Litigation is like a battleship. Once it is launched, it's very hard to turn it around. And so, while SCO copes with its delisting issues, the battleship plows on. So, I need to get back to SCO v. IBM, and here is another of the scanned documents we got from the court that SCO filed in support of its Memorandum in Opposition to IBM's Motion for Summary Judgment on SCO's Breach of Contract Claims, one of SCO's sealed documents. It's the Declaration of Evelyn Davis [PDF], who joined the company in the 70's and was an AT&T account executive and contract manager from 1984 to 1994.
She doesn't say that she worked on the IBM account. She doesn't say she negotiated any contract or license with IBM. She tells us, like other witnesses for SCO, what she never heard or never experienced. That's backwards from a normal affidavit. What she tells the court, most peculiarly, is that she was trained by such folks as Otis Wilson, David Frasure, and Steve Vuksanovich, but then she contradicts their testimony. Her statements are so broad and sweeping, however, that it seriously undermines her credibility with me.
For example, she makes the claim that all of the licenses AT&T had -- governmental, educational and commercial -- "contained substantially the same core protections" in their terms. I don't believe that is so, and you can compare an educational license and IBM's commercial one or Santa Cruz's commercial license [PDF] for yourself and draw your own conclusions as to the value of her testimony.
She also says that she isn't aware of any instance "in which AT&T agreed to reduce its protection under a UNIX license so as to restrict the unauthorized use or disclosure to just the UNIX source code." However, we've heard from her bosses that IBM did have such terms. For just one example, Otis Wilson told the court already that "we did not intend to exercise any control or restriction on those products that did not contain portions of the software products." One of them is wrong, flat out wrong. And since Mr. Wilson trained her, and was her superior, I think one may fairly assume he has it right.
She also says AT&T wouldn't license its software in certain foreign countries where they were not sure their IP would be respected. And she tells the court that what was protected under the licenses, no matter how much a licensee changed the software or extended it, were the structures, sequences, patterns, ideas, methods, and concepts." In short, once you licensed their software, you were an indentured software servant to AT&T for the rest of your born days. She would have us believe that IBM, knowing that it intended to modify and extend the software and license it as a product, agreed to let AT&T control everything it ever wrote from that day forward in such modifications and derivatives, no matter how much work they themselves did, including ideas, methods and concepts. A companion Declaration of Mitzi Bond [PDF] parrots the same thing and states it even more baldly. Of course, we've heard from their superiors at AT&T already, including AT&T attorney Geoffrey Green, that none of this is the way they remember it.
Obviously someone is wrong, either by mistaken memory, misunderstanding, or because of lying. The date of this declaration is after some of her superiors at AT&T gave IBM their declarations, and after IBM submitted its Motion for Partial Summary Judgment, which had all the affidavits that say the opposite of what Ms. Davis here states attached to it, so she certainly was in a position to know what they had said.
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovicz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
I, Evelyn Davis, declare as follows:
SCO GROUP, Inc.
Case No. 2:03CV0294DAK
Hon. Dale A. Kimball
Magistrate Judge Brooke C. Wells
1. I submit this Declaration in connection with The SCO Group v. International Business Machines Corporation, No. 2:03CV0294DAK (D. Utah 2003).
2. I was employed in Greensboro, North Carolina, by AT&T or one of its subsidiary or successor entities from 1975 until 1994.
3. From approximately 1984 through 1994, I served as a UNIX Account Executive and Contract Manager. My primary responsibility was to license the UNIX operating system and to manage certain licensees' accounts. I received training to understand the intent and meaning of the standard software agreements under which AT&T and USL licensed the UNIX software product, and I regularly communicated that understanding to UNIX licensees and potential licensees.
4. I learned about the intent and meaning of the UNIX software license agreements through, among other things, formal training involving, among others, attorneys Marty Pfeffer and Burt Levine (who were our principal legal contacts) and supervisors Otis Wilson and David Frasure; as well as informal discussions with my fellow contract managers/account executives, including, among others, Steve Vuksanovich and Mitzi Bond. As a member of the UNIX licensing group, I regularly attended staff meetings, where we would discuss issues relating to the UNIX license agreements.
5. In UNIX, AT&T had developed a seminal innovation that was in high demand in the computer industry. Prospective licensees (including leading computer hardware manufacturers) desired to license and use AT&T's UNIX operating system to avoid having to spend substantial time and money developing their own software products from scratch. In response to that demand, AT&T agreed to allow its licensees special access to its proprietary UNIX product by licensing the UNIX operating system to them, but complimented that special access with specially designed, and broad, protections in its license agreements that would safeguard the valuable UNIX asset.
6. Based on the above-described training and discussions with my former colleagues, as well as my own reading of the UNIX software license agreements, I know that those agreements were designed and intended to protect AT&T's valuable intellectual property rights in UNIX with strict contractual protections. The license agreements effected these protections by restricting, among other things, the use, export, and disclosure of much more than just the literal lines of UNIX source code. For example:
a. the license agreements covered any works that resulted from our licensees' exercise of their contractual right to prepare modifications or derivatives of the UNIX product;
b. the agreements protected all of the innovations embodied in the licensed UNIX software, including, among other things, the structures, sequences, patterns, ideas, methods, and concepts; and
c. the agreements required each licensee to treat any work prepared with the benefit of having been exposed to our product -- regardless of how the licensee further developed or changed that product -- as if it were part of our original licensed product.
7. Like many AT&T and USL Account Executives and Contract Managers, I handled commercial, educational and governmental licenses. The terms of all of AT&T's UNIX license agreements -- commercial, educational and governmental -- contained substantially the same core protections for AT&T's technological innovations, and the training I received concerning those protections applied to all of those types of licenses.
8. In fact, it was my understanding that because these broad protections were so critical, AT&T decided against licensing the UNIX operating system in many foreign countries, where AT&T felt it was more difficult to ensure that the proprietary innovations of its UNIX product would be carefully guarded in accordance with the protections of its license agreements.
9. In my experience, AT&T was adamant in refusing to compromise its core intellectual property protections. Because our UNIX product was in such high demand, and AT&T's commitment to safeguarding that asset was so strong, it was not uncommon for Account Executives and Contract Managers to explain to potential licensees that our core intellectual property protections were not negotiable. I am not aware of any instance in which AT&T agreed (in any license agreement or any supplement, modification, or side letter thereto) to reduce its protection under a UNIX license so as to restrict the unauthorized use or disclosure of just the UNIX source code.
I declare under penalty of perjury that the foregoing is true and correct.
Greensboro, North Carolina