|
Declaration of IBM's Daniel Frye - as text |
|
Friday, May 28 2004 @ 10:10 PM EDT
|
Here is the Declaration of Daniel Frye, co-founder and present director of IBM's Linux Technology Center. It was attached as an exhibit to IBM's Memorandum in Support of Cross-Motion for Partial Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement. Henrik Grouleff was kind enough to transcribe this for Groklaw.
*********************************
SNELL & WILMER LLP
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorensen (8947)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant,
-against-
INTERNATIONAL BUSINESS MACHINES CORPORATION
Defendant/Counterclaim-Plaintiff
|
DECLARATION OF DANIEL FRYE
Civil No. 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke Wells
|
DECLARATION OF DANIEL FRYE
I, Daniel Frye, declare as follows:
1. I am the co-founder and present director of International Business Machines Corporation's ("IBM") Linux Technology Center ("LTC").
2. This declaration is submitted in connection with the lawsuit brought by SCO against IBM, entitled The SCO Group, Inc. v. International Business Machines Corporation, Civil No. 2:03CV-0294 DAK (D. Utah 2003). I make this
declaration based upon personal knowledge.
3. The LTC is a center of competency and development for IBM in the area of Linux and open source.
4. As director of the LTC, I am responsible for overseeing IBM's Linux technical strategy and participation in the Linux development community. Based upon my duties and responsibilities at IBM, I have personal knowledge of IBM's Linux activities.
5. Like thousands of others, IBM has participated in the development of Linux. In addition to contributing source code to Linux, IBM offers Linux training and support, applications testing, technical advice and a hands-on environment in which to evaluate Linux and Linux-based applications. Version 2.4 of the Linux kernel was released in 2001, and version 2.6 of the Linux kernel was released in 2003. Linux kernel versions 2.2, 2.4, and 2.6 each consist of millions of lines of code.
6. A number of companies distribute Linux. These Linux distributors offer a variety of commercial Linux products, which typically comprise the Linux kernel, the applications that the kernel runs (which, with the kernel, comprise a complete operating system) and whatever else the distributor chooses to combine into an easily installable product.
7. IBM has many Linux-compatible offerings: mainframes and servers that run Linux; memory solutions for Linux environments; a broad range of Linux-compatible software offerings; services that assist companies in deployment of Linux-based computing environments, migration of database applications and data to Linux systems, support for Linux-based cluster computing, server consolidation, and a 24-hour technical engineering support line.
8. In connection with its Linux activities, IBM reproduces Linux and makes Linux available to others, both in developing and providing hardware, software and services for customers, and for other, internal business purposes.
9. Finally, many IBM employees - particularly those who work in the IBM Linux Technology Center - use Linux as their platform for day-to-day business computing, running office productivity applications, developing software (including Linux itself), and exchanging e-mail.
10. I declare under penalty of perjury that the foregoing is true and correct.
Executed: May 18, 2004
Beaverton, Oregon
_____[signature]_____
Daniel Frye
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of May, 2004, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
Kevin P. McBride
[address]
________[signature]_________
|
|
Authored by: Darkside on Saturday, May 29 2004 @ 04:50 AM EDT |
So that PJ can find them.
[ Reply to This | # ]
|
|
Authored by: Darkside on Saturday, May 29 2004 @ 04:52 AM EDT |
So that PJ can find them (instead of the URLs :-) )
[ Reply to This | # ]
|
|
Authored by: Meantux on Saturday, May 29 2004 @ 05:15 AM EDT |
I have read many papers that make Linux looks good, promising and professional,
but I think this declaration tops it all.[ Reply to This | # ]
|
|
Authored by: JeR on Saturday, May 29 2004 @ 06:09 AM EDT |
Put your transcription claims in this thread, please. [ Reply to This | # ]
|
|
Authored by: entre on Saturday, May 29 2004 @ 07:29 AM EDT |
The professionalism and technical style in this declaration, while not appearing
too difficult for the average Windows user, is a great example for all of us to
follow. Two thumbs up for Daniel Frye and IBM this time, and as always to PJ for
shining the light of truth on scox.
[ Reply to This | # ]
|
|
Authored by: darkonc on Saturday, May 29 2004 @ 07:55 AM EDT |
My understanding is that SCO's so-called disclosure of code was done under
non-disclosure. I'd like to see that protection lifted.
The argument that I
would put forward would be that:
- Actual AT&T/SCO code need not be
released.
- Linux code is already public, so there is no secret
there
- Given SCO's public statements, the larger Linux community deserves to
have this infomation.
- the mitigation principle effecively requires that SCO
disclose which Linux code they feel is infringing -- so that the Linux community
has an opportunity to terminate any actual infringement
- fileames and line
numbers of SYSV code do not disclose any protected information
- People who
have rights of access to SYSV code could verify possible infringement without
violating non-disclosure.
How much would it cost to make a motion
requesting that this be opened up to the public? I have no idea as to costs in
US federal court.--- Powerful, committed communication. Touching the jewel
within each person and bringing it to life.. [ Reply to This | # ]
|
|
Authored by: peragrin on Saturday, May 29 2004 @ 07:56 AM EDT |
What's the point of this declaration? In the legal sense with the rest of this
case?
I understands it's points from a world view, and it's a big endorsmant, but does
it have value in the court? i can't imangine IBM doing something that doesn't
have value, but i can't think of what it is.
---
I thought once I was found but it was only a dream.[ Reply to This | # ]
|
|
Authored by: jto on Saturday, May 29 2004 @ 09:40 AM EDT |
IBM does "redistribute" both Red Hat and SUSE Linux on xSeries (Intel),
pSeries (POWER), and some other products (like SurePOS point of sale).
Over
10,000 IBMers uses Linux as their normal desktop, commonly using the IBM Linux
Client for e-business (C4eb) which is based on Red Hat 9 with lots of additional
software and customization. IBM has thousands of production Linux servers
running internally, as well as for customer use. For example, the French Open
web system is running on Linux. See http://www-1.ibm.com
/linux/roland_garros/frenchopen/ for more info.
However, IBM also uses
Linux inside products. For example, the PCIXCC cryptographic coprocessor used in
the z890 and z990 mainframes uses an embedded Linux operating system. See http://www.research
.ibm.com/journal/rd/483/arnold.pdf for more info. The Hardware Management
Console ("system console") on the high-end pSeries (POWER4) servers (p650, p670,
and p690) and the new i5 (POWER5) servers uses Linux as a preloaded and
customized operating system. See http://www-1
.ibm.com/servers/eserver/pseries/lpar/faq_3.html for more
info. --- Regards, JTO [ Reply to This | # ]
|
|
Authored by: Anonymous on Saturday, May 29 2004 @ 09:42 AM EDT |
Yep looks like IBM s going for the kill here. I think IBM is tieing that nuse
with all the rope they have been giving SCO for the last year. With this, I
would bet anyone else distrubuting or using Linux would be in the clear also. [ Reply to This | # ]
|
|
Authored by: coffee17 on Saturday, May 29 2004 @ 09:43 AM EDT |
IBM's 10th counterclaim
(in part)
173. IBM is entitled to a declaratory judgment pursuant
to 28 U. C. 9 2201 that IBM does not infringe, induce the infringement of, or
contribute to the infringement of any SCO copyright through its Linux activities
...
Previously, I'd thought that IBM's activities were
just the source they contributed to linux. However, thru reading this
declaration we see in statement 8 that IBM distributes Linux (even if they don't
have their own distro). In statement 9 we see that IBM is a Linux end
user.
The 10th counterclaim grants an amazing amount with one blow. If
IBM gets it's judgement, anyone else could point to this to show that simply
using Linux does not infringe The SCO Group (TSG)'s SysV copyrights. Anyone
else sued as a distributer could similarly point to show that mere distribution
has been shown not to violate TSG's SysV copyrights.
Of course, that
said TSG has made a point in their AutoZone (AZ) filings of claiming that AZ is
not just a secondary infringer, but also separately infringed itself. And I'm
sure TSG will promptly offer such evidence </sarcasm>.
But this
does mean that simple use and distribution of Linux will be clear for everyone
(as far as TSG is concerned) if this judgement is awarded. [ Reply to This | # ]
|
|
Authored by: Anonymous on Saturday, May 29 2004 @ 11:17 AM EDT |
After re-reading a saved copy of SCO's IP License for Linux users, I am not
surprised that SCO pulled this document from their website--it is never good for
your case to be undermined by your own words and actions.
Regarding the alleged transfer of Unix copyrights in the APA and its amendments,
SCO argues that intentions should prevail over explicit written agreements with
specific written exclusions. However, when SCO wants to license their alleged
IP in Linux, poor Linux users are to be bound by contract instruments in
writing!, granted only "the rights specifically set forth herein", and
"acknowledge that, subject only to the rights specifically granted herein,
all rights, title, and interest in the SCO IP shall remain at all times the
property of SCO" (sound familiar?).
"DEFINITIONS
"Agreement" is the contract between you ("You") and The SCO
Group, Inc. ("SCO"), relating to the rights acquired by You. The
Agreement comprises (i) this document, (ii) any amendments agreed by both You
and SCO in writing and (iii) any additional terms and conditions included in the
COLA.
"...SCO grants You and You accept from SCO, the following limited,
non-exclusive rights. This Agreement does not grant a right to receive any
distribution of software from SCO or any other third party. You are not granted
any other rights except for the rights specifically set forth herein. You
acknowledge that, subject only to the rights specifically granted herein, all
rights, title, and interest in the SCO IP shall remain at all times the property
of SCO."
[ Reply to This | # ]
|
|
Authored by: Khym Chanur on Saturday, May 29 2004 @ 09:44 PM EDT |
How often do you find an affidavit that sound like an ad? I guess that,
considering the circumstances, it's perfectly reasonable to write it like this,
but I still find it a bit strange. --- Give a man a match, and he'll be
warm for a minute, but set him on fire, and he'll be warm for the rest of his
life. (Paraphrased from Terry Pratchett) [ Reply to This | # ]
|
|
Authored by: overshoot on Sunday, May 30 2004 @ 02:35 PM EDT |
I love it. This is about as "in your face" as you can get: IBM is saying that
any cause of action SCOX may have against anyone also applies to
IBM.
"Why wait? Let's settle this here and now, just you and me, mano a
mano Darl!" [ Reply to This | # ]
|
|
|
|
|