I'd like to show you one such comparison from the testimony of Darl McBride at both events.
Remember how Darl used a tree metaphor, the graphic of which you can see here, along with his trial testimony, and in describing what it was SCOsource was covering, he told a convoluted tale about UnixWare being both the trunk of the tree and the branches? And he even mentioned there were some leaves in SCOsource too, and that the only way to license UNIX was to license UnixWare:
Q. And in the diagram, the trunk labeled as SCO IP UNIX, that's the core UNIX System V software code; correct? That's what that represents?
Of course, that was all about the money, because if SVRX code was what SCOsource was mainly about, SCO owed Novell some money, and not just for the Sun license. That story was partially successful at trial, and SCOsource for end users like EV1 and you and me was deemed not about licensing code, just immunity from being sued. I think that was an erroneous ruling, but that is what happened.
Q. And the branches on this diagram are derivative works that are based on the core UNIX software code; correct?
Q. And those branches include both SCO UnixWare; correct?
A. SCO -- that is correct. SCO UnixWare is a little bit unique in this diagram in that it serves both as the trunk of the tree and also as a branch.
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.
So UnixWare is unique compared to any of these
other branches in that the core trunk is where the UNIX
intellectual property was held was inside of UnixWare.
Q. Well, isn't it true that when you arrived in
Caldera in late 2002, you realized that the revenues from the
branches UnixWare and OpenServer were, in your words, marching
south and dying off; correct?
A. They were under severe competition from primarily
Linux but also from others. But, yes, they had been going
south for a number of years.
Q. And because the revenues from the branches UnixWare
and OpenServer were marching south and dying off, your
strategy was to focus on maximizing the value of the trunk;
A. In part, that's correct.
Q. And the trunk of the tree is the core SVRX code;
A. We call it different things along the way.
Sometimes we call it SCO UNIX; sometimes we call it System V;
and sometimes we call it SVRX; sometimes we call it UnixWare.
But it's all basically the core IP UNIX.
Q. And that's the core IP that dates back at AT&T?
A. It started at AT&T, but it had evolved dramatically
over the years.
Q. And it was the core UNIX IP that you and Mr. Sontag
and others sought to mine with the SCO source program at SCO
in 2002 through 2004; correct?
A. We sought to take the core UNIX ownership rights
that we had that were primarily embodied in UnixWare and be
able to get more value in the marketplace out of that core
Q. But you don't know, do you, whether all of the code
from the core UNIX IP exists in UnixWare; correct?
A. The core -- no, that's not correct. The core code
of UnixWare is where the older versions of UNIX have been
embodied. It's been that way for years. I worked at Novell,
and it was the case then and it's the case now 15 years later.
Q. But my question is, do you know if every line of
code of the trunk here, do you know if every line of code in
this trunk exists in UnixWare?
A. I know that if you want to license the trunk code,
you'd have to do it through UnixWare.
Q. That wasn't my question. My question was, do you
know if every line of code in the UnixWare, this core trunk
exists in UnixWare?
A. That's my understanding.
Q. Have you ever done any study to determine that?
A. I'm not an engineer. We have some engineers that
will be here in the next couple days. I suppose you could ask
Q. Do you know if anyone's ever done that?
A. Again, that's something you'd have to ask the
engineers. What I do know is that the way the core UNIX
property was licensed -- I worked for Novell for eight years.
I was there when we bought it from AT&T. I was at Novell as
an executive when we sold the UNIX property to SCO. And I
know that when we were at Novell we made a conscious decision
to take the core UNIX code that we bought from AT&T and have
it embodied in UnixWare. It was part of the strategy. And
that strategy has continued on over the years.
Q. And that was UnixWare that existed prior to the
A. It started prior to the APA in UnixWare. It has
continued on that way....
Q. BY MR. ACKER: This is a letter that you wrote to
over 1,000 companies in May of 2003; correct?
Q. And this is a letter written in conjunction with
the SCOsource licensing program; correct?
A. In part.
Q. And in the first sentence you wrote:
SCO holds the rights to the UNIX operating
system originally licensed by AT&T to
approximately 6,000 companies and institutions
worldwide, the UNIX licenses.
Q. And if we could go down to the last two paragraphs,
in the fifth paragraph, you write:
Many Linux contributors were originally UNIX
developers who had access to UNIX source code
distributed by AT&T and were subject to
confidentiality agreements including
confidentiality of the methods and concepts
involved in software design.
And then you continue:
We have evidence that portions of the UNIX
System V software code have been copied into
That's what you told these 1,000
A. That's correct.
Q. And in the last paragraph, you wrote:
As a consequence of UNIX' unrestricted
authoring process, it is not surprising that the
Linux distributors do not warrant the legal
integrity of the Linux code provided to the customers. Therefore, legal liability that may
arise from the Linux development process may also
rest with the end user.
That's what you sold these companies;
A. That's what the general license says.
Q. And the companies were the end users; right?
Q. So what you're telling these companies in May of
2003, is, look, our core intellectual property dating back to
AT&T is in Linux; right?
Q. And you're using Linux; correct?
A. That's correct.
Q. Therefore, you're going to have to take a license
A. I don't see anything in here that says you have to
take a license from us.
Q. You're telling them you should consider whether or
not you should take a license from us; right?
A. You have to show me where that is. I don't see it.
Q. What was the intent for writing the letter other
than to put these companies on notice that you believe that
your core intellectual property was in Linux and they were
using Linux and may be, in your words, legal liability for the
A. I think "notice" is the right word you used there.
That's what we were trying to do is put them on notice. I had met with IBM several months prior to this. And IBM said to me
directly that you cannot come after us because we do not do
Linux distributions. That's between you and an end user. And
because we don't do distributions, you can't sue IBM. That's
one of the things they told us. And, you know, if you read
the general public license, it does say that. It says, a
caveat emptor phrase in the general public phrase that says
you are getting this license for Linux for free, and be aware
if somebody comes after you for intellectual property problems
we're absolved from that. I'm paraphrasing now, but that's
essentially what it says.
Q. But you not only told these 1,000 companies that
our, SCO's, technology is in Linux, and you're using Linux and
you may have liability, you also gave them a specific example
where you initiated legal action in this letter; didn't you?
A. Yes, we did.
Q. Why don't we turn to the second page.
In the first sentence of this paragraph, you wrote:
We believe that Linux infringes our UNIX
intellectual property and other rights.
A. Yes, that's correct.
Q. And there you're talking about the trunk of the
tree, the core UNIX intellectual property; right?
A. I don't believe it says that in there.
Q. But that's what you're referring to; correct?
A. I'm referring to a number of things.
Q. Isn't it true --
A. I'm referring to things that are in the trunk and
I'm referring to things in the branches and things that may
have been in the leaves.
Q. You're referring to all three, the whole tree?
A. There were a lot of things going on. And when you
go into a bookstore and you go to the section in the bookstore
that says, how to program in UNIX. And then you go to the
section that says, how to program in Linux, there's not one.
It's the same thing. It's the same book. It's the same
thing. Linux is a replica of our UNIX, period.
Q. But let me just make this clear. When you wrote:
We believe that Linux infringes our
intellectual property rights.
You were referring in part to the core intellectual
property that existed in the trunk of your tree diagram;
A. As I said earlier, I was referring to all parts of
Q. Including the core in the trunk?
A. Including System V that was embodied in UnixWare
that was in the trunk, that's correct.
So I viewed Darl's meandering answers to mean that there was a follow the pea story -- because SCO used the UNIX code in developing UnixWare, whatever they licensed from that kernel wasn't UNIX anymore, in other words not stuff they had to pay Novell for, but now it was UnixWare, magically transformed, so they didn't have to pay. SCO logic. Under SCO logic, SCO never has to pay Novell. Haven't you noticed that pattern?
Oh, and about that story he told about IBM coming to them in 1998 for the core UNIX and having to get it via UnixWare, that is poppycock. IBM already had a license to the core UNIX source code. They got that beginning in the mid80s, and they used it to develop their own branch, AIX. What they wanted in 1998, for Project Monterey, wasn't that. They had AIX built by then. They wanted something from SCO other than that source code, because they already had it. Project Monterey was about developing "a commercial 64 bit UNIX operating
system for Intel(r) Itanium(tm) processors" in a joint development project, next generation UNIX, if you will. Here's the agreement to do Project Monterey. As you can see, it was a cross license of two branches from the UNIX System V trunk, IBM's AIX and SCO's UnixWare. Both parties had access to the trunk, SVRX, already. That's why IBM didn't ask for the older source code, and why Darl's story was so offensive to me. Just saying. For historians.
Darl told a more straightforward tale at the July 27th bankruptcy hearing, under direct examination by his lawyer, Arthur Spector:
I swear, sometimes I hope that SCO does get the case remanded back to Utah for trial. I'd love to hear him explain the two accounts. At the hearing on July 27th, SCO wanted to incorporate some prior testimony at an earlier hearing, and that resulted in the court asking if anyone had any objections. Note this hilarious exchange:
But that isn't my reason for pointing all of this out. My reason is this: at the July 27th hearing, when describing SCO's prospects for rehabilitation, SCO's lawyer clearly indicated that SCO wishes to resume suing new people over SCOsource, should it prevail in its appeal, followed by prevailing in a jury trial, over who owns the UNIX copyrights.
By the way, did you notice something? Without those core UNIX copyrights, SCO can't sue anybody currently, as it indicates it is relying on the appeal for its hopes. So what was SCOsource really all about? If you answer UnixWare, apply for a job at SCO right away.
The rest of us know better.
Oh, wait. I hear SCO's not currently hiring.