quick reading of his statement, says some things that don't apply to IBM at all.

I gather SCO would like to bury the judges in documents so they will be forced to grant delays just to be able to read them all in time. If it was confident at all that it could prevail on any of IBM's motions, I believe none of this would be happening. They may well get some delay from this strategic blizzard of paper, unless it annoys the judge as much as it does me, but it won't change the eventual outcome at all, from anything I've seen so far, including the Pfeffer testimony. They're like a condemned man, asking at the last minute for a dish that takes three days to prepare as his last meal. Even if his request is granted, he's still going to die. So, if they do get a delay, don't be amazed. They've certainly worked hard enough for one, and the judge may not know them as well as we do. A lot depends on understanding the tech. If the judge gets it, it helps to see through what would other wise sound plausible.

It's kind of like at the beginning. Remember how the media would print every bit of SCO's outrageous claims, as if they were received from heaven on stone? We knew what SCO was saying about Linux would not prove true, didn't we? And how did we know? Because some of us understood the tech and we all understood the GPL. Do you see the media still eating up SCO's every claim? No. They got educated. It's the same in the court cases. It may take time, and it can prove frustrating if you like instant results. But it is an inexorable process, and it will happen with the judges, just as it did with the journalists. And they can take their time, I reckon, getting up to speed, what with all the delays SCO keeps asking for. But judges are not stupid. They will see the SCO pattern, if they don't already. How many delays can SCO ask for before they see what is happening? I don't know. But they will see it eventually, without a doubt. It's also true that many judges tend to bend over backward to be fair to the side they know is going to lose. Really. So, if they get more delay, they get more delay, but the process is moving forward like a tank.

It's all SCO here, except for IBM's normal reply memorandum on the motion to strike and one request -- to be allowed to file a response to SCO's Supplemental Memorandum re: Discovery and to Continue Hearing. As you recall, Judge Wells told them that after SCO's filed this document, anything further could only be brought up at the hearing. However, it seems SCO took advantage of that to raise new issues, and IBM asks for time to get declarations in response.

Here they all are. Read them and weep. I feel like crying just looking at them all, thinking about transcribing and doing all this HTML. If you can help, please do, leaving a comment on which one you are working on, so we don't overlap:

#272 - SCO's ex parte motion for leave to file overlength memorandum re: SCO's Opposition to IBM's Motion to Strike Materials

#273 - SCO's Supplemental Declaration of Christopher Sontag in Support of SCO's Oppositon to IBM's Motion to Strike

#274 - SCO's Supplemental Declaration of Sandeep Gupta re SCO's Opposition to IBM's Motion to Strike

#275 - SCO's Supplemental Declaration of John Harrop in Support of SCO's Opposition to IBM's Motion to Strike

#276 - IBM's [redacted] Reply to response to [212] Motion to Strike the 7/12/2004 Declaration of Christopher Sontag

#277 - SCO's Motion to extend time to file response to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims and IBM's Motion for Partial Summary Judgment on it's Counterclaim for Copyright Infringement (Eighth Counterclaim)

#278 - Declaration of Martin Pfeffer

#279 - SCO's Memorandum in Support of [277] Motion to Extend Time to File Response to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims and IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (Eighth Counterclaim)

#281 - SCO's Expedited Motion to Enforce the Court's Amended Scheduling Order Dated June 10, 2004

#282 - SCO's ex parte motion for leave to file overlength memorandum in Support of [281] SCO's Expedited Motion to Enforce Scheduling Order

#283 - IBM's ex parte motion for leave to file a Response to SCO's Supplemental Memorandum re: Discovery and to Continue Hearing Date

Getting back to Pfeffer, he says this:

".. I know that this language [in 2.01] set forth the parties' intent and agreement that the 'SOFTWARE PRODUCT' licensed and protected under the terms of the license agreements included the full content of all of the 'resulting materials' created over time from the licensees' exercise of their contractual 'right to modify' and 'to preparte derivative works' based on the original licensed material, including the UNIX source code and all of the proprietary information reflected or embodied therein. Accordingly, under Section 2.01, if a licensee created a modification or derivative work based on the original licensed product, then the agreement treated the 'resulting' work as if it had been part of the original SOFTWARE PRODUCT, and any further modifications or derivatives of that 'resulting' work would be treated in the same manner."[emphasis added]

The code SCO is complaining about IBM putting into Linux isn't "based on the original licensed product", which is why, as IBM pointed out, SCO advertised the presence of such high-end code as being IBM's code in their Linux product. Everything else Pfeffer says is subject to this same flaw. Nobody is arguing about whether code that contains System V code in it would be subject to control. But SCO is claiming any code that ever touched its code, like some kind of black hole that sucks in anything that floats near. Here is how IBM described SCO's unreasonable claims in its Redacted Memorandum in Support of IBM's Motion for Partial Summary Judgment on Breach of Contract Claims:

"SCO's interpretation of the Software Agreements in this case would plainly produce an absurd and commercially unreasonable result. As set forth above (at ¶¶ 62-63), under SCO's interpretation of the Software Agreements, SCO has the right to control every single one of the tens of millions of lines of code that have ever been put into (and that will ever be put into) AIX or Dynix by IBM. This interpretation would allow SCO to co-opt decades of IBM's work in developing and improving AIX and Dynix—by continually adding new capabilities and functionalities—simply because those programs contain, or even once contained, some source code, no matter how negligible, from UNIX System V. SCO's interpretation would also mean that SCO has the right to control code that was written by third parties and licensed to IBM, even if such third parties have no relationship at all with SCO. According to SCO, just because a third party licenses code—that it expended its own resources developing—to IBM, and IBM includes such code in AIX or Dynix, SCO gets to dictate forever after the use and disclosure of that third party's code by IBM. That is plainly unreasonable.

"Indeed, under SCO's theory, it has the right to control the work of the hundreds of UNIX System V licensees who at any time used some source code from UNIX System V in one of its own computer programs. This would mean that SCO has the right to control, for example, all of the source code for all of the different functionalities in Hewlett Packard's HP-UX operating system and SGI's IRIX operating system, among others.

"The absurdity of SCO's interpretation of the contract is exposed by SCO's very own analogy set forth above (at ¶¶ 125-26): SCO claims to have acquired the rights to the computer program UNIX System V, represented here as A-B-C-D-E-F. Assume that IBM has written a program, such as AIX or Dynix, which contains tens of millions of lines of source code, including certain lines from UNIX System V (less than a hundred thousand according to SCO), A-B-C, but also includes the new source code G-H-I-J-K-L-M-N-O-P-Q-R-S-T-U-V-W-X-Y-Z written by or for IBM. Under SCO's interpretation of the software agreements, because the A-B- C code is present in IBM's program, which (SCO says) might be considered a modification or a derivative work of UNIX System V (because it contains some small percentage (less than 1%). of UNIX System V code), IBM is prohibited from using its own source code G-H-I-J-K-L-M-N-O- P-Q-R-S-T-U-V-W-X-Y-Z (which is tens of millions of lines of code) in other programs. That is true, according to SCO, even if, for example, the M-N-0 code was written by a third party and licensed to IBM for whatever uses IBM sees fit. This is not consistent with the plain language of the IBM and Sequent Software Agreements and is entirely unreasonable. Since the G-H-I-J-K-L- M-N-O-P-Q-R-S-T-U-V-W-X-Y-Z code does not include any A-B-C code, IBM (and others like it that also licensed the A-B-C code) should not be restricted from using and disclosing its own code as it chooses.

"For a more concrete example, consider the following. The Encyclopedia Brittanica Company writes and publishes a multi-volume encyclopedia, consisting of thousands of entries and lines of text, that is issued in a different edition annually, i.e., as 'Encyclopedia Brittanica 1985'. Assume that another company, the New Encyclopedia Company, copies certain of the entries from Encyclopedia Brittanica 1985 under a license similar to the ones IBM and Sequent entered into with AT&T—for example all the entries starting with the letters A, B and C—and incorporates those entries into its own multi-volume encyclopedia, 'New Encyclopedia 1986'. Under SCO's interpretation of the licenses, the Encyclopedia Brittanica Company has the right to control not just the New Encyclopedia Company's use and disclosure of the entries copied from Encyclopedia Brittanica 1985, but all of the entries in the New Encyclopedia 1986, even the thousands of entries written by the New Encyclopedia Company's own employees starting with the letters D through Z, and even if those entries had been written before New Encyclopedia Company copied any entries from Encyclopedia Brittanica. Moreover, as SCO reads the contract, if the New Encyclopedia Company licensed from the Scholastic Encyclopedia Company entries written by that company for the letter Z, the Encyclopedia Brittanica Company would have the right to control those entries also. Indeed, under SCO's interpretation of the licenses, the Encyclopedia Brittanica Company would have the right to control all entries that will ever be included by the New Encyclopedia Company in future versions of the New Encyclopedia, such as New Encyclopedia 1987, New Encyclopedia 2004 or even New Encyclopedia 2085.

"SCO's interpretation of the software agreements is plainly untenable and would, without question, produce an absurd result. It is entirely unreasonable to interpret AT&T's UNIX System V licenses to restrict hundreds of companies, all of whom are SCO's actual or potential competitors in the software industry, from using and disclosing source code that they developed on their own. See Elsky v. Hearst Corp., 648 N.Y.S.2d 592, 593 (N.Y. App. Div. 1996) (holding that contract should not be interpreted to lead to a 'commercially unreasonable restriction').

Pfeffer also testifies that he can't remember IBM ever asking for clarification or new terms. Maybe that's because he wasn't assigned to the IBM account and wasn't involved in the contract negotiations? Here is the AT&T account representative, Steven Vuksanovich, who participated in the negotiation of the IBM Software Agreement on AT&T's behalf:

"As IBM 'was particularly interested in clarifying that it owned the code that it developed, even if it was meshed with UNIX System V', AT&T provided written clarification to IBM in the Side Letter. (Vuksanovich Decl. ¶ 16.)

"This clarification did not, however, represent a substantive change to the standard software agreement. We were only trying to make more clear what we thought our standard software agreement meant in the first place. AT&T never intended to assert ownership or control over IBM's modifications or derivative works, except to the extent of the UNIX System V source code included in such modifications or derivative works."

Pfeffer's testimony is supposed to be enough to present a fact in dispute (and probably to separate Sequent out for the kill). It's up to the judge, of course, but if Pfeffer wasn't directly involved in the negotiations, and everyone who was tells a different story than he does....

One more thing. About those allegedly "conflicting" statements by IBM's witnesses. First, I don't see any real contradictions that matter, but in any case, SCO has made a mistake. The BSDi case was not about Unix System V. Therefore, it seems to me they are comparing apples and oranges. They made what seems to be another mistake -- they admit that the IBM contract is unambiguous. In that case, IBM doesn't need any witnesses to explain the contract, and it's just up to the judge to decide what it means. As for their "mental contamination" assertions, a Groklaw reader found this document, BSDi's Opposition To USL's Motion For Preliminary Injunction, from the BSDi case, which is directly pertinent to any such claim. SCO seems always to forget that USL fared very badly in that case, using the same arguments SCO is trotting out here.

I'll write separately about their GPL arguments, but suffice it to say that if they had attended my GPL Summer School remedial course two summers ago, I'd have given them an F. Maybe I'd have thrown in a character-building lecture on the importance of respecting other people's property, too, and the story about George Washington and the cherry tree.

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