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IBM Letter to SCO - Exhibit A to Memorandum in Support of 1st Motion to Compel
Tuesday, December 30 2003 @ 10:55 PM EST

Whew. There has been such intensive motion practice in the SCO story, even my titles are getting complex.

Here, as promised, is the first exhibit, Exhibit A, attached to IBM's Memorandum in Support of its first motion to compel discovery. Again, this is history, but it certainly will come up again at trial, so it's good to have it in our archives. This is part of the record Judge Wells had in front of her that helped her to pretty much decide this motion in IBM's favor before she entered the courtroom on December 5, although she gave SCO a chance to change her mind. They were unable to do so.

It is a letter from IBM to Darl McBride, and it falls in the "hope springs eternal" bucket, asking as it does back in April for SCO to tell IBM what their "crime" supposedly is. Or, it's an example of IBM getting a few legal points covered and on the table for future use. You decide. For example, you might notice that they point out that under the contract, they were to be given a certain number of days' notice of any breach and an opportunity to cure:

"As you acknowledge in your letter to Mr. Palmisano, the provisions to which you refer would entitle IBM to a period of no less than 100 days, from proper notice, in which to cure any alleged breach. Although your letter and the lawsuit filed by Caldera Systems, Inc. (without notice to IBM) state that IBM has breached the Agreements and otherwise violated the law, they do not specify IBM's alleged misconduct."

See how much they managed to stuff into two little sentences, including SCO's "acknowledgement" in their previous letter that IBM was supposed to get such notice? Then they carefully itemize everything they believe SCO should have put in their notice. The one they say they didn't get. Did you think this was "just" a letter? More like "en garde". Or like the Princess Bride's: "My name is Inigo Montoya and you killed my father. Prepare to die."

Never acknowledge anything to an IBM attorney. They will use it. That's my advice. But, hey, what do I know? I'm just a paralegal.

I don't think SCO listens to me, anyhow. They flunked utterly all my helpful GPL Summer School classes.

Thanks to Frank, once again, for trucking to the court to pick up paper documents and making them available in digital form and to Henrik, for transcribing as text.

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

April 2, 2003

VIA AIRBORNE EXPRESS

Mr. Darl McBride
President and Chief Executive Officer
SCO
[address]

Re:

Software Agreement Number Soft-00015
Sublicensing Agreement Number Sub-00015A
Substitution Agreement Number XFER-00015B
Letter Agreement dated February 1, 1985
Amendment X dated October 16, 1996

Dear Mr. McBride:

This responds to your letter of March 6, 2003, to Sam Palmisano.

Contrary to your assertions, IBM does not believe that it has breached any of its obligations to SCO, either under the agreements to which you refer (the "Agreements") or under applicable law. Moreover, IBM does not believe that the license rights granted under the agreements are terminable.

I write to ask that you inform IBM specifically what SCO contends IBM has done in violation of its obligations to SCO, and what you contend IBM should do to cure such violations. As you acknowledge in your letter to Mr. Palmisano, the provisions to which you refer would entitle IBM to a period of no less than 100 days, from proper notice, in which to cure any alleged breach.

Although your letter and the lawsuit filed by Caldera Systems, Inc. (without notice to IBM) state that IBM has breached the Agreements and otherwise violated the law, they do not specify IBM's alleged misconduct. Please advise me as soon as possible of the specific acts or omissions by IBM that you allege constitute a breach of the Agreements. In particular, please specify:

(1) any products, code, files, trade secrets and/or confidential information that SCO believes IBM has improperly used, transferred, disposed of or disclosed;
(2) the ways and specific instances in which you allege IBM has improperly used, transferred, disposed of or disclosed any products, code, files, trade secrets and/or confidential information; and
(3) the steps that SCO believes IBM is required to take to cure the alleged breaches and injuries about which SCO complains.

Sincerely,

[signature]
Ronald A. Lauderdale
Vice President and Assistant General Counsel

Copy to:
Evan R. Chesler, Esq.
David Boies, Esq.

  


IBM Letter to SCO - Exhibit A to Memorandum in Support of 1st Motion to Compel | 207 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
prepare to die
Authored by: emebit on Wednesday, December 31 2003 @ 12:06 AM EST
    [L]ike the Princess Bride's: "My name is Inigo Montoya and you killed my father. Prepare to die."

Or...

My name is International Business Machines and you attacked Linux. Prepare to die.

[ Reply to This | # ]

IBM Letter to SCO - Exhibit A to Memorandum in Support of 1st Motion to Compel
Authored by: Anonymous on Wednesday, December 31 2003 @ 12:40 AM EST
Hmmmm... if the IBM / SCO agreement required specific notification to IBM with
a 100 day window to remedy any such "IP abuse," didn't SCO just
violate said agreement themselves? This being the same agreement that they're
claiming IBM violated?

After having just typed the three letters S, C, and O together in that sequence
makes me want to go wash my hands. Excuse me while I do so...

[ Reply to This | # ]

groklaw life support
Authored by: Anonymous on Wednesday, December 31 2003 @ 12:42 AM EST
Could January 11th possibly come any slower...

[ Reply to This | # ]

Nice
Authored by: JMonroy on Wednesday, December 31 2003 @ 01:06 AM EST
Good to be back and reading GROKLAW after a nasty bout of food poisoning that lasted my entire vacation. The next time I go on vacation, I think I'll stick to Tang and peanut-butter and jelly sandwiches. (I only mention this because of my father almost died from the same thing 1 year ago exactly - be careful what you eat folks!)

Anyhow, to me this letter seems tailored for what I would describe as a "lure and trap." The IBM lawyers had some future intent with this letter. That intent was clearly defined at the disastrous "Kevin" court hearing where nothing requested was turned over. This letter to McBride clearly shows IBM's intent to work with SCO, their accuser, while at the same time SCO was NOT willing to work with IBM, the accused.

Now while I would love to call SCO inept in it's dealings with IBM, this could in fact be something they planned on happening. I would even suggest that they knew they were going to lose at the first hearing, using it as an opportunity to prolong the court case (as we now know McBride has been wanting) and keep SCOX artificially high. I would love to know if the SEC is even paying attention to these slugs.

[ Reply to This | # ]

Hey, PJ! SCO WAS Listening to You
Authored by: DaveAtFraud on Wednesday, December 31 2003 @ 01:13 AM EST
Never acknowledge anything to an IBM attorney. They will use it. That's my advice. But, hey, what do I know? I'm just a paralegal.

It seems like SCO WAS listening to your advice when they filed the lawsuit. They told IBM, "We're suing you over breach of contract, disclosure of trade secrets, and various high crimes and misdemeanors that we'll invent during discovery but we're not going to tell you what or when or how or who or how to fix it because you will use it against us. Now kindly confess your crimes and then pay us $3B for our trouble."

---
Quietly implementing RFC 1925 wherever I go.

[ Reply to This | # ]

IBM Letter to SCO - Exhibit A to Memorandum in Support of 1st Motion to Compel
Authored by: Anonymous on Wednesday, December 31 2003 @ 02:42 AM EST
I always thought that the "Microsoft paid them to do it" claim was a
little far fetched.
Sure Redmond would be delighted to help with anything that harmed Linux but
still.....
Now I think it's true.
SCO was paid to fight a proxy war.
They never had any hope that IBM would buy them out and no lawyer with any sense
would have recommended this ( that means you Kevin ).
I still don't understand why Boise et al would be involved in this ( well,
money ) or how the RBC got sucked in except as horrible examples of bad
judgement.
"Prepare to die" is what that letter says.

[ Reply to This | # ]

Pick me! Pick me! ;-)
Authored by: OK on Wednesday, December 31 2003 @ 04:07 AM EST
3) the steps that SCO believes IBM is required to take to cure the alleged breaches and injuries about which SCO complains

I can answer that! In a deep and very important voice: "IBM is required to roll over and pay a hefty sum of money to SCO, in addition to IBM start supporting SCO's claim about its perpetual and constitutional right to receive royalty from any Linux installation in the world."

[ Reply to This | # ]

OT, but nice to read
Authored by: nvanevski on Wednesday, December 31 2003 @ 04:34 AM EST
Ok, I known this is completely OT - Sorry PJ - but just had to post it : the Inquirer article (there is also a link on LinuxToday) on yet another reason why MS supports SCO on this (both financially and morally).

[ Reply to This | # ]

The tiger cleans and polishes its claws...
Authored by: jaydee on Wednesday, December 31 2003 @ 05:15 AM EST
Not much to add to what has been said really. But, Darl, if your going to go tiger hunting, take an elephant and and high velocity rifle, not a poodle and a peashooter.

----------------------------------

"I don't think SCO listens to me, anyhow. They flunked utterly all my helpful GPL Summer School classes."

Did you ever hear the story about the drunk looking for his keys under streetlight. A passer by stops to help and askes where he dropped his keys. The drunk points down a dark alley and says "I dropped them down there, but the lights better over here" .

[ Reply to This | # ]

OT: Tim Berners-Lee to be Knighted
Authored by: jaydee on Wednesday, December 31 2003 @ 05:25 AM EST
I just spotted this on Web user via google.

http://www.web-user.co.uk/news/news.php?id=47501

"I accept this as an endorsement of the spirit of the web; of building it in a decentralized way; of making best efforts to keep it open and fair; and of ensuring its fundamental technologies are available to all for broad use and innovation, and without having to pay licensing fees."

[ Reply to This | # ]

IBM Letter to SCO - Exhibit A to Memorandum in Support of 1st Motion to Compel
Authored by: PeteS on Wednesday, December 31 2003 @ 05:28 AM EST
So as this is part of the agreement (or contract)

As you acknowledge in your letter to Mr. Palmisano, the provisions to which you refer would entitle IBM to a period of no less than 100 days, from proper notice, in which to cure any alleged breach.

As SCO did not give IBM the requisite notice and 100 days to cure the alleged breach(es) of contract, does that not mean that SCO breached the contract itself by suing IBM without notice?

Of course, that may be one of the complaints in the countersuit. There were so many.....

---
Artificial Intelligence is no match for natural stupidity

[ Reply to This | # ]

Not Curable
Authored by: Andrew on Wednesday, December 31 2003 @ 07:23 AM EST
SCO will undoubtedly argue that the breaches it alleges IBM committed are not
curable. Some things (like revealing a secret, or breaking an egg) just can't
be undone.

As I understand it, that is essentially their argument against the requirement
to mitigate damages from copyright infringement, although I doubt that one is
likely to stand up quite so well.

[ Reply to This | # ]

PJ--You *ARE* Taking New Year's Day Off, Aren't You?
Authored by: Weeble on Wednesday, December 31 2003 @ 10:16 AM EST
I consider this message extremely on-topic.

This may all get wilder and woolier before it's over (and probably will), so
take care of yourself so you have a clear mind to deal with this stuff. Read Tom
Yager's article "Setting up the conditions for a quiet mind" at
http://www.infoworld.com/article/03/12/12/49OPcurve_1.htm .
And if you get InfoWorld, read Randall Newton's reply on p. 7 of the 12/22/03
issue.

Not only do we care about you as a person, but we want your brain clear so that
you can continue the great service that you are doing here at Groklaw at your
peak.

So turn the computer off tomorrow (maybe two days), get out and enjoy this world
God created. It'll clear the cobwebs better than anything I can think of. We
won't die or go away, and you'll be better for it.

As they say, "Just Do It."


---
"Every time I think I've heard it all from SCO, they come
up with a new howler." Steven Vaughan-Nichols, eWeek

[ Reply to This | # ]

IBM Letter to SCO - Exhibit A to Memorandum in Support of 1st Motion to Compel
Authored by: Andrew on Wednesday, December 31 2003 @ 10:38 AM EST
*sigh* No. The fact that SCO is being compelled, rightly, to specify what files
etc. their complaint specifically applies to has nothing whatever to do with the
quite limited point I am making.

My point is simply that they have a reasonable case to argue that <b>if
their complaint is upheld</b>, it cannot be cured by IBM undoing what it
has done. That would leave them with a remedy in damages, and possibly some
injunctive relief.

Also note that I didn't mention trade secrets at all. It is quite conceivable
that IBM had a broader obligation to keep certain things secret than simply
trade secrets. It depends on how the contract is interpreted by the court.

None of this is actually likely to affect Linux at all. But it might affect IBM.

[ Reply to This | # ]

OT: Parallel case to include IBM
Authored by: lnx4me on Wednesday, December 31 2003 @ 11:10 AM EST
Oops, posted in wrong area, sorry...
An interesting parallel with some of the same players is posted here

    Rambus seems to show more promise than SCO does of winning its court case and garnering license fees from other technology companies. And Rambus also has a pipeline of upcoming technologies that aren't even being factored into the company's earnings or sales projections.
Apparently SCO's not the only game in town...

Wishes for a Happy and Successful New Year to all, especially PJ and her helpers who help reduce court documents to their essence, something a "legalese-challenged" reader can (mostly) understand.
Bob
IANAL, etc. etc.

[ Reply to This | # ]

  • Two points - Authored by: Anonymous on Wednesday, December 31 2003 @ 01:57 PM EST
What MS Got
Authored by: maco on Wednesday, December 31 2003 @ 11:18 AM EST
Didn't Caldera agree to destroy all document from their MS lawsuit? That alone
would pay MS's entry into the club.

[ Reply to This | # ]

  • What MS Got - Authored by: Anonymous on Wednesday, December 31 2003 @ 12:22 PM EST
IBM Letter to SCO - Exhibit A to Memorandum in Support of 1st Motion to Compel
Authored by: Anonymous on Wednesday, December 31 2003 @ 11:30 AM EST

Its become patently obvious that this entire lawsuit soap opera was carefully
planned ages ago, and it is succeeding in its primary aims. From the point
SCOG's stock became worthless, and the spreadsheet numbers were projected ahead
to reveal that SCOG was essentially dead no matter what, this project became a
no risk proposition. There is no case, there never was; the whole point of the
"lawsuit" was to waltz up to the biggest IP giant on the block and
slap them in the face, simply to get the largest shock value and the highest
possible media exposure. They *know* IBM will kill them, they also know how long
it will take this glacier to move down the valley. The attack on Linux (outside
the courtroom) is a simple red cape waved to enrage the zealous bulls in the
tech area, and provide a venue to disburse pearls of FUD *seemingly* supportive
of the bogus claims, the details of which will zoom safely over the heads of
investor-types. They will see this as a suits vs. bearded freaks issue and
choose who is making the credible claims based on that alone, and some will
invest cash accordingly. The stock is held in a way that lends itself to easy
manipulation, and they can sell THIS proposition to *outside investors who think
they are inside*, who are investing as a way to make money on the transitory
stock prices, NOT the value of SCOG as a going concern with any hope of a big
recovery. The GAME is to sustain the illusion of the stock value (created by all
the hubbubb and wild claims) long enough to pass the stock holdings from the
real insiders to the dufus outsiders, before the whole theatre folds. The method
used to carefully milk the stock prices without precipitating a sell-off is the
only portion of this drama that will require real skill, and every single day
that goes by with more stock cashed out is a complete WIN, even if there is a
good amount left on the table when the shoe drops. The Big Name Lawyer is on the
payroll to keep the Real Insiders out of prison, and encumber any assets left on
the corpse of the dead company to proxies of the principle players and the
!insider investors, he's the Elihu Root telling them HOW to do what they WANT
to do, working completely behind the scenes. The courtroom end is being handled
by a sock puppet wearing clown hair, as any money or effort spent there is a
hopeless waste of resources; maximizing the time taken for the procedural flow
is the only point of even showing up in court. The ball is rolling, now all they
need is a voice (any voice) in the courtroom saying "yeah yeah whatever,
can we have more time". There is no point in getting all hung up in the
hedgerow country of the details of ANY of SCOG's infringement FUD. If you want
to play the "you attacked Linux, prepare to die" card, the only
target of any consequence is the balancing act of the stock prices. The wind of
truth from a butterfly's wing can tip that one over the precipice, under the
right conditions.

[ Reply to This | # ]

IBM Letter to SCO - Exhibit A to Memorandum in Support of 1st Motion to Compel
Authored by: Anonymous on Wednesday, December 31 2003 @ 11:34 AM EST
New interview with PJ on href="http://www.linuxplanet.com/linuxplanet/interviews/5176/1/"> Linux
Planet>/a>

[ Reply to This | # ]

completely OT: Thanks PJ. Great Interview!
Authored by: Jadeclaw on Wednesday, December 31 2003 @ 11:45 AM EST
And of course the best to you and everyone else here for 2004.
And now the link:
http://www.linuxplanet.com/linuxplanet/interviews/5176/1/



---
---------------------------
include('IANAL.php');
---------------------------

[ Reply to This | # ]

OT: Was Caldera working with IBM?
Authored by: Sunny Penguin on Wednesday, December 31 2003 @ 11:48 AM EST
Ever ?
This link has me confused, is this another "look at the monkey"?
McBride claims IBM worked with Caldera on Project Monkeyray.
(Dec 23 2003 article)
http://biz.yahoo.com/ibd/031223/tech01_1.html

Could Darl be from a parallel universe? or am I?
In my reality Old-SCO worked with IBM, Caldera bought some rights to Unixware,
then Old SCO became Tarantula and Caldera became The SCO Group.
Am I wrong?
I should never read McBride quotes after watching The Twilight Zone.

---
Norman

[ Reply to This | # ]

Maybe a little OT but..
Authored by: koa on Wednesday, December 31 2003 @ 01:00 PM EST
Cound anyone refresh my memory as to what day SCO was supposed to hand over the
discovery materials to IBM?

Since the judge ordered on Dec 5, however, I vaguely remember I heard something
like it was 30 days from something IBM had to submit.

I'm just curious..... I need something to look forward to in the short term.
heh.

---
...move along...nothing to see here...

[ Reply to This | # ]

OT: We got one of SCOG's DMCA letters yesterday
Authored by: AHGrayLensman on Wednesday, December 31 2003 @ 01:20 PM EST
I work for a state-funded research lab that at one time had a Cray UNICOS source
license. Apparently that included us being listed as a AT&T UNIX licensee
-- that's the only way I can figure out how SCOG got our name. Anyway,
yesterday we received the same letter than Linus picked apart last week, with
the DMCA threats and the list of header files. To think they're trying to
claim they own anything that conforms to the SVID spec...
<p>
I'd find the whole thing funny if it weren't so infuriating.


---

"You are finite, Zathras is finite, this... is wrong tool. No, not good,
never use this!" --Zathras, "War Without End (pt. 2)", Babylon 5

[ Reply to This | # ]

Tooting Groklaw's Horn awesome interview
Authored by: brenda banks on Wednesday, December 31 2003 @ 01:34 PM EST
http://www.linuxplanet.com/linuxplanet/interviews/5176/1/
Way To Go PJ


---
br3n

[ Reply to This | # ]

IBM Letter to SCO - Exhibit A to Memorandum in Support of 1st Motion to Compel
Authored by: Anonymous on Wednesday, December 31 2003 @ 02:47 PM EST
This is off-topic, but:
Since I found groklaw, it has been a joy reading your articles. I whish you a
happy new year, keep up the good work, and let's all hope you will have
something to report after SCO has died, which would really make 2004 worth my
while...

Greetings from Germany!

[ Reply to This | # ]

OT: SCO celebrates 20th anniv. of dumb lawsuit with re-enactment!
Authored by: Anonymous on Wednesday, December 31 2003 @ 04:34 PM EST
It had totally slipped my mind, but I knew that as SCO gradually trotted out more and more rediculous claims and took to bullying the consumers, I'd stepped into The Twilight Zone. The only problem was that I couldn't remember the other half of my deja-vu.

By accident, I found the parallel while reading a series of articles on the 25 Dumbest Moments in Gaming. The case was MCA Universal v. Nintendo of America (c.1983/4?), where MCA sued Nintendo with the claim that the video game franchise Donkey Kong was a violation of MCA's rights to the "King Kong" properties.

Shamelessly copy-and-pasted from GameSp y

Donkey Kong was the early hit that cemented Nintendo's position in the video-game business, and the cash cow that sustained the fledgling Nintendo of America. The game became an outright phenomenon, and Nintendo signed deals for everything from board games to lunch boxes to a cartoon show. More importantly, it sold the rights to make various console and computer ports. With over 60,000 Donkey Kong machines produced, and all of the income from the various licensing deals, Nintendo was flying high.

Until, that is, Nintendo's Japanese office received a telex from MCA Universal stating that the company had 48 hours to hand all profits earned from Donkey Kong over to MCA and destroy all unsold Donkey Kong inventory. The reason? MCA alleged that Donkey Kong infringed on Universal Studios' "King Kong" copyright. Never fond of being threatened, NoA met with MCA lawyers, seemingly with the intent of settling. MCA could see no other outcome, but Nintendo was suspicious, and asked for a short delay. It was granted, and the Nintendo legal team went to work digging up everything it could on the "King Kong" property.

A month later, the two sides reconvened. After a civil dinner, Nintendo counsel Howard Lincoln dropped the bomb: They weren't settling. MCA honcho Sid Sheinberg reportedly went ballistic, and the lawsuit was on. Unfortunately for MCA, Nintendo had a very good reason for refraining from a settlement: It had discovered that MCA did not own the "King Kong" copyright! Even more shockingly, in a previous lawsuit MCA Universal had actually gone to pains to prove that the "King Kong" property was public domain!

The writing was on the wall. With such strong evidence on its side, Nintendo pushed for a dismissal, which the judge quickly granted. MCA was ordered to pay $1.8 million in damages to Nintendo and to return the money it had bullied out of other Donkey Kong-affiliated licensees it had drawn into the dispute.

Sound familiar?

[ Reply to This | # ]
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