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Ralf Flaxa's Declaration - as text - What Caldera Knew and When It Knew It
Wednesday, October 04 2006 @ 10:45 AM EDT

From the beginning of our SCO saga, SCO has maintained the pretense that they had no idea that the code they sued IBM and others about was in Linux. Yes, they might have distributed under the GPL, but that was other people's code and they didn't know. I find that hilarious.

I always did, but it's doubly so now that they are pretty much reduced to claims about methods and concepts, which they say you don't need to have specific code to point to. If that were true, then how come they didn't at least know about the methods and concepts being in there? They taught Linux. They did support. They sold it. They did their own, tweaked distro. And leaving specific code out of this, they never noticed file systems in Linux, for example, were quite a lot like Unix? Yet they released over and over under the GPL. It is hilarious, and I think I may be forgiven for suggesting that at a minimum they appear to have released all the methods and concepts under the GPL knowingly.

An ex-employee, Ralf Flaxa, now stands up and says on IBM's behalf that SCO did more than that. SCO knew what was in there with specificity, he testifies, and released under the GPL knowingly. SCO employees contributed code to the kernel under the GPL. For example, IPX was contributed to Linux by SCO. Flaxa was Director of Caldera's Linux development team back when. He was also Caldera's point man for UnitedLinux and for the Linux Standard Base (LSB), and he has plenty to say about that also. He now works for SUSE.

Here is Flaxa's Declaration [PDF], attached as an exhibit to the Declaration of Todd Shaughnessy. I guess you could call this the "What Caldera Knew and When Did it Know It" declaration.

Flaxa's Declaration pretty much pulls the plug on SCO's claims about ELF, header files, and Streams. SCO was keeping them on artificial respiration anyhow, despite there being no brain wave activity. But this is The End. We must prepare ourselves for the demise of those claims. Sob. Sob.

Flaxa testifies that Caldera knew all of those things were in Linux back in the late '90s, and they knew what was in UnitedLinux, too, and they distributed under the GPL knowingly. Flaxa says he was there, and they knew the tech, because *he* knew the tech and he worked for them. He even wrote a book about it back then, and he attaches excerpts from the book.

If SCO has noticed that Linux seems a bit like Unix, he suggests they look in a mirror to find out why. He testifies they did all they could to make it that way. Further, "Caldera sought to assist Linux in achieving technological equality with UNIX as quickly as possible."

Ah. You mean it wasn't IBM helping Linux move from being a bicycle to an enterprise race car? SCO (then Caldera) worked to do that itself? Yes, says Flaxa. I worked there and that was my job, to implement that wish. And SCO worked hard to make Linux POSIX compliant because they wanted Linux to have Unix capabilities for the enterprise.

Here's the detail of what he tells the court:

  • He worked for Caldera on a freelance basis for two years, until 1997, when he became an employee and served as the Director of Caldera's Linux development team.

  • Prior to that, he and others worked on a Linux business with a Linux distribution called LST. Caldera asked to use this distro in around 1994-5 as the basis of its own Linux distribution, and it based its Caldera Network Desktop and Caldera OpenLinux products on LST. Caldera acquired LST in 1997, and formed Caldera Deutschland GmbH, with Flaxa as one of the two Directors of Linux development, the other being Stefan Probst.

  • Probst and Flaxa wrote a book, "Power Linux" in 1997, in German and later translated into English, about Linux and LST, and the book included two CDs. The book noted they worked for Caldera, and stressed how much like Unix Linux was, with functional elements necessary to follow POSIX and other standards applicable to UNIX distributions: "Support of common standards means that Linux is to a great extent POSIX compatible and follows Unix traditions in almost every area." Caldera wanted Unix POSIX compliance and worked to make Linux that way. "Caldera Inc. in Utah, USA is striving for Unix certification of Linux by 1997." As a result, "Though Linux cannot yet be embellished with the name Unix, it does in fact provide almost everything available in an official Unix release".

  • Caldera was involved in Linux standardization efforts, including the Linux Standard Base ("LSB"), when he began his employment. Then CEO of Caldera Ransom Love was highly active in LSB. Flaxa headed one of three technical sub-committees while at Caldera and was Caldera's representative to LSB, with his assignment being to pursue LSB compliance for Caldera's Linux products. Caldera's OpenLinux product was used as the basis for "creating a sample implementation for the LSB."

  • Caldera employees, including Flaxa, contributed to the Linux kernel "in the course of their employment." You can find their names in the Linux CREDITS file, including Ron Holt, Jim Freeman and Greg Page.

  • Caldera was the main impetus driving UnitedLinux, and Flaxa was the Project Manager for that, coordinating the company's involvement. For that reason, he knew what code and technologies were in UnitedLinux, and so did Caldera. Caldera wanted UnitedLinux to have Unix capabilities.

  • SCO is suing now over header files required by standards bodies, ELF, and Streams. While Flaxa was working at Caldera, he knew they were in Linux and Caldera incorporated them in their products.

  • Caldera distributed under the GPL knowingly.

Why is all this Declaration so important? Because if you are screaming about a copyright infringement, and the court finds out you did it yourself, the judge might not give you any money for it. Duh. And if you know and do nothing for years and years, you certainly can lose your right to collect also. Here, Caldera did both.

Here is why you can sometimes lose the right to claim relief even if there actually is a copyright infringement. I don't know if you saw the charming poem that Yehuda Berlinger wrote, transforming copyright law into poetry that I put in News Picks. If so, you may have noticed this verse:

You can't be a criminal
If five years have passed
And no civil actions
If three years have amassed

That is explaining in verse this section of copyright law:

507. Limitations on actions

(a) Criminal Proceedings. - Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose.

(b) Civil Actions. - No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.

When does a claim "accrue"? And does that mean what it seems to mean? This is a topic of such complexity, not to mention being an area of law that seems to be shifting in courts' interpretations that I can't sum it up for you in a sentence, but I'm highlighting that it's an issue now in this case regarding ELF, headers and Streams. You can read a bit about the statute of limitations and copyright infringement on William Patry's Copyright Blog, where he explains that while you don't lose your copyright if you don't bring an action within the time frames listed, you can lose your right to relief. But suffice it to say that SCO has a harder time now getting damages even if it could prove infringement of those elements, which in my view it can't anyway. According to Flaxa, and his book published back in the late '90s, Caldera knew about all those elements way back then. It's too late to seek relief now, according to that statute. That's if all courts followed that statute religiously, which they don't always, at least not with music. But when they don't, it's usually based on when the infringement was discovered, not when it first happened, and here SCO loses on both prongs, because Flaxa says it happened a long time ago, and they knew about it at the time. Lose. Lose.

The sections from the book, attached to the Declaration as Exhibit 1, were a bit hard to reproduce as text. So I copied as much as seemed relevant, including the sections that Flaxa had highlighted, and some surrounding materials. For the full effect, you need to look at the PDF itself.

But, you may say, Flaxa claims Ransom Love was involved in LSB and wanted POSIX compliance, but maybe Love will show up and testify differently, and then it will be he said/he said. I don't think that will happen. For one thing, the book is evidence, powerful evidence, because it was cast in ink back then and can't be modified. It shows they knew. And just in case that isn't enough for you, there is so much evidence in print. Here's a 1999 speech [PDF] Love gave on LSB, comparing it to the US Constitution. Here's a quote of his in Linux Today, from May of 1999, Ransom Love on LSB:

"Caldera Systems has always wanted Linux to be a viable commercial alternative, so we believe the only real answer is to support LSB."

That was then. This is now. Now they want to sue IBM for wanting to make Linux a viable commercial alternative. Here's another choice quote:

"A Linux standard supported in the spirit of Open Source software is a major step in removing the last obstacle to the main stream adoption of Linux by key hardware and software providers in the industry. This standard will facilitate an increased quantity and quality of business solutions for Linux. Caldera salutes Linux International's efforts and lends its support to promoting this much needed step in the evolution and adoption of Linux." - Ransom H. Love, General Manager, OpenLinux Division, Caldera, Inc.

That page is "The first writeup of the Linux System Base Proposal, signed by multiple players in the Linux community." It explains the LSB, if you are not familiar with it. And why was Love interested in LSB? He was targetting the enterprise, according to this February 2000 editorial in Software Magazine:

Why should software managers be interested in open source software? The simple answer is: Enterprise software managers can hedge technology risk by diversifying their software portfolios to include open source software....

But that is not the reason open source software is taking off. It's because the software is highly reliable; the model of development has technical advantages; developers like it; and the price is attractive Yet the open source community faces many challenges in gaining enterprise acceptance. One of those is the Linux Standard Base issue. This cause has been championed in particular by Ransom Love, president and CEO of Caldera Systems Inc.

And he was still pushing LSB at LinuxWorld in February of 2002. So, it's just so obviously true, what Flaxa testifies. And Love wasn't the only CEO that was saying how important LSB was. Here's Darl McBride, later in 2002, after he replaced Love, waxing poetic about the importance of standards:

"If the Linux community is going to successfully compete against companies like Microsoft, we have to be rallied around standards and interoperability. LSB gives us that....

"LSB is a specification that will help customers adopt Linux more readily. LSB sets a minimum standard by which Linux platforms, applications, and middleware can all interoperate. LSB is absolutely necessary if Linux is to succeed....

"In the world of Windows, one company has control over code, development, licensing, upgrade cycles, pricing, distribution, etc. It's pretty clear that if you are a customer of Microsoft, you're giving up a lot of control and you're locked into proprietary software around their 'standard'. "If Linux companies are going to be successful in providing solutions that compete against MS [Microsoft], then we have to agree upon a certain set of standards. That's why Caldera/SCO has been so vocal and supportive of LSB from its early beginnings. That's why we made sure that our partners made LSB certification a top priority in the upcoming release of UnitedLinux--due out in the October/November time frame."

Funny, huh? Flaxa mentions Caldera OpenLinux in his Declaration, and as it happens, I have Caldera OpenLinux Free Version, 2.3. So I took a look, and sure enough, you see Flaxa's name all over the place. Here's a couple, followed by Caldera's copyright, and I believe that by putting the copyright symbol, Caldera indicated that it had registered with the Copyright Office, which makes me think it might be interesting to see what exactly they told the Copyright Office they registered:

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

EXHIBIT 598

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRCT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

vs.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff.

DECLARATION OF RALF FLAXA

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C . Wells

2

I, Ralf Flaxa, declare as follows:

1. I was employed at Caldera, Inc. ("Caldera") on a freelance basis from November 1995 until October 1997. I was then a full-time Caldera employee from November 1997 until June 2002. I served as a Director of Caldera's Linux development team in Erlangen, Germany.

2. I am currently employed as Director, Project Management for SUSE Linux, a wholly owned subsidiary of Novell, Inc., in Nuremberg, Germany.

3. I am knowledgeable in English, but German is my native language.

4. This declaration is submitted in connection with the lawsuit brought by The SCO Group, Inc. ("SCO") against IBM, titled The SCO Group, Inc. v. International Business Machines Corporation, Civil No. 2:03CV-0294 DAK (D. Utah 2003). I make this declaration based upon personal knowledge.

5. Prior to the start of my employment with Caldera, Stefan Probst, myself, and others were involved in a business called LST where we developed a Linux distribution known as LST.

6. In approximately late 1994 to early 1995, Caldera approached LST to use the LST Linux distribution. At that point, I began working for Caldera as a contractor. LST worked with Caldera for two years.

7. Caldera based its Caldera Network Desktop and Caldera OpenLinux products on the LST Linux distribution and its installer technology.

8. Caldera acquired LST in 1997, forming a German corporation called Caldera Deutschland GmbH. Stefan Probst and I were Directors of Linux Development and had both

3

people and budget responsibility for Caldera Deutschland GmbH, a wholly owned subsidiary of Caldera.

Power Linux

9. Mr. Probst and I authored a book entitled Power Linux. This book was originally written in German based on our personal knowledge and was published by Springer-Verlag Berlin Heidelberg in 1997. In this book, we provided a general description of the Linux operating system, and a start-up guide for the LST Linux distribution (i.e., how to install, configure and start up the LST Linux operating system), and included two compact discs containing the LST distribution.

10. Power Linux was later translated into the English language. (Excerpts of the English version are attached as Ex. 1.) I was not involved in the translation process. However, the excerpts cited below in Paragraphs 11- 15 are correctly translated as best I can determine as a non-native English speaker.

11. The book noted that Stefan Probst and I "developed Linux systems and software for Caldera in the USA". (Ex. 1 at ii.)

12. In Power Linux, we recognized that Linux was a UNIX standard-compliant operating system that followed the POSIX standards and other standards applicable to UNIX distributions: "Support of common standards means that Linux is to a great extent POSIX compatible and follows Unix traditions in almost every area. The benefits are the simple integration of Linux systems into existing Unix computer networks and the easy transfer of software to the Linux platform". (Ex. 1 at 3.)

4

13. In Power Linux, Mr. Probst and I noted that Linux largely included functional elements required to support the UNIX standards: "Many efforts have already been made to transfer important standards from the Unix world to Linux. Already there are Linux systems certified to the POSIX.1 standard. Some of the required changes are already integrated in the Linux 2.0 kernel, and one can expect that the kernel will fully support POSIX.1". (Ex. 1 at 4.)

14. In Power Linux, we referenced the efforts undertaken by Caldera to pursue UNIX certification for Linux: "Caldera Inc. in Utah, USA is striving for Unix certification of Linux by 1997. Unix certification will definitely help Linux on the road to success. One will hear more on that subject in the near future within the frame of the 'Caldera Open Linux' development". (Ex. 1 at 5.)

15. In Power Linux, we noted that: "Though Linux cannot yet be embellished with the name Unix, it does in fact provide almost everything available in an official Unix release". (Ex. 1 at 8.)

Caldera Involvement in Linux Standardization

16. Caldera was involved in Linux standardization efforts, including the Linux Standard Base ("LSB"), when I began my employment.

17. LSB is a joint project by several GNU/Linux distributions under the organizational structure of the Free Standards Group to standardize the internal structure of Linux-based operating systems. The LSB is based on IEEE's POSIX specification, the Open Group's Single UNIX Specification, and several other open standards.

5

18. The goal of the LSB is to develop and promote a set of standards that will increase compatibility among Linux distributions and enable software applications to run on any compliant system.

19. Caldera, and particularly its CEO Ransom Love, was very active in the LSB and believed that the establishment of a standard interface was crucial to the future of both Linux and Caldera.

20. The LSB project was reorganized in 1998 into three technical sub-committee projects of equal importance, with each sub-committee having a technical lead. I was the technical lead for the LSB's Sample Implementation sub-committee, and held this position simultaneous with my employment at Caldera. Caldera's OpenLinux product was used as the basis for creating a sample implementation for the LSB.

21. I also served as the chief representative from Caldera to the LSB, and among my job responsibilities was to pursue LSB compliance for Caldera's Linux products.

Caldera's Contributions to Linux

22. Caldera employees made several important contributions to Linux in the course of their employment with the company.

23. For example, one of Caldera's key contributions to Linux included IPX. Several Caldera engineers are credited in the CREDITS file in the Linux kernel source with contributions, including Jim Freeman, Greg Page, and Ron Holt.

24. Caldera also played a key role in convincing partners to contribute to Linux. Largely as a result of these efforts, Caldera engineers and I have been recognized within the Linux CREDITS files.

6

United Linux

25. Caldera was the main driver of the formation of the UnitedLinux project. I was the Project Manager for Caldera and coordinated the company's involvement in United Linux. In this role, I was very familiar with the contents and features of UnitedLinux.

26. Caldera wanted UnitedLinux to have most all of the capabilities of UNIX.

27. Caldera knew exactly what was in the UnitedLinux code. The company's engineers, including myself, were very familiar with what was in Linux and knew what code and technologies were included.

SCO's Allegations

28. I understand that SCO claims that certain materials in Linux infringe SCO's alleged intellectual property, specifically: header files required by the Open Group's Single Unix Specification (SUS), header files relating to the Streams technology, and files and specifications relating to the Executable and Linking Format (ELF).

29. While employed at Caldera, I was aware that this material was present in Linux. I know so because of my familiarity with Linux and also because Caldera incorporated it into its Linux products.

30. Caldera distributed significant parts of its Linux products under the GNU General Public License (GPL).

31. Caldera sought to assist Linux in achieving technological equality with UNIX as quickly as possible.

7

I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct.

Executed: September 25, 2006.

Nuremberg, Germany

____[signature]____
Ralf Flaxa

8

EXHIBIT 1

9

Support of Unix standards

Support of common standards means that Linux is to a great extent POSIX compatible and follows UNIX traditions in almost every area. The benefits are the simple integration of Linux systems into existing Unix computer networks and the easy transfer of software to the Linux platform.

10

1.1.3 Standardization

Standardization

Many efforts have already been made to transfer important standards from the Unix world to Linux. Already there are Linux systems certified to the POSIX.1 standard. Some of the required changes are already integrated in the Linux 2.0 kernel, and one can expect that the kernel will fully support POSIX.1. The next step will be the XPG4 certification for Linux systems.

Caldera, Inc. in Utah, USA is striving for Unix certification of Linux by 1997. Unix certification will definitely help Linux on the road to success. One will hear more on that subject in the near future within the frame of the "Caldera Open Linux" development. ...

1.2 POWER LINUX

The POWER LINUX system before you is derived from the LST (Linux Support Team) distribution. LST is an independeat German development, which has its roots at the University of Erlangen-Nuremberg. Some fundamental changes have been introduced with the creation of version 2.2 from LST:

  • all software can be installed, removed, and updated using software management tools that work with the rpm package format;
  • complete conversion to ELF;3
  • compatibility with Caldera and Red Hat Linux;
  • orientation to the development of Caldera OpenLinux.

3 ELF - Executable and Linking Format

11

LST Software GmbH -- The development of LST is beeing continued by LST Software GmbH in Erlangen, Germany and POWER LINUX is based on Caldera GmbH OpenLinux Lite, the freely available version of Caldera OpenLinux.

12

The legendary "Unix" - After installing your new Linux system, you can dive into an exciting adventure with an operating system which may have been relatively unknown to you till now but whose benefits you surely have heard of: "Unix". Thought Linux cannot yet be embellished with the name Unix, it does in fact provide almost everything available in an official Unix release.

Multiuser system - Unlike many of the PC operating systems you may have used in the past, Unix traditionally has been a multiuser system. Where previously you may have worked with such a system as a normal user, Unix now offers you the unique chance to gain practical experience as system administrator with unlimited access to the system. After all, it is your PC with which you can do whatever you want. Even if accumulated errors necessitate a new installation, on the whole you will have at least gained valuable experience.

Responsibilities of the system administrator - Imagine what would happen, if you, as system administrator, made a mistake within a Unix system used by many people every day. Initially, since you are probably the only user of your computer, a mistake will not affect anyone else. You can regard Linux as a big playground in which you collect valuable experience in the use and understanding of Unix and system administration.

The versatility of Linux - Of course, you can also use your Linux system as a serious production environment for software development, word processing, or as a private productive desktop. Figure 1.5 shows the launchpad, which supports your daily work with useful programs.

In Chapter 5 we delve into details about the different programs and applications provided with the system and give you some ideas how to best use them.

13


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