Here's Ransom Love's Declaration [PDF] as text, which he has provided to IBM, another of the 597 exhibits IBM has offered in support of its summary judgment motions. I want to thank Laomedon for doing the work.
Love was the CEO of Caldera prior to Darl McBride. And he tells the court about Caldera when it was a Linux company, about the Santa Cruz assets acquisition, a bit about Novell, where he worked before starting Caldera and worked on the Corsair project, and about his view of SCO's claims regarding header files. He didn't have to do this declaration. It's voluntary, unlike a deposition, and that speaks volumes right there.
He thrusts a dagger right into the heart of SCO's claims. I see no way to recover from his declaration, because there is no one who can convincingly contradict. He was the CEO, the co-founder of the company to boot. Who can possibly know more than he does about the history of the company, what it did with Linux, its striving for POSIX compliance, and particularly whether the company knew about the header files being in its own distribution of Linux that SCO claims are infringed? Even if SCO were able to trot out Bryan Sparks, the other co-founder, Sparks was not CEO at the time of the Santa Cruz acquisition. There is no one but Love to testify at this level. Love has done the honorable thing and told the truth. I take my hat off to him.
It's at the very end where he speaks about SCO's claims regarding header files -- those required by the Open Group's Single Unix Specification (SUS), the Linux Streams module, and files implementing ELF -- and he says it has all been in Linux a long time, some of it since Linux began. The company knew it was in there, and it distributed all the allegedly infringing header files knowingly. It was all in OpenLinux 3.1.1, for one example. ELF has been in Linux for more than a decade, he tells the court, and the Streams Material, though never included in the Linux kernel, was available since at least 1997, and Caldera even put it on its website for download.Caldera certainly knew those files were in Linux, he says:
We knew the SUS Material and ELF Material was in Linux from the beginning because we advocated the standardization of Linux, and the LSB required compliance with the SUS standard and the ELF format. Caldera's familiarity with the Streams Material dates back to its support of the LiS project, the success of which was vital for our Netware for Linux product.
Not only does he testify that all of the allegedly infringing material was in Caldera Linux, that Caldera knew it was in there, that it wanted it in there in some cases, and that the company knowingly distributed the files in its Linux products and from its websites, including the LiS Streams module, he explains very clearly to the court that even after Caldera acquired Santa Cruz's UNIX assets, Caldera remained, while he was CEO, "always first and foremost a Linux company dedicated to the promotion and development of Linux."
He has proven himself to be an honest man. It's mighty hard to find one these days, so it makes me very happy to know that there are still some left.
We spent so many hours of research time at Groklaw digging up evidence on these points and then writing article after article to prove much of what he states, but in a courtroom, a man who was there, who was in authority, and who is willing to tell the simple truth is devastatingly better. And I take my hat off to IBM's legal team. They lined up the very best to prove the truth of their position. No wonder SCO is asking for more time to answer IBM's summary judgment motions.
Of course, there is no answer to this Love Declaration, not that I can imagine. It is definitive. Put it together with Ralf Flaxa's very similar testimony in his declaration testifying to the same things, with the additional matter about how he personally made contributions to the Linux kernel as part of his employment at Caldera, and SCO is simply sunk on its header files claims. What have they got left if Judge Kimball doesn't overturn Judge Wells?
If you look on our chart of the IBM exhibits supporting their summary judgment motions, you will see that this one is used to support three of their motions, IBM's Redacted Memorandum in Support of its Motion for Summary Judgment on SCO's Contract Claims [PDFs: Part 1 and Part 2 - PDF], IBM's Memorandum in Support of Motion for Summary Judgment on its Eighth Counterclaim for Copyright Infringement [PDF], and IBM's Redaction to Sealed Memorandum in Support of its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement[PDF; Part B - PDF] and is referenced in them in the following paragraphs:
K Br. ¶¶111, 112, 113, 128, 129, 130, 131, 132, 133, 152, 153, 155, 156; Copyright Br. ¶4; DJ Br. ¶¶4, 7, 8, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32, 33, 43, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 62, 63, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 88, 89, 90, 92, 94, 95, 97, 100, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 126, 128, 186, 187, 188, 199, 204, 206, 207, 208, 210, 302, 308
One key point that this declaration is used to substantiate is this paragraph from the summary judgment on SCO's contract claims:
133. To achieve compliance with UNIX standards with its Linux products, Caldera hired software developers that had both UNIX and Linux experience to work on making Linux compliant with UNIX standards. (Ex. 221 ¶ 35; Ex. 442.)
SCO has claimed that doing such a thing would violate the contract, because the UNIX guys would be forever sworn to secrecy, once they had a glance at SCO's Sooper Seekrit UNIX code. It's a ridiculous claim, of course, coming from the company that made it happen. Another key point Love supports is this:
155. At the time Caldera acquired Santa Cruz's UNIX assets, Santa Cruz did not believe it was selling, and Caldera did not believe it was buying, the right to control what all UNIX System V licensees could do with their original works. (Ex. 227 ¶¶ 37-38; Ex. 221 ¶¶ 107-09.)
Of course, this Declaration's also used to tell the court the history of Caldera, the spin off as Caldera Systems, a Linux company, and that includes telling about the importance to the company of the GPL code it used and redistributed and contributed:
While I was at Caldera, we recognized that the decision to develop the Linux kernel under an open-source license was critical to our company's success. But for the development of Linux under an open-source license (like the GPL or a substantially equivalent license), the development of Linux would have been impossible, and it would have been difficult for Caldera to remain in business. Caldera would not have been able to economically create a product of the scope of the Linux kernel and related programs if not for GPL and other open-source licensed technologies....
We contributed code to Linux under the GPL. Every Linux product that the company ever used or distributed included code made available to us under the GPL. Similarly, every Linux product that Caldera distributed included a notice that the Linux kernel and various other components were being made available to others under the GPL.
Love also notes that Caldera was a member of OSDL. And he tells us something that was new to me, that Caldera and IBM entered into a business arrangement, whereby IBM received a license to use Caldera's products and in that business agreement, IBM was indemnified from any claims of infringement of intellectual property. Furthermore, as a licensee under the terms of the GPL, as he understood it, "the GPL afforded IBM protection from a claim of infringement by Caldera relating to the contents of Caldera's Linux products." I think that also would protect IBM from any spurious charge of violating the Computer Fraud and Abuse Act, for downloading code, since by this testimony, IBM was indeed licensed to receive updates, one would have to assume.
Love also reveals that he knew all about the Santa Cruz-sponsored study by Bob Schwartz of possible infringements of UNIX code in Linux, but Caldera didn't care even if there were such. It planned on merging the two anyway and then open sourcing the UNIX code in order to improve Linux, and in any case, it made no business sense to attack the operating system on which Caldera based its business.
Love also states clearly that by his understanding of the licenses, Caldera has no right to control IBM's homegrown code. It knew IBM in fact was revealing its homegrown code, but Caldera's view was that IBM had that right. Linux is not, by his understanding, a derivative of UNIX. "I believe," he states, "that SCO's interpretation of these licenses is mistaken."
Finally, he confirms that each member of UnitedLinux assigned ownership of the intellectual property rights in software developed by the project to UnitedLinux. Pre-Existing Technology was licensed to UnitedLinux. The specifics of what was Caldera's pre-existing technology is redacted, but everything you can see in that section backs up Novell's claims made in the arbitration in Switzerland.
SNELL & WILMER LLP
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
Business Machines Corporation
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC.,
INTERNATIONAL BUSINESS MACHINES
DECLARATION OF RANSOM LOVE
Case No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
I, Ransom Love, declare as follows:
1. I co-founded Caldera, Inc. in 1994 as a Linux company and later
when certain Linux divisions became Caldera Systems, Inc in 1998. After
I left Caldera
in June 2002, it was renamed The SCO Group, Inc. ("SCO"). Presently, I
sit on the board
of directors of Progeny, Inc. and am employed by the Church of Jesus
Christ of Latter-day Saints.
2. Based upon my duties and responsibilities at Caldera, I have personal
knowledge of its business. I am knowledgeable regarding the company's
and the licenses, such as the GNU General Public License ("GPL"), under
3. This declaration is submitted in connection with the lawsuit brought
against IBM, entitled The SCO Group, Inc. v. International Business
Corporation Civil No. 2:03CV-0294 DAK (D. Utah 2003). Unless stated
make this declaration based upon personal knowledge.
4. In Section I, I provide a brief overview of Linux. Section II
involvement with Linux while I was employed there. Section III explains
began producing a business-oriented Linux distribution. Section IV
describes the impact
of the GPL on Caldera's business. Section V provides an overview of
and promotion of Linux standardization. Section VI describes Caldera's
restructuring so that it could further focus on its Linux business, as
well as its subsequent
Linux promotion activity. In Section VII, I describe Caldera's strategic
with IBM to distribute compatible Linux products. Section VIII describes
acquisition of Santa Cruz's UNIX-related assets and Caldera's strategy
to unify UNIX
products with Linux products. Section IX describes Caldera's
participation in the
UnitedLinux project. In Section X, I set out my knowledge of SCO's
lawsuit with regard
to IBM's homegrown code. Finally, Section XI sets out my knowledge of
5. Linux is an operating system based on collaborative development.
of developers, including developers at SCO, contributed to the further
6. Linux is like the UNIX operating system developed by AT&T in the late
in that it has a monolithic kernel and a hierarchical file system.
7. Linux is an "open-source" program, which means, among other things,
source code is publicly available, royalty-free, and users have the
freedom to run, copy,
distribute, study, adapt and improve the software.
8. Linux not only adheres to open standards, but is built and maintained
worldwide group of engineers who share the common goal of making open
9. Anyone can freely download Linux and many Linux applications and modify
and re-distribute them with few restrictions.
10. The Linux kernel is distributed under the GPL, which provides that a
person receiving code under the GPL may copy and distribute verbatim
copies of the
Program's source code and modify [their] copy or copies of the Program
or any portion
of it, provided that they make any published modifications available to
others on similar
11. Whereas traditional software licenses often reflect legal limitations
restricting the use and reproduction of original works, open-source
software licenses are
ordinarily designed to keep the source code publicly available. The idea
is to ensure that
anyone can freely download open-source software and modify and
re-distribute it with
12. But for the fact that Linux was developed and is distributed under an
open-source license, Linux would never have achieved its present
popularity. The public
agreement of Linux developers (including Caldera developers) to apply
expresses, in what we understood to be a binding legal form, the
covenant that defines the
II. Novell's Early Linux Involvement.
13. Prior to co-founding Caldera Inc., I was employed by Novell, Inc. as a
Product Manager. It was during the course of my employment at Novell
that I was first
introduced to Linux.
14. Novell, in around 1994, became involved with Linux when Bryan Sparks
and I conceived the idea of creating an internet-friendly desktop
operating system using
Linux as its core. The project was known as "Corsair", and its goal was
Novell's customers to better and more easily integrate and manage
network access on its
15. During the Corsair project, we worked to develop a commercially
supported desktop distribution of Linux bundled with commercial
components that would
compete with Microsoft's Windows. However, when Ray Noorda (then CEO of
retired, the project was terminated before we could realize the goal of
creating such a
desktop Linux operating system.
III. Caldera Begins to Develop Linux For Business.
16. After Ray Noorda's departure from Novell in 1994, Bryan Sparks and I
left Novell to found Caldera, Inc. Contributing to the development of
Linux was a vital
part of our business plan as a seller of Linux-based products. It gave
us credibility with
both customers and partner companies.
17. Caldera, Inc. was formed to develop and market software based on the
Linux operating system and to provide related services enabling the
deployment and management of Linux-specialized servers.
18. Caldera, Inc. was the first company to invest heavily in the
of Linux as an acceptable business solution.
19. Continuing the work done by Novell on Project Corsair, Caldera, Inc.
developed a Linux desktop operating system, which it called "Caldera
and delivered it to market in 1995.
20. Caldera Network Desktop was based on the Linux 1.2.13 kernel and
distributed under the GPL.
21. Like other Linux companies, Caldera, Inc. distributed the Linux kernel
and many of the other components of its Linux products under the GPL.
IV. Business under the GPL.
22. While I was at Caldera, we recognized that the decision to develop the
Linux kernel under an open-source license was critical to our company's
success. But for
the development of Linux under an open-source license (like the GPL or a
equivalent license), the development of Linux would have been
impossible, and it would
have been difficult for Caldera to remain in business. Caldera would not
have been able
to economically create a product of the scope of the Linux kernel and
related programs if
not for GPL and other open-source licensed technologies.
23. The GPL affected significant aspects of our business at Caldera. The GPL
granted us the right to copy, modify and distribute the Linux kernel,
and set the terms
according to which we were required to treat the Linux kernel.
24. To the best of my knowledge, while I was employed at Caldera, we
adhered to these and the other terms of the GPL. That is not because it
was, from our
perspective, the ideal open-source license. Rather, it was because we
recognized that if
we wanted to copy, modify or distribute Linux, we were required to abide
by the GPL.
25. We made representations or promises to our partners in the development
community (commercial and non-commercial) and prospective customers that
not copy, modify or distribute the Linux kernel, including code
contributed by IBM and
others under the GPL, except on the terms set out in the GPL. Caldera
also made clear
and unambiguous representations or promises not to assert rights to
distributed by Caldera under the GPL except on the terms set out in the
26. We reinforced these representations or promises by our conduct. We
grounded our business on open-source licenses, of which the GPL is the
We contributed code to Linux under the GPL. Every Linux product that the
ever used or distributed included code made available to us under the
every Linux product that Caldera distributed included a notice that the
Linux kernel and
various other components were being made available to others under the
27. To be sure, we understood that developers and users of Linux would
reasonably rely upon our representations and that those representations
their conduct. Indeed, we understood that in fact developers and users
of Linux relied
upon our representations and promises and planned their affairs
believed that our efforts to champion the open-source movement
development and market acceptability of Linux.
28. Caldera Inc.'s firm grounding in the open-source movement made it a
natural proponent of open standards in the Linux community.
29. The creation of open standards for Linux was important for us at Caldera
and other Linux distributors because it permitted Linux to interact with
and encouraged beneficial competition and cooperation.
30. To encourage commercial acceptance of Linux, Caldera, Inc. championed
the standardization of Linux. We believed that the biggest deterrent to
acceptance of Linux was the resource expenditure by independent software
associated with porting their software products to multiple versions of
31. We helped and encouraged independent software vendors and
manufacturers to port their programs to our Linux products in an attempt
to provide the
types of software that had been unavailable for Linux to that time.
32. To facilitate the porting of Linux to applications written primarily for
UNIX-based operating systems, Caldera, Inc. worked to make its Linux
compliant with various UNIX standards, including the X/Open brand for
UNIX 95, and
the POSIX.1 specification.
33. Operating system vendors profit in general from standards because
standards make it easy for those developing application programs (i.e.,
spreadsheets, Web browsers, etc.) to create applications that run on
that operating system
without the need to create different versions of their applications for
And the more applications that run on an operating system, the more
popular it will be.
34. Caldera Inc. sought to make Linux and its Linux products as UNIX-like as
it could in order to encourage use by UNIX enthusiasts.
35. To achieve compliance with UNIX standards for its Linux products,
Caldera, Inc. hired software developers who had both UNIX and Linux
36. Caldera Inc. also made efforts to acquire key technologies, such as
of the Single Unix Specification (SUS) APIs and certain UNIX test suites
Lasermoon of Wickham, England to achieve certification for our Linux
products on the
X/Open brand for UNIX 95. Lasermoon was a Linux company that had pioneered
Linux's migration towards X/Open standards and other UNIX certifications.
37. Compliance with the X/Open brand for UNIX 95 required conformance
with all of the requirements of the Single Unix Specification (SUS),
incorporation of all of the required header files into the operating
38. Caldera Inc. announced to the Linux community that it was striving for
UNIX certification for Linux by 1997, which we believed would definitely
help Linux on
the road to success. I note, however, that our relationship with
Lasermoon ultimately fell
through because it could not deliver the UNIX certification test suites.
39. In 1996 Caldera, Inc. began shipping its second Linux-based operating
system, Caldera OpenLinux, a new 32-bit, Linux 2.x-based platform for
area networks (LANs) to the home, branch office, remote user,
40. Caldera, Inc. intended Caldera OpenLinux to be compliant with certain
UNIX standards, including the X/Open brand for UNIX 95, and the POSIX.1
41. Like Caldera Network Desktop, Caldera OpenLinux was distributed under
42. Caldera, Inc. continued to promote and develop its Linux products as a
high-end operating system appropriate for business use. For example, we
not only added
features to OpenLinux, we included a wider range of bundled proprietary
43. In fact, Caldera, Inc. marketed its Linux products as "an inexpensive
alternative to UNIX-based systems", and "a complete networking solution"
for "small- to
medium-sized businesses and enterprises."
44. To make Linux more UNIX-like, we proposed that Streams technology,
originally developed for use in UNIX operating systems, be included in
required Linux Streams support in order to be able to run our Netware
for Linux product.
45. We were unable to persuade the Linux community to include Streams
technology in the Linux kernel. However, we made a significant
contribution to the
project that made Streams a loadable module for use with Linux operating
other words, we helped to develop a Streams module that users could add
to the Linux
kernel to provide support for Streams.
46. Caldera Inc.'s Streams support resulted in the Linux Streams (LiS)
47. In addition to participating in the LiS project, which led to the
of Streams for Linux, Caldera Inc. made the LiS Streams module freely
download on its website. Indeed, the online announcement of Linux
read: "LiS Streams is now available. It is referenced to kernel version
2.0.24. It can be
obtained from Caldera's FTP site as follows: ftp.caldera.com:
48. Caldera Inc. was the first corporate signer of the 1998 document
the Linux Standard Base ("LSB"). The Linux Standard Base (LSB) Project
attempt to define the common core of components that can be expected to
be found in
any Linux system.
49. The LSB also incorporates by reference requirements of common UNIX
standards such as the Single UNIX Specification and POSIX.
50. The main objective of the LSB was to solve the problem facing every
commercial independent software vendor (ISV), namely, the resource
associated with porting their software products to multiple versions of
the many Linux
products and distributions currently in the marketplace.
51. Caldera's Director of Linux Product Development, Ralf Flaxa, chaired the
LSB standard implementation.
52. The Santa Cruz Operation, Inc. ("Santa Cruz") also supported the
standardization movement with regard to Linux. Santa Cruz encouraged
adoption of the
LSB and saw compliance with standards as vital to the future success and
53. In addition to its own support of the LSB, Caldera exhorted all members
of the Linux community to support the LSB and Linux standardization in a
"Linux is at a crossroads, and the path seems clear. All Linux providers
give up some immediate and transitory gains today so that the Linux Standard
Base can be allowed to establish unifying software porting standards. A
long-term vision of the Linux opportunity should encourage all providers to move
54. In addition to participating in the LSB project, Caldera, Inc.
Cruz also participated in the following other community projects
directed as creating
uniform standards forLinux:
VI. Caldera Spin Off and Business Marketing.
- the Linux Professional Institute, an independent organization
the establishment of professional certification standards for Linux
- the Linux Internationalization Group (a voluntary Linux community
working group, which Caldera helped to found, dedicated to addressing
interoperability, internationalization and localization of Linux
in the international context;
- the IA64 Linux Project, an Intel-sponsored initiative to port the Linux
kernel to the Intel Itanium processor; and
- the Open-source Development Lab (the goal of which was to "foster and
support the development of additional open-source and Linux
55. In 1998, Caldera, Inc. split and placed its assets relating to its
developing and marketing Linux software into Caldera Systems, Inc., a
56. Unlike Caldera Inc., which maintained both a Linux business and a
business line that was not engaged in developing and marketing Linux
Systems was dedicated solely to the development and marketing of
57. Caldera Systems continued to upgrade its Linux products, for which it
received numerous awards and recognitions, including Internetweek's Best
of the Best,
The Linux Show's Best Distribution of Millennium, Linux Journal's
Product of the Year
award at Comdex and Network Computing's Well-Connected Award for Best
58. We not only continued to market our Linux products as suitable for
business but also we represented them as a replacement for UnixWare and
For instance, in 1998, while I was the President and CEO of Caldera
Systems, I stated,
"Linux does a better job than SCO UNIX, has better scalability and will
applications written for SCO UNIX without modification.".
59. Caldera Systems also continued the work of Caldera, Inc., driving Linux
community projects directed at creating uniform standards for Linux,
including the Linux
Standard Base, the Linux Professional Institute, the Linux
Internationalization Group, the
IA64 Linux Project, an Intel-sponsored initiative to port the Linux
kernel to the Intel
Itanium processor, and the Open-source Development Lab.
60. At Caldera Systems, we consistently contributed to the Linux and Open-source community by, among other things:
61. Caldera Systems also expanded its Linux technical training,
and support, and began partnering with more schools and training centers
to offer its
- providing engineering assistance and specifications for the IPX kernel
- helping with the development of SPX in the kernel;
- contributing to the development of DOSEMU;
- participating in the development of WINE, supporting WABI;
- being an early sponsor and architect of the Redhat Package Manager
- helping sponsor the development of WABI and extensions;
- contributing equipment and funding for the SMP project;
being an early contributor to the development of various kernel drivers,
including Ethernet and Frame Relay;
- helping incorporate some NT drivers for the XFree Organization;
helping fund the development of the K Desktop Environment (KDE);
- helping make patches to streams available to the Open-source
- helping fund the initial porting of Netscape for Linux and
developing, then open-sourcing Novell's Netware Client for Linux;
- funding work on NFS for Linux;
co-sponsoring the initial porting of WordPerfect to Linux;
helping finance the development of StarOffice with Star Division;
- GPL'ing COAS, the Caldera Open Administration System;
- being among the very first Linux distributors to work with
developers, promoting the porting of many important software works to
- GPLing its Linux Wizard, Lizard; and
- continuing to provide manpower and funding to vendor-neutral
such as Linux Standard Base and the Linux Professional Institute.
62. The Company's educational programs were designed to help its customers
develop, deploy and administer Linux systems.
63. Caldera Systems was at the forefront of Linux development and
promotion. But for our efforts, Linux would not have progressed as
rapidly as it did to
become an enterprise-ready operating system.
64. Caldera received numerous awards and recognitions for its work in
promoting Linux. During 1999 and 2000 alone, we received the following
65. Substantially all of Caldera Systems' revenue was derived from
Linux products and services.
- CNET Editor's Choice Award (October 2000);
- Network World Blue Ribbon Award (September 2000);
- Linux Magazine's Emperor Award (May 2000); PC ONLiNE Testsieger's
- Listing in Upside Magazine's Millennium 2000 eBusiness 150 (March
- Andover.net Dave Central's Best of Linux winner (February 2000); Linux
Magazine's Cool Product Award (February 2000);
- PC Direct (Ziff-Davis) Best Buy 2000 award (January 2000);
Internetweek's Best of the Best award for best software for 1999
- The Linux Show's Best Distribution of Millennium (December 1999);
- Linux Journal's Product of the Year award at Comdex (November 1999);
Listing in PC Magazine's Top 100 Technology Companies That Are
Changing the World (October 1999);
- Linuxworld Editor's Choice Award: Best Client and Distribution (August
- Highest Rated Linux Distribution by VarBusiness in 2000 Annual Report
- Network Computing's Well-Connected Award for Best Networked
Operating System (May 1999); and
- MikroPC's Product of the Year Award (1999).
VII. Caldera and IBM.
66. In the late 1990s, Caldera Systems approached IBM about entering into a
business relationship relating to Linux, as had other Linux providers.
By that time, Linux
already was appropriate for business use because of its comprehensive
functionality, flexibility and customizability, high scalability,
with multiple systems and networks, multiappliance capability, including
devices, low acquisition and maintenance costs, and compliance with
67. In July 1999, the companies entered into a "Strategic Business
Agreement", the purpose of which was to establish a business
relationship under which
the parties would cooperate to provide products and services for the
operating system. The next year, we executed the Statement of Work
IBM, under which iBM would have the ability to deliver a Caldera Linux
solution to end-users.
68. As part of these arrangements, Caldera granted IBM a license to use the
material in Caldera Systems' Linux products.
71. SECTION REDACTED No
reference was made to versions because the renewable license would of
course apply to
future versions of the products. It is my understanding that after my
departure, in a later
version of this product line, OpenLinux was renamed "SCO Linux 4.0", and
was also licensed to IBM under the Strategic Business Agreement.
72. Since the original agreement was for the purpose of creating compatible
products and services, section 8.3 of the agreement provides:
73. The Statement of Work provided a mechanism by which IBM would be
considered a "conduit" through which Caldera would license the OpenLinux
third parties, but it did not place any limitations on the license
granted in the Strategic
74. When I signed the Strategic Business Agreement, I understood and
intended this contract between IBM and Caldera to grant IBM a standard
protecting it against a claim of infringement relating to the material
in Caldera's Linux
75. In addition to the license granted to IBM, Caldera also warranted
Strategic Business Agreement that:
76. In the Strategic Business Agreement, Caldera also promised IBM
would hold harmless and indemnify IBM from claims that the Deliverables
infringe the intellectual property rights of a third party.
77. Further, Caldera licensed its products under the GPL. Under that
IBM has the right to use the source code of Caldera's Linux products.
78. The GPL provides that a person receiving code under the GPL may copy
and distribute verbatim copies of the program's source code and modify
their copy or
copies of the program or any portion of it. As I understood it, the GPL
protection from a claim of infringement by Caldera relating to the
contents of Caldera's
VIII. The Santa Cruz Acquisition.
79. On the strength of its Linux business, Caldera Systems went public in
March 21, 2000. Santa Cruz supported the move in January 2000 by
Sun Microsystems Inc., Novell Inc., and several other groups on a $30
in Caldera Systems.
80. On May 7, 2001, using most of the proceeds from its initial public
offering, Caldera Systems undertook to expand and enhance its Linux
acquiring the Server Software and Professional Services divisions of
including their UNIX-related assets. Caldera Systems completed the
a newly formed subsidiary, known as Caldera International, Inc., which
as the operating company of Caldera Systems. I took the leading role in
transaction, including the due diligence efforts.
81. In February 2001, following Caldera Systems's announcement of intent to
purchase Santa Cruz and prior to SEC approval, Caldera Systems
itself and its Linux products and its Linux services as follows:
82. In the course of preparing for the Santa Cruz acquisition, other Caldera
executives and I learned that Santa Cruz had commissioned a study (by a
Bob Swartz) in
- "Caldera Systems Inc. is a `Linux for eBusiness' technology leader in
developing and marketing successful Linux-based business solutions";
- "Caldera has chosen, integrated, and tested key open-source and
commercial software to create a predictable business quality server that
meets your needs now and years to come";
1999 to compare UNIX and Linux code. We at Caldera were aware that some
Cruz questioned whether Linux included code improperly copied from UNIX
83. We at Caldera did not care whether UNIX source code had been included
in Linux improperly and we did not at any point publicly disclose that
there might be any
problem with Linux.
84. Caldera intended to merge the operating systems and recognized in any
event that pursuing litigation against Linux would be bad for business.
We made the
decision not to attack the operating system that we had promoted from
85. We purchased the UNIX assets of Santa Cruz with an eye toward open-sourcing the UNIX technology to improve Linux. Caldera stated publicly
Cruz's UNIX assets were rapidly losing their value, that the market was
Linux, and that "UNIX is dead, except as a value add to Linux".
86. Among the source code that we acquired from Santa Cruz -- apart from the
source code from the ongoing UnixWare and OpenServer product lines -- was
code from earlier versions of UNIX operating systems developed at AT&T
in the 1970s
and 1980s. These predecessor versions of the UNIX software had been
newer and improved versions (such as UnixWare), and were not marketed
by Santa Cruz or by Caldera, after we acquired them. We at Caldera did
not believe that
these ancient versions of the UNIX software had much, if any, monetary
value, as they
were outdated and were no longer widely used.
87. In acquiring the UNIX assets of Santa Cruz we hoped to unify UNIX and
Linux operating systems, as a way of encouraging businesses to adopt our
and thereby stimulate revenue. In pursuit of this strategy, we designed
products to permit existing UNIX-based users to migrate to Linux and
in developing and deploying unified UNIX and Linux solutions through
custom engineering services.
88. To unify Linux and UNIX, we considered contributing components of
source code from UNIX programs to accomplish our goal of establishing
ourselves as a
key Linux vendor in the marketplace. We assigned key engineers from
development group to work with our Linux developers to identify ways in
could be accomplished.
89. Accordingly, I, together with Dion Johnson (who had formerly been
employed by Santa Cruz and joined Caldera after the acquisition) and
decided to open-source the code for these ancient versions of the UNIX
software under a
license that allowed licensees to freely copy, modify and distribute the
any royalty. I made the decision to open-source this code so that it
could, among other
things, be available to support the development of Linux.
90. Indeed, at first we wanted to open-source all of the code for the UNIX
software we had acquired from Santa Cruz so that it could be used to
development of Linux. Yet we quickly found that even though we owned the
for the UNIX software, it was full of code copyrighted by other
companies and used in
the UNIX software, such as UNIX System V, under license. We didn't want
years clearing out old copyright issues in the face of corporate
opposition. For example,
Intel Corp. opposed the open-sourcing of the UNIX software. So instead
of unifying the
source codes of Linux and the UNIX software that we had acquired, we
decided to pursue
other means of obtaining interoperability and unification.
91. Caldera International continued to distribute Santa Cruz's UnixWare and
OpenServer products following the acquisition in 2001, but it positioned
products ahead of its UNIX products. For example, Caldera encouraged
OEMs, such as Oracle, to focus on the certification and support of its
Linux products, to
the detriment of its UNIX products.
92. One of the primary purposes of the Santa Cruz UNIX asset acquisition
was to acquire a distribution channel for our Linux products, which were
our priority. As
I announced at LinuxWorld in August 2000:
"Business customers tell us that they'd be more aggressive in the
Linux if they could purchase and obtain support through the same
channel that they use for everything else. The SCO acquisition gives us more
than 15,000 knowledgeable, trained resellers, ISBs and support staff
This infrastructure would have taken us millions of dollars and years to
93. Our continuing focus on the success of our Linux business was clear from
our actions following the Santa Cruz asset acquisition. Like Caldera
Systems before the
acquisition, Caldera International:
- Expended development funds to promote Linux products;
- Represented Linux as a product that could be used to power internet and
software needs of businesses, academics and technical institutions around
- Represented the benefits of Linux specifically to include comprehensive
internet functionality, flexibility, customizability and stability,
interoperability with multiple systems and networks, low acquisition and
maintenance costs, and compliance with technical and communication
- Provided a full range of pre- and post-sales technical support for SCO
94. In May 2002, Caldera International joined with other Linux vendors,
Conectiva, Inc., SuSE Linux AG, and Turbolinux, to form a Joint
Liability Company called UnitedLinux, LLC ("UnitedLinux").
95. As Caldera International's CEO, I was a driving force behind UnitedLinux
and was the signatory for Caldera to the Joint Development Contract
("JDC") and the
Master Transaction Agreement ("MTA") that created UnitedLinux.
96. UnitedLinux was formed to streamline Linux development and
certification around a global, uniform distribution of Linux for
business. Under the terms
of the JDC and the MTA, this standardized, uniform distribution of Linux
UnitedLinux was defined as the "Software".
97. By developing the Software, Caldera International and the other members
of UnitedLinux endeavored to give businesses a reliable, tested and
98. To achieve the above purpose of UnitedLinux, each member assigned to
UnitedLinux ownership of the intellectual property rights in the
Software that was
developed by UnitedLinux. In addition, Pre-Existing Technology was
UnitedLinux. Any enhancements that were made to their Pre-Existing
"Enhancements") remained the property of the contributing company.
99. Specifically, under the terms of both the JDC and the MTA, each
UnitedLinux member agreed:
100. Caldera intended to assign and assigned ownership of the intellectual
property rights in the Software (other than Caldera's Pre-Existing
Enhancements) to UnitedLinux.
101. The Pre-Existing Technology retained by Caldara included the following
102. Therefore, other than the above Pre-Existing Technology, all of
intellectual property rights in the Software developed by UnitedLinux,
were assigned to
UnitedLinux and are owned by UnitedLinux.
X. SCO's Litigation with IBM.
103. SCO commenced this lawsuit against IBM following my departure from
the company, but I have reviewed SCO's complaint and am aware of public
by it about the case. I understand that, after SCO revisited the earlier
Swartz study that
both Santa Cruz and Caldera had dismissed, SCO is contending that it has
rights to Linux and to original or homegrown code in IBM's AIX and Dynix/ptx
products, and that, pursuant to copyright law, SCO can prohibit the use
of certain Linux
104. I understand that SCO claims that Linux is an unauthorized
certain UNIX software, that SCO has the right and authority to control
the use and
distribution of Linux and that neither IBM nor any other person or
entity can lawfully use
or distribute the Linux kernel without a proprietary license from SCO. I
have read SCO
statements to this effect in press releases and press interviews.
105. To my knowledge, while I was CEO at Caldera, no one at the company
viewed Linux as a derivative of any UNIX software. As we used the term
while I was
CEO, Linux would not be considered a "derivative" of UNIX software, even
if (as SCO
contends) certain lines of UNIX software code were included in Linux. As
told customers and our employees, anyone can use and distribute the
Linux kernel so
long as they adhere to the terms of the GPL.
106. I also understand from SCO's public comments that it claims to have
proprietary rights to Linux based on certain licenses that IBM entered
into with AT&T
for UNIX System V in the mid-1980s. As I understand it, SCO believes the
licenses for UNIX System V that Caldera acquired from Santa Cruz (and
that Santa Cruz
in turn acquired from Novell) gave Caldera the right to control original
code written by
licensees (such as IBM) for their own programs, just because those
programs might be
said to be "derived" from UNIX System V. I believe that SCO's
interpretation of these
licenses is mistaken.
107. My understanding of the AT&T UNIX System V licenses we acquired
from Santa Cruz in 2001 is that they prohibited licensees from
disclosing the source code
for UNIX System V, even if that source code had been placed by the
another program. The licenses (which are similar, if not identical, to
the licenses under
which Caldera continued to license the UnixWare software we acquired
from Santa Cruz)
did not give Caldera any right to control the licensees' "homegrown"
code that was
written by them and included in their own software programs, even if
programs could be said to have been "derived" from UNIX System V. In my
would not make any sense.
108. During the time that I was at Caldera, neither I nor any of Caldera's
employees responsible for the licenses we acquired from Santa Cruz ever
view that the licenses permitted Caldera to control the use and
disclosure of our
licensees' original code. In addition, I also never heard anyone from
Santa Cruz express
such a view of the licenses during the negotiations leading up to
Caldera's acquisition of
Santa Cruz's UNIX-related assets.
109. After Caldera acquired ownership of the UNIX Code, even though we
were aware that IBM was disclosing homegrown code, we made a conscious
take no action against such disclosure because, in addition to our
belief that such
disclosure was permitted under the licenses, we believed that such
benefit the development of Linux and thus Caldera's overall business
Furthermore, Caldera was concerned that any Caldera action against IBM
licensees for disclosure of homegrown code would greatly harm our
ability to do business in the open-source community.
XI. SCO Claims About Linux.
110. I understand that SCO alleges infringement with regard to certain
files required by the Open Group's Single Unix Specification ("SUS
iles associated with the Linux Streams module ("Streams Material"), and
implementing the ELF binary format ("ELF Material") (all collectively,
111. The Allegedly Infringing Material has been in Linux since before SCO
commenced this lawsuit. All of the SUS Material has all been in Linux
since 2000 and
some of it has even been in Linux since its inception in 1991. The ELF
Material has been
in Linux for more than a decade, since version 1.0. And the Streams
never included in the Linux kernel, has been available since at least
112. We knew the SUS Material and ELF Material was in Linux from the
beginning because we advocated the standardization of Linux, and the LSB
compliance with the SUS standard and the ELF format. Caldera's
familiarity with the
Streams Material dates back to its support of the LiS project, the
success of which was
vital for our Netware for Linux product.
113. To the best of my knowledge and recollection, all of the files
SCO were distributed by SCO in its Linux products or on its website in
its Linux business. SUS Material, Streams Material, and ELF Material was
in Caldera's Linux products. The LiS Streams module was available from
website from the time of its initial announcement in 1997.
114. OpenLinux 3.1.1 itself included SUS Material, Streams Material, and ELF
115. Caldera encouraged the inclusion of much of that material. Caldera,
after acquiring Santa Cruz's UNIX assets, was always first and foremost
company dedicated to the promotion and development of Linux. We promoted and
marketed Linux because, as a Linux company, our fate rested upon the
success or failure
of the product upon which we had staked our future.
116. Caldera's activity concerning Linux was purposeful and intended to be
taken seriously by others. In my view, our Linux activities at Caldera
we intended that they be relied upon:
Because of the commercial nature of our "Linux for Business" strategy,
we went to great
lengths to convince the Linux community that we were a true supporter of
- Founding a business on a single product communicates confidence in that
product, including its legality.
- Offering Linux products for sale, and selling them, invites
potential customers to use and rely upon the products.
- Making a product available for download from the internet,
source code of an operating system, which is inherently utilitarian,
expresses the intent that it be downloaded and used. Otherwise there
would be no reason to make it downloadable.
117. I declare under penalty of perjury that the foregoing is true and
Executed: September 15, 2006