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The Maciaszek Trial Testimony - Day 2 Ends, with line #s
Monday, July 07 2008 @ 04:58 PM EDT

Let's continue with our look at the trial testimony and finish up day 2 with our version of the transcripts with line numbers, the testimony of John Maciaszek.

Our previous articles on day 2 covered the second day of Chris Sontag's testimony (which I put together with his first day, for logic and convenience), then Darl McBride's, and then Greg Jones' testimony. Those were Novell's witnesses, the ones it called.

Novell's case having been fully presented, it was SCO's turn to put on its case, each side trying to present evidence to support their opening statements. The first SCO witness called is John Maciaszek. We've seen him before on paper, and so has Judge Dale Kimball. But this is our first opportunity to watch him in person.

I think by the end of his testimony, SCO's argument that UNIX System V and UnixWare are the same thing completely unravels.

Maciaszek was a director "who has worked for USL, Novell, Santa Cruz and SCO as a Contract Manager in the UNIX licensing groups". He was director of operating system product management at SCO . But throughout his career, he was product manager for UnixWare, as you can verify by checking his testimony, introduced into the SCO v. Novell litigation as Exhibit 34 [PDF] attached to a Declaration of Edward Normand in April of 2007. He testifies here that he's semi-retired, but SCO told the bankruptcy court [PDF] earlier that he was terminated on January 31 and paid severance.

It's by the end of his testimony that I think SCO's story about Unix System V and UnixWare being one and the same gets revealed as bogus. You'll recall that Darl told the court with a straight face that UnixWare is the trunk of the tree of Unix, nay not just the trunk but the branches and the leaves, and he added that there is only one way to get UNIX code -- you had to buy UnixWare:

And so if somebody came to the company and said, we want to get the core intellectual property to UNIX, and we want to take a license for that, for example, IBM did that with us in 1998, we said, okay, if you want to get core access to the UNIX intellectual property or the trunk code, the way you do that is through a UnixWare license.

I'll talk about some of what he says about IBM in 1998 in more detail in a minute, but on the Unix/Unixware part, here's what Maciaszek is asked and answers:

Q. How much code of UnixWare would there need be to trigger the UnixWare royalty as opposed to one of the older royalties?

A. Well, that's the concept. The one-line-of-code concept said if you licensed UnixWare 2.1 and it was the latest release, if you took a single line of code from UnixWare and included it in a derivative work, your derivative work as you distribute it would be subject to the terms, conditions and obviously royalties which were part thereof of the UnixWare 2.1 schedule. So you'd pay based on UnixWare if you took one line of code from UnixWare sources and put it in derivative work.

Q. That's why it's called one line of code?

A. That's correct.

Q. So even if 99 percent of the code in that derivative product was an older System V version, if it was one line of UnixWare, it would trigger UnixWare royalty?

A. That is correct.

Q. And under the APA, are you aware whether any UnixWare royalties had to be remitted to Novell?

A. No UnixWare royalties remitted to Novell.

Excuse my simplicity, but as I read it, is he admitting that SCO found a tricky way to avoid paying Novell what the APA contemplated for SVRX? Under a one-line-of-code system, and one which made it impossible to get the code unless you bought UnixWare, exactly when *would* Novell get paid under the APA? See what I mean?

Yet, as Judge Kimball ruled in August, those royalties were contemplated as a significant part of the purchase price. And we know it has been paid something over the years, so it's hard to parse if Unix System V and UnixWare are the same thing and particularly if there is no way to get System V code without obtaining UnixWare. It's circular. It puts Novell in a Catch-22.

And at exactly what point in time did it become impossible to get System V code without UnixWare? IBM got it without UnixWare in the beginning. So did all the hardware guys. So, was it post-APA that they pulled the switch? If so, would that be a violation of the contract? Or is it all dancing baloney, this new story, as Novell argues to the court in its closing arguments?

When SCO first sued IBM for beellions, they told the world that System V code was holy and precious, and SCOfolks imagined buying second homes, castles in Spain, so to speak, from all the coin they thought they'd make from it. Now, after the court ruled those copyrights are Novell's, the SCO story is that it's worthless, you can't buy it, no one wants to anyway, it's really UnixWare after all, etc.

By the way, if they are the same thing, why did SCO in 2003 copyright Unixware 7.1.3 and UNIX System V separately? You tell me. But they did, as you can see on our Contracts page. So did Novell. That would indicate to my mind that there is code in each that is not identical. No? I think the seesaw is so tilted on Novell's side that SCO's feet are dangling in the air. But you can reach your own conclusions.

Now, SCO might argue that the SVRX royalties contemplated were only for prior purchases or only for binary something or other -- remember all those impenetrable arguments before Judge Kimball's August 10th Order? They lost that argument, and my memory was they were not supposed to argue it again at trial. But with Maciaszek's testimony, I suspect that is what they did. I remember that SCO itself quoted the following words from the APA in its response to IBM's motion for partial summary judgment:

The APA defined the "Business" as "the business of developing a line of software products currently known as Unix and UnixWare, the sale of binary and source code licenses to various versions of Unix and UnixWare, the support of such products and the sale of other products which are directly related to Unix and UnixWare."

Emphasis added by me, to highlight that the APA contemplated being able to buy either or both, separately. In fact, in the January 23, 2007 hearing in SCO v. Novell, on Novell's motion about getting the money from the Microsoft and Sun deals, we learned that Microsoft licensed both UNIX SVRX and UnixWare, and we learned it from the lips of SCO attorney Stuart Singer. How could that be, if SCO's story is true that the only way to license SVRX is to license UnixWare instead? And if it were, when did that change, and was SCO allowed to change its business unilaterally, in light of its fiduciary responsibilities?

Getting back to Darl's testimony, first, when IBM and Santa Cruz got together in 1998, IBM already had a license to Unix System V. They had built AIX already by the end of the 1980s. The 1998 deal was a joint project, where both parties and a few others would each contribute some code to the project, Project Monterey. SCO contributed UnixWare 7 to the project. Here's the license with IBM and Santa Cruz, and it's called "JOINT DEVELOPMENT AGREEMENT AGREEMENT NUMBER 4998CR0349". Here's the opening part, the so-called Whereas clauses, where the contract tells you why the parties want to sign the contract:

Whereas, IBM and SCO believe that each company has complementary skills, experience and technology to extend and evolve existing UNIX operating systems designed to operate on the 32-bit and 64-bit Intel architecture platforms;

Whereas, pursuant to this Agreement, IBM and SCO desire to undertake specific development projects to design and further develop an IA-32 Product and IA-64 Product as further defined below. Through these projects the parties expect to enable innovative new open systems computer technologies and products more rapidly and efficiently than either party could achieve independently;

Whereas, each party expects to market products based on this development work and to work toward the goal of creating and participating in a high volume UNIX marketplace, bringing significant benefits to each party, its customers and the computer industry;

Now, therefore, in consideration of the mutual provisions contained herein, SCO and IBM (the "Parties") agree to the following terms and conditions.

So IBM didn't need SVRX and it certainly didn't license UnixWare 7 to get it. It had it already and it also had the independent skills and code necessary to extend Unix code, which it had already licensed, as you can see in the Whereas clause on a contract signed by Santa Cruz also. This was a joint project, so they each contributed skills and code to the effort, and they decided SCO's contribution would be UnixWare 7. IBM was bringing their Power PC chip expertise and marketing fu, among other things. It had nothing to do with the SVRX/UnixWare APA issues. In Project Monterey, the idea was to create a joint product. And it was a cross license of two branches from the UNIX System V trunk, AIX and UnixWare. Both parties had access to the trunk already. Here's that bit from the contract:

1.9 "IA-32 Product" shall mean the UNIX operating system that is designed to run on Intel architecture and compatibles and which consists of SCO's UnixWare 7 with the addition of Licensed IBM Materials and any additional Project Work developed under this Agreement.

1.10 "IA-64 Product" shall mean the UNIX operating system that is designed to run on Intel architecture and compatibles and which consists of IBM's AIX operating system with the addition of Licensed SCO Materials and any additional Project Work developed under this Agreement.

Darl's words are, frankly, hard to match to real life, shall we say? I don't know if he misspoke or if he was trying to mislead but for sure his words are misleading if you came away with the idea that IBM approached SCO and went to get a license for UNIX, and in order to get it, had to buy UnixWare. It was a cross-license, not IBM asking for access to Unix. It got that in the '80s. In the 1985 license, whereby IBM got a license for "UNIX* System V, Release 2.0", you can see that this wasn't even the first such agreement, and it wasn't the last, as you can verify on our Contracts page under the IBM heading. Note in the Supplement, if you scroll down to the part that lists what IBM had access to under the agreement, it mentions a 1982 agreement between IBM and AT&T already existed:

All CPUs that are SOURCE CPUs under the prior January 1, 1982 Software Agreement, as Modified, Between Our Companies Relating to UNIX System V, Release 2.0 and other UNIX Operating Systems, for which agreement this agreement has been substituted. All fees for such CPUs have been paid pursuant to such prior agreement.

That's exactly what Novell told the court was the system in its opening statements, remember? You got the earlier code free if you had already paid for it. You might want to remember that detail, as you go through the Maciaszek testimony and weigh its value, because he testifies that earlier versions of Unix were just thrown in free for any new customer. Here you can clearly see, it references that IBM could use the earlier version too because it had already paid for it, which is what Novell's attorneys brought out in their part of the trial.

We've seen Mr. Maciaszek before, and so has the Honorable Dale Kimball, as I said. Here's when. Novell filed evidentiary objections to his testimony, that same Exhibit 34 already mentioned, along with some sealed depositions, and asked that it be thrown out. It did so a second time. The testimony was in support of SCO's opposition to Novell's various summary judgment motions. His testimony, as described by SCO in its motion for reconsideration of the Utah court's August 10th order, involved this aspect of the contract dispute:

Second, the uncontroverted testimony demonstrates that the parties always treated revenues from UnixWare Licenses that included incidental licenses to SVRX as UnixWare revenues under Schedule 1.2(b) of the APA, not as SVRX Royalties....

John Maciaszek has been involved in the UNIX business for almost two decades. (Maciaszek Decl. (12/11/06) 2.) He testified that Novell's interest in UnixWare Licenses that included an incidental license for prior SVRX products was always treated under the UnixWare Royalty provisions of Schedule 1.2(b), and that interest "expired in 2002." (Id 27.)

Kimball was not moved, and he did not reconsider his ruling.

Once again, our thanks go out to Groklaw's papafox, who developed the script that makes it possible to do transcripts with line numbers without going crazy. Sometimes in court documents, you need to know the line numbers to be able to follow along. A judge might reference testimony by page and line number, like this, as an example: Plaintiff's Deposition 50:12. You know that the 12 is the line number. We always do transcripts first without line numbers, so those who rely on screen readers don't have to hear numbers read aloud for each line, but I also always try to do the versions with line numbers too, so you can reference them when they are cited. Thanks to papafox, it's so much easier now.

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

389

10 THE COURT: All right. And I'll take those motions
11 under advisement.
12 And you may call your first witness.
13 MR. SINGER: That is John Maciaszek.
14 THE COURT: You want this on the record? Because
15 we can't hear you if you do.
16 MR. SINGER: We would like to put on the record
17 reserving the right to using these blowups used in the
18 openings with any witnesses that will be called tomorrow. We
19 won't use them with Mr. Maciaszek today.
20 THE COURT: You will not today?
21 MR. SINGER: I don't think we'll need them with
22 Mr. Maciaszek.
23 THE COURT: All right. Well, that almost gives you
24 your 24-hour notice.
25 Come forward and be sworn, please. Right here in

390

1 front of the clerk of court. Right there. That will be good.
2 Thanks.
3 THE CLERK: Please raise your right hand.
4 JOHN MACIASZEK,
5 called as a witness at the request of SCO Group,
6 having been first duly sworn, was examined
7 and testified as follows:
8 THE WITNESS: I do.
9 THE CLERK: Thank you. Please take the witness
10 stand right there.
11 Please state your name and spell it for the record.
12 THE WITNESS: John Maciaszek, M-A-C-I-A-S-Z-E-K.
13 THE CLERK: Thank you.
14
DIRECT EXAMINATION
15 BY MR. SINGER:
16 Q. Good afternoon, Mr. Maciaszek.
17 A. Good afternoon.
18 Q. When were you first employed by AT&T or any company
19 involved in the UNIX business?
20 A. Well, I started in AT&T back in 1966. The UNIX
21 business portion was when I moved into USL in December of
22 1991.
23 Q. So that's when you would date back your beginning
24 of involvement with UNIX?
25 A. Centrally, yes. Before that I had peripheral

391

1 interactions relative to it on other product lines.
2 Q. When you started with USL, UNIX System Labs, in
3 1991, what were your responsibilities?
4 A. I had product management responsibility for some
5 components of the operating system business, as well as
6 ultimately responsibility for the interaction between USL,
7 Novell and the joint venture Univell.
8 Q. Did there come a time when your employment changed
9 either to a new company or your responsibilities changed?
10 A. Fundamentally I've been a product manager ever
11 since joining USL, all the way through the changes through
12 Novell and through Caldera and back to SCO again.
13 Q. Has products for which you have managed include the
14 UNIX System V products?
15 A. Yes.
16 Q. And do they include UnixWare?
17 A. Yes.
18 Q. What is your current employment?
19 A. I'm currently employed by SCO on a part-time basis.
20 I'm sort of semiretired at the moment.
21 Q. Where do you live?
22 A. I live in Marlboro, New Jersey.
23 Q. And have you worked consistently in New Jersey on
24 AT&T and UNIX System Labs and so forth?
25 A. Yes. Yes. I was born in New Jersey, and except

392

1 for my time in the Army, I lived there all my life.
2 Q. Mr. Maciaszek, was there a time when you worked for
3 Novell?
4 A. Yes.
5 Q. What was that time period?
6 A. It was a time period when Novell acquired USL from
7 AT&T. And during -- I was there during that entire duration
8 before the sale to Santa Cruz.
9 Q. Were your responsibilities the same?
10 A. Essentially the same, yes. I was product manager.
11 Q. And when the sale occurred to Santa Cruz, did you
12 go over to Santa Cruz?
13 A. Yes, I did.
14 Q. And did you continue with those responsibilities?
15 A. Yes.
16 Q. And similarly forwarded to SCO?
17 A. Yes.
18 Q. Was there a licensing group that was at Novell at
19 the time that the asset purchase agreement was entered into?
20 A. Yes, there was.
21 Q. And what happened to that licensing group or most
22 of the members of the group after the agreement was executed?
23 A. They basically moved over to SCO. I believe
24 everybody with possibly one or two exceptions moved to
25 Novell -- I mean to SCO.

393

1 Q. They moved from Novell to SCO?
2 A. That's right.
3 Q. Did they continue with the licensing of UNIX for
4 Santa Cruz?
5 A. Yes, they did.
6 Q. And you remained part of that group?
7 A. Well, I was not in the licensing group. But in
8 product management. And obviously I had responsibilities to
9 interact with the licensing group to put together the
10 schedules.
11 Q. Can you explain what the Santa Cruz UNIX licensing
12 group did?
13 A. They were responsible for the legal aspects of new
14 schedules that got put together for new product offerings.
15 I'm talking in this case about source code products. Plus
16 they were responsible for all the contracts that were
17 negotiated with customers for both binary and source and
18 interacted with all the sales organizations worldwide.
19 Q. What is UnixWare?
20 A. What is UNIX or UnixWare is the latest, depending
21 on the number you want, it's -- what is UnixWare. The next
22 release of UNIX System V that we offer in both binary package
23 format today as well as potentially source licenses for it.
24 Q. Are you familiar with SVR4.2 MP?
25 A. Yes.

394

1 Q. What does that stand for?
2 A. That's System V Release 4.2 multiprocessing
3 version.
4 Q. How did that relate to UnixWare?
5 A. Well, that was the predecessor to UnixWare 2.
6 UnixWare 2 essentially contains the bulk of SVR4.2 MP, plus
7 some additional user interface code that was built on top of
8 that.
9 Q. What does the MP mean?
10 A. Multiprocessor. That's today's technology.
11 Typically all the computers you see today have more than a
12 single processor in it.
13 Q. Is that important?
14 A. That contains the code that enables the operating
15 system to support those multiprocessors.
16 Q. Is that an important development?
17 A. Absolutely. I mean, there were very few today even
18 at the desktop level that you buy with -- having only a single
19 processor.
20 Q. You mentioned after SVR4.2 MP you had UnixWare 2?
21 A. Yes.
22 Q. Was there a UnixWare 1?
23 A. Yes. UnixWare 1 was actually based on SVR4.2, no
24 MP, which was a single processor version of the operating
25 system. And UnixWare 1 was produced as part of the joint

395

1 venture of Univell and USL. Univell did some work on the user
2 interfaces. Novell added some code with respect to the
3 NetWare, and then the product was sold, was initially sold as
4 a packaged product. The initial units were packaged products
5 by Univell.
6 Q. Was UnixWare 2.0 the first multiprocessing version
7 of UnixWare?
8 A. That's correct.
9 Q. Now, did the versions of UnixWare build on the
10 earlier System V UNIX code?
11 A. Yes, of course.
12 Q. And after -- at the time of the APA, did you have a
13 transfer of the UnixWare business to Santa Cruz?
14 A. Yes.
15 Q. And did Santa Cruz continue in development and
16 release of its own versions of UnixWare?
17 A. Yes, it did.
18 Q. Did it make any modifications to the UnixWare
19 operating system?
20 A. Every new version contains modifications to support
21 new hardware, support new features that were needed by the
22 more modern applications that were coming to the market.
23 Q. And you also were employed at the time in 2001 when
24 Santa Cruz sold its business to Caldera?
25 A. Yes, I was.

396

1 Q. And what happened to the UNIX licensing group at
2 that time?
3 A. That crew moved, as far as I can recall, lock,
4 stock and barrel to Caldera.
5 Q. And your involvement continued throughout?
6 A. Yes, that's correct.
7 Q. Okay. Now, at Novell, with respect to UnixWare,
8 did you have any involvement in the negotiation or oversight
9 of UnixWare licenses?
10 A. Yes.
11 Q. Can you explain what your responsibility was?
12 A. As a product manager, my recollection is that I was
13 involved in putting together the UnixWare 2 license, to model
14 it so that it paralleled our package product introducing what
15 the discount structure would be.
16 Q. Can you describe generally what a UnixWare license
17 provided at that time?
18 A. The UnixWare license provided access to the source
19 code of the corresponding package product and would enable an
20 OEM or other licensee to construct an identical product to
21 what we were shipping as packaged product or to use the source
22 code to produce a version of UnixWare that would run under
23 alternate architecture. The products that we were selling
24 then and continue to sell now are targeted at the Intel
25 market. But at that time, there clearly were other chipsets

397

1 that were in the marketplace. And a licensee of that source
2 code could produce a version that would run on those alternate
3 architectures.
4 Q. Let me go over that a little bit and make sure I
5 understand the set.
6 There were some SCO UnixWare products that were
7 just sold out to the market; is that correct?
8 A. The packaged product, yeah.
9 Q. And that would be --
10 A. Excuse me. We're almost out of water here.
11 THE COURT: Just enough for you.
12 THE WITNESS: Right. It looks that way.
13 Q. BY MR. SINGER: Are you ready now?
14 A. Yes.
15 Q. The end user -- the packaged products go to end
16 users; is that correct?
17 A. Ultimately to the end users, yes. We sold through
18 a multi-tier distribution and still do.
19 Q. Now, you mentioned you also licensed source code to
20 OEMs, original equipment manufacturers; is that right?
21 A. Right. Those are computer manufacturers.
22 Q. And your point was they could use that to develop
23 their own type of operating system based on that source code
24 and sell those products?
25 A. Right. They would either modify it because they

398

1 had a different central processing architecture or they would
2 need to make improvement so that it would perform best on
3 their hardware over and above, you know, other hardware.
4 Q. When you gave one of those OEMs a license to do
5 that with the UnixWare source code, could they use any part of
6 the UnixWare source code for developing their own product?
7 A. Yes, of course.
8 Q. And that would include the System V source code
9 that may have originated back in 1969 or later times?
10 A. Well, whatever was in UnixWare was UnixWare.
11 Q. There was no distinction in terms of what the
12 customer could use?
13 A. No, absolutely not.
14 Q. Now, when you licensed UnixWare and at the time
15 that you were Novell, did Novell grant the customer any
16 license to any older versions of the System V products?
17 A. Well, the standard practice going back to AT&T days
18 was to grant the right to use prior products as part of the
19 new products.
20 Q. And you said that goes back to AT&T days?
21 A. Oh, yeah. Started well before I joined the
22 organization. Go back and look at the SVR1.1 prior, and there
23 were always prior products listed there.
24 Q. Did you obtain --
25 A. Is it okay if I have a cough drop?

399

1 THE COURT: Sure.
2 THE WITNESS: Thank you.
3 Q. BY MR. SINGER: And if you need more water --
4 A. No. I still got the water. When I talk a lot I
5 tend to cough.
6 Okay. Let's go.
7 Q. Okay. Did you have personal knowledge of that
8 licensing of prior products at the time that you joined UNIX
9 Systems Labs?
10 A. Oh, yes. I mean, I was involved in creating the
11 4.2 license, so I understand very well what the situation was.
12 Q. Were the customers who were given those prior
13 products asked to pay anything extra for the prior products?
14 A. Absolutely not.
15 Q. And is that a consistent practice throughout the
16 time that you have been at Novell and both its predecessor and
17 successor companies?
18 A. Absolutely. I can't remember or recall any
19 occasion where there would be any even thought given to charge
20 them for that.
21 Q. Was there any requirement imposed that you would
22 only give the prior -- the access or right to use prior
23 products to those licensees who had bought for value that
24 earlier version?
25 A. No.

400

1 Q. That's not something you looked into?
2 A. No. Absolutely not. That was part of the standard
3 license in general. We use the same license for all licensed
4 users.
5 Q. Now, when the original equipment manufacturer
6 entered into a license, what types of fees did they pay?
7 A. Well, there would be a fee for the software
8 agreement, a fee for the sublicensing agreement and a fee for
9 the individual schedules or the individual licensees with
10 particular releases of the product.
11 Q. Was the fee for the actual source code, was that a
12 one-time fee or something that would recur?
13 A. It was a one-time fee.
14 Q. And then you mentioned there would also be a fee
15 for distribution?
16 A. That's right. The sublicensing fee.
17 Q. Was that also a one-time fee?
18 A. It in effect became a one-time fee. It was listed
19 each time. But if somebody already had one, we typically
20 didn't charge them again.
21 Q. Was there a third source of fees or royalties
22 involved?
23 A. Well, the most obvious fee and the most generic was
24 the one when you distributed the products there would be a
25 royalty or per copy fee that was paid for each copy of the

401

1 product, the derivative work that was distributed.
2 Q. Is that sometimes referred to as a binary fee?
3 A. Binary per copy fee, right.
4 Q. And what does the binary refer to?
5 A. Well, it is non-source. In essence, it's a running
6 pro product that has been created when compiling, linking
7 source code into a binary. In essence, think about the CD
8 that you put in when you install Windows. That's a binary
9 product. You don't get the source code to Windows.
10 Q. And that fee, of course, would vary depending on
11 how many products were sold?
12 A. There was a discount schedule, and also it would
13 depend on what release you were shipping. Over the historical
14 time the fees tended to go up as time marched on.
15 Q. Now, I'd like to show you Exhibit 141. This is
16 SCO 141.
17 May I approach the witness, Your Honor?
18 THE COURT: Yes.
19 Q. BY MR. SINGER: Mr. Maciaszek, do you recognize
20 this exhibit?
21 A. Yeah. This looks to me like a 2.1 schedule for the
22 UnixWare 2.1.
23 Q. You see a customer name on the second page?
24 A. Right. NCR.
25 Q. Okay. And was this a license for UnixWare 2.1

402

1 source code?
2 A. That is correct.
3 Q. Now, if you turn to Exhibit I, prior products on
4 Page 24 --
5 A. Okay. I'm there.
6 Q. Okay. Is this a list of prior products which NCR
7 was given rights to use in connection with this license?
8 A. Yes, that is correct.
9 Q. Was any additional fee charged to NCR to make use
10 of any of these products?
11 A. No.
12 Q. Was there anything special about this treatment of
13 NCR from what you treated other customers at this time?
14 A. Absolutely not. This is a standard schedule, as
15 best I can tell from looking at it.
16 Q. Did there come a later point in time after this
17 when you stopped listing particular prior products on a
18 schedule?
19 A. Yes. With UnixWare 7.
20 Q. Why was that done?
21 A. Well, the plain thrust there, if you go look at the
22 history, at that time we were primarily in the packaged
23 product business. The majority of OEMs had already downsized
24 and eliminated their engineering organization. So our goal
25 with UnixWare 7 was a standard binary product that would go

403

1 into the marketplace. Consequently, we didn't add the
2 additional prior products because we wanted to maximize the
3 similarity of all releases of UnixWare.
4 Q. If a customer wanted to use, make some use of a
5 prior product they had had, was that a problem?
6 A. No.
7 Q. Did you charge anything extra for that?
8 A. No. To my knowledge, I don't think anybody -- we
9 actually did -- I don't think we actually modified anybody for
10 that purpose. But had they asked, we would have added the
11 additional prior products without any issue.
12 Q. Do you recall in the period of time that was the
13 way you approached the license whether anyone even asked to
14 use the prior products?
15 A. I don't believe anyone ever did. I'm not -- I
16 certainly can't recall anyone who did.
17 Q. Can you turn to Page 6 of the license, which has
18 Paragraph 10. Can you see the section, perhaps we can blow it
19 up, called the Novell NetWare software?
20 A. Yes, I do.
21 Q. What does that paragraph mean to you?
22 A. Well, NetWare was a component of UnixWare 2. There
23 was some components of NetWare. At that time, Novell had the
24 strategy, not unlike the one I referred to earlier about
25 UnixWare 7, of wanting to make NetWare ubiquitous across all

404

1 operating systems. So UnixWare 2 contained NetWare
2 components. And in essence, what this is saying is that you
3 had to include -- wait a minute. Let me read this one -- oh,
4 you could only use the source code for NetWare should you
5 choose to license it; in essence, to fix bugs, but not to make
6 derivative work. That was to keep NetWare standards.
7 Q. So this was a limitation on the use of NetWare,
8 which was a Novell product, which was being sold along with
9 the UnixWare?
10 A. Yes, that's correct. If you were a licensee of
11 UnixWare 2.1, we would have delivered to you the complete
12 source code to build that product coupled with some binary
13 components that you couldn't change. NetWare was one of them.
14 There were some other third-party components. NetWare source
15 was licensable as an add-on to the 2.1. I believe if you look
16 at the first page of the schedule there is a separate price
17 for it. This paragraph is constraining what you could do with
18 that source should you choose to optionally license it.
19 Q. Was there any restriction, Mr. Maciaszek, in the
20 license agreement on earlier versions of UNIX software, not
21 talking about NetWare now, but UNIX software that may have
22 been developed by Novell or its predecessors?
23 A. No.
24 Q. So this was specific for NetWare?
25 A. That's correct. NetWare was considered to be the

405

1 crown jewels of Novell at the time. And I would assume it
2 still is today.
3 Q. Now, when -- you've discussed the fact there was no
4 separate source code licensing fee for including prior
5 products; is that correct?
6 A. That's correct.
7 Q. Now, let's say you have a binary product that one
8 of these companies developed using that source code. Was
9 there a method that was used to determine what royalty scale
10 you would use; in other words, whether the royalty would be
11 calculated by the most recent UnixWare version or an earlier
12 version of the System V code?
13 A. The royalty was always based on the latest source
14 code that was incorporated and used to build the derivative
15 work. So if you were shipping 2.1, you would read this
16 schedule, and it would tell you exactly what you would have to
17 pay.
18 Q. What if you have a derivative work that has some
19 old System V code in it and some more recent versions in
20 UnixWare, how would you determine the royalty in that
21 situation?
22 A. The royalty was the same.
23 Q. What would it be based on?
24 A. Pardon me? It would be based according to this
25 schedule, what we said it was for UnixWare 2.1. That was the

406

1 whole purpose of the prior products.
2 Q. How much code of UnixWare would there need be to
3 trigger the UnixWare royalty as opposed to one of the older
4 royalties?
5 A. Well, that's the concept. The one-line-of-code
6 concept said if you licensed UnixWare 2.1 and it was the
7 latest release, if you took a single line of code from
8 UnixWare and included it in a derivative work, your derivative
9 work as you distribute it would be subject to the terms,
10 conditions and obviously royalties which were part thereof of
11 the UnixWare 2.1 schedule. So you'd pay based on UnixWare if
12 you took one line of code from UnixWare sources and put it in
13 derivative work.
14 Q. That's why it's called one line of code?
15 A. That's correct.
16 Q. So even if 99 percent of the code in that
17 derivative product was an older System V version, if it was
18 one line of UnixWare, it would trigger UnixWare royalty?
19 A. That is correct.
20 Q. And under the APA, are you aware whether any
21 UnixWare royalties had to be remitted to Novell?
22 A. No UnixWare royalties remitted to Novell. There
23 would have been possibly royalties paid on UnixWare based upon
24 the business model that was part of the APA. But that was
25 never achieved, so we never did pay.

407

1 Q. You're referring now to the part of the APA which
2 had a special UnixWare royalty?
3 A. That is correct.
4 Q. And that was never achieved, you said?
5 A. As far as I know it was never achieved. And as the
6 product manager I would have been aware if we were paying
7 those royalties.
8 Q. And by achieved, the sales never reached the level
9 that that would be kicked in by?
10 A. That's correct. It was a business plan that was
11 stipulated as part of the APA. And if we achieved certain
12 targets, then some royalties potentially would have gone back
13 to Novell. But that was never achieved.
14 Q. Okay.
15 I have nothing further. Thank you.
16 THE COURT: Thank you.
17 You may cross-examine, Mr. Jacobs.
18 MR. JACOBS: Thank you, Your Honor.
19
CROSS-EXAMINATION
20 BY MR. JACOBS:
21 Q. Mr. Maciaszek, good afternoon.
22 A. Good afternoon.
23 Q. Could you take a look again at SCO 141, please.
24 A. Is that what I'm looking at now?
25 Q. Yes. That's that NCR license.

408

1 A. Okay.
2 Q. And if you look at the second line, you see it? It
3 says, supplement Number 112?
4 A. Yes.
5 Q. Can you explain, please, what that means?
6 A. Well, that says to me that there would have been
7 111 prior agreements or supplements that NCR had executed
8 prior to this one.
9 Q. And in each of those 111 prior agreements or
10 supplements, NCR would have paid fees for that supplement?
11 A. I would have assumed -- I would assume so. I can't
12 testify if that's correct since I'm not aware of them.
13 Q. That was -- based on the ordinary license practice,
14 which you testified that you're familiar with, that would be
15 your assumption?
16 A. Yes.
17 Q. So at least in this particular case, this was not a
18 fresh out-of-the-box license of March 31, 1997, of
19 UnixWare 2.1 to NCR with no history to it, was it?
20 A. It was a fresh 2.1. There was clearly interaction
21 and history for NCR's relationship going back all the way to
22 AT&T, obviously.
23 THE COURT: Excuse me. All the way back to what?
24 THE WITNESS: To AT&T when they first licensed
25 their first substantiation of UNIX from AT&T. And I can't

409

1 tell you what that was.
2 THE COURT: Okay.
3 THE WITNESS: It was before my time.
4 THE COURT: Excuse me, go ahead.
5 Q. BY MR. JACOBS: Take a look, please, sir, at the
6 prior products section of this agreement. I believe you told
7 us it was Exhibit I. This would be Page 77766 on this
8 exhibit.
9 A. Okay.
10 Q. And I believe you testified -- I think you might
11 have just been mistaken about the meaning of Mr. Singer's
12 question. He asked you whether there were any restrictions on
13 the use of the prior products, and you said no. That's not
14 quite right; correct?
15 A. Well, in this particular case, there was a
16 restriction with respect to the corporation of NetWare in the
17 application server and personal edition, if that's what I'm
18 reading.
19 Q. Well, there were restrictions on, for example, the
20 use of SCO UnixWare 2.0 under this license agreement, are
21 there not, sir?
22 A. I think I just said what it was. I said that if,
23 in fact, you deleted NetWare from your derivative work, then
24 you were only able to use 2.0 and 1.1.
25 Q. Let me ask you -- perhaps I could ask it this way,

410

1 sir. Take a look at prior products, and you see that it says,
2 SCO UnixWare Release 2.0. Do you see that?
3 A. Yes.
4 Q. Was it your understanding under this agreement that
5 the customer was free to publish the source code of SCO
6 UnixWare 2.0 on its website?
7 A. No, absolutely not.
8 Q. Why not? What restricted him?
9 A. I would assume it would have been -- the place that
10 you would find that restriction would be in the software
11 agreement.
12 Q. In the --
13 A. Software agreement.
14 Q. In the software agreement which governs all the
15 software licenses --
16 A. Unless it's superceded, yes.
17 Q. You would be pretty shocked if a customer said, you
18 got the rights to release 2.0. Under a 2.1 agreement, we can
19 do whatever we want with it including publishing it on our
20 website?
21 A. That was not -- that certainly would not be
22 authorized under the software agreement.
23 Q. And publishing the software code on the website
24 would be a big deal in your capacity as a product manager?
25 A. Yes.

411

1 Q. Why?
2 A. Well, it depends on what you were publishing, what
3 purpose you were publishing it for.
4 Q. You're publishing the entire source code for
5 SCO UnixWare 2.0.
6 A. That would have been a violation of your
7 contractual rights.
8 Q. And substantial injury to the owner of SCO
9 Release -- UnixWare 2.0?
10 A. Yes.
11 Q. And the same with, say, let's pick one,
12 UNIX System V Release 4.2 Intel386 Implementation. Everything
13 you said about SCO UnixWare 2.0 applies to that release, as
14 well; correct?
15 A. Well, it's a matter of greed. The bulk of that
16 stuff was obsolete at the time.
17 Q. If a customer under your tenure as product manager,
18 say when you were at Novell --
19 A. Yes.
20 Q. -- and let's go back a little bit, had published on
21 its website, Internet is just coming into being, and they
22 publish on their website UNIX System V Release 4.0 Intel386
23 the Version 3 implementation, that would have been a big
24 surprise, wouldn't it?
25 A. Yes, it would have been.

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1 Q. And it would have been a substantial potential
2 injury to the business you were responsible for?
3 A. Absolutely.
4 Q. Now, you talked about the development practices of
5 the UNIX operating system. You testified that modifications
6 were added over time with each successive release. Do you
7 recall that testimony?
8 A. Yes.
9 Q. And isn't it a fact, sir, that modifications also
10 include deletions of code over time?
11 A. That is correct. Substitutions, as well.
12 Q. And I think in answer to a question from Mr. Singer
13 that was driving at a somewhat similar point, you said,
14 whatever is in UnixWare is in UnixWare. Do you recall that
15 answer?
16 A. Yes.
17 Q. And in order to know whether any particular code
18 from a prior release has been carried forward all the way to
19 the present day, you would actually have to look at the code
20 and compare it, wouldn't you?
21 A. To be definitive, yes.
22 Q. And it's quite possible that code from, say, UNIX
23 System 4.0, pick your release, has been deleted over time and
24 is not in the current version of UnixWare?
25 A. That's correct. It could have been deleted or it

413

1 could have been substituted or enhanced.
2 Q. And the same is true for, say, UNIX System IV, pick
3 your release, and, say, SCO UnixWare 2.1?
4 A. That's correct.
5 Q. Under the OEM agreements, an OEM licensee could
6 create its own version of UNIX and put its name on it, say,
7 Sun Solaris; correct?
8 A. That's correct.
9 Q. And it is, indeed, your understanding that Sun
10 Solaris is based upon a UNIX System V release; correct?
11 A. That is correct.
12 Q. Do you happen to know which release, sir?
13 A. To be perfectly frank, no, I don't. I have not
14 looked at the Solaris code recently, so I do not know.
15 Q. It is true that Solaris was developed before the
16 1995 asset purchase agreement; correct?
17 A. Yes.
18 Q. And it would not surprise you if you found
19 substantial code predating the asset purchase agreement in Sun
20 Solaris?
21 A. No. It wouldn't surprise me if there were code
22 from the prior release, no.
23 Q. And at any particular point in time, an OEM
24 licensee could stop taking additional releases of UNIX or
25 UnixWare and develop it on its own path; correct?

414

1 A. That's correct.
2 Q. And, in fact, some OEMs did that; correct?
3 A. Yes.
4 Q. For example, Sun Solaris; correct?
5 A. Yes.
6 Q. They -- in so far as their code refresh, if you
7 will, from any of the UNIX businesses was concerned, it was
8 frozen in time as of the last schedule attached to their
9 software agreement; correct?
10 A. I would have assumed, yes. I think it was 4.0, but
11 I'm not positive.
12 Q. And that code as to Sun, that older code, that is
13 the UNIX code on which then as of that date and going forward,
14 unless they were to sign a new license, they were building
15 their variance on; correct?
16 A. Yes.
17 Q. And --
18 A. I would assume there would be code from other
19 sources, as well. But, yes.
20 Q. You're right. I didn't actually ask that quite
21 precisely enough.
22 In so far as the UNIX code is concerned, once
23 they're frozen in time as of their latest schedule, that is
24 the UNIX code on which they were relying; correct?
25 A. Correct.

415

1 Q. And as to Sun in that case, that UNIX code has
2 substantial value, doesn't it?
3 A. Well, you'd have to ask Sun that. I mean, I can't
4 answer that question.
5 Q. Well, if you went to them and say, after the asset
6 purchase agreement went to them in 1996 and said, you know
7 what, we want you to strip out all of that UNIX System V
8 Release 4 code from Sun Solaris, what do you think their
9 reaction would have been?
10 A. It wouldn't have been favorable.
11 Q. Because it would have been a substantial injury to
12 their business, would it not, sir?
13 A. Yes.
14 Q. Have you in preparing for your testimony studied
15 any other examples of UnixWare licensing other than the NCR
16 Corporation?
17 A. Studied?
18 Q. Yes.
19 A. No, not to my knowledge. I don't recall studying
20 anything.
21 Q. Have you surveyed the UNIX licenses that SCO and
22 its predecessors have entered into to try and form an
23 understanding whether your testimony today about the practices
24 is, in fact, supported by the actual underlining documents?
25 A. I did not study all licenses, no.

416

1 Q. Did you study any of the licenses?
2 A. I'm aware of a good number of them.
3 Q. But did you go back and check before you testified
4 today to see whether the documents relating to UNIX licensing
5 practices support your testimony today?
6 A. Probably casually, yes. I don't recall any detail
7 going back over all of those licenses.
8 Q. Thank you.
9 Thank you, Your Honor. No further questions.
10 THE COURT: Thank you.
11 Mr. Singer?
12 MR. SINGER: Just a couple of questions.
13
REDIRECT EXAMINATION
14 BY MR. SINGER:
15 Q. Mr. Maciaszek, if Sun, once they get a UnixWare
16 source code license incorporates one line of that UnixWare
17 program into their new Solaris products, do they have to pay
18 royalties on the binary products based on the UnixWare
19 schedule?
20 A. Yes.
21 Q. Is that an application to what you discussed as the
22 one-line-code rule?
23 A. That is correct.
24 Q. Can you think of any reason why Sun would buy a
25 license from UnixWare if they weren't interested in making use

417

1 of new technology?
2 A. It doesn't make any sense to me.
3 Q. Now, with respect to the NCR agreement,
4 Exhibit 141, you were asked about the fact that there were a
5 lot of earlier supplements as being 112. Are prior
6 supplements also done whenever there are additional CPUs which
7 are being added to the license to make use of the software?
8 A. Yes, that is correct.
9 Q. Are they done for additional distributions of the
10 software?
11 A. Yes, that is correct.
12 Q. So it doesn't necessarily mean a new release of the
13 operating system?
14 A. Oh, absolutely not. There are all kinds of
15 ancillary products that would end up being on one of these
16 supplement licensing forms.
17 Q. So did NCR's rights to make use of prior software
18 products as set forth in this UnixWare license depend in any
19 way on the fact there were 112 prior supplements?
20 A. Absolutely not.
21 Q. Your answer?
22 A. Absolutely not.
23 MR. SINGER: Nothing further.
24 THE COURT: Thank you.
25 Anything else, Mr. Jacobs?

418

1 MR. JACOBS: No, Your Honor.
2 THE COURT: I assume this witness may be excused?
3 MR. SINGER: He may.
4 THE COURT: You may be excused.
5 We'll be in recess now until 3 o'clock when you'll
6 be back to argue the motions.
7 MR. JACOBS: Great.
8 MR. SINGER: Can we leave everything as it is, Your
9 Honor?
10 THE COURT: Sure.
11 (Whereupon, the trial proceedings were concluded.)
12 * * * * *
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1 STATE OF UTAH )
2 ) ss.
3 COUNTY OF SALT LAKE )
4 I, KELLY BROWN HICKEN, do hereby certify that I am
5 a certified court reporter for the State of Utah;
6 That as such reporter, I attended the hearing of
7 the foregoing matter on April 30, 2008, and thereat reported
8 in Stenotype all of the testimony and proceedings had, and
9 caused said notes to be transcribed into typewriting; and the
10 foregoing pages number from 207 through 280 and 355 through
11 constitute a full, true and correct report of the same.
12 That I am not of kin to any of the parties and have
13 no interest in the outcome of the matter;
14 And hereby set my hand and seal, this ____ day of
15 _________ 2008.
16
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20 ______________________________________
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