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More Delays Requested by SCO and Martin Pfeffer's Declaration
Tuesday, September 14 2004 @ 06:08 AM EDT

So many documents are showing up in this frantic motion practice SCO and IBM are embroiled in, it's hard to even read them all, let alone write about them. But I think we may summarize them like this: SCO would like more time before it has to walk the plank.

And an old AT&T attorney, Martin Pfeffer, who claims no direct involvement with the IBM contract that I can see in a quick reading of his statement, says some things that don't apply to IBM at all.

I gather SCO would like to bury the judges in documents so they will be forced to grant delays just to be able to read them all in time. If it was confident at all that it could prevail on any of IBM's motions, I believe none of this would be happening. They may well get some delay from this strategic blizzard of paper, unless it annoys the judge as much as it does me, but it won't change the eventual outcome at all, from anything I've seen so far, including the Pfeffer testimony. They're like a condemned man, asking at the last minute for a dish that takes three days to prepare as his last meal. Even if his request is granted, he's still going to die. So, if they do get a delay, don't be amazed. They've certainly worked hard enough for one, and the judge may not know them as well as we do. A lot depends on understanding the tech. If the judge gets it, it helps to see through what would other wise sound plausible.

It's kind of like at the beginning. Remember how the media would print every bit of SCO's outrageous claims, as if they were received from heaven on stone? We knew what SCO was saying about Linux would not prove true, didn't we? And how did we know? Because some of us understood the tech and we all understood the GPL. Do you see the media still eating up SCO's every claim? No. They got educated. It's the same in the court cases. It may take time, and it can prove frustrating if you like instant results. But it is an inexorable process, and it will happen with the judges, just as it did with the journalists. And they can take their time, I reckon, getting up to speed, what with all the delays SCO keeps asking for. But judges are not stupid. They will see the SCO pattern, if they don't already. How many delays can SCO ask for before they see what is happening? I don't know. But they will see it eventually, without a doubt. It's also true that many judges tend to bend over backward to be fair to the side they know is going to lose. Really. So, if they get more delay, they get more delay, but the process is moving forward like a tank.

It's all SCO here, except for IBM's normal reply memorandum on the motion to strike and one request -- to be allowed to file a response to SCO's Supplemental Memorandum re: Discovery and to Continue Hearing. As you recall, Judge Wells told them that after SCO's filed this document, anything further could only be brought up at the hearing. However, it seems SCO took advantage of that to raise new issues, and IBM asks for time to get declarations in response.

Here they all are. Read them and weep. I feel like crying just looking at them all, thinking about transcribing and doing all this HTML. If you can help, please do, leaving a comment on which one you are working on, so we don't overlap:

#272 - SCO's ex parte motion for leave to file overlength memorandum re: SCO's Opposition to IBM's Motion to Strike Materials

#273 - SCO's Supplemental Declaration of Christopher Sontag in Support of SCO's Oppositon to IBM's Motion to Strike

#274 - SCO's Supplemental Declaration of Sandeep Gupta re SCO's Opposition to IBM's Motion to Strike

#275 - SCO's Supplemental Declaration of John Harrop in Support of SCO's Opposition to IBM's Motion to Strike

#276 - IBM's [redacted] Reply to response to [212] Motion to Strike the 7/12/2004 Declaration of Christopher Sontag

#277 - SCO's Motion to extend time to file response to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims and IBM's Motion for Partial Summary Judgment on it's Counterclaim for Copyright Infringement (Eighth Counterclaim)

#278 - Declaration of Martin Pfeffer

#279 - SCO's Memorandum in Support of [277] Motion to Extend Time to File Response to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims and IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (Eighth Counterclaim)

#281 - SCO's Expedited Motion to Enforce the Court's Amended Scheduling Order Dated June 10, 2004

#282 - SCO's ex parte motion for leave to file overlength memorandum in Support of [281] SCO's Expedited Motion to Enforce Scheduling Order

#283 - IBM's ex parte motion for leave to file a Response to SCO's Supplemental Memorandum re: Discovery and to Continue Hearing Date

Getting back to Pfeffer, he says this:

".. I know that this language [in 2.01] set forth the parties' intent and agreement that the 'SOFTWARE PRODUCT' licensed and protected under the terms of the license agreements included the full content of all of the 'resulting materials' created over time from the licensees' exercise of their contractual 'right to modify' and 'to preparte derivative works' based on the original licensed material, including the UNIX source code and all of the proprietary information reflected or embodied therein. Accordingly, under Section 2.01, if a licensee created a modification or derivative work based on the original licensed product, then the agreement treated the 'resulting' work as if it had been part of the original SOFTWARE PRODUCT, and any further modifications or derivatives of that 'resulting' work would be treated in the same manner."[emphasis added]

The code SCO is complaining about IBM putting into Linux isn't "based on the original licensed product", which is why, as IBM pointed out, SCO advertised the presence of such high-end code as being IBM's code in their Linux product. Everything else Pfeffer says is subject to this same flaw. Nobody is arguing about whether code that contains System V code in it would be subject to control. But SCO is claiming any code that ever touched its code, like some kind of black hole that sucks in anything that floats near. Here is how IBM described SCO's unreasonable claims in its Redacted Memorandum in Support of IBM's Motion for Partial Summary Judgment on Breach of Contract Claims:

"SCO's interpretation of the Software Agreements in this case would plainly produce an absurd and commercially unreasonable result. As set forth above (at ¶¶ 62-63), under SCO's interpretation of the Software Agreements, SCO has the right to control every single one of the tens of millions of lines of code that have ever been put into (and that will ever be put into) AIX or Dynix by IBM. This interpretation would allow SCO to co-opt decades of IBM's work in developing and improving AIX and Dynix—by continually adding new capabilities and functionalities—simply because those programs contain, or even once contained, some source code, no matter how negligible, from UNIX System V. SCO's interpretation would also mean that SCO has the right to control code that was written by third parties and licensed to IBM, even if such third parties have no relationship at all with SCO. According to SCO, just because a third party licenses code—that it expended its own resources developing—to IBM, and IBM includes such code in AIX or Dynix, SCO gets to dictate forever after the use and disclosure of that third party's code by IBM. That is plainly unreasonable.

"Indeed, under SCO's theory, it has the right to control the work of the hundreds of UNIX System V licensees who at any time used some source code from UNIX System V in one of its own computer programs. This would mean that SCO has the right to control, for example, all of the source code for all of the different functionalities in Hewlett Packard's HP-UX operating system and SGI's IRIX operating system, among others.

"The absurdity of SCO's interpretation of the contract is exposed by SCO's very own analogy set forth above (at ¶¶ 125-26): SCO claims to have acquired the rights to the computer program UNIX System V, represented here as A-B-C-D-E-F. Assume that IBM has written a program, such as AIX or Dynix, which contains tens of millions of lines of source code, including certain lines from UNIX System V (less than a hundred thousand according to SCO), A-B-C, but also includes the new source code G-H-I-J-K-L-M-N-O-P-Q-R-S-T-U-V-W-X-Y-Z written by or for IBM. Under SCO's interpretation of the software agreements, because the A-B- C code is present in IBM's program, which (SCO says) might be considered a modification or a derivative work of UNIX System V (because it contains some small percentage (less than 1%). of UNIX System V code), IBM is prohibited from using its own source code G-H-I-J-K-L-M-N-O- P-Q-R-S-T-U-V-W-X-Y-Z (which is tens of millions of lines of code) in other programs. That is true, according to SCO, even if, for example, the M-N-0 code was written by a third party and licensed to IBM for whatever uses IBM sees fit. This is not consistent with the plain language of the IBM and Sequent Software Agreements and is entirely unreasonable. Since the G-H-I-J-K-L- M-N-O-P-Q-R-S-T-U-V-W-X-Y-Z code does not include any A-B-C code, IBM (and others like it that also licensed the A-B-C code) should not be restricted from using and disclosing its own code as it chooses.

"For a more concrete example, consider the following. The Encyclopedia Brittanica Company writes and publishes a multi-volume encyclopedia, consisting of thousands of entries and lines of text, that is issued in a different edition annually, i.e., as 'Encyclopedia Brittanica 1985'. Assume that another company, the New Encyclopedia Company, copies certain of the entries from Encyclopedia Brittanica 1985 under a license similar to the ones IBM and Sequent entered into with AT&T—for example all the entries starting with the letters A, B and C—and incorporates those entries into its own multi-volume encyclopedia, 'New Encyclopedia 1986'. Under SCO's interpretation of the licenses, the Encyclopedia Brittanica Company has the right to control not just the New Encyclopedia Company's use and disclosure of the entries copied from Encyclopedia Brittanica 1985, but all of the entries in the New Encyclopedia 1986, even the thousands of entries written by the New Encyclopedia Company's own employees starting with the letters D through Z, and even if those entries had been written before New Encyclopedia Company copied any entries from Encyclopedia Brittanica. Moreover, as SCO reads the contract, if the New Encyclopedia Company licensed from the Scholastic Encyclopedia Company entries written by that company for the letter Z, the Encyclopedia Brittanica Company would have the right to control those entries also. Indeed, under SCO's interpretation of the licenses, the Encyclopedia Brittanica Company would have the right to control all entries that will ever be included by the New Encyclopedia Company in future versions of the New Encyclopedia, such as New Encyclopedia 1987, New Encyclopedia 2004 or even New Encyclopedia 2085.

"SCO's interpretation of the software agreements is plainly untenable and would, without question, produce an absurd result. It is entirely unreasonable to interpret AT&T's UNIX System V licenses to restrict hundreds of companies, all of whom are SCO's actual or potential competitors in the software industry, from using and disclosing source code that they developed on their own. See Elsky v. Hearst Corp., 648 N.Y.S.2d 592, 593 (N.Y. App. Div. 1996) (holding that contract should not be interpreted to lead to a 'commercially unreasonable restriction').

Pfeffer also testifies that he can't remember IBM ever asking for clarification or new terms. Maybe that's because he wasn't assigned to the IBM account and wasn't involved in the contract negotiations? Here is the AT&T account representative, Steven Vuksanovich, who participated in the negotiation of the IBM Software Agreement on AT&T's behalf:

"As IBM 'was particularly interested in clarifying that it owned the code that it developed, even if it was meshed with UNIX System V', AT&T provided written clarification to IBM in the Side Letter. (Vuksanovich Decl. ¶ 16.)

"This clarification did not, however, represent a substantive change to the standard software agreement. We were only trying to make more clear what we thought our standard software agreement meant in the first place. AT&T never intended to assert ownership or control over IBM's modifications or derivative works, except to the extent of the UNIX System V source code included in such modifications or derivative works."

Pfeffer's testimony is supposed to be enough to present a fact in dispute (and probably to separate Sequent out for the kill). It's up to the judge, of course, but if Pfeffer wasn't directly involved in the negotiations, and everyone who was tells a different story than he does....

One more thing. About those allegedly "conflicting" statements by IBM's witnesses. First, I don't see any real contradictions that matter, but in any case, SCO has made a mistake. The BSDi case was not about Unix System V. Therefore, it seems to me they are comparing apples and oranges. They made what seems to be another mistake -- they admit that the IBM contract is unambiguous. In that case, IBM doesn't need any witnesses to explain the contract, and it's just up to the judge to decide what it means. As for their "mental contamination" assertions, a Groklaw reader found this document, BSDi's Opposition To USL's Motion For Preliminary Injunction, from the BSDi case, which is directly pertinent to any such claim. SCO seems always to forget that USL fared very badly in that case, using the same arguments SCO is trotting out here.

I'll write separately about their GPL arguments, but suffice it to say that if they had attended my GPL Summer School remedial course two summers ago, I'd have given them an F. Maybe I'd have thrown in a character-building lecture on the importance of respecting other people's property, too, and the story about George Washington and the cherry tree.


  


More Delays Requested by SCO and Martin Pfeffer's Declaration | 152 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Doing 272
Authored by: Anonymous Coward on Tuesday, September 14 2004 @ 07:38 AM EDT
# 272 - SCO's ex parte motion for leave to file overlength memorandum re: SCO's
Opposition to IBM's Motion to Strike Materials.

Am at work currently, will e-mail ready work when I get home in about 4 hours
(seeing it's only a 3 pager).

[ Reply to This | # ]

Corrections here please
Authored by: MadScientist on Tuesday, September 14 2004 @ 07:43 AM EDT

[ Reply to This | # ]

The Official Groklaw Troll Section
Authored by: MadScientist on Tuesday, September 14 2004 @ 07:46 AM EDT

[ Reply to This | # ]

Don't forget the OT
Authored by: overshoot on Tuesday, September 14 2004 @ 07:46 AM EDT
What would we do without them?

[ Reply to This | # ]

More Delays Requested by SCO and Martin Pfeffer's Declaration
Authored by: brenda banks on Tuesday, September 14 2004 @ 07:50 AM EDT
< I'll write separately about their GPL arguments, but suffice it to say that
if they had attended my GPL Summer School remedial course two summers ago, I'd
have given them an F. Maybe I'd have thrown in a character-building lecture on
the importance of respecting other people's property, too, and the story about
George Washington and the cherry tree.>

PJ this was priceless
i laughed so hard i about fell out of my chair
if i remember right wasnt there 2 GPL courses
so they have had 2 chances and flunked both.
the character building would also have been hopeless for scox.it would be over
their heads
i am so sick of the delays andi know you keep saying it is slow process but for
us lay people in this technology world that are used to instant answers it is
hard to have patience
/br3n trying hard to sit and twiddle fingers



---
br3n

irc.fdfnet.net #groklaw
Mike "Moogy" Tuxford, 1951-2004. Rest in peace.

[ Reply to This | # ]

More Delays Requested by SCO and Martin Pfeffer's Declaration
Authored by: Anonymous on Tuesday, September 14 2004 @ 07:53 AM EDT
I am currious. If SCO is flooding the court with useless motions and testimony,
can't the court put a freez on an all filing of motions at this point?

In any case, it seems like SCO is no better than the average spamer or script
kitty doing a DoS attack on the court.

L8r,
Frank Sager

[ Reply to This | # ]

Martin Pfeffer's Other Declaration
Authored by: rsteinmetz70112 on Tuesday, September 14 2004 @ 07:53 AM EDT
Martin Pfeffer states that he provided another declaration in this matter only
to IBM. I wonder how it was different?

This declaration seems very carefully worded to stay away from the issue of new
features and new technology. It hardly embraces SCOG assimilation theory of the
license.

I don't think IBM would disagree with it, although it seems not to be on point.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

Transcription coordination section
Authored by: MadScientist on Tuesday, September 14 2004 @ 07:53 AM EDT
There are a lot of documents to transcribe at present. There is a serious risk
of overlap between people and that some documents wont be done.

If you want to do transcription of PDFs please post here. I suggest a new thread
for each document or set of documents stating what you intend to do. If anyone
has a better suggestion please post it.

In this way PJ's mail box wont explode, everyone will have an idea who is doing
what and can exchange mails to coordinate their efforts. Hopefullly this will
free up PJ to do what she does best - commenting on the documents in her own
sytle that we love.

If this section idea catchs on this may become a regular feature like the
"Corrections" section.

[ Reply to This | # ]

AT&T Frasure testimony... is it even relevant?
Authored by: alextangent on Tuesday, September 14 2004 @ 07:54 AM EDT
Question; how is testimony (Frasure) on a licence that is not the subject of
this case, and which is/was presumably a private matter between AT&T and
USL, allowable? And it doesn't address SysV either, from what I can see -- only
32V.

--
An interested bystander

[ Reply to This | # ]

I can't remember
Authored by: the_flatlander on Tuesday, September 14 2004 @ 08:07 AM EDT
PJ wrote:
Pfeffer also testifies that he can't remember IBM ever asking for clarification or new terms. Maybe that's because he wasn't assigned to the IBM account and wasn't involved in the contract negotiations?
lol

Great! So once again, I am qualified to make a declaration for the SCOundrels, since I, too, was not involved in the original negotiations. I have no recollection of any of the things IBM claims to be true of their contract with AT&T.

And though I don't really want to start too many ugly rumors, I feel I must mention that I have no specific recollection of Sam Palmisano not being involved in Jimmy Hoffa's disappearence, and I can not categorically state that he was not on the "grassy knoll" in Dallas, 23 November, 1963, since I have no knowledge of that either.

The Flatlander

Geez, Darl, I hope that helps!

[ Reply to This | # ]

More Truth of Martin Pfeffer's Declaration
Authored by: elderlycynic on Tuesday, September 14 2004 @ 08:50 AM EDT
Well, I can witness that Martin Pfeffer's Declaration corresponds
with what at least many European and some USA customers were told
by A,T&T, as I have posted before.

Many of us regarded those clauses in the same light as IBM do
(i.e. absurd, if taken literally), but were disinclined to take
A,T&T on in court. Also, in the UK, the only way that we could
have got a judgement on their validity was to break them and to
say "sue and be damned".

SCO certainly has a good point that those clauses were, indeed,
intended to restrict what IBM could do with IBM's own code.
IBM probably has a better one that such clauses are, and always
were, void. But Kimball is the judge of that ....

[ Reply to This | # ]

What's the point?
Authored by: Anonymous on Tuesday, September 14 2004 @ 08:54 AM EDT
One has to wonder why SCO continues with the endless delays? I can't see from a
strategic perspective what they hope to gain. Only a handful of institutions
are trading their worthless stock, the media isn't paying attention to them, IBM
has fought this long they certainly aren't going to throw in the towel now,
Linux is busting out all over, their UNIX business is down the crapper, and
there is no reasonable expectation that they will prevail or will collect
damages even if IBM was negligent in some small matter.

Certainly the insiders have sucked most of the value from SCO's carcass by now.
Trading at under four dollars...most of them have to be underwater on their
options. There isn't any reason, with the possible exception of Boise charging
off the cash for legal expenses, for continuing.

It reminds me of the get tough mentality. When getting tough doesn't work, then
obviously we have to get tougher and then act surprised when that doesn't work
either. Staying the course when it's the wrong direction, maybe that's
McBride's twisted vision of leadership. Substitute inflexibility for
intelligence.

[ Reply to This | # ]

More Delays Requested by SCO and Martin Pfeffer's Declaration
Authored by: Anonymous on Tuesday, September 14 2004 @ 08:55 AM EDT
The story about George Washington and the cherry tree
would be very appropriate since it is totally false.

[ Reply to This | # ]

1001 SCO Nights
Authored by: phrostie on Tuesday, September 14 2004 @ 09:16 AM EDT
"They're like a condemned man, asking at the last minute for a dish that
takes three days to prepare as his last meal."

it all makes sences now, they are playing 1001 Arabian Nights. each night the
make up a new story, in an effort to postpone the execution.

---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/snafuu

[ Reply to This | # ]

More Delays Requested by SCO and Martin Pfeffer's Declaration
Authored by: soronlin on Tuesday, September 14 2004 @ 09:32 AM EDT
Pfeffer:
I do not recall any instance during my tenure in which either AT&T or USL agreed (in any licence agreement or supplement or modification thereto) to reduce its protection under a UNIX licence to prevent the unauthorised use or disclosure of only source code.
Side letter:
9. Amend Section 7.06(a) by replacing such section with the following:

--7.06(a) LICENSEE agrees that it shall hold SOFTWARE PRODUCTS subject to this Agreement in confidence for AT&T. LICENSEE further agrees that it shall not make any disclosure of such SOFTWARE PRODUCTS to anyone, except to employees of LICENSEE to whom such disclosure is necessary to the use for which rights are granted hereunder. LICENSEE shall appropriately notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee. Nothing in this agreement shall prevent LICENSEE from developing or marketing products or services employing ideas, concepts, know-how or techniques relating to data processing embodied in SOFTWARE PRODUCTS subject to this Agreement, provided that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into any such product or in connection with any such service and employees of LICENSEE shall not refer to the physical documents and materials comprising SOFTWARE PRODUCTS subject to this Agreement when they are developing any such products or service or providing any such service. If information relating to a SOFTWARE PRODUCT subject to this Agreement at any time becomes available without restriction to the general public by acts not attributable to LICENSEE or its employees, LICENSEE's obligations under this section shall not apply to such information after such time.--

I'd say that's at least pretty close to misdirection.

[ Reply to This | # ]

Martin Pfeffer's Other Declaration
Authored by: rsteinmetz70112 on Tuesday, September 14 2004 @ 09:41 AM EDT
Martin Pfeffer states that he provided another declaration in this matter only
to IBM. I wonder how it was different?

This declaration seems very carefully worded to stay away from the issue of new
features and new technology. It hardly embraces SCOG assimilation theory of the
license.

I don't think IBM would disagree with it, although it seems not to be on point.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

Sandeep Gupta's Declaration (274)
Authored by: jam on Tuesday, September 14 2004 @ 12:44 PM EDT
In documnet 274, where Sandeep Gupta is attempting to justify why his earlier declaration should not be stricken, he mentions his employment history. The part I'm confused about is paragraph 10, which states:

10. I began working for SCO in the United States in 1996, and have worked for SCO ever since.

The question I have is, who was he working for in 1996? Santa Cruz Operations, Caldera, or who? I would normally assume that it was the same company that is now SCO, namely Caldera, but he mentions working on Unixware in 2001-2004. I didn't think that Caldera acquired the Unix assets (whatever they may be) from Santa Cruz until later than that.

Anyway, from his declaration, it just doesn't seem clear.

[ Reply to This | # ]

Why Transcribe? I'd rather have analysis.
Authored by: Anonymous on Tuesday, September 14 2004 @ 01:06 PM EDT
PJ, why bother transcribing all these? They are fine as PDF files. I get little
extra value from text versions. But I get a LOT of extra value when you gives us
your analysis of these various documents. I get somewhat overwhelmed with all
these documents, and I'd rather have you spend your time giving us your take on
them, putting them in context, giving us a fair and balanced view of what's
working and not working for each side, etc. Keep up the good work!

[ Reply to This | # ]

Why follow the SCO-IBM case here?
Authored by: seeRpea on Tuesday, September 14 2004 @ 01:36 PM EDT
Correct me if I am wrong, but isn't this case out of the realm of OSS and
squarely into Contract Law ?
Or has Groklaw changed to being OSS and anything SCO?

[ Reply to This | # ]

Gupta's "Personal Knowledge"
Authored by: Christian on Tuesday, September 14 2004 @ 01:36 PM EDT
I though my brain would explode reading another declaration where SCO redefines "personal knowledge" and expert witness.

Gupta says, "This declaration is based on my personal knowledge." This means he is not acting as an expert (even though there are pages and pages about his programming experience).

On the very first page, he says:

In my July 9 Declaration in Support of SCO's Rule 56(f) Motion, I set forth six instances of Linux code being identical to, or substantially similar to, UNIX code. I set forth these comparisons because they appear to me, based on my direct observation of them, to be examples of copied code.
Gupta offers his opinion that the code is copied, using the legal phrase "substantially similar". Gupta did not see the code being copied, so there is no way he can claim this to be part of his personal knowledge.

There is a better example in ¶21.

In Paragraph 8 of my July Declaration, I state that RCU is a very important part of a modern computer operating system, That statement is based on my years of experience with computer operating systems and my understanding of what operating systems optimally must be able to do.
(Emphasis added.) How could he state more plainly that what he is stating is not personal knowledge. I could pretty much just copy Gupta's entire declaration here and point out that each paragraph is not acceptable.

One more.

In Paragraphs 24-29 and 48-49 of my July 19 Declaration, I present information about the access or potential access to UNIX code that certain persons who worked for IBM and who worked on Linux may have had. This information is based on documents that were compiled by the SCO team and which I read and reviewed for inclusion in my July 9 Declaration.
(Emphasis added.)

[ Reply to This | # ]

SCOG delay and discovery issues.
Authored by: Brian S. on Tuesday, September 14 2004 @ 01:38 PM EDT
Reading this and some of the letters in the following article leads me to
believe that SCOG will persue delay and discovery until the bitter end.

I think they actually "believe" they can find some copied or tainted
code. I think they perceive this as their only hope. It is their only hope. They
want to overturn court precedence on evidence before filing, they want to change
discovery rules, they want to change the way copyright is determined, they want
to change the whole system. They can keep this going for years until the money
runs out. If MJ Wells decides they cannot have more discovery they will continue
to delay, appealing court procedure.

Brian S.

[ Reply to This | # ]

Did I really read that?
Authored by: Anonymous on Tuesday, September 14 2004 @ 01:41 PM EDT
Wow, is it me or does the Supplemental Declaration of Sandeep Gupta really
condense to:

"IBM says I don't know what I'm talking about.

I do so. I have a degree and some work history.

I am not a copyright expert. I don't know what I'm talking about.

Everything I said was based on what I don't know.

I have seen code before. Sometimes my job requires that I look at code.

I have looked at some Linux stuff like RCU. It look like code.

This is my opinion. It's based on my saying so.

I swear it."


If this is all that's required in a court, IBM should give up now because SCO
can and will spew this for infinity.




[ Reply to This | # ]

Transcribing 276
Authored by: minnowshark on Tuesday, September 14 2004 @ 03:44 PM EDT
I'll transcribe 276.

[ Reply to This | # ]

From our allies on Yahoo.
Authored by: Anonymous on Tuesday, September 14 2004 @ 06:18 PM EDT
Interesting Link
Nice one atul666!

[ Reply to This | # ]

Sontag's Supplemental Declaration
Authored by: Anonymous on Tuesday, September 14 2004 @ 10:42 PM EDT
FWIW, I was an engineer at Novell during that time period working on the NetWare
kernel. His 8th statement is almost pure fantasy. Had he included the word
"direct" before "supervision" or "responsability"
it would have been an out and out lie. The chain of command between me to Ray
Noorda was a total of 3 people, and Chris Sontag was most certainly NOT one of
them. Chris was in marketing. Sure, he was the product manager... for the
marketing department. As far as his knowledge of the source control system goes,
I have no doubt he had some knowledge of it because he did not have a product to
market until we committed the code. Most of the rest of his blather about it is
a vastly overblown version of "I asked them to lock the source down and
stop committing so we could ship the product."

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Tracing the timeline - delay begets delay
Authored by: Anonymous on Wednesday, September 15 2004 @ 12:46 AM EDT
IMPORTANT POINT: Please note the second 31 August comment....



13 August: IBM files their 2nd summary judgement motion
16 August: IBM files their 3rd summary judgement motion

Responses are due 13 September and 16 September respectively

(2 weeks pass)

26 August: SCO to IBM - Hatch to Shaughnessy IBM-279-A-1
- Please agree to defer briefing PSJ motions until 11 February 2005, please
respond by 27 August
- We intend to respond under rule 56f

27 August: IBM to SCO - Shaughnessy to Hatch IBM-279-A-2
- No we do not agree to defer PSJ motions until 11 February 2005
- It's your fault you haven't done depositions of contract people
- No depositions are necessary for CC8
- IBM are willing to extend time if you respond on the merits, not 56f
- The hearing is set for 9 December, if you're going to do 56f, why shouldn't
the hearing be mid-October?

31 August: SCO to IBM - Hatch to Shaughnessy IBM-279-A-3
- We're going to ask the court to defer the summary judgement motions until 11
February
- But in any event, please agree to give us an extra 30 days to respond to the
PSJs

31 August: IBM notices depositions to begin September 21st IBM-279B
- IMPORTANT: Notice this does not overlap with the period during which SCO
should have prepared their response to the PSJ motions
- The only reason it overlaps is because SCO have sought an extra 30 days
- IBM would probably *not* even have known of this overlap, given the first time
that SCO asked for an extra 30 days, was on the same day as the notice was
served.


1 September Letter: IBM to SCO -- note SCO did not include this letter as an
exhibit, but we know if exists from IBM-279-A-4

2 September: SCO to IBM - Hatch to Shaughnessy IBM-279-A-4
- IBM apparently refused the extra 30 days requested in IBM-279-A-3
- A rather rude letter

3 September: IBM to SCO - Shaughnessy to Hatch IBM-279-A-5
- Confirming IBM refused the extra 30 days requested in IBM-279-A-3
- "If SCO truly believes that it appropriately may ask the Court to delay
briefing on tese motions to the close of fact discovery, it has had three weeks
within which to do so (and an additional 10 days before the opposition is due),
which should have been more than sufficient."

(5 days pass)

8 September - SCO files two motions
- a request for 30 days more to respond to IBM PSJs (IBM-277-1)
- a request for the PSJs to be delayed until February (IBM-281-1)
- in SCO's motion they complain about the depositions interfering with their
response to the PSJs, but the only only reason there is an overlap at all, is
SCO sought delay to respond to the PSJs


Quatermass
IANAL IMHO etc

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