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Deposition of Otis L. Wilson - PDF and text
Thursday, September 30 2004 @ 11:37 PM EDT

Here's the deposition of Otis L. Wilson, or the part IBM has attached as an exhibit to the sealed Declaration of Todd Shaughnessy (see #227 on Legal Docs page, exhibits being 228) in support of IBM's Motion for Partial Summary Judgment on Breach of Contract Claims.

This deposition is simply devastating to SCO's contract claims, indeed to their entire theory of the case. Mr. Wilson worked for AT&T, so he is ostensibly representing SCO's side, as they claim to be AT&T's successor-in-interest, yet Mr. Wilson in no way supports their position. He clearly states on page 53 that his understanding of the contract between IBM and AT&T was that "we did not intend to exercise any control or restriction on those products that did not contain portions of the software products." Further, Mr. Wilson states with respect to methods and concepts that this phrase was removed from IBM's contract, and AT&T did not seek to enforce rights to methods and concepts of UNIX. If the judge finds this testimony credible, then all SCO's begging for more code to try to find derivative, nonliteral copying or methods and concepts to try to prove a breach of the contract would seem to be pointless. Even if they could find it, it wouldn't be theirs to claim.

It will give you a real feel for what a deposition is like. Here is another scan, slightly different resolution. They are both a bit hard to read, so our thanks to Dr Stupid for the text transcript. This is a paper document, which has been scanned in, and it was in a binder, so it was difficult to avoid some cutoff. But you'll get the idea. Also, in the deposition, they ask Mr. Wilson to read certain portions of the Declaration of Otis L. Wilson, April 26, 2004 into the record.

You likely will be asking why the attorney, Mr. Gant, keeps objecting over and over to questions that IBM's attorney, David Marriott, asks. So I asked AllParadox, our resident retired attorney, if he would please explain. Because of the length of the deposition, I've given his explanation its own page, and you can find it here, if you are curious.

SCO is putting a great deal of hope in David Boies' skill in front of a jury, and indeed he is skillful. But note David Marriott's skill on his feet, when he is reading from paragraph 16 of Mr. Wilson's declaration, and says IBM instead of AT&T by mistake. It's on page 57 and 58. The other attorney leaps on the slip of the tongue, and tries to make something of it. Note Mr. Marriott, without missing a beat, cleverly bats him down definitively:

MARRIOTT: "I understood that many of our licensees invested substantial amounts of time, effort and creativity in developing products based on UNIX System V. The derivative works provision of the software agreement was not meant to appropriate for IBM" -- "was not meant to appropriate for AT&T," rather, "or USL the technology developed by our licensees." Is that -

MR. GANT: Where is Dr. Freud when we need him?

MR. MARRIOTT: Dead."

I also enjoyed page 77, where the other side tries to get him to stipulate to something. Personally, I seriously question if this case will ever reach a jury, but if it does, I believe we can see from this deposition that Marriott can more than hold his own.

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

Page 42

Q. Does that accurately describe your employment at AT&T?

A. Yes.

MR. GANT: Objection. Compound, vague.

THE WITNESS: Yes, it does.

BY MR. MARRIOTT:

Q. In paragraph five you state that, "During the period from 1980 to 1991 AT&T and USL licensed UNIX source code, including UNIX System V source code, to hundreds of licensees. Nearly every UNIX license agreement executed by AT&T" -- well, withdrawn.

In paragraph five you state, "During the period from 1980 to 1991 AT&T and USL licensed UNIX source code, including UNIX System V source code, to hundreds of licensees. Nearly every UNIX license agreement executed by AT&T during this period was signed by me or on my behalf by people that reported to me." Is that an accurate statement, Mr. Wilson?

MR. GANT: Same objections.

THE WITNESS: Yes, it is.

Q. And how is it that you know that to be an accurate statement, Mr. Wilson?

MR. GANT: Same objection. Vague.


Page 43

THE WITNESS: The organization responsible for this, the licensing of software, was one I was a part of, and I was there at the -- the inception. So I know all of the agreements concerning the software products actually came through my organization.

BY MR. MARRIOTT:

Q. Would you read, please, paragraph six into the record?

A. "The UNIX System V source code license agreements generally included a number of standard form agreements with each license. The standard software agreement granted the licensee the right to use and modify the source code for its own internal business purposes.

"In addition, many licensees were parties to sublicensing agreements, which granted licensee the right to furnish sublicensed products based on UNIX System V to customers in object code format.

"A substitution agreement provided that the software agreement, and, if applicable, the sublicensing agreement, replaced earlier agreements relating to UNIX System V software."

Q. Are you sure that's true, Mr. Wilson?


Page 44

MR. GANT: Objection. Compund, vague, leading, foundation.

THE WITNESS: Yes.

BY MR. MARRIOTT:

Q. In paragraph seven you state that you are familiar with licensing agreements between AT&T Technologies, Inc. and IBM, which you say were negotiated under your supervision while you were head of AT&T's licensing group. Is that an accurate statement?

MR. GANT: Same objections.

THE WITNESS: Yes, it is.

BY MR. MARRIOTT:

Q. Who's David Frasure, Mr. Wilson?

A. David Frasure was one of the negotiators in our organization that reported -- whom I supervised.

Q. Okay. And during what period of time did Mr. Frasure report to you?

A. Oh.

Q. Withdrawn. Over what period of time roughly did Mr. Frasure report to you?

A. About six years. The period -- I'm trying to -- the period from about '84 to '91, I would . . .


Page 45

A. . . . think.

MR. GANT: I couldn't hear the end of your answer.

THE WITNESS: '84 to '91. I'm not exactly sure exactly the period, but he was -- he was there for a good six years, I guess.

BY MR. MARRIOTT:

Q. And how did Mr. Frasure come to work for you at AT&T?

A. I actually recruited Dave Frasure for one of the other organizations within Western Electric at the time.

Q. Why did you do that, Mr. Wilson?

A. Personal knowledge of his work and the -- his expertise with the software and - and through the interview process.

Q. In paragraph eight you state that you were familiar with licensing agreements between AT&T Technologies and Sequent Computer Systems, which you say were also supervised under your supervision; is that correct?

MR. GANT: Objection. Vague, compound, foundation.

THE WITNESS: Yes, it is.

BY MR. MARRIOTT:


Page 46

Q. And did you, as stated in - in paragraph eight, sign those agreements on behalf of AT&T, Mr. Wilson?

A. Yes, I did.

MR. GANT: Same -- same objections. Excuse me.

THE WITNESS: Excuse me. Yes, I did.

BY MR. MARRIOTT:

Q. And is it, in fact, your understanding that Sequent has now been acquired by and merged into IBM?

A. Yes.

Q. You need to speak audibly.

A. Yes. No, I was waiting -

MR. GANT: I appreciate it. Thank you. Contrary to Mr. Marriott's suggestion, I'm not going to object to every question, only objectionable questions.

BY MR. MARRIOTT:

Q. Take a look, if you would, Mr. Wilson, to paragraph nine. Would you read that for me, please, into the record?

A. "As a result of my role as head of the . . .


Page 47

. . . group responsible for negotiating the IBM agreements and the Sequent agreements and hundreds of other UNIX System V licensing agreements, I have a thorough understanding of these agreements and what the parties intended" -- "intended them to accomplish."

Q. Why did you say that in your declaration, Mr. Wilson?

A. That's -- that's a statement of fact. It's -- it's what I believe.

Q. Let me direct your attention, if I may, to paragraph ten of your declaration. There you state that from 1983 until 1991, while you were responsible for licensing UNIX System V for AT&T and USL, your group licensed UNIX System V source code and related materials to a large number of licensees around the world. Is that an accurate statement of your activities during the period from 1983 to 1991?

MR. GANT: Objection. Leading, compund, vague, foundation.

THE WITNESS: Yes, it is.

BY MR. MARRIOTT:

Q. Would you read paragraph 11 into the record for me, please?


Page 48

A. "The standard software agreement that was used to license UNIX System V source code and materials sets forth the various rights given to licensees and the restrictions imposed [on] the licensees with respect to such materials, which were called the," quote, "software product or software products in the agreement."

Q. To the best of your understanding, Mr. Wilson, is there anything inaccurate about that statment?

MR. GANT: Same objections and leading.

THE WITNESS: I believe that to be an accurate statement.

(DISCUSSION OFF THE RECORD)

BY MR. MARRIOTT:

Q. Mr. Wilson, may I direct your attention to paragraph 12 of your declaration, dated April 26, 2004?

A. Okay.

Q. Paragraph 12 lists five provisions of what you describe here as the standard early software agreement of AT&T. Are you familar with each of? the provisions listed there?

MR. GANT: Objection. Mischaracterizes the document, vague, foundation, compound.


Page 49

THE WITNESS: Yes, I am.

BY MR. MARRIOTT:

Q. Would you describe -- would you read for me, paragraph 12, Mr. Wilson?

A. "Among the standard provisions in our early software agreements, including the IBM software agreement and the Sequent software agreement, were the following:"

"Section 2.01," colon, "AT&T grants the licensee a personal, nontransferable and nonexclusive right to use in the United States each software product identified in one or more of the supplements hereto, solely for the licensee's own internal business purposes." Starting from "AT&T," to, "business purposes," are in quotes.

"Section 2.05," colon, quotation -- open quotation, "No right is granted by this agreement for the use of software products directly for others or for any use of software products by others," close quotation.

THE WITNESS: Do I need to read all of those?

MR. GANT: You have to ask Mr. Marriot what he wants.

MR. MARRIOTT: Do whatever you're . . .


Page 50

. . . comfortable with, Mr. Wilson.

THE WITNESS: "Section 4.03," colon, open paren. "Licensee agrees that it will not, without the prior written consent of AT&T, export directly or indirectly software products covered by this agreement to any country outside of the United States," close quote.

"Section 7.06," parantheses, little A, colon, open quotation. "Licensee agrees that it shall hold all parts of the software products subject to this agreement in confidence for AT&T," close quotation.

"Section 7.10," colon, open quote. "Except as provided in section 7.06," paren, small B, "nothing in this agreement grants to licensee the right to sell, lease or otherwise transfer or dispose of a software product in whole or in part." Close quote.

Q. Let me just stop you there, if I may, Mr. Wilson, is -- is there anything, to your understanding, inaccurate about what you've read so far from paragraph 12?

MR. GANT: Objection -- objection. Vague, compound, foundation, calls for speculation and legal conclusions.


Page 51 THE WITNESS: No.

BY MR. MARRIOTT:

Q. You made reference in previous testimony to there being a typo in -- in the third bullet point at page five. Could you describe what you meant by that, please?

A. Section -- as indicated in the page five of this document, section -- it references section 4.03. The reference should be to section 4.01. The text that follows is correct, but the reference to the section should be 4.01.

Q. How did that come to your attention, Mr. Wilson?

A. In reading it. Reading -- actually reading -- excuse me. In reading the document.

Q. Would you look, please, at page six and that remaining portion of paragraph 12 of your declaration, which begins, "These provisions"?

A. Uh-huh.

Q. Would you just read that section to yourself and tell me when you've finished, please?

A. Okay.

Q. Is there anything inaccurate about what you've read in the remaining portions of paragraph 12?


Page 52

MR. GANT: Same objections.

THE WITNESS: There is not.

BY MR. MARRIOTT:

Q. There's nothing about that you'd change?

A. (WITNESS SHOOK HEAD FROM SIDE TO SIDE)

Q. Let me direct your attention in particular, Mr. Wilson --

MR. GANT: Was there an answer? I didn't hear it.

MR. MARRIOTT: He said, no.

THE WITNESS: No.

MR. GANT: Okay. Thanks. BY MR. MARRIOTT:

Q. Would you -- direct your attention, please, to that portion of the latter part of paragraph 12 that begins "At least as I understood." Could you read that portion, please, for me into the record?

A. "At least as I understood these sections, and discussed them with our licensees, they do not, and were not intended to, restrict our licensees' rights to use, export, disclose or transfer their own products and source code, as long as they did not use, export, disclose or transfer AT&T's UNIX System V source code along with it. I never . . .


Page 53

. . . understood AT&T's software agreements to place any restriction on our customers' use of their own original work."

Q. What is the basis, Mr. Wilson, of -- of those statements?

MR. GANT: Objection. Vague, compound.

THE WITNESS: The -- the statment goes to -- goes to the heart of the licensing program, from the standpoint that we required our licensees to protect the software products under the -- under the stipulations in the software agreement, and we did not intend to exercise any control or restriction on those products that did not contain portions of the software products.

BY MR. MARRIOTT:

Q. Did AT&T intend to exercise any control over modifications or derivative works that -- withdrawn.

Did AT&T intend to exercise any control over those portions of modifications or derivative works of the software product that did not include UNIX System V source code?

MR. GANT: Objection. Leading, compound, vague, lack of foundation, calls for speculation and for legal conclusions.


Page 54

Q. Would you like the question read back?

A. No. No. We didn't -- we did not intend to extend our licensing agreement clauses to anything other than the software product delivered with those -- those agreements.

Q. Direct your attention, please, Mr. Wilson, to paragraph 13.

MR. GANT: I'm sorry, David. Can I ask that last answer to be read back?

MR. MARRIOTT: Sure.

MR. GANT: It was long, and I want to make sure I got it. Thank you.

(DISCUSSION OFF THE RECORD)

(REQUESTED PORTION OF THE RECORD READ)

MR. GANT: Thank you. Thank you, David.

(DISCUSSION OFF THE RECORD)

BY MR. MARRIOTT:

Q. May I look at paragraph -- may I direct your attention rather to paragraph 13, Mr. Wilson. Paragraph 13 states, "AT&T's standard software agreements also granted licensees the right to modify UNIX System V source code and to prepare derivative works based upon that code. Section 2.01 of our early software agreement, including the . . .


Page 55

IBM software agreement and the Sequent software agreement, included the following language: Such right to use includes the right to modify such software product and to prepare derivative works based on such software product provided the resulting materials are treated hereunder as part of the original software product." Do you see that, sir?

A. Yes, I do.

Q. Do you agree with the statements made in paragraph 13 of your declaration?

MR. GANT: Objection. Leading, foundation, vague, calls for speculation and legal conclusions.

THE WITNESS: Yes.

BY MR. MARRIOTT:

Q. Is there anything about that statement you would change, Mr. Wilson?

MR. GANT: Objection. Vague.

THE WITNESS: I would not.

Q. Would you, please, read into the record for me paragraph 14 of your declaration?

A. "As my staff and I communicated to our licensees, this provision was only intended to ensure that if a licensee were to create a . . .


Page 56

. . . modification or derivative work based on UNIX System V, any material portion of the original UNIX System V source code provided by AT&T or USL that was included in the modification or derivative work would remain subject to the confidentiality and other restrictions of the software agreement.

"As we understood section 2.01, any source code developed by of for a licensee and included in a modification or a derivative work would not constitute resulting materials to be treated as part of the original software product, except for any material proprietary UNIX System V source code provided by AT&T or USL and included therein."

Q. Is that an accurate statement, sir?

MR. GANT: Objection. Vague, compound, lack of foundation, calls for speculation and legal conclusions.

THE WITNESS: Yes, it is.

BY MR. MARRIOTT:

Q. Would you, please, read for me into the record paragraph 15?

A. "AT&T and USL did not intend to assert ownership or control over modifications and derivative works prepared by licensees, except to the extent of the original UNIX System V source . . .


Page 57

. . . code included in such modifications and derivative works.

"Although, the UNIX System V source contained in a modification or derivative work continued to be owned by AT&T or USL, the code developed by of for the licensee remained the property of the licensee, and could, therefore, be used, exported, disclosed or transferred freely by the licensee."

Q. You testified, Mr. Wilson, previously that that paragraph represents a true statement. Why did you provide that testimony?

A. Because I believe it to be a true statement.

Q. May I direct your attention, please, to paragraph 16. There you say, "I do not believe that our licensees would have been willing to enter into the software agreement if they understood section 2.01 to grant AT&T or USL the right to own or control source code developed by the licensee or provided to the licensee by a third party.

"I understood that many of our licensees invested substantial amounts of time, effort and creativity in developing products based on UNIX System V. The derivative works provision of the . . .


Page 58

. . . software agreement was not meant to appropriate for IBM" -- "was not meant to appropriate for AT&T," rather, "or USL the technology developed by our licensees." Is that -

MR. GANT: Where is Dr. Freud when we need him?

MR. MARRIOTT: Dead.

BY MR. MARRIOTT:

Q. Is -- is that an accurate statement, Mr. Wilson?

MR. GANT: Same objections.

THE WITNESS: Yes.

Q. And why do you say what you say there in paragraph 16 of your declaration?

MR. GANT: Objection. Vague, compound.

THE WITNESS: Both 15 and 16 were -- are directed towards clarifying what was the intent of our software licensing program, and that -- that is what I was trying to -- to focus on with these two statements.

BY MR. MARRIOTT:

Q. In paragraph 17 of your declaration you say, "In fact, some licensees sought to clarify that under the agreements the licensee, not AT&T or USL, would own and control modifications and . . .


Page 59

. . . derivative works prepared by or for the licensee, except for any original UNIX System V source code provided by AT&T or USL and included therein.

"We provided such clarification when asked, because that is what we understood the language in the standard software agreement to mean in any event. In some cases we provided this clarification orally, and in some cases we provided it in writing."

Is there anything you would change about the accuracy of that statement, Mr. Wilson?

MR. GANT: Objection. Foundation.

THE WITNESS: I would not.

BY MR. MARRIOTT:

Q. In paragraph 18 you state, "In fact, although I am not a lawyer, it was my view at the time that we could not claim any rights to non-UNIX System V source code, as the plaintiff here appears to be doing, without raising serious antitrust issues.

"In light of the divestiture of AT&T around that time, we, as a company, were very concerned with the potential anticompetitive effects of our actions.

"As a result, one of the reasons we made . . .


Page 60

. . . clear to our licensees that our UNIX System V software agreements did not impose any restrictions on the use or disclosure of their own original code, except insofar as it included UNIX System V code, was to avoid any appearance of impropriety."

Why do you say that in paragraph 18, Mr. Wilson?

MR. GANT: Objection. Vague, leading, calls for speculation and legal conclusions.

THE WITNESS: I stated that, because during this period of time -- 1983 being the date that really kicked off -- the Bell system was going through another separation or break-up. The first was in 1956, when Sequenta decreed our -- our business with the AT&T Bell system was limited to communication.

And in 1983 there was a major separation of the operating telephone companies and AT&T into different groups. And there was a high level of concern that we did not infringe on any business that we were not supposed to be into.

And so the whole software program was started with software that was developed for other purposes within AT&T, and we went through our patent licensing organization as a -- stuff that . . .


Page 61

. . . had been used for a primary purpose was now made available to the -- to licensees under -- under these agreements.

Q. Let me just -- and I don't want to cut off your answer, but let me just caution you in responding to the question not to provide any information that might be privileged of AT&T. So with that caveat, continue, if you -- if you have more to say.

A. No. I'll -- I'll stop right there.

MR. GANT: Well, let me just ask for a clarification. Has that been the case with all of your prior questions and all of the witness' prior answers, that none of the answers that he has provided have been based in any way on any communications with AT&T's counsel?

MR. MARRIOTT: Well, you'll have to ask that question of the witness, but it's certainly not my intent by way of any of my questions to seek information that -- that is privileged.

MR. GANT: And has that been your intent during the -- your questions that you've already asked?

MR. MARRIOTT: I think I just said that.

MR. GANT: Okay. I just wanted to make it . . .


Page 62

. . . clear, if you did. So --

MR. MARRIOTT: Yeah.

Q. To -- just so -- for clarity, to your understanding, Mr. Wilson, has the testimony you've provided to this point in the deposition in any way required you to disclose information that you believe to be protected by an attorney/client privilege?

MR. GANT: Objection. Vague, calls for a legal conclusion.

THE WITNESS: It has not.

BY MR. MARRIOTT:

Q. In paragraph 19 you state, "We provided IBM with just such a clarification in paragraph A.2 of the IBM side letter." The side letter referenced there, Mr. Wilson, is attached to this declaration as -- as tab four; is that correct?

A. That is correct.

Q. Direct your attention, if I may, Mr. Wilson, to page two of the side letter, which is at tab four of your declaration. Do you see -- do you see on page two, paragraph two --

A. Yes, I do.

Q. -- what's stated in the beginning, [cut off, illegible phrase] that accurately -- is that . . .


Page 63

. . . accurately quoted in your declaration at page eight, paragraph 19?

MR. GANT: Objection. Vague.

THE WITNESS: It's not -- it's not verbatim, but it -- it -- captures the essence of both places.

BY MR. MARRIOTT:

Q. When you say "It's not verbatim," I'm actually referring only to the quoted portion in paragraph 19, where it says, "Regarding section 2.01."

MR. GANT: I think he means because of the brackets it's not verbatim."

THE WITNESS: Right.

MR. MARRIOTT: Okay. Fair enough. Thank you for the clarification.

BY MR. MARRIOTT:

Q. Do you think in substance that what's quoted at page eight of your declaration accurately reflects paragraph two of the side letter at tab four of your declaration?

MR. GANT: Objection. Vague.

THE WITNESS: Yes, I do.

BY MR. MARRIOTT:

Q. Under the quote at paragraph 19 of your . . .


Page 64

declaration you state, "I understood this language," referring to the language of the side letter, "to mean that IBM, not AT&T or USL, would have the right to control modifications and derivative works prepared by or for IBM."

"IBM, like all licensees under the agreements, fully owns any modifications of and derivative works based on UNIX System V prepared by or for IBM, and can freely use, copy, distribute or disclose such modifications and derivative works, provided that IBM does not copy, distribute or disclose any material portions of the original UNIX System V source code provided by AT&T or USL, except as otherwise permitted by the IBM agreements."

Does paragraph 19 reflect your understanding, Mr. Wilson?

MR. GANT: Objection. Vague, compound, lack of foundation, calls for speculation and for legal conclusions.

THE WITNESS, Yes, they do.

BY MR. MARRIOTT:

Q. In - in paragraph 20 you say "Clarifications of the kind reflected in" - "in paragraph A.2 of the IBM side letter did not . . .


Page 65

. . . represent a substantive change to the standard software agreement, since AT&T and USL never intended to assert ownership or control over modifications and derivative works prepared by licensees, except to the extent of any material portions of the original UNIX System V source code provided by AT&T or USL and included in such modifications and derivative works." Do you see that?

A. Yes, I do.

Q. Is there anything about that you would change, Mr. Wilson?

MR. GANT: Objection. Vague, leading.

THE WITNESS: I do not.

BY MR. MARRIOTT:

Q. You do not --

A. I do not see anything that I would change.

Q. Okay. Thank you.

In the following paragraph you make reference to numerous inquiries received from licensees. Could you explain, please, what you meant by that?

A. We got numerous inquiries -- we were constantly having questions about our licensing agreements and what they meant and how to interpret . . .


Page 66

. . . them. You mean the whole paragraph or just that sentence?

Q. Just that -- you've answered the question.

A. Okay.

Q. Do you -- do you have familiarity with something known as the $ echo publication?

A. Yes, I do.

Q. And you made reference to that in prior testimony; right?

A. Yes, I did.

Q. Would you just briefly describe what the $ echo publication was?

A. $ echo was a newsletter prepared for distribution to our licensees, and it covered product information, licensing information and anything of general interest to all of our licensees as a way to convey it to them.

Q. Did Mr. Frasure have any role with respect to the $ echo publication?

MR. GANT: Objection. Vague, leading.

THE WITNESS: Mr. Frasure, as long as with other folks in the licensing organization, were contributing to the information concerning licensing that was contained within the $echo newsletter. He, among others. In other words, . . .


Page 67

. . . this was just clarifications with respect to licensing. That was a section of the newsletter.

BY MR. MARRIOTT:

Q. Did you have any role in reviewing and approving the content of the $echo publications?

MR. GANT: Objection. Vague.

THE WITNESS: Yes, I did. I was responsible to ensure the accuracy of the information concerning licensing policies and agreements.

BY MR. MARRIOTT:

Q. In paragraph 23 of your declaration you make reference to seminars at which Mr. Frasure discussed the newsletter. Can you tell -- tell us, please, what you're referring to there?

MR. GANT: Objection. Vague, compound.

THE WITNESS: Just saying in addition to the newsletter, we actually presented the material in the newsletter to our licensees at seminars and conferences that we held for UNIX system licensees.

BY MR. MARRIOTT:

Q. Was the -- withdrawn.

Was the purpose of the $ echo publication to change the -- the terms or meaning of the AT&T, UNIX licensing agreements?


Page 68

MR. GANT: Objection. Leading, vague, compound, foundation, calls for speculation and legal conclusions.

THE WITNESS: Our purpose with the newsletter was just to provide information to our licensees, to keep them abreast of what was going on with the product.

MR. GANT: Objection. Move to strike as non-responsive.

BY MR. MARRIOTT:

Q. What was the purpose of the newsletter, Mr. Wilson?

A. The purpose of the newsletter was to provide information on our licensing agreements and policies, our software products and any -- any other information that would be beneficial to our licensees in using those software products.

Q. And what -- what gave rise to the publication of the newsletter?

MR. GANT: Objection. Vague.

THE WITNESS: The -- the numerous inquiries that we received from our licensees concerning any specific issue. We felt it was a more efficient way to communicate the same message to all licensees in a way that they could receive . . .


Page 69

. . . it without -- you know, try to reduce the number of phone calls we had about repetitive issues that would come up in those inquiries.

BY MR. MARRIOTT:

Q. Would you read to yourself, please, paragraph 25 of your declaration?

A. (THE WITNESS COMPLIED)

Q. Do you stand by that statement?

MR. GANT: Objection. Leading, vague, compound, foundation, calls for speculation and for legal conclusions.

THE WITNESS: Yes, I do.

BY MR. MARRIOTT:

Q. What is a specimen copy, Mr. Wilson?

A. As referenced here, a specimen copy was a -- what do you call it? I'm trying to think of the right term. It was a -- it was a copy of the agreement that could not be executed. It was just a copy of the language.

Q. Did the $ echo publications provide clarification to your licensees concerning AT&T's understanding of the AT&T licensing agreements?

MR. GANT: Objection. Leading, vague, foundation, calls for legal conclusions.

THE WITNESS: I hope they did. We got . . .


Page 70

. . . good response from the licensing community with the $ echo once we started putting it out. We had very positive response.

BY MR. MARRIOTT:

Q. And who -- who did you intend to be the -- the beneficiaries of the clarifications made in the $ echo publications?

MR. GANT: Same objections.

THE WITNESS: Both the licensing organization and our licensees, because it was a -- it was a way -- a way of communicating. And so it was to our mutual benefit. Us, by not having to keep answering the same questions, and, also, it assured our licensees that the information being provided was being provided to everyone.

BY MR. MARRIOTT:

Q. Are you familiar with the term side letter?

A. Yes, yes.

MR. MARRIOTT: You're very good at helping him.

MR. GANT: I appreciate it, as does the court reporter, I'm sure.

THE WITNESS: Uh-huh.

BY MR. MARRIOTT:


Page 71

Q. What is a side letter, Mr. Wilson?

A. A side letter is a term that we use to -- to classify a document that was written in response to an inquiry about the base software agreement or the sublicense agreement, what have you. So it was a -- usually a clarification or a modification of terms.

Q. In paragraph --

MR. GANT: I'm sorry. I wanted that read back. I'm sorry. I didn't mean to -- the question and the answer.

(REQUESTED PORTION OF THE RECORD READ)

BY MR. MARRIOTT:

Q. I think that got a little confused. Let me ask you, by way of clarification, Mr. Wilson, you say in paragraph 27 of your affidavit, "Whether or not we entered into a side letter or other agreements with our licensees to clarify the treatment of modifications and derivative works or altered the language of section 2.01, AT&T's and USL's intent was always the same." What do you mean by that, sir?

MR. GANT: Objection. Leading, vague, compound.

THE WITNESS: What I meant by that is . . .


Page 72

. . . section 2.01 in its original presentation, as well as the -- the clarification that we provided later, the intent behind the language in both cases was the same. It was just another way of stating what was meant by our intent in writing the language the way we did.

BY MR. MARRIOTT:

Q. In the next sentence in paragraph 27 you indicated that, "We never intended to assert ownership or control over any portion of a modification or derivative work that was not part of the original UNIX System V source code provided by AT&T or USL.

"The licensee was free to use, copy, distribute or disclose its modifications and derivative works, provided that it did not use, copy, distribute or disclose any portions of the original UNIX System V source code provided by AT&T or USL, except as permitted by the license agreements."

You say, Mr. Wilson, there that you never intended to assert such ownership or control. Why is that, sir?

MR. GANT: Same objections.

THE WITNESS: That -- that just was not . . .


Page 73

. . . our intent. We did not -- we did not want ownership in any product that was created by or for our licensees. We only wanted to protect the underlying software product provided under the licensing agreement.

MR. GANT: Move to strike as non-responsive.

BY MR. MARRIOTT:

Q. Did AT&T, Mr. Wilson, intend to assert ownership or control over any portion of a modification or derivative work that was not part of the original UNIX System V source code provided by AT&T or USL?

MR. GANT: Objection. Vague, compound, foundation, calls for speculation and legal conclusions.

THE WITNESS: No.

BY MR. MARRIOTT:

Q. Let me direct your attention, if I may --

MR. MARRIOTT: And I propose, if it's agreeable, that upon conclusion of this declaration we take a little break, if that's okay?

MR. GANT: That's fine.

BY MR. MARRIOTT:

Q. Okay. Let me just direct your attention . . .


Page 74

. . . to paragraph 28, Mr. Wilson. There you say, "My understanding is that IBM's AIX and Sequent's Dynix," slash, "PTX operating system products include some UNIX System V source code.

"I do not know whether AIX and Dynix/PTX are sufficiently similar to UNIX System V that they would constitute modifications of or derivative works based on UNIX System V. However, even if AIX or Dynix/PTX were modifications of or derivative works based on UNIX System V, IBM and Sequent are free to use, export, disclose or transfer AIX and Dynix/PTX source code, provided that they do not use, export, disclose or transfer any UNIX System V source code provided by AT&T or USL, except as otherwise permitted by the agreements.

"Therefore, IBM and Sequent are free, under the IBM agreements and the Sequent agreements, to open source all of AIX and Dynix/PTX, other than those portions of the original UNIX System V source code included therein.

"Even portions of the original UNIX System V source code included in AIX and Dynix/PTX may be open sourced to the extent permitted by the IBM agreements and the Sequent agreements."


Page 75

Do the contents of that paragraph reflect your intent, Mr. Wilson?

MR. GANT: Objection. Leading, vague, compound.

THE WITNESS: Yes, it does.

BY MR. MARRIOTT:

Q. And do you believe the contents of paragraph 28 reflect the intent of those with whom you worked while employed at AT&T?

MR. GANT: Same objection, and, also, foundation. It calls for speculation and legal conclusions.

THE WITNESS: Yes, I do.

BY MR. MARRIOTT:

Q. Would you take a look, please, at paragraph 29. You say there that, "I understand that plaintiff claims that IBM and Sequent have breached the IBM agreements and the Sequent agreements by improperly using, exporting, disclosing or transferring AIX and Dynix/PTX source code, irrespective of whether IBM or Sequent have disclosed any specific protected source code copied from the UNIX System V source code provided by AT&T or USL."

What is the basis of your understanding. . .


Page 76

. . .about what it is that the plaintiff in this litigation claims, Mr. Wilson?

(DISCUSSION OFF THE RECORD)

THE WITNESS: I think it's stated there. In other words -- and this is sort of what was related to me. That there was a -- that the plaintiff claimed that they could -- they were improperly distributing copies of their -- their system, because of its association with the UNIX System V products.

BY MR. MARRIOTT:

Q. Let me clarify my question a little. What I'm really just asking you is: Is whether -- have you read the Complaint in this case, Mr. Wilson?

A. I have not.

Q. For your understanding of what the plaintiff -- what the plaintiff claims here, you rely upon whom?

A. When I discussed it with the -- when I was discussing preparing for this declaration with the attorneys.

Q. When you say, "the attorneys," you're referring to what the IBM attorneys described to you as being the contentions made by the plaintiff; is that right?


Page 77

A. That's correct.

Q. You say in paragraph 29, "In my view, these claims are inconsistent with the provisions of the IBM agreements and the Sequent agreements. I do not believe that anyone at AT&T or USL intended these agreements to be construed in this way."

For how long, Mr. Wilson, did you work with the AT&T, UNIX licensing agreements?

MR. GANT: I'm going to object to the question as vague. You quoted from a paragraph, and then you asked a seemingly unrelated question. So if you're intending to link them somehow, I'm going to object to that and object to the question as vague and lacking foundation.

MR. MARRIOTT: Okay. Do you need the question read back?

THE WITNESS: Yes.

MR. GANT: Stipulate the same objections; right, David?

MR. MARRIOTT: I don't think we need to stipulate. Just so it's clear, I think they're on the record. So when she repeats the question, she doesn't re-type it. So -

(PREVIOUS QUESTION THEN READ)


Page 78

(DISCUSSION OFF THE RECORD)

BY MR. MARRIOTT:

Q. Okay. During what period of time, Mr. Wilson, did you -- did you work with the AT&T, UNIX licensing agreements?

MR. GANT: Objection. Vague.

THE WITNESS: Through the period of 1980 through 1991.

BY MR. MARRIOTT:

Q. And based upon your having worked with those agreements during that period do you believe that anyone at AT&T or USL intended those agreements to be construed in the way described in paragraph 29 as being the claim of the plaintiff in this ligitation?

MR. GANT: Objection. Leading, vague, compound, lack foundation, calls for speculation and for legal conclusions.

THE WITNESS: I do not.

BY MR. MARRIOTT:

Q. To the best of your understanding, is it an accurate statement that modifications and derivative works under these AT&T, UNIX licensing agreements are not subject to the confidentiality and other restrictions contained in the agreements, . . .


Page 79

. . . except for any protected UNIX System V source code provided by AT&T or USL actually included in them, because they are owned by the licensees?

MR. GANT: Same objections.

THE WITNESS: Yes. I believe that to be true.

BY MR. MARRIOTT:

Q. In paragraph 30 of your declaration you state, "In my view, any claim that the IBM software agreement and the Sequent software agreement prohibit the use, export, disclosure or transfer of any code other than UNIX System V code is clearly wrong. Not only did we at AT&T not intend the agreements to be read that way, but we also went out of our way to assure our licensees that that is not what the agreements meant."

Is that an accurate statement?

MR. GANT: Same objections.

THE WITNESS: Yes. Yes, it is.

BY MR. MARRIOTT:

Q. And, finally, in paragraph 31, Mr. Wilson, you state that all of the statements made in your declaration in Exhibit 76 are made under penalty of perjury; is that right?

A. That's correct.


Page 80

MR. MARRIOTT: Okay. Should we take a break?

THE VIDEOGRAPHER: One moment, please.

This marks the end of tape number one in the deposition of Otis Wilson. Going off the record. The time is 10:57am.

(RECESS TAKEN AT 10:57 A.M. TO 11:21 A.M.)

THE VIDEOGRAPHER: Back on the record. Here marks the beginning of tape number two in the deposition of Otis Wilson. The time is 11:21 a.m.

Please, continue.

BY MR. MARRIOTT:

Q. Mr. Wilson, I hand you what has been previously marked as Exhibit 77, which I believe is a copy of the subpoena served on you in -- in connection with this matter. Could you, please, just tell me if that's the subpoena served on you and whether you're appearing pursuant to the subpoena?

A. Yes, it is, and I am.

Q. Thank you, sir.

A. Uh-huh.

Q. Let me now show you what I've previously marked as Exhibit 78, which is a copy of a letter sent from me to you on April 6th, 2004. Would you . . .


Page 81

. . . take a look at that, please, and tell me if you've seen that before?

A. Yes, I have.

Q. Would you just take a look in particular at paragraph two and tell me whether that reflects the circumstances under which you came to be represented by -- by my law firm?

A. Yes.

Q. Okay.

MR. GANT: Yes, you can tell him, or, yes, it is?

THE WITNESS: Yes, it is.

MR. MARRIOTT: Thank you.

BY MR. MARRIOTT:

Q. Let me direct your attention now, if I may, Mr. Wilson, to Exhibit 75, which has been previously marked. This is, I believe, a copy of your declaration, dated December 11, 2003?

A. That's correct.

Q. How did you come to sign this declaration, Mr. Wilson?

MR. GANT: Objection. Vague.

THE WITNESS: This -- this is what I was asked to sign.

(MR. DAVIS THEN EXITED THE ROOM)


Page 82

Q. And you signed it, because you believe it's true and correct?

MR. GANT: Objection. Leading, vague, compound.

Q. Why did you sign the declaration, Mr. Wilson.

A. This - it represented the declaration I made, and it's been written up, and I agree with it, and so I signed it after reading it.

MR. GANT: Could you read back the answer, and if David would like the question too, that's fine.

MR. MARRIOTT: Sure.

MR. GANT: Thank you.

(REQUESTED PORTION OF THE RECORD READ)

BY MR. MARRIOTT:

Q. Let me direct your attention, please to paragraph six of the declaration.

A. Okay.

Q. A reference is made here to methods or concepts. I believe you testified earlier that that's a term with which you're familiar. Do you recall that testimony?

MR. MARRIOTT: I'm on page six, at paragraph 14, for example.


Page 83

MR. GANT: Okay. I thought you said paragraph six. I think you did, which is why I couldn't find it.

MR. MARRIOTT: I apologize. It's paragraph six, page 14.

BY MR. MARRIOTT:

Q. A reference is made there on page six, paragraph 14 to methods and concepts. Is that a term with which you're familiar, Mr. Wilson?

A. Yes, it is.

(MR. DAVIS THEN RE-ENTERED THE ROOM)

Q. And what rights as you understand IBM's UNIX licensing agreements with AT&T does IBM have with respect to the methods or the concepts of UNIX System V?

MR. MARRIOTT: Could I have the question read back?

(PREVIOUS QUESTION BEING READ)

MR. GANT: Are you sticking --

MR. MARRIOTT: Let me restate the question.

MR. GANT: Okay.

BY MR. MARRIOTT:

Q. You're familiar with the term methods or concepts, right?


Page 84

A. Yes, I am.

Q. As you understand IBM's UNIX licensing -- licensing agreements with AT&T, what rights does IBM have with respect to the methods and concepts of UNIX?

MR. GANT: Objection. Vague, compound, lack of foundation, calls for speculation and legal conclusions.

THE WITNESS: Of -- the phrase methods and concepts was deleted from the IBM software agreements.

MR. GANT: Objection. Move to strike as non-responsive.

BY MR. MARRIOTT:

Q. Do you have an understanding, Mr. Wilson, as to whether the term methods or concepts was deleted from IBM's licensing agreements with AT&T?

MR. GANT: Objection. Foundation, calls for speculation and legal conclusions.

THE WITNESS: Yes, it was deleted.

BY MR. MARRIOTT:

Q. Okay. And what is your understanding as to why it was deleted?

MR. GANT: Same objection, as in vague.

THE WITNESS: It was no longer applicable.


Page 85

The -- there was nothing that we could really define as methods and concepts at this time that would be -- would be protected. So we just removed it from the agreement.

BY MR. MARRIOTT:

Q. Is there anything, to your understanding, that IBM cannot do properly with respect to UNIX methods or concepts?

MR. GANT: Objection. Leading, vague, foundation, compound, calls for speculation and legal conclusions.

THE WITNESS: However you might want to define methods and concepts, it just was no longer applicable to the IBM software agreement. So anything contained therein that might be considered a method or concept is -- is no longer applicable.

BY MR. MARRIOTT:

Q. As you understand AT&T's intent, at least by the time you left the company, did AT&T seek to enforce rights to methods or concepts of UNIX as they related to any of its licensees?

MR. GANT: Objection. Leading, vague, compound, lack of foundation, calls for speculation and for legal conclusions.

THE WITNESS: We did not.


Page 86

BY MR. MARRIOTT:

Q. Would you take a look, please, Mr. Wilson, at paragraphs 12 through 15 of your declaration that appears in Exhibit 75, and read those to yourself and tell me when you've had the opportunity to do that?

MR. GANT: That was 12 through 15?

MR. MARRIOTT: Yes.

MR. GANT: Okay.

BY MR. MARRIOTT:

Q. Is there anything about the content of paragraphs 12 through 15 that you would change, Mr. Wilson?

MR. GANT: Objection. Vague, compound, lack of foundation.

THE WITNESS: I would not.

BY MR. MARRIOTT:

Q. Paragraph 16 of your declaration states that, "IBM had no confidentiality obligation with respect to any UNIX System V information, other than to refrain from disclosing the actual UNIX System V source code provided by AT&T and USL, and to refrain from referring to that source code while developing or providing products or services. IBM was free to use and disclose any of the ideas, . . .


Page 87

. . . concepts, know-how, methods or technologies embodied in the software products."

Why did you say that, Mr. Wilson?

MR. GANT: Objection. Vague and leading.

THE WITNESS: In reading this again, it's probably a little -- it's -- it's clear to me, but I can see if someone else is reading it -- because it says -- a clarification of this -- this statement here.

BY MR. MARRIOTT:

Q. Sure. How would you clarify the contents of paragraph 16?

A. Paragraph 16 is -- where it picks up, "other than to refrain from disclosing the actual UNIX System V source code," that should really be "software product."

Q. Okay. Is there anything else about paragraph 16 that you would change for clarification?

A. I would not.

(DISCUSSION OFF THE RECORD)

BY MR. MARRIOTT:

Q. In paragraph 17 you say, "I did not view these changes," referring to the changes made by the side letter referenced in the preceding paragraphs, "as substantive. They were all clarifications."

"Even though we may have" -- "have entered into side letters or other agreements with a number of licensees that clarified the confidentiality restrictions and other provisions in the standard software agreement, my intent was always to treat all licensees the same."

Why was it your intent to treat all licensees the same, Mr. Wilson?

MR. GANT: Objection. Vague, compound, lack of foundation.

THE WITNESS: We were very careful to make sure that all licensees and all licensing agreements were the same for -- for all of our licensees.

In other words, they were -- it was just a matter of policy that no -- any -- any right or clarification that we would give to any one licensee, we would give to all of our licensees.

BY MR. MARRIOTT:

Q. In - in the following sections of 17 you say, "In fact, clarifications provided to particular licensees in side letters were generally shared with other licensees through informal . . .


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