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| Segment of Darl's Harvard Speech - Exhibit 5 to IBM's Report on SCO Compliance |
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Tuesday, February 10 2004 @ 10:08 PM EST
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Here is Exhibit 5 to IBM's Report on SCO's Compliance, a portion of Darl McBride's speech at Harvard.
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Rough draft of portion of transcript from Darl McBride's Harvard Speech
ROUGH DRAFT - NOT PROOFREAD BY REPORTER
the product is already out there, inactive
a copy of the Linux 2.6 kernel right here
in my hand, what do you have to lose by
telling people these are exactly the parts
that are infringing. Because as I
understand it, and (inaudible) you guys
refuse to tell me, except in your MBA,
which portions you believe are infringing.
I'm not a lawyer, but I know if someone was
doing something I thought was (inaudible),
I would try and stop it as quickly as
possible.
MR. McBRIDE: Has SCO shown the
code? First of all, SCO owns intellectual
property at System V level, when we said we
licensed in thing 6,000 times, we've
licensed it and people are under very tight
restrictions about not being able to show
that. If we go out and just throw it out
in the public, we are basically violating
our own commitments we have with our
licensees. Now, with respect to code that
we have shown, let's follow the bouncing
ball here for a moment. Last summer we
came out with code that was very clearly
replicated and showed that last August. It
was done under NDA because we didn't want
to violate our own agreements, a number of
people saw it. And s hor tly after that, a
Linux leader, in fact Linus came out and
said that code has been removed from Linux.
We then had some other code tied to it, and
Silicone Graphics came out and said that
was System V base code, it wasn't supposed
to be in there, and we took it out. So
there's two occasions.
Again, SCO said it was in when it
wasn't supposed to be in there, we took it
out. We didn't take it out of the
thousands and m illions of servers running
around the world, so even at that level you
still have an infringement problem. But
they did take it out of future versions.
We then said there is roughly a
million lines of code that tie into
contributions that IBM has made, and that's
subject to litigation that is going on. We
have basically supplied that. In fact,
that is going to be the subject of a
hearing that comes up this Friday in the
Utah courtroom. We supplied them with
ample evidence in terms of where those
infringements came from.
And finally, a month ago we came
out, or December I guess it was, we
published 75 header files that showed up
inside of Linux that tied to not just
intellectual property agreements, but to
the DSD settlement agreement from back in
the '90s. And the settlement agreement
says, what does it says Chris?
MR. SONTAG: It says basically there
is a set of files that has to be removed
from BST, there is a set of files for which
copyright at transactions to AT&T U.S.A.
and effectively SCO had to be placed on
those set of files. And there was another
set of files for which there was no issue.
Those files that had to have the copyright
attribution, portions of those files ended
up in Linux, which is a problem. Which
means they have copyrighted work that was
LEGALINK MANHATTAN [phone]
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| Authored by: Anonymous on Tuesday, February 10 2004 @ 10:27 PM EST |
Darl said "we have basically supplied that" referring to the million
lines of code. And when he said "we supplied them with ample evidence in
terms of where those infringements came from." He must have forgotten to
tell Mark Heise about all that "ample evidence." Because Mr. Heise
said he couldn't provide the evidence until after IBM provided AIX.[ Reply to This | # ]
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| Authored by: kberrien on Tuesday, February 10 2004 @ 10:27 PM EST |
I think this shows how thorough IBM is. Here we have a "minor"
appearance, and IBM uses it within a week or so in court!
Makes you wonder how closely they are watching Darl? If I were Darl, this would
give me the heebies.[ Reply to This | # ]
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- IBM following Darl? Naaaaah. - Authored by: Ed L. on Tuesday, February 10 2004 @ 10:50 PM EST
- Harvard speech - Authored by: Anonymous on Wednesday, February 11 2004 @ 11:32 AM EST
- Harvard speech - Authored by: Anonymous on Wednesday, February 11 2004 @ 11:37 AM EST
- Minor? - Authored by: Anonymous on Friday, February 13 2004 @ 03:07 AM EST
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| Authored by: Anonymous on Tuesday, February 10 2004 @ 10:31 PM EST |
From the transcript:
"MR. MCBRIDE: ... And the settlement agreement says, what does it says
Chris?
MR. SONTAG: It says basically there is a set of files that has to be removed
from BST, there is a set of files for which copyright at transactions to
AT&T U.S.A. and effectively SCO had to be placed on those set of files. And
there was another set of files for which there was no issue..."
Ah. Always a pleasure to watch these boys play Lawyer.
I hope we find out soon wha the judge thinks of it...
[ Reply to This | # ]
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| Authored by: DrPepper on Tuesday, February 10 2004 @ 10:51 PM EST |
| Nice job, keep up the good work. I would just like to add that I think it would
be a good idea to put a link to
this site in the
transcript. It is a article written by Bruce Perens explaining what code Darl is
referring too and why Linus took the code out of the kernel.
p.s PJ you may
need to mirror it, I have a copy of it just in case the site goes down. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 10 2004 @ 11:37 PM EST |
That's the kind of graphics I like. Yeah baby !
[ Reply to This | # ]
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| Authored by: Wol on Wednesday, February 11 2004 @ 03:35 AM EST |
Again, SCO said it was in when it wasn't supposed to be in there, we took
it out. We didn't take it out of the thousands and millions of servers running
around the world, so even at that level you still have an infringement
problem.
Isn't that the broken code that wouldn't even compile? So
how can it be in "thousands and millions of servers
running"?
Cheers,
Wol [ Reply to This | # ]
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| Authored by: Kristoffer on Wednesday, February 11 2004 @ 03:50 AM EST |
This reminds me of all the american detective series we get to watch here in
Europe: Everything you say can and will be used against you in a court of
law.
Guess they are true then! :-)
./ Kristoffer [ Reply to This | # ]
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| Authored by: the_flatlander on Wednesday, February 11 2004 @ 04:21 AM EST |
And there's good old Chris Sontag:
MR. SONTAG: It says basically
there is a set of files that has to be removed from BST, there is a set of files
for which copyright at transactions to AT&T U.S.A. and effectively SCO had
to be placed on those set of files. And there was another set of files for which
there was no issue. Those files that had to have the copyright attribution,
portions of those files ended up in Linux, which is a problem. Which means they
have copyrighted work that was...
Tell me again, Mr. Sontag,
because I keep losing track...Why do you believe that the BSD settlement is
binding on *me*? Moreover, why do you believe that because the file names are
the same that the material within them infringes? And you own Linux because
someone left out copyright *notices*? Did your lawyer tell you this would work?
Or are you just making it up?
The Flatlander
So, they call Jack
Kevorkian Dr. Death. What should we be calling David Boies? Death, Esquire? [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 07:08 AM EST |
<tinhat>
I wonder if SCOX's court gymnastics are trying to discredit the GPL by applying
a similar logic to their license...
1. Any work you do on our code base is a derivative
2. Any derivative has certain conditions (it is ours)
They see the GPL as viral ... and it looks like they are trying to get a ruling
on another 'viral' type of license (theirs) ... that may somehow apply to the
GPL.
Long stretch but any FUD is good FUD
</tinhat>
[ Reply to This | # ]
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| Authored by: phrostie on Wednesday, February 11 2004 @ 07:14 AM EST |
so did they lie in court about not having access to the BSD settlement or did
they lie to the faculty and students of Harvard Law school?
oh, wait this is one of the cases where they only implied that they new what was
in it.
that was close, for a moment i thought TSG was not telling the truth.
---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/cad-linux[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 07:41 AM EST |
Last summer we came out with code that was very clearly replicated and
showed that last August. It was done under NDA because we didn't want to violate
our own agreements, a number of people saw it. And shortly after that, a Linux
leader, in fact Linus came out and said that code has been removed from
Linux.
How insidous is that? They list two statements, and let the
reader assume that the first caused the second. It would be like me saying "I
brushed by teeth this morning. There was a large bomb blast" and having people
assume that I was very dangerous near a toothbrush.
In the particular
example the code had been removed because a better implementation had been
found. The removed code was also traced back and found to be non-infringing.
Reading the statement again - the word "that" is missing at the end. Darl
doesn't even state that the removed code was the code he showed.
If the
showing of code under NDA resulted in that code being removed by Linus - how did
Linus know about the code not being party to the NDA? Surely the quoted
statement must have been deliberately designed to be misleading. [ Reply to This | # ]
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| Authored by: DeadWatch on Wednesday, February 11 2004 @ 08:00 AM EST |
I was listening to the web cast, and they (Darl and Chris) were saying things
and they were making sense, which made me automatically back up and check.
Here's what I found.
Regarding the license agreement...
From the web cast...
"if SCO had been purchased within 2 years" then they would get the
license...
This is from the APA
6.3(c)
(c) Expansion of Seller's Rights Relating to the Licensed Technology upon a
Change of Control. Until two (2) years from the Closing Date, in then event
Buyer has merged with, sold shares representing 50% or more of the voting power
of Buyer to, sold all or substantially all of Buyer's assets to, or engaged
voluntarily in any other change of control transaction with any party identified
by Seller on schedule 6.3(a) hereof, or in the event any party identified by
Seller on Schedule 6.3(a) hereof, shall acquire shares representing 50% or more
of the voting power of Buyer.
This is from the TLA
II(B)
In the event of a Change of Control of SCO, and commencing with the effective
date of such Change of Control, the proviso in subparagraph IIA(2) setting forth
restrictions on the sublicense and/or distribution of Licensed Technology and
modifications thereof shall cease to exist.
So... the license comes from the TLA, not the APA, which means it is NOT under
the 2 year restriction.
The non-compete clause
From the web cast...
"competing with a business that is substantially the same"
This is from the TLA
IIA(2)
subject to paragraphs B and C of this Section II, to sublicense and distribute,
and authorize its customers to sublicense and distribute, such Licensed
Technology and modifications thereof, in source and binary form; provided,
however, that (i) such technology and modifications may be sublicensed and/or
distributed by NOVELL solely as part of a bundled or integrated offering
("Composite Offering"); (ii) such Composite Offering shall not be
directly competitive with core application server offerings of SCO, and (iii)
the Licensed Technology shall not constitute a primary portion of the value of
such Composite Offering. SCO understands and acknowledges that such restrictions
on sublicensing and/or distribution shall not affect any rights specifically
retained by NOVELL under the Asset Purchase Agreement, including but not limited
to rights under Transitional Contracts.
And remember, Change of Control is in reference to the Company, not the
Business. That's the long paragraph people liked to skip from the previous
article...
Nice quote also, from the web cast...
Chris Sontag asks...
"Do you interpret a legal contract uh, in terms of the whole document? Is
that the basis of the contract, is that the whole document, or can you interpret
it based on selectively just a few lines that are uh, you know, of benefit to
you? No, it's the whole contract that matters."
Yes, indeed... the WHOLE contract... not just a few lines that benefit you...
right on Chris.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 09:40 AM EST |
I hate to keep calling SCO & Company a bunch of "liars and thieves"
(IMHO), because it is disparaging to all the fine upstanding liars and thieves
out there. :) [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 01:14 PM EST |
I don't understand IBM's point in bringing this
to the court's attention. Was there a gag order on
Daryl to not talk about this?
Or is it a contempt issue, as if Daryl implied
the court is too stupid to figure this out?
Or maybe they just wanted to decrease SCO's
credibility before the court in a general way?[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 01:25 PM EST |
Information on the Miranda warnings are
available here. They
don't have to be given at the time of arrest, but until they are, anything the
suspect says can't be used in evidence. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 03:44 PM EST |
I don't know if anyone else posted this
http://jolt.law.harvard.edu/p.cgi/speakers.html
kaycee77025@yahoo.com[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 11 2004 @ 10:57 PM EST |
| Last summer we came out with code that was very clearly replicated and showed
that last August. It was done under NDA because we didn't want to violate our
own agreements, a number of people saw it. And s hor tly after that, a Linux
leader, in fact Linus came out and said that code has been removed from Linux.
We then had some other code tied to it, and Silicone Graphics came out and said
that was System V base code, it wasn't supposed to be in there, and we took it
out. So there's two occasions.
Sure looks like it. How come these
points never get any coverage on Groklaw?
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 12 2004 @ 03:42 AM EST |
First of all check out Darls speach at Harvard for yourself, but listen to it
like Darl is Tom Arnold. (I had to think all day of who's voice he had) It's
much easier to stomach like that...
http://jolt.law.harvard.edu/p.cgi/speakers.html
But Darl does make one good point, SCO applies for the copyright, the
copyright office gladly grants them one. Novell files for copyright, copyright
office gladly grants another.... Maybe everyone in the Linux community should
flood the copyright system with applications on existing works and let all these
companies litigate that out.
But it seems to me that is a highly inneficient system, much like the
patent/trademark system. A spaghetti mess!
John[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 12 2004 @ 09:32 AM EST |
they have darl's talk online, I was thinking people didn't know
kaycee77025[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 12 2004 @ 01:05 PM EST |
IBM is a huge company with tons of money. They can afford to hire lots of good
lawyers. It's no surprise that their defense team is very good.[ Reply to This | # ]
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