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The Declaration of Mark James & 74 Exhibits
Sunday, July 23 2006 @ 03:45 PM EDT

SCO filed a Declaration of Mark James, Filed in Redacted Form [PDF] along with 74 exhibits, all attached to its Redacted Objections to Magistrate Judge Brooke Wells' Order. It's all designed to give Judge Dale Kimball the wherewithal to do a de novo review and decide to reinstate -- SCO hopes -- all the evidence the Magistrate Judge tossed overboard as a sanction for SCO's disobeying three court orders.

James is one of the attorneys at Hatch, James & Dodge, and his contribution to the SCO effort in this filing is to list the exhibits with a description of each. Most of the exhibits are sealed, in my view so that the Linux community won't show the world with specificity how idiotic this litigation is. But we do get to see a few items that are new, mainly interrogatories. If you are patient, sooner or later you get to see most things in normal litigation.

But it's hard for me to really focus with my usual intensity on this particular filing today, now that I believe that SCO put the software industry through three years of turmoil over essentially nothing, over an unreasonable new theory of contract that nobody, IBM or anyone else, had apparently ever thought of before in connection with IBM, or ever could have thought of in a million years, a theory that contradicts contracts IBM had in hand that by my reading said it could do what SCO is now suing IBM for doing. Here's the part that really set me off, from page 47 of SCO's Redacted Objections:

SCO does not and need not assert that it "owned" the methods and concepts; the non-disclosure restrictions on IBM were independent of any question of ownership....SCO need not show that it "owned" the material disclosed, only that restrictions in the license agreements govern those methods and concepts which it has done.

Do you realize what that means, what they are saying? It means to me that they are suing IBM because over decades an employee here and there discussed or wrote papers about software IBM wrote itself or owned, revealing what SCO claims are supposed to be secret methods and concepts (most of which I believe you'll find already revealed to the public, in Groklaw's Unix Books project), and they are in any case methods and concepts that SCO doesn't even own, by its own acknowledgment. They are suing over methods and concepts that they don't even own. And SCO's damages for this "violation" would be exactly what? In some cases, IBM wrote, owns and *patented* the software they are thus accused of "revealing". Can you beat that for running, jumping, leaping, stomping gall?

Ask yourself one simple question. Would IBM or any company in a rational state sign such a contract, if it thought that is what it meant? That it could never write about software ideas it developed itself and in some cases even has patents on, for the rest of the life of the company? Obviously not. Nobody -- least of all IBM -- needs anybody's code at that price. I don't see how you could even abide by the terms and still file for a patent, given that you have to reveal how your patented thingie works. In doing so, you have to reveal both your concepts and your methods.

So, without any meeting of the minds over this bright new interpretation of a decades-old contract, SCO decides to sue the pants off IBM for "violating" SCO's reinterpretation of the contract to suit. And it calls press conferences to announce to the world that IBM has violated "its intellectual property" as I recall, except it isn't even "its" intellectual property in the end, after all? No wonder it wants to file under seal.

That's just not how contracts are supposed to work. There is supposed to be a meeting of the minds, where both sides agree as to what the contract terms are, and then both live in harmony with the terms until the contract runs out. And by the way, if there is no meeting of the minds, there is no contract.

And that is what, in the end, I believe will blow SCO out of the water, among many other things. You can't unilaterally redefine contract terms and then sue for "violations" of your unilateral interpretation. SCO tried that with DaimlerChrysler, remember, taking contracts talking about Unix and trying to stretch them to mean Linux? They got absolutely nowhere, as you can see by reading from page 16 on in the transcript of the hearing [PDF] where the judge decided that SCO's interpretation of the contracts was essentially wrong with regard to Linux and pretty much everything else and granted DaimlerChrysler's motion for summary judgment in all respects except whether it answered SCO's nonsense in a timely way. You know why? Because it's not fair to reinterpret a contract years into it, that's why. The law is supposed to be fair. When I read in the media how SCO sued DaimlerChrysler, I always think they should add, "and they got their heads soundly handed to them for that little caper."

I guess perhaps SCO thought IBM would just hand over some money. They've got plenty, right?

Anyway, that's how it feels to me today, and on top of Friday's "destroyed evidence" media prank, I'm really disgusted today, so I'll have to let you pick over their droppings on your own. If you find anything super duper, please let us know. I'll probably be able to get back on my horsie tomorrow.

Today, all I can think of is the unnecessary damage to IBM's reputation, to Linux, to the software industry and the economy, to Linus and all the good-hearted men and women who gave the world a wonderful operating system for free as in freedom and free as in speech, and all the money spent to litigate over this nothingness. SCO's legal team may be congratulating themselves over stretching this nothing out as long as they did, laughing in their beer perhaps at their cleverness, but what I am feeling today is all that everyone went through, including in my case the egregious smears on my good name because I dared to write that the emperor had no clothes.

Take a look everybody. Do you see any clothes?

Here's the complete list of all the exhibits, every last pointless one, all PDFs where they are not sealed:

Exhibit 1: "Item 146 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005." [Sealed]

Exhibit 2: "Declaration of Marc Rochkind," dated April 9, 2006.

Exhibit 3: Defendant IBM's First Set of Interrogatories and First Request for the Production of Documents, dated June 13, 2003.

Exhibit 4: Defendant IBM's Second Set of Interrogatories and Second Request for the Production of Documents, dated September 16, 2003.

Exhibit 5: Defendant/Counterclaim Plaintiff IBM's Sixth Set of Interrogatories and Sixth Request for the Production of Documents, dated January 11, 2005.

Exhibit 6: Email from David Marriott to Ted Normand, dated March 16, 2006.

Exhibit 7: Plaintiff's First Request for Production of Documents and First Set of Interrogatories , dated June 24, 2003 [note that there are three copies in the one exhibit for reasons I can't figure out, which ends up making it 40 pages.]

Exhibit 8: Plaintiff's Second Set of Interrogatories and Second Request for Production of Documents, dated December 4, 2003.

Exhibit 9: IBM's Responses and Objections to SCO's Second Set of Interrogatories and Second Request for Production of Documents, dated April 19, 2004 [Sealed].

Exhibit 10: SCO's Fifth Set of Interrogatories , dated November 11, 2005. [mentions methods and concepts]

Exhibit 11: IBM's Responses and Objections to SCO's Fifth Set of Interrogatories, dated December 16, 2005 [Sealed].

Exhibit 12: Plaintiff's Third Set of Interrogatories and Third Request for Production of Documents, dated December 3, 2003.

Exhibit 13: Item 3 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 14: Excerpts from the hearing transcript held on April 14, 2006 before Judge Brooke C. Wells.

Exhibit 15: Excerpts from the deposition of Timothy J. R. Wright held on November 15, 2005 [Sealed].

Exhibit 16: Item 279 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 17: Item 280 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 18: Tab 349 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 19: Tab 351 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 20: Tab 345 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 21: Tab 3461 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 22: Tab 347 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 23: Tab 348 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 24: Item 46 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 25: Tab 56 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 26: Excerpts from the deposition of Martin Bligh held on January 16, 20056 [Sealed].

Exhibit 27: Item 236 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 28: Deposition Exhibit 690 [Sealed].

Exhibit 29: Article that appeared in Computerworld on August 11, 2005.

Exhibit 30: Deposition Exhibit 435 [Sealed].

Exhibit 31: Item 252 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 32: Tab 276 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 33: Item 253 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 34: Item 254 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 35: Tab 277 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 36: Tab 278 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 37: Item 62 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 38: Item 63 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 39: Tab 71 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 40: Tab 72 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 41: Tab 260 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 42: Item 53 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 43: Tab 94 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 44: Tab 62 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 45: Tab 376 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 46: Item 55 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 47: Tab 64 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 48: Tab 377 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 49: Tab 156 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 50: Item 2 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 51: Tab 3 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 52: Tab 4 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 53: Tab 5 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 54: Tab 6 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 55: Tab 7 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 56: Tab 8 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 57: Item 83 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 58: Tab 92 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 59: Item 84 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 60: Tab 93 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 61: Tab 241 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 62: Tab 265 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 63: Item 242 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 64: Tab 266 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 65: Item 243 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 66: Tab 267 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 67: Item 245 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 68: Tab 269 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 69: Item 6 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 70: Item 109 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 71: Tab 16 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 72: Tab 119 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 73: Item 14 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].

Exhibit 74: Tab 24 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].


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