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To read comments to this article, go here
IBM's Greatest Hits - Declaration of Thomas Roehr, Ex. 253 - as text
Saturday, November 11 2006 @ 12:13 AM EST

This is a very telling declaration, one of the 597 exhibits IBM has presented to the court in support of its half dozen summary judgment motions. This one is Exhibit 253, the Declaration of Thomas Roehr [PDF].

Mr. Roehr obtained two copies of Unix System V, once in 1993 when he bought a second-hand computer from a computer reseller and when he powered it up to see if it worked, he saw Unix System V release 4 code. When he told the reseller, the man informed him that the computer had been used in Bell Labs and it happened frequently that their computers would show up with Unix code still on them. The second time was when he got System V tapes to be used to bid on a project for Bell Atlantic, and when the project was scrapped, he was never asked for the tapes back. In neither case was he told to keep any of the code confidential or to return it or destroy it. As a result, he says that he was and is "lawfully permitted to use and disclose the source code" as he wishes.

I love the sentence where he says that after he got the computer with System V release 4 on it because nobody cared, he took it home and then: "Over the next year, I studied the UNIX kernel using the source code to improve my knowledge of Unix internals." Of *course* he did. Wouldn't you?

He was, obviously, not unique, as IBM points out in its Memorandum in Support of its Motion for Summary Judgment on SCO's Contract Claims, where it states that between 1985 and 1996, AT&T Capital Corporation, then a subsidiary of AT&T, sold thousands of used or discontinued AT&T computer systems, hundreds of them from Bell Labs, and some with System V code on them, without imposing any confidentiality restrictions on the purchasers. Why does this matter? Because of wording in the licensing agreement between IBM and AT&T.

The licensing agreement states that once the code/method/concept is publicly revealed, licensees like IBM are released from any confidentiality regarding the spilled beans:

7.06 (a) LICENSEE agrees that it shall hold all parts of the SOFTWARE PRODUCTS subject to this Agreement in confidence for AT&T. LICENSEE further agrees that it shall not make any disclosure of any or all of such SOFTWARE PRODUCTS (including methods or concepts utilized therein) to anyone, except to employees of LICENSEE to whom such disclosure is necessary to the use for which rights are granted hereunder. LICENSEE shall appropriately notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee. If information relating to a SOFTWARE PRODUCT subject to this Agreement at any time becomes available without restriction to the general public by acts not attributable to LICENSEE or its employees, LICENSEE'S obligations under this section shall not apply to such information after such time.

Not that IBM did, but even if they had, and even if there had never been amendments and side letters that explicitly gave IBM broader rights than this clause in the original contract, Mr. Roehr's experiences are used to show that SCO would have no legal complaint under the contract anyway, because AT&T spilled the beans or allowed the beans to be spilled a long time ago.

If you look on the chart of all the exhibits IBM submitted in support of its numerous summary judgment motions, you'll see that this declaration is used to support IBM's Motion for Summary Judgment on SCO's Contract Claims, specifically being listed in 104 in the context of showing that AT&T long ago gave up confidentiality:

104. Between 1985 and 1996, AT&T Capital Corporation, then a subsidiary of AT&T, sold thousands of used or discontinued AT&T computer systems, hundreds of them from Bell Labs, without imposing any confidentiality restrictions on the purchasers. Some of the computers included UNIX System V, Release 3, and Release 4 source code. (Ex. 174 10-16; Ex. 223 4-10; Ex. 253 3-5; Ex. 281 39; Ex. 189 32.)

105. AT&T recognized that its goal of promoting the widespread adoption of UNIX System V was inconsistent with its general desire to preserve the confidentiality of the source code. However, AT&T was more concerned with promoting the widespread adoption of UNIX System V, and collecting the associated royalties, than it was with protecting the confidentiality of its source code. (Ex. 281 35; Ex. 190 25.)

106. The code, methods, and concepts of UNIX System V are available without restriction to the general public within the meaning of 7.06(a), as the provision was intended by AT&T.

Mr. Roehr is a living witness that these words are true, because it happened to him. And you may have noticed that IBM never, so far, relies on only one witness to a fact. In this case, it also presents, among others, the Declaration of Robert F. Bucco, Exhibit 174, which backs up Mr. Roehr's testimony about operating systems being left on computers being resold; as well as that of Mark McGee, Exhibit 223, who was in charge of the reselling of the computers at AT&T Capital Corp., one of which Mr. Roehr purchased. As usual, IBM is very, very thorough.

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

Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
SNELL & WILMER LLP
[address, phone, fax]

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

Attorneys for Defendant International Business
Machines Corporation

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC., a Delaware
corporation

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION, a New York
corporation

Defendant/Counterclaim-Plaintiff.

Case No. 2:03CV0294 DAK

Honorable Dale A. Kimball

DECLARATION OF THOMAS ROEHR

I, Thomas Roehr, declare as follows:

1. I am currently employed as a technical integrator for Physicians Mutual Insurance Company, located in Omaha, Nebraska. As a technical integrator, I take various components of UNIX, with which I have had experience for approximately 17 years, and compile them into a uniform operating system.

2. This declaration is submitted in connection with the lawsuit filed by The SCO Group against Internation Business Machines Corporation, known as SCO v. IBM, Civil Action No. 2:03CV-0294 DAK (D. Utah 2003). Except as stated otherwise, this declaration is based on personal knowledge.

3. In 1993, while employed by Datanomics, an independent computer and internet technology consulting firm, I purchased a Sun 4/280 computer systems from CBM of America ("CBM"), a computer reseller. I paid a total of $800 for both computer systems, which I understood had been used at Bell Labs site in Whippany, NJ.

4. While at CBM's workshop, I powered up the computers to be sure they were working properly. One of the computers appeared to contain the entire UNIX source code. Mr. Bucco, who I understood had previously worked at Bell Labs, confirmed that the computer was equipped with the full UNIX source code. Mr. Bucco informed me that Bell Labs had left the code on the machines when he acquired them "as is" from AT&T, which he stated happened not infrequently.

2

5. Once I had the computers home, I more fully explored the source code and confirmed it to be the source code for UNIX System 5, Release 4. Over the next year, I studied the UNIX kernel using the source code to improve my knowledge of Unix internals.

6. In 1994, I sold the Sun 4/280 hard drives for $400. The man I sold the hard drives to made me a copy of the source code that was located on the drives.

7. In 1995, I was working for Brooks Brothers' Internet Technology Department, and also doing some part time consulting work, on the side. It was in my capacity as a consultant that I became aware of a project being considered by Bell Atlantic involving UNIX. In connection with my preparing a bid for the project, I was provided with a set of 9-track tapes which contained the entire source code for UNIX System 5, Release 2. Ultimately, Bell Atlantic decided to scrap the project. However, I was never asked to return the tapes.

8. In neither instance described herein was I ever told that the UNIX source code was confidential information and should be kept confidential. Nor was I ever advised that I was prohibited from disclosing, selling, trading, modifying, or otherwise using the code in any manner. I was not required to sign a confidentiality or non-disclosure agreement, and I understand that I was and am lawfully permitted to use and disclose the source code as I wish.

9. I declare under the penalty of perjury that the foregoing is true and correct.

Executed August 30, 2003
Omaha, Nebraska

___[signature of Thomas Roehr____]
Thomas Roehr

3


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