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The Exhibits in Support of Novell's Motion for PSJ on 4th Claim for Relief - Updated
Sunday, December 23 2007 @ 12:15 AM EST

For historians, not to mention us munchkins, I thought it'd be a good idea to list what all the exhibits are which are attached to the Declaration of David Melaugh [PDF], filed in support of Novell's Motion for Summary Judgment on its Fourth Claim for Relief.

It's beginning to jell in my mind what I believe this new Novell motion is for -- Novell wants to establish firmly that SCO had no contractual authority to enter into SCOsource licenses in the first place. It's not about money. It's about establishing once and for all that Linux is free of SCO's accusations, and that no one need ever fear a repeat performance by them or any later acquirer of their alleged assets. SCO is not, after all, the only greedo on the planet. But why now? What is new?

I note that Novell only received SCO's responses to Novell's Second and Third Sets of Interrogatories in mid-July of 2007. The court ruled on all the summary judgment motions on August 10th, to give you a feel for just how late in the process that is, especially when you consider that Novell served its Second [PDF] and Third Set of Interrogatories [PDF] within days of each other late in September of 2006. I'm thinking that may explain the new Novell motion for partial summary judgment, because at that point, Novell must have seen something they thought was important they could use, and Exhibit 14 is included, SCO's responses. It's filed under seal, unfortunately. The tardy responses, I would imagine, reflect a SCO desire to keep the materials out of view until the last possible moment, hoping, I'm guessing, that it would be too late to do anything meaningful with the materials. Keep in mind that interrogatories ask for answers to questions but also for documents regarding those answers. Ironically, the bankruptcy stay provided time and now a new opportunity presents itself to use the materials, and so here they are, in support of this motion.

The most interesting exhibit by far of the ones not sealed is Exhibit 2, where SCO in December of 2002 announced SCOsource to "License Unix Intellectual Property and Protect Linux." Note that this is *not* the same as the press release dated January 22, 2003, which also announced SCOsource and the retention of Boies Schiller but did not mention protecting Linux. The differences are significant, raising questions in my mind as to the role played by Boies Schiller in causing those differences to be played out. The second press release was titled, "SCO Establishes SCOsource to License UNIX Intellectual Property" with the subtitle, "SCO, the Majority Owner of UNIX Intellectual Property, Creates New Licensing Programs to Expand Access to Its UNIX Technology, Beginning With SCO System V for Linux". At the time of the first press release in December of 2002, SCO, then calling itself Caldera, was still selling Linux, if you recall.

And if you can read Exhibit 7, the Darl McBride letter to Questar's CEO without your blood boiling, you must be under sedation. And one of the sealed exhibits is Questar's agreement it signed with SCO, Exhibit 18, so I guess it did the trick.

Finally, we find out something I don't seem to recall noticing before, the dates Sun and Microsoft signed on to SCOsource, and it turns out Sun was first, in February of 2003. Microsoft didn't buy its version until April. In between, SCO sued IBM, in March. Maybe we've noticed those dates before, and it just hits me hard every time.

Some of them are sealed exhibits, unfortunately, but by listing them all, you can at least see what the court gets to see, thus getting an overview, and I've also included not only the PDFs but where we have text done already, a link to that as well. I've noted where there could be differences between what is listed and the version we previously already had as text, and if you note any others, please sing out.

Here, then, are the exhibits:

  • Exhibit 1: A presentation, titled "SCOSource Announcement", dated December 11, 2002 (filed under seal)

  • Exhibit 2: A press release by SCO entitled, "SCO Establishes SCOsource to License Unix Intellectual Property and Protect Linux", dated December 11, 2002

  • Exhibit 3: A presentation by Jay Petersen on "SCO System V for Linux Sales Guide - Internal Use Only", dated February 26, 2003 (filed under seal)

  • Exhibit 4: A draft letter from Darl McBride, dated May 12, 2003 (filed under seal)

  • Exhibit 5: A letter from Darl McBride to Jack Messman, dated May 12, 2003 [text]

  • Exhibit 6: A letter from Darl McBride to Fortune 1000 Companies, dated May 12, 2003 [text]

  • Exhibit 7: A letter from Darl McBride to Keith Rattie, President and CEO of Questar, dated May 12, 2003.

  • Exhibit 8: The "Declaration of Robert A. Marsh" submitted in the SCO v. IBM litigation, dated April 5, 2006 [text]

  • Exhibit 9 [part 2 and part 3]: The Asset Purchase Agreement dated September 19, 1995 [text]

  • Exhibit 10: Amendment 1 to the APA [text]

  • Exhibit 11: The Software License Agreement between Sun Microsystems, Inc. and SCO, dated February 25, 2003 (filed under seal)

  • Exhibit 12: Amendment 2 to the APA, dated October 16, 1996 [text]

  • Exhibit 13: The Release, License and Option Agreement between Microsoft and SCO, dated April 30, 2003 (filed under seal)

  • Exhibit 14: SCO's Supplemental Responses and Objections to Novell's Second and Third Sets of Interrogatories, served on Novell on July 12, 2007 (excerpts only; filed under seal)

  • Exhibit 15: The Intellectual Property License Agreement between SCO and Everyone's Internet, Ltd, dated December 13, 2004 (filed under seal)

  • Exhibit 16: The Intellectual Property Compliance License Agreement for SCO UNIX Rights between The SCO Group and Computer Associates International, Inc. dated August 11, 2003 (filed under seal)

  • Exhibit 17: The Corporate Intellectual Property Agreement between SCO Group and HEB Grocery Company dated July 30, 2004 (filed under seal)

  • Exhibit 18: The Intellectual Property Compliance License Agreement for Linux between The SCO Group and Questar Corporation dated January 16, 2004 (filed under seal)

  • Exhibit 19: A letter from Richy Anderson to Jerry Wiener dated April 30, 2004 (filed under seal)

  • Exhibit 20: A Purchase Order dated October 14, 2003 (filed under seal)

  • Exhibit 21: The SCO Group, Inc.'s Intellectual Property License Agreement (filed under seal) [For the record, note there was also this version, called "Intellectual Property License for Linux" which was obtained from SCO by LWN in August of 2003, and here's a screenshot of SCO's website I took in December of 2004]

  • Exhibit 22: The Business Cooperation Agreement between The SCO Group and Cymphonix Corporation dated March 24, 2005 (filed under seal).

And so we have it for the record, here is Exhibit 2. You'll notice that SCO claimed to own patents, which a simple reading of the APA would have told even the simplest soul was not true. They list UnixWare as a trademark of the Open Group. And while the press release claims that the new licensing was to "protect" Linux from any IP claims based on UNIX, since the press release also claims that SCO owned it all lock, stock and barrel, I think we can discern that SCO meant to sue way back then. It offered its customers a free license for SCO's version of Linux, and I think we can figure out the plan from that. I gather the first plan was to make money from Linux and use patents to shut down, or get licensing money from, all other distributions.

Speaking of plans, remember when Darl McBride told Jonathan Barr at Bloomberg News, as published in the Salt Lake Tribune on August 4, 2003, that Robert Bench submitted a stock sale plan for insiders in January of 2003, "months before litigation was contemplated"?:

"Chief Financial Officer Robert Bench began the selling by SCO insiders, four days after SCO filed the suit against IBM. Bench is selling to help pay a $150,000 tax bill, McBride said. Under the Sarbanes-Oxley law, companies are no longer able to loan executives money to pay taxes or other expenses.

"Bench submitted a sale plan in January, months before any legal action against IBM was contemplated, McBride said. His agreement called for the sales to begin on March 8. He planned to sell 5,000 shares a month for the next 12 months, according to the plan."

Read this press release and ask yourself if that rings true, something I noted at the time.

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

FOR IMMEDIATE RELEASE

Contact:
Blake Stowell
The SCO Group
[email, phone, url]

Laura Sexton/David Close
Schwartz Communications
[email, phone]

SCO ESTABLISHES SCOsource TO LICENSE UNIX INTELLECTUAL
PROPERTY AND PROTECT LINUX

SCO, the majority owner of UNIX intellectual property, creates licensing programs to assure UNIX IP protection for Linux environments, introduces SCO System V for Linux and retains David Boies to investigate and advise SCO on IP issues

LINDON, UTAH -- Dec. 11, 2002 -- The SCO Group (Nasdaq:SCOX), a leading provider of Linux and UNIX business software solutions, today announced that it has created a new business division to manage the licensing of its UNIX intellectual property and protect Linux from UNIX IP issues that are associated with the popular open source operating system. The new division, called SCOsource, will manage the substantial UNIX intellectual property assets owned by SCO, and will operate an array of licensing programs.

Key components of today's announcement include:

  • The creation of SCOsource, a division of SCO that will expand the licensing of the company's core intellectual property, including the core UNIX source code.

  • The first offering from SCOsource will be SCO System V for Linux -- an end-user licensed product for use on Linux systems. SCO System V for Linux has two key components that protect and expand the use of Linux as a business server platform. First, SCO System V for Linux provides unbundled licensing of SCO UNIX System shared libraries for use with UNIX applications running on Linux. Second, users of SCO IP Pack licensed systems are protected from future claims based on unlicensed use of SCO UNIX intellectual property in Linux.

  • The appointment of David Boies and the law firm of Boies, Schiller and Flexner to help research and advise SCO on the company's intellectual property.


SCO Creates SCOsource

Page 2

SCOsource

SCO's patents, copyrights and core technology date back to 1969 when Bell Laboratories created the original UNIX source code. SCOsource, a new division within SCO, will manage the licensing of this software technology to customers and vendors.

"SCO is the developer and owner of SCO UnixWare and SCO OpenServer, both based on UNIX System V technology," said Darl McBride, president and CEO, The SCO Group. "SCO owns much of the core UNIX intellectual property, and has full rights to license this technology and enforce the associated patents and copyrights. SCO is frequently approached by software and hardware vendors and customers who want to gain access to key pieces of UNIX technology. SCOsource has established a formal licensing program which will make these technologies available to our partners and customers."

SCO System V for Linux

Customers frequently cite intellectual property concerns as a barrier to their adoption and use of Linux. To alleviate this uncertainty, SCO today is announcing a program that protects customers from any claims to SCO UNIX source code as it pertains to Linux. Customers who purchase a one-time SCO System V for Linux license will be protected and can be assured that the SCO UNIX source code in Linux is authentic and safe from IP patent issues.

"Certain companies in the IT industry would like to see Linux fail and have been spreading fear, uncertainty and doubt about Linux and intellectual property," said Chris Sontag, senior vice president for SCO's operating systems division. "Linux came from UNIX and SCO is the core holder of patents, copyrights and source code for UNIX. We are a Linux vendor and want to see Linux succeed in the market, and as a result, we are implementing a program to protect Linux customers from UNIX IP claims."


SCO Creates SCOsource

Page 3

Licensing of UNIX System Shared Libraries

In addition to IP protection, the SCO System V for Linux license will provide access to SCO's UNIX System Shared Libraries for use with Linux. Customers frequently use SCO's shared libraries to allow UNIX applications to run on Linux. In the past, SCO's UnixWare and OpenServer license agreements did not allow these UNIX libraries to be used outside of SCO's operating systems. With this announcement, customers can now legitimately license these libraries from SCO for use with Linux without having to license the entire SCO operating system. This will enable customers to now run thousands of UNIX applications on Linux.

"The most substantial intellectual property in UNIX comes from SCO," said Sontag. "While Linux is an Open Source product, it shares philosophy, architecture and APIs with UNIX. Starting today, SCO's libraries will be available to third-party application developers, OS vendors, hardware providers, services vendors, and end-users. SCO will help customers legitimately combine Linux and UNIX technology to run thousands of UNIX applications. SCOsource plans to create other new licensing programs to make our rich inventory of UNIX System technology available to the market."

Appointment of Boies, Schiller and Flexner

As part of SCO's plans to protect its intellectual property, the company has retained David Boies of the law firm of Boies, Schiller and Flexner for research and protection of SCO's patents, copyrights and other intellectual property.

99-Day Amnesty Period and Pricing

Beginning today, for customers currently making use of SCO's UNIX System Shared Libraries outside of SCO's operating systems or those who wish to gain SCO UNIX IP protection for Linux, SCO is establishing a 99-day amnesty period for customers to gain a SCO System V for Linux software license. During this 99-day period, SCO System V for Linux is available at a discounted price of $99 per CPU. Following the amnesty period, SCO will offer SCO System V for Linux for $149 per CPU. Volume licensing discounts will be available to enterprise customers and OEMs.


SCO Creates SCOsource

Page 4

Beginning in January, SCO is offering customers of SCO Linux Server 4.0 a license to SCO System V for Linux as a free value-add to their use of SCO Linux. Future updates to SCO Linux Server will include a license to SCO System V for Linux.

Parties interested in purchasing the SCO IP Pack license should email SCO at [redacted] or call [redacted] in the U.S. or contact their local SCO office found http://www.sco.com/worldwide. For more information about SCOsource, visit www.sco.com/scosource or e-mail SCO at [redacted].

About SCO

The SCO Group (Nasdaq: SCOX), formerly called Caldera International, provides "Powerful Choices" for businesses through its UNIX, Linux and Volution product lines and services. Based in Lindon, UT, SCO has representatives in 82 countries and 16,000 resellers worldwide. SCO Global Services provides reliable localized support and services to partners and customers. For more information on SCO products and services, visit http://www.sco.com.

SCO, SCOsource and the associated SCO logo are trademarks of Caldera International, Inc. in the U.S. and other countries. UNIX and UnixWare, used under an exclusive license, are registered trademarks of The Open Group in the United States and other countries. Linux is a registered trademark of Linus Torvalds. All other brand or product names are or may be trademarks of, and are used to identify products or services of, their respective owners.


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