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Deposition of Geoffrey Green - PDF and text
Tuesday, February 08 2005 @ 02:31 PM EST

Here are the selected excerpts from a deposition of Geoffrey Green [PDF], introduced by SCO as an exhibit, another in the bunch supporting their Memorandum in Opposition to IBM's Motion for Summary Judgment on Breach of Contract Claims, along with the Declaration of Jim Wilt.

That puts Mr. Green in the odd position of being used by both sides to try to prove conflicting points, as he already gave IBM a declaration, which IBM attached as an exhibit to the Motion for SJ on Breach of Contract Claims.

It's another paper document, and our thanks go to talahin and belzecue for doing the OCR, HTML, and proofing. It was a videotaped deposition, and SCO is showing the judge just selected pieces of the transcript.

Mr. Green was a licensing attorney for AT&T, and in his declaration for IBM, he, along with a group of others, testified that "AT&T 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 code included in such modifications and derivative works." Here SCO's attorney tries very hard to get him to say something different than that. What stands out to me, and I think you will see it too, is that every time Mr. Green starts to say something helpful to IBM, the testimony is cut off. The end of page 118 is one example of what I mean and 224 is another. That is why the page numbers skip about.

It's also, for most of us, the first time we get to see Sean Eskovitz in action. Of course, he is deposing another attorney, and I'm sure that affects how he speaks. For example, he probably doesn't ask a "civilian" witness if the terms of a contract are "coterminous" with copyright law. Here, he does. He isn't wildly successful, but that is because he's deposing an attorney, and it's mighty hard to get them to slip, and it's partly because Mr. Green can't remember a number of things, and it's mostly because Mr. Green doesn't share Mr. Eskovitz's world view. By cutting and chopping, they make it appear almost like a contradiction in a place or two, but the thing about a trial is, you don't get to chop and cherry pick the parts that sound better.

Round and round they go, with Eskovitz trying to get him to say that methods and concepts were controlled under the license, and over and over Green tells him more or less this:

 "I think that was true at one time, but as things developed and we began to understand what licensees were doing and needed to be able to do, that we realized that we didn't have the right to control derivative works or works that were subsequent to the -- or that were developed based on the software product."

He specifically states that the Sequent license was entered into after AT&T woke up and smelled the coffee:

"Because I think by the time the Sequent agreement was entered into, we were beginning to understand that the -- we were going to have to be able to find the software product itself in the derivative works to be able to control it."

He does say that in April of 1985, though, while they recognized trade secrets as being a lost cause, methods and concepts were still an issue for AT&T, but that later, at some time he can't pin down, that changed too. I frankly don't understand what he is saying on that point, and Mr. Eskovitz seems a bit puzzled himself. Perhaps he just mispoke. One thing Mr. Green says, on page 134 and 135, seems to help SCO's cause, when he says that derivatives and modifications at some point did not need to include actual code to breach the agreement, but when that was so is unclear. SCO probably attached this as an exhibit because it might seem to raise a question or two about Sequent that would have to go to a jury.

If AT&T had not changed its views on all this, and remember it all started as educational licenses, it would have meant that after a programmer was exposed to UNIX code, he could never code anything the least bit similar until he died and went to heaven, because as a mere mortal, his mind would have been permanently contaminated. Under such circumstances, no one would ever have exposed himself to Unix code unless he wished to belong to AT&T forever and ever. And such programmers would have become simply unemployable anywhere but by a pure Unix company. To state it is to show how ridiculous it would have been for AT&T to stand on that dime. So the only issue here is, when did AT&T grow up and quit making ridiculous claims that SCO would like now to reassert?

SCO doesn't provide a Dramatis Personae, so I am having to deduce from the names listed here who is present, and Eskovitz seems to be the main interrogator. I think that is a good, descriptive word for it. He's rather snippy to Christopher Kao, who is there representing IBM's interests, I assume. You'll remember he was one of the IBM attorneys at the September 15th hearing. Another lawyer who appears, a Mr. Feltoon, isn't identified as to his role, but I would assume he is there for the witness, who, like all smart lawyers, likely knows better than to represent himself.

I think you could wrap up our time in software history in the following exchange:

Q.   And AT&T's licensing business depended on its ability to protect that intellectual property, is that fair to say?

A.   Yes.

Q.   Because if someone could just take intellectual property and copy it, then there wouldn't be any licensing business, is that fair to say?

A.   With respect to something like UNIX, yes.

The old business model, with its secrecy and desperate need to make sure no one knows your special sauce does depend on protecting the knowledge you have. But as Mr. Green's subtle reply implies, that isn't true for something like Linux. And there you have it in a nutshell.

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


A.   Yes

Q.   And when you began in 1976 with UNIX software licensing -- is that fair to describe it that way?

A.   Well, UNIX software licensing and other licensing, but including UNIX licensing.

Q.   Including UNIX software licensing in 1976?

A.   Right.

Q.   So you have about ten years of experience with licensing the UNIX software operating system, correct?

A.   Yes.

Q.   And that was something you devoted a substantial amount of your time during that period to?

A.   Significant amount. I wouldn't say substantial.

Q.   Okay. That's fair enough. So you have a pretty good understanding of the role of UNIX in AT&T business during that time frame, correct?

A.   Yes.

Q.   Would you agree with me that UNIX

G. Green 25

was an important innovation for AT&T?

Mr. KAO: Objection to the form.

A.   Yes.

Q.   And it was an innovation that AT&T spent quite a significant and substantial amount of resources on, correct?

MR. KAO:   Objection to form.

A.   Yes.

Q.   Was the operating system owned exclusively by AT&T?

A.   As far as I know, yes.

Q.   Okay. And AT&T owned the copyrights for the UNIX product?

A.   As far as I know, yes.

Q.   And they owned -- AT&T owned the source code for the product, correct?

A.   Yes, as far as I know.

Q.   I'm sorry?

A.   Yes.

Q.   And it also owned the methods and the concepts and the technological innovation that was contained within the UNIX product, correct?

MR. KAO:   Objection to the form.

A.   Yes.

G. Green 26

Q.   During the period that you worked with UNIC licensing from 1976 to 1986, is it fair to say that the UNIX program was in high demand?

MR. KAO:   Objection to form

A.   Well, not over the entire -- that entire period, but it became in high demand as time progressed.

Q.   Fair enough. At what point did it become in high demand?

A.   I couldn't identify a specific point.

Q.   Was it some time in the early 1980's, approximately?

A.   Well, it still doesn't -- I can't pinpoint a specific point.

Q.   Okay.

A.   It just was a gradual increase in demand.

Q.   Is it fair to say -- and I'm not trying to put words in your mouth, so correct me. You know this obviously better than I do.

Is it fair to say that by 1985 the UNIX operating system was in high demand

G. Green 27

among licensees or potential licensees?

MR. KAO: Objection to the form.

A.   Yes.

Q.   And why was that the case?

MR. FELTOON:.   Does he know why third-party licensees considered the product desirable?

Q.   Did you understand why there was high demand for UNIX licenses in that period?

A.   Well, because of its -- its capabilities.

Q.   Okay. and what were those unique capabilities?

A.   I'm not the one to answer that question.

Q.   Okay. Do you have any technological background?

A.   Yes.

Q.   What is your technological background?

A.   Bachelor's degree in electrical engineering and a number of years working as a development engineer for Western Electric.

Q.   And development engineer in what department of Western Electric?

G. Green 28

A.   Yes.

Q.   And UNIX -- I'm sorry, AT&T permitted licensees to develop modifications or derivative works based on that source code?

MR. KAO:   Objection to form.

Q: Is that correct?

A.   Yes.

Q.   And in fact, many licensees did create such derivatives or modifications based on the source code, right?

MR. KAO:   Objection to the form.

A.   Yes.

Q.   Who were the -- that you know of, were the licensees that created some derivatives or modifications?

MR. KAO:   Objection to the form.

A.   Many did. I couldn't begin to list them all because I don't remember them.

Q.   Fair enough. Were IBM and Sequent among those?

A.   From what I'm informed, yes.

Q.   Did you know that IBM and Sequent had license agreements with AT&T before Mr. Marriott provided you with those

G. Green 31

A.   Yes.

Q.   And AT&T's licensing business depended on its ability to protect that intellectual property, is that fair to say?

A.   Yes.

Q.   Because if someone could just take intellectual property and copy it, then there wouldn't be any licensing business, is that fair to say?

A.   With respect to something like UNIX, yes.

Q.   And one of the important purposes of the license agreements that you've alluded to, the software licensing agreements, was to ensure protection for the UNIX intellectual property, correct?

A.   Yes.

Q.   UNIX devoted -- I'm sorry, AT&T devoted substantial resources to creating and modifying those license agreements?

MR. KAO:   Objection to form.

A.   Yes.

Q.   And also to enforcing those agreements?

A.   Yes.

G. Green 37

copyright protections at that time?

MR. KAO:   I object.

A.   Yes.

Q.   Were you aware copyright law protected against non-literal or substantially similar copying of code?

MR. KAO:   Objection

A.   I'm not sure at that point.

Q.   Okay. In any event -- whatever your understanding was -- were there other people in the licensing department who were responsible for knowing about that part of the intellectual property protections?

MR. KAO:   Objection

A.   Yes.

Q.   Who were they?

A.   Well, there were many lawyers at AT&T who were involved in licensing, and there were lawyers specifically involved in copyright protection.

Q.   Was Marty Pfeffer one of the lawyers who knew about the copyright protections?

A.   He may have been.

Q.   These legal protections that we've

G. Green 44

been talking about under copyright law and trade secret law would have applied to AT&T even without the benefit of these licenses, correct?

MR. KAO:   Objection to the form.

A.   Yes.

Q.   So these license agreements that AT&T spent time on and required its licensees to execute, is it fair to say that those were designed to add to the protections that would have been available without the agreements?

MR. KAO:   Objection to form.

A.   I think I have trouble with the word "add".

Q.   Okay. What's the trouble that you have with that word?

A.   Well, AT&T had the protection of copyright trade secret law, and the license agreements just embodied that protection as they were entered into.

Q.   Is it your understanding that the license agreements were coterminous with the protections that would have existed without the license agreements?

MR. KAO:   Objection to the form.

G. Green 45

A.   I'm not sure what you're getting at.

Q.   Okay. I guess what I'm asking is: Is it your understanding that the contract agreements provided exactly the same protections that would have been available even if the license agreements didn't exist?

MR. KAO:   Objection to form.

A.   Well, I still don't understand your point.

Q.   Well, it's just a question. What I'm asking is -- you had made reference to the intellectual property protections that existed without the copyright -- without the contracts, I'm sorry, and my question is whether it's your understanding that the contracts added to those protections or were exactly the same as those protections or whether they reduced the protections?

MR. KAO:   Objection to the form.

A.   I don't -- I don't think I could answer that question.

Q.   Okay. Why is that?

A.   I just don't understand how to answer it.

G. Green 46

Q.   Okay. Do you not understand the question or is it that you don't know the answer to the question? I'm just trying to get a clear answer on this.

A.   I would say I don't know the answer.

Q.   Okay. Fair enough. Were there people within AT&T who would have been in a better position to answer that question for the time frame that you were working with UNIX licensing?

A.   I don't know.

Q.   Now, in this license program that we've talked about, AT&T was making its source code available to hundreds of technology companies; is that correct?

A.   Roughly, yes.

Q.   Okay. And is it fair to say that in doing that, AT&T contemplated there were risks involved in giving out its source code and its software to all of these high tech companies?

A.   Yes.

Q.   And is that one of the things that the license agreements was designed to

G. Green 47

address --

MR. KAO:   Objection to form.

A.   Yes.

Q.   -- those risks? I'm just trying to clarify the question.

A.   Yes.

Q.   And how did the license agreements deal with those risks?

A.   There were specific provisions in the license agreements relating to rights to use and confidentiality.

Q.   Through the licensing program -- we'll just take one example --one licensee could take the source code and go off and develop modifications and derivatives based on the UNIX source code, right?

A.   Yes.

Q.   That was a contractual right that they were given under the license agreements?

A.   Yes.

Q.   And there was -- they could go off and -- the licensee could go off and do this behind closed doors, could develop modifications and derivatives over a prolonged period of time through the license

G. Green 48

agreements, correct?

A.   Yes.

Q.   How did -- did AT&T appreciate that there were risks in letting that kind of development process go on with the valuable UNIX source code?

MR. KAO:   Objection to form.

A.   I believe they did, yes.

Q.   And was that an important thing for AT&T? Your understanding from your work in the licensing, was it an important thing for AT&T to know what those licensees were doing with the source code?

A.   Yes.

Q.   Okay. How did AT&T go about protecting its source code and its intellectual property during that process, during that developmental process?

A.   I don't have a good answer to that question. I don't know.

Q.   Okay. Were there other people within AT&T who -- that you know of who would have been in a better position to answer that question?

A.   No.

G. Green 49

A.   Yes.

Q.   On page 18, the bottom of page 18, the question is, "And if your code was not part of the product," and Mr. Frasure says, "Well, if it was used as part of the development -- I really need to be careful here on words, I guess. If the source code, the UNIX source code was -- was required, was used to generate the enhancement, was required to have the -- the rest of the enhancements work, then we had an interest in it."

"It's been a long time. I'm not sure of the right -- the right key words to use, but we went through those discussions with them and what we felt the, you know, the agreement said."

"We also discussed contractor provisions which allowed a licensee to contract with someone to develop software and then when that development was done, everything had to come back to them and we expressed concern, I guess, with -- Otis and I used the term mental contamination, that if you had been exposed to the source code and

G. Green 82

its methods and concepts, even though you give something back to the -- the licensee, there was -- there was concern there that someone could go off on their own and develop what they thought was their own product but really using the methods and concepts and techniques that were in the product that they had previously used."

Let me break this down. Was AT&T concerned that someone could go off on their own and develop what they thought was their own product but really using the methods and concepts and techniques that were in the product that was licensed to them?

MR. KAO:   Objection to the form.

A.   At one time they probably were.

Q.   Was that a concern as of the time of this meeting in California that you attended?

A.   It may have been. I don't recall specifically.

Q.   Do you remember Mr. Frasure discussing this idea of mental contamination at that meeting in California?

A.   I know the concept was discussed

G. Green 83

from time to time, but I don't remember the context of that meeting.

Q.   When did you remember that concept of mental contamination having been discussed?

A.   I can't pin it down to any particular time or conversation.

Q.   Who was involved in those?

A.   I can't pin that down.

Q.   Was that a term that you heard Otis Wilson use?

A.   I don't remember.

Q.   Okay. Do you agree first of all, do you remember Mr. Frasure directing your attention to the first full -- second full paragraph of the answer that I just read, do you remember Mr. Frasure saying at that meeting that if the source code was used to generate the enhancement, then the -- AT&T had an interest in the enhancement?

A.   No.

Q.   Is that a statement that's consistent with AT&T's policy with respect to its intellectual property protections at that time?

G. Green 84

A.   Yes.

Q.   Referring you to now to page 20 of the document that's in front of you, the exhibit from Mr. Frasure's testimony, and I want to just direct you to the end of the answer in the middle of page 20. He says -- referring to licensees --"If they're developing a product with the benefit of UNIX or perhaps they have used it for -- for a number of years, ten years, and then they think they're going to go off and develop something on their own that's an operating system that may look like UNIX, we had -- we expressed our concern that -- that we had an interest in that product."

Do you remember that subject matter being discussed at the meeting in California that you attended?

A.   Not specifically, no.

Q.   Is Mr. Frasure's statement concerning AT&T's interest in that product accurate as far as your understanding of AT&T's intellectual property protections?

MR. KAO:   Objection to the form.

A.   I think it reflects a concern that

G. Green 90

we had, yes.

Q.   And do you agree that AT&T had an interest in products that were developed with the benefit of UNIX even if the licensee were to go off and develop that product on its own based on that exposure?

MR. KAO:   Objection to the form.

A.   Well, I think it depends on how you define interest.

Q.   Okay. What interest do you think AT&T had in that product?

A.   Well, certainly they were interested in the fact that somebody was doing something like that, and then I'm sure they would be concerned about whether any of AT&T's intellectual property was involved in the result.

Q.   Well, when you were at AT&T, was that something that you were interested in determining, whether licensees were developing products based on their exposure to the UNIX operating system?

A.   I wasn't specifically interested in that myself.

Q.   Okay. Were there other people at

G. Green 91

attention to the first page of the software agreement, paragraph 4, is that a term of the agreement that you're familiar with?

A.   Yes.

Q.   Okay. Is that what's commonly referred to as a merger or an integration clause?

A.   Yes.

Q.   And what is the intent of that provision?

MR. KAO:   Objection to the form.

A.   To make clear that the agreement and its supplements constituted the entire agreement. That's what the language says.

Q.   And that was AT&T's intent with respect to this provision?

A.   Yes.

Q.   Does that -- is it fair to say, then, that under this provision, AT&T's intent was that Sequent's rights and obligations would be governed only by agreements that Sequent executed with AT&T?

MR. KAO:   Objection to the form.

A.   Would you state that question again, please?

G. Green 93

way he's going to understand the question after that colloquy, so let's go back.

Q.   My question is: Was it AT&T's intent that Sequent's rights and obligations would be governed only by the agreements that Sequent executed with AT&T?

MR. KAO:   Objection to the form.

A.   With respect to UNIX's --the UNIX's software covered by the agreement, yes.

Q.   And is it also fair to say that AT&T's intent was that the rights and obligations of Sequent would be governed only by what was contained within the written agreements that Sequent executed --

MR. KAO:   Objection to the form.

A.   Yes.

Q.   -- as opposed to oral representations?

A.   Yes.

Q.   Are you aware of a standard provision in the license agreements of a most favored nation clause?

A.   Yes.

G. Green 95

Q.   Okay. Do you remember what that was?

A.   Yes.

Q.   What was it?

A.   It's a newsletter that the Otis Wilson organization put out periodically to all licensees.

Q.   Okay. And was Mitzi Bond the editor of that newsletter?

A.   I don't know.

Q.   Do you remember whether you had any involvement with providing material for the newsletter or editing material that went into the newsletter?

A.   I assume I probably did, but I don't remember specifically doing it.

Q.   You don't have any specific recollections of anything that you contributed?

A.   No.

Q.   Is that accurate?

A.   It is accurate.

Q.   Thank you. It's another one of those double negatives.
Was it AT&T's intent that

G. Green 100

statements made in The $ Echo newsletter created binding letter rights or obligations with respect to the recipients of the newsletter?

MR. KAO:   Objection to the form.

A.   I don't believe so, no.

Q.   The $ Echo newsletter, was it intended to modify any of the license agreements or side letter agreements?

A.   I don't believe so, no.

Q.   Did you have conversations with Mitzi Bond about the license agreements?

A.   I don't remember.

Q.   How about Dave Frasure?

A.   Yes.

Q.   And Otis Wilson?

A.   Yes.

Q.   And Evelyn Davis?

A.   I don' t remember.

Q.   Burt Levine?

A.   Yes, later.

Q.   Later in the later days?

A.   Later days, yes.

Q.   Okay. And did your conversations with Mr. Wilson and Mr. Frasure involve the

G. Green 101

Q.   Was it -- you said at the beginning of your answer that the contents included the software files themselves and source code. Would it be fair to say that AT&T's intent was that software product, as was designed here under paragraph 1.04, included not just the source code itself, but also the ideas and the methods and the concepts included within the computer programs?

MR. KAO:   Objection to the form.

A.   At one time that would have been the case, yes.

Q.   All right. Do you have a specific knowledge that at some point that changed?

A.   It developed over a period of time. I think the idea changed with respect to UNIX software.

Q.   Can you explain what your best recollection of this -- of what that development process was and when that change occurred?

A.   Just that -- I think it became apparent that it was going to be difficult to determine what methods and concepts were in the context of computer software because of

G. Green 106

the general kinds of knowledge that people were developing about programming and computer code in general.

Q.   Okay. And that change or process of change that you alluded to happened after you left the -- after 1986?

MR. KAO:   Objection to the form.

Q.   Is that accurate?

A.   I'm not sure of when it actually resulted in the change in form or in the language.

Q.   What I'm asking about is not about the language itself, but about this process that you referred to in which there was a change in AT&T's view of the methods and concepts protection. Is that something that happened before 1986 or after 1986?

A.   I think it was happening before 1986.

Q.   And how do you know that?

A.   Well, I was involved in the licensing program at that time.

Q.   And did you have conversations with other people about that?

A.   I'm sure I did.

G. Green 107

Q.   Who did you discuss it with?

A.   Numerous people.

Q.   Okay. So among those numerous people, who would those have been?

A.   I'm sure Otis Wilson and Dave Frasure.

Q.   Anybody else that you remember?

A.   And probably the attorneys I mentioned earlier.

Q.   Dave Hurwitz?

A.   Yes.

Q.   Anybody else?

A.   Probably Jim Trainor.

Q.   Anybody else that you recall?

A.   There were probably others, but I don' t remember.

VIDEO OPERATOR: This concludes videotape number 1. The time is 11:42.

(Brief recess taken.)

VIDEO OPERATOR: We're back on the record. This is the beginning of tape number 2. The time is 11:51.

Q.   Is it fair to say that one of your important jobs as a licensing attorney for AT&T was to ensure that the language of the

G. Green 108

license agreements reflected AT&T's intent?

MR. KAO:   Objection to the form.

A.   Yes.

Q.   And is it also fair to conclude that when the same language appears in different agreements, that the intent behind that language from AT&T's standpoint is the same?

MR. KAO:   Objection to form.

A.   Yes.

Q.   If the intent changed, then your job was to change the language to reflect that intent, correct?

A.   Yes.

Q.   As of 19 -- April of 1985 when the Sequent agreement was executed, did software product, as defined in paragraph 1.04, include just the source code or did it also include files and concepts and methods and ideas that were embodied in the computer programs?

MR. KAO:   Objection to form.

MR. FELTOON:   Are you talking about -- objection. Are you talking about subjective understanding or --

G. Green      109

product identified in the one or more supplements hereto, solely for licensee's own internal business purposes and solely on or in conjunction with designated CPU's for such software product."

What was AT&T's intent with respect to the requirement that licensees only use software products for their own internal business purposes?

A.   The intent was that the use of would be for the licensee's own business needs and not to provide some kind of service for other people on the licensee's computers.

Q.   Okay. Is that one of the reasons why the sublicensing agreements were needed for licensees to be able to distribute the product in object code format to others?

A.   It's one of the reasons, yes.

Q.   Okay. And what was the reason for the limitation on the use being only in conjunction with designated CPU's for such software product?

A.   Most of the software agreements, as I recall, had provisions for designating CPU's on which the software could be used,

G. Green      111

and the fees for use of the software were based on how many designated CPU's there were.

Q.   So one of the reasons, at least, one of the important reasons was to ensure that AT&T was paid for the licensee's full use of the licensed product?

MR. KAO:   Objection to the form.

A.   Yes.

Q.   The next sentence of 2.01 says that, "Such right to use includes the right to modify such software product and to prepare derivative works based on such software product."

What was the intent, AT&T's intent, with respect to that provision?

MR. FELTOON:   To the portion that you read?

MR. ESKOVITZ:   Yes.

A.   I think just what it says, that the licensee could modify the product and prepare works based on the product.

Q.   And what is your understanding or what was AT&T's intent -- strike that.

What was AT&T's intent with respect

G. Green      112

to the meaning of the term "derivative works"?

A.   Something that was based on the licensed product, and that would be considered to probably be in a variation of the product or would somehow include the product or part of the product.

Q.   Okay. And when you say include part of the product, would you include in the meaning of product the ideas, methods and concepts of that product?

A.   At some point in time, yes.

Q.   As of 1985, was that true?

A.   Probably, yes.

Q.   And the next provision -- the next clause of that -- the end of 2.01 says, "Provided the resulting materials are treated hereunder as part of the original software product."

Let me just break it down. I want to ask you about a couple different portions of that. First of all, would you agree with me that when the 2 .01 refers to resulting materials, that it's referring to the derivative works or modifications that are

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created through the exercise of the right that's provided at the beginning of this sentence?

A.   Yes.

MR. KAO: Objection to the form.

Q.   And when this provision talks about --uses the term "hereunder", is it your understanding and was it AT&T's intent that hereunder meant under the entire software agreement?

MR. KAO:   Objection to form.

A.   Yes.

Q.   Not just with respect to hereunder meaning 2.01 itself?

A.   Under the entire agreement, yes.

Q.   Okay. And when it says that the resulting materials must be treated hereunder as part of the original software product, what's your understanding of what that meant?

A.   That the resulting materials should be treated like the software product itself.

Q.   Okay. I'm sorry, I didn't mean to cut you off.

A.   That's all right.

Q. And so any restrictions under the

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software agreement that applied to the original licensed software product, it was AT&T's intent that the resulting materials would be treated in the same way?

A.   Yes.

Q.   So that applies, then, to any derivatives or modifications that are based on the original software product?

A.   Under this provision, yes.

Q.   Is there any requirement in the license agreement that such modifications or derivatives have to include literally copied source code from the original product?

A.   In this form of the agreement, no.

Q.   So with respect to the Sequent agreement, a derivative or a modification did not need to include source code --

MR. KAO:   Objection to form.

Q.   --from the original licensed product?

MR. FELTOON:   And you're asking what the contract says or AT&T's intent?

MR. ESKOVITZ:   AT&T's intent.

A.   The intent, depending on the time that we're talking about.

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Q.   I'm just talking about this particular agreement in April of 1985, the Sequent agreement.

A.   I think at that time we were -- we were getting to the point where we understood that the derivative works and/or resulting materials would have to have included source code to be protected under the agreement.

Q.   Okay. Was any change made to the agreement to reflect that?

A.   In -- later in 1985, yes.

Q.   And are you referring to the ownership language that was included later in the agreements in 1985?

A.   There's ownership language and there's also language that talks about a portion of the licensed product -- of the software product would have to be in the derivative work or whatever to come under the agreement.

Q.   Okay. Well, we'll look at that language in a moment. Let's just stick with this license agreement itself, the Sequent agreement executed in April of 1985.

My question is that with respect to

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this particular agreement, did a derivative work or modification have to include the literally copied source code?

MR. KAO:   Objection to the form.

MR. FELTOON:   Again, so the witness isn't confused, are you asking him does it say that in here or are you asking whether it was AT&T's understanding?

MR. ESKOVITZ:   Well, let's break it down.

Q.   Does it say that in here, first of all?

MR. FELTOON:   Well, I'll stipulate it doesn't say that.

MR. ESKOVITZ:   I don' t know that I need your stipulations on this.

MR. FELTOON:   Well, it doesn't say it, so you can ask him --

MR. ESKOVITZ:   Right, it doesn't say it.

MR. FELTOON:   -- a question about his intent.

A.   Start again, please.

Q.   Okay. Nowhere in -- we can all agree, I think, that nowhere in this

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agreement does the protection for derivatives or modifications -- is it limited to those derivatives or modifications that include literally copied source code, correct?

MR. KAO:   Objection to the form.

A.   No, there isn't. Yes, that is correct.

Q.   Now, with respect to AT&T's intent, was that intent different than what the language that we just agreed to says?

MR. KAO:   Objection to form.

A.   Well, I think you could either say it has intent or understanding of what was meant by these words at that time.

Q.   At that time, meaning in April of 1985?

A.   Yes.

Q.   And the understanding of what these terms meant changed over time. Is that your testimony?

A.   No, I'm not saying that at this point. I'm saying that what we understood in the sense of something being a derivative work or something being a modified version of the software product is that those couldn't

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agreements?

A.   Well, that's a very general statement, and he probably did that later in that decade, but I don't believe he had any involvement earlier.

Q.   When you say later in that decade, are we talking about in the 1984, 1985 time frame when USL was formed?

A.   After 1986.

Q.   Okay. Do you know what his involvement was after '86?

A.   Not specifically, no.

Q.   Do you have any general understanding of what it was?

A.   Only that -- from the position that he held he must have had some involvement.

Q.   Do you know one way or the other whether he had primary responsibility for those matters?

A.   I think he did, but I don't know definitely.

MR. FELTOON:   Just so the record is clear, when? Primary responsibility when, after '86?

Q.   Whenever you know that he was

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involved.

A.   Well, later in the '80s. After 1986 I think he probably did have primary responsibility, legal responsibility.

Q.   Who was the person with primary legal responsibility before that?

A.   I would say it was probably Jim Trainor directly before that.

Q.   And how long was Mr. Trainor primarily responsible for overseeing the UNIX licenses?

A.   I can't give a precise date for the changeover. There are a lot of things going on back then. And I can't remember however they fit it together.

Q.   Understood. I'm just asking for your best recollection.

What's your best recollection of when Mr. Trainor would have been primarily responsible for the licensing agreements?

A.   I guess when we moved from North Carolina back to New Jersey, which would have been in the middle of 1986.

Q.   That would have been the end of his tenure?

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A.   Roughly.

Q.   And when did he begin?

A.   When did he begin?

Q.   Yes. When did he begin having primary responsibility for the oversight of the license agreements?

A.   Well, I can't pin the date down, but it was probably in the early '80s.

Q.   1981, '82?

A.   I can't pin it down any more than that.

Q.   It would have been when he started supervising you?

A.   Yes.

Q   Let me direct your attention to paragraph 6 of the Pfeffer declaration. In the Pfeffer declaration, he cites the language from the standard license agreement that we looked at from the Sequent agreement, 2.01, and he says, "I know that this language 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

G. Green      123

from the licensees' exercise of their contractual right to modify and to prepare derivative works based on the original licensed material, including the UNIX source code and all of the proprietary information reflected or embodied therein."

Do you agree with that statement concerning AT&T's intent with respect to 2.01?

MR. KAO: Objection to the form.

A.   Give me a minute to read this.

Q.   Sure.

(Witness reviewing. )

A.   I think that was true at one time, but as things developed and we began to understand what licensees were doing and needed to be able to do, that we realized that we didn't have the right to control derivative works or works that were subsequent to the -- or that were developed based on the software product.

Q.   Was this -- the statement here concerning the intent of 2.01, is that accurate as least as of April of 1985 when the Sequent agreement was executed?

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A.   I would say probably not.

Q.   Okay. Why is that?

A.   Because I think by the time the Sequent agreement was entered into, we were beginning to understand that the -- we were going to have to be able to find the software product itself in the derivative works to be able to control it.

Q.   Okay. And when you say the software product itself --

A.   Or part of the software product itself.

Q.   When you say the software product itself or part of the software product itself, what do you mean by the software product?

A.   The code, the source code.

Q.   Just the literally copied source code?

A.   Generally, yes. There may have been other things that were considered confidential at that time, possibly descriptions in the manuals. I don't really recall, but I wouldn't want to pin it down just to the source code.

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MR. ESKOVITZ:   I'm trying to understand it.

Q.   Can you explain how that's consistent with your testimony before about methods and concepts having been protected with respect to definitive works?

A.   Well, I think methods and concepts is a different subject in that even without anybody developing derivative works, there could be methods and concepts that could be disclosed that at some point would have created a breach of the agreement, but as time progressed, the idea that there were methods and concepts in software that could be protected as trade secrets, particularly with the UNIX software, became questionable.

Q.   I see. So in terms of understanding the extent of the derivatives and modifications protection, if a licensee took the original UNIX code, studied it, and created a modification in which it paraphrased or copied everything about the concepts, the ideas, the structure, the organization, the methods from the original licensed product but did not copy, literally

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copy the source code in the original licensed product, is it your view that that would not have been covered under the license agreement?

A.   Again, I would say that depends on when that was done.

Q.   Okay. As of April 1985 if that was done?

A.   I think at that time we would have considered that that would be a violation of the agreement if somebody had done that or such -- such a product would have been covered by the agreement.

Q.   Right. And at what point did that kind of a product no longer receive the protection of the agreement?

A.   I can't --I can't put down a point in time.

Q.   Okay. Was it before the middle of 1986 when you left Greensboro?

A.   I can' t pin that down.

Q.   Do you have any way of identifying by reference in documents or anything else when that happened?

A.   I don't remember when the language

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was changed in the agreement that took it out. It was taken out of the IBM agreement in the side letter, but eventually, it was taken out of the agreement itself, but I'm not sure when that happened.

Q.   But it wasn't taken out of the Sequent agreement that you're looking at here?

A.   I don't believe so. The language is still in the Sequent agreement.

Q.   So the derivative or modification that we discussed where source code would not have been literally copied would have been protected under the Sequent agreement?

MR. KAO:   Objection to the form.

A.   If it would show you can use methods and concepts that were present in the original software product, yes.

Q.   And not just methods or concepts, but also any kind of know-how or structure or sequence or organization?

MR. KAO: Objection to the form.

A.   I think that was all included in methods and concepts.

Q.   Okay. Let me show you the end of

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Mr. Pfeffer's -- paragraph 6 in his declaration where it says, "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."
Do you agree with that statement?

A.   No.

Q.   What is it that you disagree with about that statement?

A.   This may have applied earlier when we still considered that modification of a derivative work would have to include a portion of the software product, but when we became more aware of the fact that that wasn't always the case, then -- so it's really not clear with respect to what happened over time.

Q.   Let me just make sure --maybe you misspoke. I just want to make sure I'm clear.

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If I understand your testimony -- and I'm sure everybody will jump all over me if I get it wrong, so I'll try and get it straight and accurately as possible -- it's your view that what was included within software product changed over time such that earlier on it didn't need to include source code -- a derivative or modification didn't need to include literally copied source code but at some later point in time it did; is that accurate?

MR. KAO:   Objection to the form.

A.   No.

Q.   Can you explain?

A.   Earlier, I think it was our view that a derivative work or modification of our software product would have to include some software product.

Q.   Meaning literally copied source code or methods and concepts, et cetera? That's what I'm getting at because you keep using the term "software product".

A.   Either/or, I think.

Q.   Okay.

A.   But as time went on and it became

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clear that there could be works that would meet the definition of software -- that would fall under modification or derivative work, that -- well, I have to start over again.
Ask me a question again so that I get your intent clear.

Q.   Yes, absolutely. I believe you've testified that for a derivative or for a modification to have been covered by the license agreement, originally AT&T did not require that that derivative or modification actually include literally copied source code, and then at some point later on, the understanding and intent of AT&T changed in that regard. Is that -- have I characterized that accurately?

A.   Yes.

Q.   Okay. What I'm asking is: During the first period of time when a derivative or modification protected by the license agreement did not need to include literally copied source code, is it accurate that the agreement treated resulting work under 2.01 as if it had been part of the original

G. Green      135

contract, does what we've talked about in terms of the restrictions on derivatives or modifications that do not include literally copied source code apply?

MR. KAO:   Objection to the form.

MR. ESKOVITZ:   I'll rephrase that question. It was way too long.

Q.   Looking at an agreement that follows the same form as the Sequent agreement --you have the Sequent agreement in front of you, right?

A.   Yes.

Q.   Let's just talk about the Sequent agreement. Under this agreement, the internal use restriction that we've been talking about, internal business use, that would apply to a derivative or a modification that did not include literally copied source code but did include methods and consents from the original licensed product?

MR. KAO:   Objection to the form.

Q.   Is that correct?

A.   During the time when we considered the methods and concepts could be protected, yes.

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Q.   And looking at the Sequent agreement that you have in front of you, the Sequent agreement was executed during that time, correct?

A.   Yes. It still includes the language, methods and concepts language.

Q.   Right. Let me just go back to that hypothetical I gave you.
If a licensee has access to the UNIX code and develops a modification or a derivative under this Sequent agreement but does not include the literally copied source code but does include methods, concepts, structures, organizations, other covered intellectual property, I think we agreed that that derivative or modification would be covered by the license agreement, correct?

MR. KAO: Objection to form.

A.   At which point in time?

Q.   Under this Sequent agreement?

A.   Yes.

Q.   Okay. And then that derivative or 'modification work under this agreement would be restricted to the licensee's internal business purposes, used for internal business

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purposes?

A.   Yes.

Q.   And the transfer restrictions under the agreement would apply?

A.   Yes.

Q.   And the confidentiality provisions of the agreement would apply?

A.   Yes.

Q.   And the export requirements would apply?

A.   Yes.

Q.   And if, then, that licensee -- let's say Sequent -- develops another modification or derivative through its own developmental process of that original -- Of that derivative work, is the derivative of that derivative covered by the license agreement?

MR. KAO:   Objection to the form.

A.   I think you'd have to know more about the facts of what the derivative of the derivative really was to understand that to be able to answer that question.

Q.   Okay, fair enough. I'll give you some more information. You asked for it.

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The derivative or the resulting work that we've been talking about in the first instance would need to be treated as if it was part of the original software product, right?

A.   Yes.

Q.   Okay. So it's considered as if the first derivative is treated exactly the same as the original licensed product is, correct?

A.   Yes.

Q.   Okay. So now let's say that the licensee develops a derivative or modification from that original derivative and methods or concepts or ideas are embodied in that second derivative. Under 2.01, isn't that second derivative required to be treated as if it's part of the original software product as well?

MR. KAO:   Objection to form. I don't think you added any information to that. You just restated it.

MR. ESKOVITZ:   "Objection to the form" is all you have to say."

A.   If it's still based on the same methods and concepts. I'm not sure that it

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matters if it's first derivative or a second derivative or how many derivatives. If you read the language, you would still conclude that it would come under the agreement under that kind of reading.

Q.   Right. Let me rephrase that question, though. I understand what you're saying about that.

My question is: If the first derivatives embodied methods and concepts but not literally copied source code, it needs to be treated under 2.01 as if it were part of the original software product, correct?

A.   Right.

Q.   So now it is as if it was UNIX System 5, for example, then a derivative or modification is created based on that product, that derivative, and that new derivative product includes methods or concepts or other intellectual property from the first derivative.

Is that alone enough for you to know that the second derivative covered the license agreement?

MR. KAO: Objection to the form.

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MR. KAO:   Objection to the form.

A.   I don't think I ever said that AT&T changed its intent, but as time went on, AT&T became aware of the fact that it needed to clarify the language.

Q.   Okay. And so the intent did not change?

A.   No.

Q.   Okay. At some point AT&T decided that modifications or derivatives had to include literally copied source code; is that accurate?

A.   Yes.

Q.   Okay. So after that point, whenever that was that that point was made, after that decision was made, does that mean that a licensee could take the UNIX product, could copy all of the ideas, the methods, the concepts, the organization, structure, the sequences, all of the intellectual property within the original licensed UNIX product, but so long as they didn't literally copy verbatim the source code from the original licensed product, that that licensee could do whatever it wanted with its modification or

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derivative?

MR. KAO:   Objection to the form.

A.   I think that eventually that may have been the case.

Q.   Okay. You know enough about computer programming to know how easy it is to copy a program without literally copying verbatim the source code of that program?

MR. KAO:   Objection to the form.

A.   Well, I'm not sure that I know that much about programming.

Q.   Okay.

A.   I know something about programming, but when you -- when you talk about something like the UNIX operating system, I'm out of my depth.

Q.   Okay. Are you in your depth or are you out of your depth in terms of do you know if it's easy for just a competent programmer to copy an operating system or copy parts of an operating system without literally copying verbatim the source code in that -- in that software product?

MR. KAO:   Objection to the form.

A.   I wouldn't want to make a judgment

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like that.

Q.   Okay. Is that something that would have informed your -- your understanding of that would have informed your decision making as a lawyer in the sense of your responsibility to protecting the intellectual property of the original licensed UNIX product?

MR. KAO:   Objection to the form.

A.   I think if that had been a question, I would have had to have obtained advice from somebody how to answer that question.

Q.   During the course of your work in the UNIX licensing group, was it ever a concern that it would be easy for a licensee to copy the intellectual property in UNIX without literally copying the source code?

MR. KAO:   Objection to form.

A.   I think it was a concern, but I don't think anybody ever considered that it would be easy to do that.

Q.   Do you know whether that concern was the source of the mental contamination rule that Otis Wilson articulated?

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MR. KAO:   Objection to the form.

A.   It sounds like it relates to it, yes.

Q.   How did it relate to it?

A.   Well, talking about the same kind of thing, that if somebody has exposure to source code, then it's very difficult for them to write corresponding source code without being affected by what they know about the original source code.

Q.   And was that concern about mental contamination something that informed AT&T's licensing intellectual property protections in its licensing agreement?

MR. KAO:   Objection to the form.

A.   Yes.

Q.   And is that something that Otis Wilson was concerned about?

A.   Yes.

Q.   And David Frasure was concerned about?

A.   Yes.

Q.   And it was something that they communicated to AT&T's licensees as well?

MR. KAO:   Objection to the form.

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A.   I'm not sure that they communicated it because, I mean, it was a concern that they had, but it wasn't something that they would talk to the licensees about necessarily.

Q.   Okay. Do you remember whether that subject matter was discussed and the idea of mental contamination was discussed at that Berkley meeting that you attended in California?

A.   No.

Q.   You don't remember one way or the other ?

A.   No, I don't remember.

Q.   Do you have any reason to dispute -- if David Frasure testified that Otis Wilson and he communicated that -- their concerns about mental contamination to the University of California Berkeley at that meeting, do you have any reason to dispute that?

A.   No.

MR. ESKOVITZ:   Okay. Is now a good time for a lunch break?

MR. FELTOON:   Yes.

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That's what Mr. Frasure and Mr. Wilson referred to as mental contamination?

A.   Yes.

Q.   And that was a concern that was embodied in the IBM side letter agreement that you drafted as well, correct?

A.   Yes, yes.

Q.   Let me show you paragraph 12 of this side letter agreement. Do you see that provision?

A.   Yes.

Q.   Is this, generally speaking, a most favored nation clause of the type you referred to earlier?

A.   Yes.

Q.   And is this, again, like you were talking about a provision that was intended to refer to fees and pricing and other issues regarding financial matters?

MR. KAO:   Objection to form.

A.   Well, it covers that as other things as well.

Q.   Okay. Was it intended to provide IBM with most favored nation with respect to

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intellectual property protections?

A.   It doesn't say that.

Q.   Okay. Was it your understanding that it was intended to do that?

A.   No.

Q.   As of -- let me backtrack one second because I just want to make sure I understand what you're saying.

In February of 1985, methods and concepts was removed from the IBM side letter agreement?

A.   Yes.

Q.   Okay. Was that because AT&T could (not define what methods and concepts meant?

A.   I think it was because it was negotiated in the course of that agreement.

Q   Specifically, for the purposes of the IBM side letter agreement, right?

A   Yes.

Q.   It was something that IBM wanted and AT&T was willing to do according to the terms of the side letter?

A.   I think in terms of the other provisions that were added in the side letter, yes.

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Q.   Is it true that as of February 1985 that AT&T was willing to relinquish any of its protections for any of its licensees with respects to methods and concepts?

A.   It may not have been. I think, refreshing myself from this review we've done in the last few minutes, it may very well be that the language further down in 7.06(a) relating to the contamination issue was part of the negotiation of removing the methods and concepts language because that was in a way getting at the same thing, another way of getting at the same thing.

Q.   A way of protections in modifications or derivatives, for example, the intellectual property contained within the original licensed product even if the literally copied source code was not contained in those derivatives; is that correct?

MR. KAO:   Objection to the form.

A.   Say that again, please.

Q.   Sure, my question was -- you were saying it's another way of doing the same thing or something to that effect. My

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question was: By doing the same thing or ensuring the same protection, what you meant was, and correct me if I'm wrong, was making sure that the intellectual property other than just the literally copied source code was protected from misappropriation by AT&T's licensees?

MR. KAO:   Objection to the form.

A.   Yes. It was another way of getting at the methods and concepts.

Q.   And is that consistent with the fact that AT&T did not remove methods and concepts from its standard agreement for many years after the IBM side letter?

A.   I think it is.

Q.   So is it fair to say, then, that when you take into account the entirety of the IBM side letter together with the IBM software agreement, that the protections that AT&T had for its intellectual property under those agreements was not limited just to the literally copied source code in the licensed product?

MR. KAO:   Objection to form.

A.   I don't think that was our

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A.   Yes.

Q.   The licensee then -- IBM in this case --goes out and develops its own product having referred to the UNIX product but without literally copying the UNIX source code. Is the product that IBM develops in that process covered by the license agreement?

MR. KAO:   Objection to form.

A.   I'm not sure if it is or not because it may -- if IBM had done that, it may be a -- considered a breach of this language to do it, but when the resulting software would be covered by the agreement in the sense that other terms of the agreement would apply to it, I can't say at the moment.

Q.   Okay. And the reason why you can't say is because you cannot tell from a plain reading of the agreement how it would be treated?

A.   Well, either from a plain reading of the agreement or time to really sit down and analyze the question in terms of everything that there is in the agreements and the history and leading up to it and all

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agreements protected?

MR. KAO:   Objection to form.

A.   Or?

Q.   Or what?

A.   I'd say that this is too complicated to come to snap judgments without much more consideration and without knowing much more about the facts of the particular case to be able to come to a conclusion.

Q.   I don't think I asked you, but let me go back to some background questions. I don't think I asked you where you went and what you did after 1986 when you left Greensboro and came up to New Jersey. Can you just explain what between 1986 and 1996 your responsibilities were?

A.   Okay. From 1986 until about 1990 I was still in the licensing group on the legal side, and dealt with other kinds of agreements, patent license agreements, technology transfer, that sort of thing. There were probably some software agreements even then, not necessarily UNIX software because it was other software we licensed.

In 1990 I went to AT&T

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A.   Yes.

Q.   I'm sorry to play musical agreements with you for a second, but let's go back to the Sequent agreement. It's 275. Do you see that?

A.   Yes.

Q.   7.06(a) on page 5, the confidentiality provision that we were talking about before, do you see the final sentence of that provision, "If information relating to a software product"?

A.   Yes.

Q.   Would you just take a moment to review that language.

(Witness reviewing.)

Q.   Have you had a chance to review that language?

A.   Yes.

Q.   Do you have any independent recollection of the intent of that provision, and by independent recollection, I mean as opposed to just reading the language on the page in front of you?

A.   Well, I recall that it was in many

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as we talked about it before?

MR. ESKOVITZ:   Yes.

MR. FELTOON:   Okay. So is there a question? We'll accept that that's the different language.

Q.   Do you see any distinctions other than the one I identified?

A.   No, and I don't recall any distinction at the moment.

Q.   Okay. Is it your understanding that the intent with respect to the protections in 2.01 under the Berkeley agreement executed November 1985 were the same as the intent of the protections in 2.01 in the 1987 Santa Cruz agreement?

MR. FELTOON:   You're limiting yourself presumably to 2.01(a) because it has a 2.01(b).

MR. ESKOVITZ:   We'll limit it to 2.01(a) in the education agreement as compared to the 2 .01 in the commercial agreement.

A.   And the --

Q.   The question is: Is it your understanding that AT&T intents with respect to the protections of those two provisions

G. Green      247

was the same?

A.   Yes.

Q.   Okay. You can put those two documents to the side.

If you have number 275, the Sequent agreement there -- do you have that agreement?

A.   Yes.

Q.   Let me direct your attention back to paragraph 2.01 in this agreement. My question is: Having reviewed all of the documents that we've discussed today and having engaged in the colloquy that we've discussed today, is it your understanding of AT&T's intent with respect to this agreement that for a derivative or modification to be treated as part of the original software product within the meaning of this Sequent agreement, it had to include literally copied source code?

MR. KAO:   Objection to form.

A.   Yes.

Q.   And do you view that -- is that your understanding based on your reading of this agreement, the Sequent agreement?

G. Green      248

Q.   Right. And that was right. And so in order to protect its valuable asset in UNIX, did AT&T feel the need to add to its protections under the license agreements?

MR. KAO: Objection to the form.

A.   Well, AT&T set up license agreements to make sure that the software was protected on behalf of AT&T.

Q.   Right. Was it your intent or the intent of anybody at AT&T to reduce AT&T's intellectual property protections through the license agreements?

MR. KAO:   Objection to the form.

A.   No.

Q.   Is it fair to say that the license agreements were intended to ensure that when AT&T gave licensees this special access to its operating system, that AT&T would receive appropriate protections that went along with that special access?

MR. KAO:   Objection to the form.

A   Well, AT&T set up those protections in the agreements.

Q   And that's what the purpose of the

G. Green      294


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